Mcfadden v. State

• Decision Date: 03 February 2011
• Docket Number: No. 0275 Sept. Term 2009.,0275 Sept. Term 2009.
• Parties: Adrian McFADDEN AND Anthony MILESv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

197 Md.App. 238

13 A.3d 68

Adrian McFADDEN AND Anthony MILES

v.STATE of Maryland.

No. 0275 Sept. Term 2009.

Court of Special Appeals of Maryland.

Feb. 3, 2011.

Michael R. Braudes & Thomas Donnelly (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.Cathleen C. Brockmeyer (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.Panel: WRIGHT, GRAEFF, ARRIE W. DAVIS, (Retired, Specially Assigned), JJ.WRIGHT, J.

This appeal arises out of the shooting death of George Johnson, and the wounding of Avon Ball and Macy Wilson, on July 6, 2007. After a jury trial in the Circuit Court for Baltimore City, the jointly-tried appellants, Adrian McFadden and Anthony Miles, were convicted of the following offenses and sentenced to the terms specified:

McFadden

1) first degree murder of Johnson: life without parole

2) four counts of use of a handgun: 80 years total, consecutive

3) two counts of conspiracy to assault in the first degree: 10 years, consecutive, plus another 10 years, concurrent

4) armed carjacking: 30 years, consecutive

5) two counts of first degree assault: 50 years total, consecutive

6) second degree assault: merged

7) attempted first degree murder of Ball: life, consecutive

Miles

1) two counts of conspiracy to assault in the first degree: 10 years, plus another 10 years, concurrent

2) first degree assault: 25 years, consecutive

3) attempted armed carjacking: 30 years, consecutive

4) second degree assault: merged

This appeal followed.

Questions Presented ¹

1. If preserved, where the voir dire included an objectionable “CSI” question and appellants nonetheless accepted the jury as empaneled, have appellants waived their objection to the question?

2. If preserved, did the trial court properly exercise its discretion when it overruled the Appellants' objections to the prosecutor's opening statement and rebuttal closing argument?

3. To the extent that this issue is properly before this Court, did the trial court properly exercise its discretion when it determined that Appellant Miles's cross-examination of Avon Ball was not relevant?

4. Are appellants entitled to a merger of their separate sentences for two counts of conspiracy to assault?

5. If preserved, was the evidence sufficient to sustain Appellants' convictions for attempted armed carjacking, conspiracy and first degree assault?

6. Did the trial court properly exclude from evidence Avon Ball's prior conviction for assault?

7. Did the trial court properly exercise its discretion when it permitted Avon Ball to testify that he understood Appellants' actions to mean that they intended to take his vehicle?

8. If properly before this Court, did the trial court properly allow into evidence the out-of-court statements of Avon Ball, Shantia Benson, Trezline Burris, and Appellant McFadden?

9. If not waived, did the trial court properly decline to instruct the jury on self-defense and properly limit defense counsel's argument on mutual affray to the charges of assault?

10. Was the trial court's conduct of the trial not plainly erroneous?

We conclude that appellants preserved the first two issues for our review. We answer both in the negative and, thus, reverse the judgments of the circuit court and remand the cases for a new trial.² In light of our reversal based on the first two issues, we decline to address issues three through ten.

Facts

During the trial, Avon Ball testified that, on the evening of July 6, 2007, he was riding as a passenger in a car with his foster brother, George Johnson, and Ball's seven-month-old son. Ball stated that he had just dropped off his six-year-old daughter at Preston and Cary Streets in Baltimore City, and he was on his way to another foster brother's house at 803 North Payson Street, to pick up Johnson's tennis shoes. As they arrived at the 800 block of North Payson Street, Johnson drove past their destination, then backed into an alley to turn around, so that they could approach 803 North Payson from the same side of the street.

Once they turned out of the alley, Ball heard “some commotion,” and Johnson stopped the car. Specifically, Ball stated that he heard appellant Miles “swearing down towards us saying [ ] you almost hit my son.” Ball, however, did not “see a child in the area at that point.” According to Ball, Miles was accompanied by a male and a female.

Ball testified that he exchanged words with Miles for approximately “a minute, minute and a half” before Johnson pulled out of the alley and “parked the car diagonally into 803 [North Payson].” Ball remained in the vehicle with his son, while Johnson “got out of the car, ... and knock[ed] on the door to get his tennis shoes.” While Johnson waited at the front door, Ball observed a group of about five males—including appellants Miles and McFadden—walking in the middle of the street, approaching 803 North Payson. Ball told Johnson “to pay attention because ... the dude ... was coming towards us” but Johnson “just kept knocking on the door.”

