Mitchell v. State

• Decision Date: 01 June 2000
• Docket Number: No. 690,690
• Citation: 752 A.2d 653,132 Md. App. 312
• Parties: Antoine Markee MITCHELL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

752 A.2d 653

132 Md. App. 312

Antoine Markee MITCHELL v. STATE of Maryland.

No. 690, Sept. Term, 1999.

Court of Special Appeals of Maryland.

June 1, 2000.

Douglas Hudson (Jennifer P. Lyman, Assigned Public Defender, on the brief), Washington, DC, for appellant.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Jack Johnson, State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Argued before MURPHY, C.J., and HOLLANDER and ADKINS, JJ HOLLANDER, Judge.

Antoine Markee Mitchell, appellant, was charged with numerous offenses in connection with the assault and shooting of Eddy Arias.¹ Following a jury trial in the Circuit Court for Prince George's County, appellant was convicted of attempted second degree murder, first degree assault, use of a handgun in the commission of a felony, conspiracy to commit second degree murder, and conspiracy to commit first degree assault. At the close of the State's case, the circuit court granted appellant's motion for judgment of acquittal as to the charges of attempted first degree murder, conspiracy to commit first degree murder, and possession of a firearm by a convicted felon. The jury subsequently acquitted appellant of second degree assault. Thereafter, appellant was sentenced to a total of forty-six years of incarceration.

On appeal, appellant presents six issues for our consideration, which we have condensed and restated as follows:

I. Did the court err in refusing to grant appellant's motion for mistrial after a witness revealed that appellant was incarcerated?

II. Is conspiracy to commit second degree murder a crime under Maryland law and did the court err in allowing the jury to consider that charge?

III. Was the evidence sufficient to support appellant's convictions?

For the reasons that follow, we shall affirm.

FACTUAL BACKGROUND²

Sometime between noon and 1:15 p.m. on September 5, 1997, Eddy Arias was shot from behind by two men wearing stocking masks. The bullet entered the victim's right hip area, just above his buttocks, and exited through the other side. The attack occurred in the interior stairwell of the apartment building at which Mr. Arias resided, located at 8805 Barnsley Court in Laurel.

At trial, Mr. Arias testified that prior to the incident he had gone to the store to get food for his wife. Upon his return, "two guys with a gun went around [his] neck. And they tried to attack [him] with the gun." Mr. Arias stated that he "pulled [his attacker's] head up and [the attacker] pushed [him] to the wall."

According to Mr. Arias, the shooter was an African-American male, about six feet one inch tall, who used a "black" gun. The other assailant was an African-American male, whose height was estimated at about five feet eight inches tall. Mr. Arias stated that the shorter man was carrying what appeared to be an "aluminum-colored" .45 caliber gun. The State accused appellant of being the shorter of the two people involved in the attack. The following colloquy on direct examination is relevant:

[PROSECUTOR:] The individual who was the shorter one, what, if anything, was he doing while this was going on?

[MR. ARIAS:] When the tall guy grabbed me by my neck I was trying to fight him. And the other guy was going like (indicating) looking for me.

THE COURT: The other guy what?

[MR. ARIAS]: He was trying to—You know, pointing the gun. You know, looking for me with the gun (indicating).

Mr. Arias explained that he was able to break free and began to run up the stairs of his apartment building, but "the tall one" shot him from approximately five feet away. Mr. Arias managed to ascend the stairs to the next floor, where his apartment was located, and he began to knock on "all the doors." The attackers remained in the building for a short time. After they left, Mr. Arias returned to his apartment.

Michelle Arias, the victim's wife, testified that her husband received three messages on his pager shortly before the shooting. Each time, Mr. Arias left the apartment and returned soon thereafter. The second and third pages read "911." Upon his return from the third page, Ms. Arias stated that she heard a commotion in the hallway outside the apartment, followed by a single gunshot. After Mr. Arias screamed her name, Ms. Arias opened the door to let him in. She then went to the kitchen window and saw two African-American men walking away from the building, wearing blue jeans and nylon stockings pulled down to their eyebrows. Ms. Arias indicated that one of the men had a light complexion, was approximately five feet eight inches tall, and "had like a darkish, greenish tee-shirt." She described the other man as having a darker complexion, about six feet tall, wearing a dark blue tee-shirt and holding a gun. According to Ms. Arias, the two men got into a red, four-door Nissan Sentra and "sped away quickly."

