Motley v. State
| Decision Date | 15 July 2016 |
| Docket Number | No. 1966,1966 |
| Parties | KENNEZ MOTLEY v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Krauser, C.J., Leahy, Thieme, Raymond G., Jr. (Retired, Specially Assigned), JJ.
Opinion by Krauser, C.J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Kennez Motley, appellant, was convicted by a jury, in the Circuit Court of Prince George's County, of multiple firearm offenses, including: possession of a regulated firearm after having been convicted of a "crime of violence," possession of a regulated firearm after having been convicted of a "disqualifying crime," and possession of a regulated firearm after having been "found involved as a juvenile [in] an act that would have been a disqualifying crime if committed by an adult." In this appeal, he presents two questions for our review. Rephrased to facilitate that review, they are:
For the reasons that follow, we affirm.
Testimony presented at trial established that, on the evening of November 16, 2013, "three masked gunmen came barreling" into the home of Debra and Eric Gordon through their back patio door. The intruders were dressed in black "uniform apparel" and were wearing "square-faced masks" that left visible only their eyes, eyebrows, and lips. All three intruders were armed: one of them was carrying an assault rifle, and the other two were wielding handguns.
Upon finding Mrs. Gordon in the house, the intruders pressed their guns against her head and threatened to kill her if she did not "just do what [she was] told to do."Then, after tying her hands behind her back, they placed a hood over her head and "tased her" repeatedly.
As these events were transpiring, Mr. Gordon pulled his car into the driveway of his home. Upon entering his house, he was met by the masked intruders, who, while pointing their guns at him, repeatedly "smacked" his head with a pistol and demanded to know "where the money [was]." When Mr. Gordon did not respond to that question, they ripped the hood off of Mrs. Gordon's head and forced her upstairs for the purposes of showing them where cash and other valuables were stored.
In the meantime, Mr. Gordon had managed to escape from his home and run to his neighbor's house where he obtained a "pistol" and instructed his neighbor to call the police. He then returned, with his neighbor's gun in-hand, to the front of his house, just as two of the three robbers were leaving his home. As they proceeded down the driveway, Mr. Gordon took aim at the intruders and pulled the trigger of the handgun but, to no avail, as "the pistol wouldn't fire." The robbers then, after briefly giving chase to Mr. Gordon, fled, taking with them $21,000 in cash and a Rolex watch.
Following the robbery, a friend of Mr. Gordon's provided him with photographs of several individuals, who the friend suspected were involved in the robbery. One of the individuals depicted in the photographs was Motley. Mr. Gordon immediately recognized Motley as one of the three men who had invaded his home and the two others, as well. He also identified a watch, pictured in one of those photographs, as the watch that had been stolen from his house during the robbery.
Mr. Gordon thereafter gave the photographs to a detective with the Prince George's County Police Department, stating that the men depicted in them were the three individuals who had broken into his house. Later, when Mr. and Mrs. Gordon were each shown photographic arrays at the police station, they separately identified Motley, from their respective arrays, as one of the three intruders. In performing that identification, Mrs. Gordon stated, "I will never forget [Motley's] eyebrows and his mustache." Also, from those photographic arrays, Mr. Gordon was able to pick out Rashard Washington as one of the two other robbers, and Mrs. Gordon was able to identify Raymond Ford as the third robber. And, according to Motley's wife, Ford and Motley were "[l]ife-long friends."1
After he was arrested for his alleged participation in the robbery of the Gordons' home, Motley denied any knowledge of or involvement in the robbery and consented to a search of his cellphone. The ensuing search of that phone brought to light two photographs, each of which showed Motley "holding two rifles." According to the detective who questioned Motley about those photographs, Motley stated that both rifles were his.
Subsequently, Mr. and Mrs. Gordon identified Motley, at trial, as one of the three intruders. Mrs. Gordon testified that she was able to do so because, during the robbery, when the hood was removed from her head, she was standing directly in front of Motleyand was able to look at him "eye to eye." And, Mr. Gordon stated that, when he returned to his house, with his neighbor's gun in hand, the motion lights that were on his property "lit up" his driveway, allowing him to clearly see Motley's face, as Motley had exited the Gordons' home without his mask on.
At trial, the court permitted the State to introduce the two photographs that had been recovered by the police from Motley's phone, showing him holding two assault rifles. Motley's first contention is that trial court erred in admitting those two photographs because they "were not relevant, were more prejudicial than probative, and confused the issues and misled the jury." We find that this issue was not preserved for appellate review because, as the State put it, "Motley objected only to the admission of the photographs themselves, and not to the testimony about" what they showed. Moreover, assuming that Motley's claim was preserved, we believe that the trial court did not err in admitting that evidence, because the photographs were probative, were not unfairly prejudicial, and did not confuse or mislead the jury. Finally, we conclude that, even if the admission of this evidence was error, that legal impropriety amounted to nothing more than "harmless error."
"Objections are waived if, at another point during the trial, evidence on the same point is admitted without objection," DeLeon v. State, 407 Md. 16, 31 (2008) (internal citation omitted), which is precisely what occurred in the proceedings below. At trial, Motley did object to the admission of the two photographs that had been recovered from his cellphone, but he failed to object to testimony about what was depicted in those photographs, which was presented both before and after those photographs were admitted into evidence.
Before the introduction of the photographs, the State asked the detective, who had questioned Motley at the police station, about those photographs. When the detective was shown the two photographs by the prosecution, he stated that he "definitely recall[ed] seeing the photo depicting [Motley] holding the rifles." Motley did not object to this statement, nor did he object to the detective's ensuing testimony regarding the authenticity of those photographs. In fact, it was not until the State moved to admit the photographs into evidence that the defense objected.
Furthermore, after the photographs were admitted into evidence, the detective testified that Motley "claimed [the weapon in the photographs] as his own." Then, later at trial, when Motley finally took the stand, the State asked whether he offered to give the detective the assault rifle depicted in the photographs, to which Motley replied: "No. I offered to give him my phone and that I had an AR-15 and range and everything."2 Insum, by repeatedly failing to object to testimony describing the photographs at issue, Motley waived the issued as to the admissibility of those photographs.
Motley nonetheless suggests that his failure to object to the admission of the photographs should not render the issue unpreserved for appellate review. Notably, he contends that the failure to object to the testimony of the detective was, in effect, a strategic decision as that testimony was "exculpatory." But, such a strategic decision does not affect the issue's "unpreserved" status. The Court of Appeals has observed: "It would be unfair to the trial court and opposing counsel if the appellate court were to review on direct appeal an unobjected to claim of error under circumstances suggesting that the lack of objection might have been strategic, rather than inadvertent." Robinson v. State, 410 Md. 91, 104 (2009) (internal citation omitted). "[I]f the failure to object is, or even might be, a matter of strategy, then overlooking the lack of objection," the Court observed, "simply encourages defense gamesmanship." Robinson, 410 Md. at 104. In short, Motley's decision not to object, whether strategic or not, does not alter the fact that the issue of the photographs was not preserved for appellate review because Motley failed to object to the testimony describing the contents of the photographs.
Although not preserved for our review, we shall nonetheless address Motley's contention that the court erred in admitting the photographs at issue into evidence, because such photographs "were not relevant, were more prejudicial than probative, and confused the issues and misled the jury." Motley's contention, that the photographs werenot relevant as to any issue before the trial court because, at trial, "the State's witnesses testified that [Motley] possessed a handgun during the robbery, yet the photographs depicted [Motley] with two rifles,"...
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