Moore v. State

• Decision Date: 16 June 2016
• Docket Number: No. 2522,2522
• Parties: ROBERT MOORE v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

ROBERT MOORE v. STATE OF MARYLAND

No. 2522

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2013

June 16, 2016

UNREPORTED

Eyler, Deborah S., Wright, Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ.

Opinion by Eyler, Deborah S., J.

*This is an unreported opinion and therefore may not be cited either as precedent or as persuasive authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court. Md. Rule 1-104.

A jury in the Circuit Court for Baltimore City convicted Robert Gary Moore, the appellant, Anthony Roach, and Quincy Chisolm of conspiracy to murder Alex Venable, his family members, and their associates. Moore also was convicted of first-degree murder of Venable; four counts of attempted first-degree murder of Venable's associates, Thomas McNeil, Tavin Baker, and Derrick Vaughn¹; and five counts of use of a handgun in the commission of a crime of violence. He was sentenced to six sentences of life in prison plus 100 years' imprisonment, to run consecutively.²

Moore, Roach, and Chisolm all noted appeals. On August 18, 2014, their appeals were consolidated in this Court. Thereafter, counsel for Moore filed a motion to strike his appearance, which was granted by this Court on June 9, 2015. On October 16, 2015, Moore's appeal was severed from Roach and Chisolm's appeal, and Moore was granted a continuance to proceed pro se.

Moore poses sixteen questions presented. In its brief, the State has rephrased, reorganized, and consolidated Moore's questions. We shall adopt the questions as restated by the State. They are:

I. Did the lunch between Hooker and her brother during trial not violate the sequestration order or demonstrate misconduct on the part of the prosecutors?

II. Did the trial court properly decline to postpone the specially scheduled trial?

III. Did the trial court properly admit Mackall's testimony that Moore said he planned to harm the prosecutor?

IV. Was the protective order not based on a fabrication?

V. If preserved, did the trial court properly exercise its discretion in controlling the scope of the State's opening statement and closing arguments?

VI. If considered, did the trial court properly reseat alternate juror number 3, and is any error harmless?

VII. If preserved, did the trial court properly instruct the jury as to other crimes evidence, and was any error harmless?

VIII. Where Moore voluntarily absented himself from trial, did the trial court properly exercise its discretion to admit a photograph of Moore in orange clothing so that he could be identified by witnesses, and was any error harmless?

IX. Did the trial court properly rule during Deminds' testimony on redirect examination?

X. To the extent the issue is preserved, did the trial court properly respond to complaints from or about juror no. 5?

XI. Did the trial court properly respond to a jury note asking if it was possible to have a hung jury?

XII. Did the trial court properly exercise its discretion to give a supplemental jury instruction on concurrent intent in response to a jury question?

XIII. If preserved, did the trial court properly exercise its discretion to strike three prospective jurors for cause?³

On April 6, 2016, this Court heard oral arguments on Roach and Chisolm's consolidated appeal. In an unreported opinion filed on April 26, 2016, we affirmed their convictions. See Roach & Chisolm v. State, Nos. 2523 & 2711, Sept. Term 2013 (filed Apr. 26, 2016). In this appeal, Moore raises several issues that we addressed in that opinion, and we shall make reference to our decisions in that appeal where appropriate.⁴ For the following reasons, we shall affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS

We adopt the following facts as recited in Roach & Chisolm, supra:

The evidence adduced at trial established that on April 27, 2011, at around 8:00 p.m., Darian Kess was stabbed to death in his apartment located in a complex off The Alameda, in Northeast Baltimore. Kess was Moore's cousin. Earlier that evening, Kess was in his apartment with Maria Randle and Rokia Lewis. Kess decided to order food and left the apartment to borrow carryout menus from a neighbor. Randle and Lewis saw that when he returned he was accompanied by three men whose faces were covered with a "t-shirt type material." One man had a grip on Kess's arm and was holding a gun to his head.

The men ordered Randle and Lewis to lie face-down on the floor in the living room, which they did. Randle could not see anything, but overheard one of the men demand money from Kess and say he knew that Kess "hit like 30 today." Two of the men walked Kess around the apartment while the third man stayed in the living room with Randle and Lewis.