Thereafter, three males “jumped” Johnson, and Ball exited the vehicle “to help him out.” Before he could reach Johnson, however, Ball stopped because he saw appellant McFadden pointing a black, six-shot revolver at him. Meanwhile, Miles was standing in the street, yelling: “This is my life, which one of you almost hit my son?”

Ball then asked McFadden: “What's the gun for?” At that time, Johnson came over to Ball's side, and the two of them started “backing up in the middle of the street going towards Lafayette Street” with their hands “up in the air.” Ball informed McFadden that he needed to get to the vehicle because “[his] son's in that car.” Appellants, however, stated that Ball was not getting to that car and “that's our car.”

Eventually, appellants “started to calm down a little bit,” turned around, and began “walking towards where the car was at.” Ball and Johnson walked about 15–20 feet behind them in an attempt to go “back towards the vehicle too.” As they were walking, another heated exchange of words occurred between Johnson, Miles, and other individuals present. Appellants then turned back around towards Ball and Johnson. According to Ball, Miles “took off his shirt and ... start[ed] coming toward us” while McFadden “started shooting.”

Ball began running and heard about six shots fired. He was struck by two bullets before he rounded the corner at North Payson and Lafayette Streets. One bullet went through his abdomen and another grazed his side. When Ball went back to check on Johnson, who was “lying in the middle of the street,” he saw McFadden “wiping off the gun” and asking whether Johnson was dead. One girl, 17–year–old Macy Wilson, was also struck by a bullet in her left thigh.

Approximately five minutes after Ball was shot, “the ambulance and stretcher came and got [him].” When he reached the hospital, Ball learned that Johnson had died. Ball suffered a collapsed lung, had his spleen taken out, and his diaphragm reconstructed. He was in the hospital for eight or nine days. Ball testified that there was no doubt in his mind that McFadden was the person who fired the gun.

On July 11, 2007, Ball selected McFadden, from a six-pack photographic array, as the person who “pointed the gun ... [,] killed my brother [Johnson] and also shot me and other people that night.” That same day, Ball identified Miles, from a photographic array, as the person who “started the argument ... and ... swung at me and my brother at different times during the incident.” In addition, Ball stated that Miles is “the reason why my brother George Johnson and I was shot and my brother killed.”

When the defense presented their case, several witnesses testified that the shots were fired from a darkened playground area some distance away, and not from the area of the fight. According to some of those witnesses, the shooter was another individual named Steffan Hawkins.³

Additional facts will be provided as necessary, in the relevant sections, below.

Discussion

I. CSI Instruction

Appellants argue that “the trial court erred by using specific non-neutral language in its voir dire question regarding ‘CSI-type’ evidence.” Specifically, appellants aver that the question “suggested to the jury that [a guilty finding] was the only option regardless of whether scientific evidence was presented in the case.” Meanwhile, the State counters by arguing that appellants did not preserve this issue for our review, and in the alternative, that they have waived any appellate complaint “because they accepted the jury as empaneled.”

“Voir dire is critical to the protection of a criminal defendant's right to a fair and impartial jury, as guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights.” State v. Logan, 394 Md. 378, 395–96, 906 A.2d 374 (2006) (citations omitted). In Maryland, voir dire aids in ensuring “a fair and impartial jury by determining the existence of cause for disqualification.” Logan, supra, 394 Md. at 396, 906 A.2d 374 (citation omitted). “The process entails examination of prospective jurors through questions propounded by the judge (or either of the parties, if allowed by the judge) to determine the existence of bias or prejudice and, literally translated, means ‘to say the truth.’ ” Charles & Drake v. State, 414 Md. 726, 733, 997 A.2d 154 (2010) (citation omitted). “[O]ur tenets of voir dire favor inquiries tailored to the likely issues to be presented in the case, so juror biases directly related to the crime, the witnesses, or the defendant, may be uncovered.” Id. at 734, 997 A.2d 154.

The manner of voir dire is governed by Rule 4–312(d), which states: (1) Examination.The trial judge may permit the parties to conduct an examination of qualified jurors or may conduct the examination after considering questions proposed by the parties. If the judge conducts the examination, the judge may permit the parties to supplement...