Nance v. State

• Decision Date: 01 September 1991
• Docket Number: No. 1334,1334
• Citation: 613 A.2d 428,93 Md.App. 475
• Parties: Ronald NANCE and Kevin Hardy v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 475

93 Md.App. 475

613 A.2d 428

Ronald NANCE and Kevin Hardy v. STATE of Maryland.

No. 1334, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Oct. 1, 1992.

Certiorari Denied Jan. 14, 1993.

Melissa M. Moore, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellants.

Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Submitted before MOYLAN, MOTZ and HARRELL, JJ.

HARRELL, Judge.

Appellants, Ronald Nance and Kevin Hardy, were tried jointly in a jury trial in the Circuit Court for Baltimore City (Mitchell, J. presiding). Both appellants were convicted of the following charges: the first-degree murder of Aaron Carroll, the attempted murder of Sandra Keve, conspiracy to murder Aaron Carroll, and related handgun offenses. The trial judge sentenced each appellant to life imprisonment for Mr. Carroll's murder, and, as to each appellant, imposed a consecutive life sentence for the conspiracy, a consecutive thirty year sentence for the attempted murder of Ms. Keve, and a consecutive fifteen year sentence for the handgun violations.

In their joint appeal, appellants raise the following questions:

I. Did the lower court err in refusing to ask if any of the prospective jurors had ever been employed by the Baltimore City Police or a law enforcement agency?

II. Did the lower court err in calling Antonio Harris as a court's witness?

III. Did the lower court err in excluding critical testimony regarding a threat to the victim made by another person or persons not on trial?

IV. Was the evidence sufficient to sustain appellants' convictions?

V. Did the lower court err in its instructions to the jury?

FACTS

On 3 April 1990, at approximately 9:30 p.m., Baltimore City police responded to a call that there had been a shooting near Exeter and Lombard Streets. Upon arriving on the scene, the officers found the body of Mr. Aaron Carroll, who had been shot to death. Nearby, Ms. Sandra Keve, a bystander, had been hit by the gunfire and was wounded in the right thigh.

Mr. Antonio Harris had witnessed the shooting. He and a friend, Mr. Rodney McCormack, told police that after Carroll was shot they took him to Harris's mother's house, laid him in the front yard, and asked his mother to call an ambulance.

On 4 April 1990, at police headquarters, Harris voluntarily gave Detective Martin Syndor a signed statement, in which he stated that appellants were the shooters and gave his rendition of the events of the night before. From a photographic array, Harris identified appellants as the shooters. Thereafter, Harris testified before a grand jury, telling essentially the same story he had given to the police in his signed statement. Additional facts will be supplied as necessary throughout our discussion.

I. VOIR DIRE EXAMINATION

Appellants contend that the trial judge erred when he declined to ask, during voir dire examination, whether any prospective jurors had been employed by the Baltimore City Police or a law enforcement agency. Appellants contend that the omission of this question impeded their ability to strike jurors for cause and to exercise their peremptory challenges intelligently. Even if they were correct as to peremptory challenges, we nonetheless affirm the lower court's ruling.

During voir dire, appellant Nance's counsel requested that the trial judge ask the members of the panel whether they, or their relatives or friends, had ever been employed by the Baltimore City Police or other law enforcement agency. The lower court denied the request. The trial judge's voir dire, however, did include the following question:

As you have heard from the list of witnesses that have been identified, there may be representatives of law enforcement agencies who will offer testimony during the course of the trial of the case.

Does any member of the jury panel know of any reason why she or he would not be able to consider fairly and impartially the testimony that would be presented by a representative of a law enforcement agency?

In other words, stating it differently, does any member of the jury panel know of any reason why she or he would not be able to consider the testimony as presented by a representative of a law enforcement agency fairly and impartially?

None of the venirepersons responded affirmatively to these questions. At the conclusion of voir dire, and prior to exercise of their peremptory challenges, Hardy's counsel renewed Nance's counsel's previous request.

