Mines v. State
| Decision Date | 27 November 2012 |
| Docket Number | Sept. Term, 2010.,No. 2681,2681 |
| Parties | David Calvin MINES v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Ben Miller (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.
Gary E. O'Connor (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.
Panel: MEREDITH, WOODWARD and J. FREDERICK SHARER (Retired, Specially Assigned), JJ.
J. FREDERICK SHARER (Retired, Specially Assigned), J.
After a jury trial in the Circuit Court for Anne Arundel County, David Calvin Mines, appellant, was convicted of attempted armed robbery, attempted robbery, second-degree assault, and openly wearing and carrying a deadly and dangerous weapon with intent to injure another.1
Appellant presents the following four questions for our consideration:
1. Did the circuit court err in permitting irrelevant and highly prejudicial testimony?
2. Did the circuit court err in permitting the prosecutor to improperly shift the burden of proof during the cross-examination of appellant?
3. Did the circuit court err in permitting testimony as to the victim's degree of confidence in his identification of appellant as the perpetrator?
4. Did the circuit court err in permitting the prosecutor to make improper and prejudicial comments during closing and rebuttal argument?
For the reasons set forth below, we shall affirm.
Although appellant does not challenge the sufficiency of the evidence, a brief review of the facts is helpful for placing the issues presented in context. In summary, the jury heard the following:
On March 17, 2010, Jesus Pinones 2 was working as a delivery driver for Domino's Pizza. At about 8:20 p.m., he went to an address in Maryland City, and delivered a pizza. As he was returning to his car, he heard someone say “hey, you, ... stop.” Pinones entered his car on the passenger side because he had problems with the driver's side door. As he was getting ready to lock the passenger side door, a black male with dreadlocks carrying a knife approached and opened slightly the passenger side door. Pinones was able to get the door closed and locked, but then the man “started scraping [the] glass with his knife,” which had a four to six-inch blade. The man told Pinones, “to get out and give him the money otherwise he was going to stab [him].” Pinones reached for his cell phone, which was under his seat and, once he obtained it, he noticed that the man had started to run away.
Across the street, Pinones saw a white male wearing a baseball cap and a gray hoodie, and a black male, both of whom started running away with the man who had tried to rob him. Pinones drove after the men for about a block before he was “intercepted by Anne Arundel County Police.” Pinones told the police the direction in which the men had run.
Several Anne Arundel County police officers responded to the call for the attempted robbery of Pinones. Ultimately, the police detained, and arrested, appellant and two other males. A search of the three disclosed a folding pocket knife in the possession of Xavier Howell. No knife was found on appellant.
Appellant testified in his own defense. He told the jury that on the evening of the attempted robbery of Pinones, he was playing basketball with several others and, thereafter, he drove his girlfriend, their child, and others home. Appellant and some friends then drove to another location to visit with other friends, including Tony Ash and David McCowski. While at that location, Corporal Rayburn Smallwood approached and requested identification. All present complied with his request. Subsequently, another officer arrived, presumably with Pinones in his police car, and appellant and others were placed in front of the headlights of the cruiser. Thereafter, appellant was taken into custody.
Appellant called several defense witnesses. The most significant, relevant to the issues presented in this appeal, was Deontre Rose Lyons.
Lyons testified that in the days following the attempted robbery, he told police that he had approached a pizza delivery driver with the intent to rob him, but that he abandoned that plan when the driver jumped into his car and drove away. The police told him he could get into trouble if he was lying, and Lyons recanted. Lyons testified that he only went to the police initially because appellant told him that if he turned himself in, he would only get “like probation or something, house arrest,” because he was still a minor. In addition, Laura, a friend of appellant's girlfriend, Brittney, told him that if he did not turn himself in, “they was going to get somebody to put a hit out on [him].” Lyons testified that he did not know anything about the robbery.
Daniel Adams testified that on the night of the robbery, he was playing basketball with appellant, Lyons, and others. When they were finished, appellant and two others left in a car. Adams, Lyons, and others began walking home when they saw a pizza delivery person. Someone in the group suggested robbing the man. Everyone in the group kept walking, but Lyons went across the street. About 30 seconds to a minute later, Lyons returned to the group and said that he had tried unsuccessfully to rob the pizza delivery man, and had tried pulling on the man's car door, but it was locked.
Jonathan Whalen testified that he was playing basketball with appellant and others on the night of the robbery. After the game broke up, he walked with a group that included Lyons. Whalen saw a pizza delivery person and Lyons “had an idea to rob” him, but the group “wanted nothing to deal with it.” Whalen watched as Lyons pulled a knife out of his pocket, walked across the street, and approached the pizza delivery man. Lyons then returned to the group and “said that he had attempted to rob the pizza guy, but he got nothing out of it because he got into his car and locked the doors.” Whalen admitted on cross-examination that he gave his statement to the police about eight days after the robbery had occurred, and after he had talked to appellant's girlfriend, Brittney.
In rebuttal, the State called Anne Arundel County Police Officer Megan Paulits, who testified that four days after the attempted robbery, Daniel Adams came to the police station to speak with her. Adams told Paulits that he saw Lyons walk up to the pizza delivery person and, when he returned, Lyons said that he had attempted to rob the delivery man. Paulits wrote a report of her conversation with Adams and passed it along to Detective John Dutton.
Dutton testified that appellant was arrested and charged on a Friday night. The following Monday, he began receiving calls from various friends and family members of appellant and the other co-defendants who were arrested with him, all saying that “the wrong man has been locked up” and that they had information about “who really did this crime.”
To follow up, Dutton interviewed numerous individuals, and went back to the victim, Pinones, and interviewed him again. Dutton called Adams, who had told him that he heard Lyons say he was going to rob the pizza delivery man, and saw him walk up to the delivery man. Thereafter, Lyons returned to the group and told them he had attempted to rob the delivery man. In subsequent discussions, appellant's colleagues continued to implicate Lyons.
Dutton spoke with Lyons, who reiterated that he had planned to rob the pizza delivery man, but abandoned the plan. Lyons denied ever displaying a knife and denied ever having any interaction or discussion with the delivery man. When Dutton told Lyons that he was facing four felonies, Lyons became flustered, and said that Brittney had talked him into going to the police and he did not think he would be in any trouble because he was only 17 years old.
After meeting with Lyons, Dutton again interviewed Pinones, who reiterated that the person who attempted to rob him
had dreadlocks and the person who he saw five minutes after the robbery that was shown to him by Officer Smallwood and Officer Williams, he was a hundred percent positive that the Defendant who is-who's being shown at the time was the man who robbed him, through face, through dreadlocks, and through the clothes he was wearing.
Appellant first contends that the circuit court erred in permitting irrelevant and highly prejudicial testimony by Deontre Lyons that “some guys” had broken his jaw and “it was wired shut.” At trial, Lyons gave the following testimony, which we set forth at length in order to provide context:
Q. Were you afraid?
A. Yes, I was.
Q. Have you moved from your home? Have you—
A. Yes.
Q. —moved from your address?
A. Yes.
Q. Because you're afraid?
A. Yes.
Q. Have you been assaulted at all since this case by anybody?
A. Yes.
Q. What happened to you?
A. Well, I was in my friend, Terrell's house, and I was just about to go home and like ten minutes after that some guys came up and broke my jaw.
Q. When did that happen?
A. This happened on the 28th of November, I think.
Q. You mean October because its November—
A. Yeah. Yeah. October. October.
Q. So is your jaw wired shut right now?
A. Yes, ma'am.
Q. And do you know why these guys walked up to you and beat you up and broke your jaw?
A. I don't know.
Q. Did you ever see the pizza guy that we're talking...
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