Although Ms. Arias had a clear view of the men from about 25 feet away, and Mr. Arias had direct contact with them, neither the victim nor his wife was able to identify appellant at trial as one of the two men who had been involved in the shooting. Moreover, Mr. Arias testified that he had never seen either of his attackers prior to the shooting.

At about 1:15 p.m. on the day of the shooting, Prince George's County police officers responded to a call that shots had been fired at 8805 Barnsley Court. When Corporal Dove Robinson entered the Arias's apartment, she saw that Mr. Arias had suffered a gunshot wound to the hip. There was blood on the stairway leading to the victim's apartment and a hole in the wall. A spent shell casing was found on the stairs, but the bullet was never recovered.

Corporal Steven Gaughan testified that he was in his patrol car approximately half a mile away from 8805 Barnsley Court when he heard the police broadcast about the shooting. The dispatcher indicated that a small, red, four-door car occupied by an African-American male wearing a jump suit had been observed leaving the scene. Less than a minute after the broadcast, two African-American men in a vehicle fitting the dispatcher's description passed Gaughan going the opposite direction. One of the men was wearing a blue "top."

Gaughan made a U-turn, activated his emergency lights and siren, and radioed for backup. The suspect vehicle took off at high speed. Although Gaughan gave chase, he lost the vehicle in an apartment complex after it turned onto Morris Drive in Laurel. Gaughan testified that later, when a vehicle matching the description was found and he had a chance to inspect it, he thought it was "exactly like the vehicle [he] had been chasing."

Paul Blair was employed by the company that managed the apartment complex. At about 1:15 p.m., Blair and several other men were moving a safe out of the complex's rental office on Morris Drive when he "heard a loud noise, like tires squealing," and turned to see a red Nissan or Toyota speed past him. The vehicle quickly made a sharp right turn from Morris Drive onto Parkside. As Blair was less than fifteen feet away from the vehicle when it passed, he was able to see that there were two people in the car, both African-American, and he identified the driver as male. Blair also made note of the Maryland tag number. Several minutes later, Blair saw a Prince George's County police car enter the complex and continue straight down Morris Drive without turning onto Parkside.

While Blair and the other men moved the safe to a storage shed, Blair saw the same vehicle parked in front of the apartment building located at 14 Sharon Court. At that time, the car was unoccupied and parked out of alignment with the parking spaces. As Detective William Gross drove into the complex, Blair flagged him down. Blair told Gross "that the car that you may be looking for is sitting on Sharon." He then directed the officer to the vehicle.

When Gross approached, the vehicle was backing out of its parking space. Gross and another officer, Corporal Howard Calvert, positioned themselves behind the vehicle and made a "felony traffic stop."³ The vehicle was occupied by two African-American women, Patricia Wills and Debra Pitts, who were ordered out of the car. Calvert noted that the vehicle's hood felt hot.

Gross found two nylon stockings on the rear seat of the vehicle. These same stockings were shown to Ms. Arias at trial, and she said they resembled the ones worn by the assailants. When Calvert conducted a sweep of the area, he found a .45 caliber magazine from a gun containing five bullets on the ground near the door to 14 Sharon Court. The magazine was in plain view and did not show any signs of having been there for very long.

Wills owned the suspect vehicle. She and her friend, Pitts, were on their way to the store when Gross and Calvert ordered them to exit the vehicle. Wills explained that she and Gregory Ellis had driven to 14 Sharon Court to help Pitts move out of her apartment. Wills described Ellis as "about six feet tall. Dark complected. Real slim build." According to Wills, when she and Ellis initially got out of her car, Ellis asked her for the keys so that he could go to the store to buy beer. Wills then gave Ellis the keys and went inside. She testified that she never saw Ellis again.⁴ Wills indicated, however, that she did not know appellant.

Pitts testified that, shortly after Wills arrived, she looked out of an apartment window and saw Ellis with appellant. She recalled that appellant was wearing a white polo shirt. Thereafter, Wills, Pitts, and Pitts's sister left to rent a U-Haul moving truck.⁵ When they returned with the truck, Wills and Pitts decided to take Wills's car to get food. Their attempt was interrupted by the aforementioned felony traffic stop.

At trial, the State pressed Wills to identify who was at 14 Sharon Court on the day of the shooting. Wills testified that Pitts's boyfriend, "Tony," was supposed to help, but that he never showed up. She...