After about 10 minutes, the two men brought Kess back into the living room. Randle heard a noise that "sounded like . . . some type of liquid or something was hitting the floor." The three men ran out of the apartment. Randle waited about five minutes, stood up, and saw Kess lying on the floor, holding his neck with one hand and "bleeding real bad, losing a lot of blood." He had been stabbed. Lewis assisted Kess while Randle went door-to-door in the apartment building seeking help. (The men had stolen her cell phone.) A neighbor called 9-1-1. About 30 minutes later, an ambulance arrived and transported Kess to The Johns Hopkins Hospital ("Hopkins"). Randle reported the incident to the Baltimore City Police Department ("BCPD"). Kess died three days later.

On the night of the stabbing, Moore and his wife, Sarah Hooker, went to the hospital to see Kess. The next morning, April 28, 2011, Hooker contacted Randle by phone to find out what had happened. Randle did not want to discuss the events over the phone and agreed to meet with Hooker. Hooker drove a black SUV with dark, tinted windows, and picked Randle up at around noon. Moore and Hooker's brother, Donnie Adams, were in the vehicle. Randle described the events of the previous night. Moore asked her if she would be able to identify any of the assailants' voices and she responded yes. Hooker then drove the group to the 1900 block of North Collington Avenue, between East 20^th Street and North Avenue, stopping in front of a row house in the middle of the block. According to Randle, "four or five" people exited the row house and approached the SUV. Moore and Adams got out of the vehicle and asked the people if they knew anything about Kess's stabbing. Randle, who remained inside theSUV out of sight, recognized a voice as being one of the assailants. Moore and Adams got back in the SUV and Hooker drove Randle to the hospital to see Kess. Randle had no further contact with Hooker, Moore, or Adams.

That same day, Gloria Johnson was standing in the 1900 block of North Collington Avenue with a group of people, including Venable and a man she knew as "Kevin." An SUV pulled up and two men got out. Adams, who she knew from the neighborhood, was one of them. Adams briefly spoke to Venable. Johnson overheard Adams say he would "come back and spray the block." Adams and the other man got back in the SUV and drove away. Johnson walked down the street to a carryout store to buy a pack of cigarettes and returned ten minutes later. She saw someone come "out of 20^th onto Collington" and start shooting in the area where she had been standing. Later, in a photo array she identified Adams as the shooter. She wrote on the photo array: "This is Donnie [Adams]. He came on the 1900 block of Collington and stated, I will spray this block and he was talking to Venable."

Venable, [McNeil, and Vaughn] all sustained gunshot wounds and were transported by ambulance to Hopkins. Venable died of his wounds. McNeil was shot three times in the stomach, twice in the right arm, and once in the left arm. He underwent surgery to remove the bullets from his stomach and place a metal plate in his right elbow. He remained in the hospital for a month. Vaughn was shot in his left leg. He was treated and released that day.

At trial, Adams testified pursuant to a plea agreement with the State. [Adams plead guilty to conspiracy to commit murder and conspiracy to distribute controlled dangerous substances ("CDS") in exchange for a 10-to 20-year sentence. At the time he testified, his sentencing was pending.] He stated that he had spoken to Kess on the afternoon of April 27, 2011, while Kess was selling drugs in the 1900 block of North Collington. They discussed how much money Kess had made that day. Venable, Vaughn, and McNeil were standing nearby when that conversation took place. Kess believed they overheard the conversation and were involved in Kess's stabbing later that night.

Adams's testimony conflicted in some minor respects with that of Randle and Johnson. According to Adams, the day after the stabbing, Hooker picked him up at around 10:00 a.m. Randle and Moore already were in the SUV. Randle was there to let them "know who did it." He and Moore "were going to handle it" and "take care of it." Hooker drove them to North Collington Avenue. Adams got out of the SUV to speak to Venable. He denied making any threats. He got back in the SUV. Randle identified Venable as one of the assailants at Kess's apartment the night before. They drove away, let Randle "out of the car" "[o]nce it got back toNorth Avenue[,]" and then parked the car at the corner of North Avenue and Castle Street. Moore contacted Roach and it was Roach who shot Venable.

Hooker likewise testified pursuant to a plea agreement with the State. [Hooker anticipated that she would be sentenced to 15 years' imprisonment for conspiracy to commit murder and conspiracy to distribute cocaine, in lieu of a sentence of 16 years to life.] She explained that Moore and his associates were drug dealers in the area of North Collington and North Avenues. Venable and his associates were rival drug dealers. On April 28, 2011, she contacted Randle and picked her up in a black SUV she had rented. She drove Randle, Moore, and Adams to the 1900

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