The scope of the inquiry on voir dire examination is committed largely to the sound discretion of the trial judge. Md. Rule 4-312(d); Langley v. State, 281 Md. 337, 341, 378 A.2d 1338 (1977). It is firmly established that the purpose of voir dire is to determine if there is cause for disqualification of a prospective juror, and not to facilitate more intelligent use of peremptory challenges. Davis v. State, 93 Md.App. 89, 611 A.2d 1008 (No. 954, September Term, 1991, opinion filed 2 September 1992); Couser v. State, 36 Md.App. 485, 496, 374 A.2d 399 (1977), aff'd, 282 Md. 125, 383 A.2d 389 cert. denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 156 (1978). Indeed, we have recently addressed the extent to which the trial courts must inquire of a prospective juror's relationship with law enforcement. Davis, supra, 93 Md.App. at 115-18, 611 A.2d 1008.

The trial judge did not abuse his discretion in refusing to ask the question requested by appellants. The question that the trial judge did ask adequately addressed any potential bias in favor of law enforcement agencies. See Shifflett v. State, 80 Md.App. 151, 153-56, 560 A.2d 587 (1989), aff'd on other grounds, 319 Md. 275, 572 A.2d 167 (1990). Thus, the questions propounded by the trial judge adequately covered the information elicited by the requested question. Whether the proposed question would have aided appellants in the exercise of their peremptory challenges is irrelevant.

II. COURT'S WITNESS

At trial, the State moved the court to call Mr. Antonio Harris as the court's witness, and premised its motion on the argument that the threshold requirements for calling a court's witness had all been met. First, the State claimed surprise because the last time the prosecutor spoke to Harris he still agreed that his grand jury testimony was the truth. In defense counsel's opening statement, however, counsel claimed that Harris would not testify as the State had expected. Second, Harris was related to Nance as his half-brother. Third, Harris was hostile towards the State because he had been incarcerated on a body attachment for failure to appear in court as a witness in the instant cases at a prior date. Finally, Harris's testimony was material and necessary to the State's case because he was the only witness who had identified the perpetrators.

The lower court held a proceeding out of the jury's presence to determine if there were grounds to call Harris as a court's witness. At that proceeding, Harris testified that he knew both appellants and that he was a half-brother of Nance. Harris also claimed that he did not see either appellant on the evening of 3 April 1990 at the time of the shooting. At this point, the prosecution claimed surprise because Harris previously had identified appellants as the shooters through photographic arrays, in grand jury testimony, and in the signed, written statement. The lower court, over the defense's objection, ruled that it would call Harris as a court's witness. The jury reconvened and the court then conducted an examination of Harris.

When questioned by the court concerning the shooting on the evening of 3 April, Harris testified that he was walking up Exeter Street when he heard gunshots and hid until the gunfire was over. He stated that he had seen Aaron Carroll only after he had been shot and was crying for help. Harris claimed he had not seen anyone else on the street. Harris stated that, once he saw Carroll, he grabbed him around the waist, called to Rodney McCormack to help, and that he and Mr. McCormack walked Carroll to Harris's mother's front yard where they laid him down. Harris then told his mother to call an ambulance. Harris claimed that after having finished with Carroll, he and McCormack used heroin.

Harris next claimed not to remember speaking to police officers at the scene of the shooting or at the police station. He was also unable to recollect when he appeared before the grand jury. He testified that he never saw who shot Carroll and did not know or see Sandra Keve after she was shot. Harris did state, however, that he had been shown a photo array at the police station at some time and that the police had asked him to sign his name on the back of each photo of someone he knew. He further testified that he could not remember how many photos he signed. After Harris had completed his direct testimony, the State and the defense cross-examined him. During the State's cross-examination of Harris, he acknowledged that the initials and signature on the written statement (marked for identification at that time as State's Exhibit 5) were his, the initials and signature on appellants' photographs from the photo arrays (which photographs were marked for identification at that time as State's Exhibits 3 and 4) were his, and that he had testified, under oath, before the grand jury (the transcript of which was received in evidence at that time as State's Exhibit 6). When confronted by the prosecutor with the questions and answers in State's Exhibits 3, 4 and 5, Harris responded at various times with denials that he made such responses or claimed an inability to recall that he had made such responses.

The State later called Detective Marvin Syndor as its witness. Detective Syndor testified that Harris was cooperative, coherent, and did not appear to be under the influence of drugs or alcohol at...