Nordine v. State, 2516

• Decision Date: 03 April 2019
• Docket Number: No. 2516,2516
• Parties: TYRONE THOMAS NORDINE v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

TYRONE THOMAS NORDINE v. STATE OF MARYLAND

No. 2516

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

April 3, 2019

Circuit Court for Harford County

Case No.: 12-K-15-001661

UNREPORTED

Leahy, Shaw Geter, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

Opinion by Salmon, 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.

Appellant, Tyrone Thomas Nordine, was tried by a jury in the Circuit Court for Harford County, and convicted of attempted first degree murder, first degree burglary, first degree assault, two counts of use of a firearm in the commission of a felony or crime of violence, and illegal possession of a regulated firearm.¹ Appellant was thereafter sentenced to life for attempted first degree murder and a concurrent sentence of twenty (20) years for first degree burglary. The life sentence is to be followed by a consecutive twenty (20) years for use of a firearm in commission of the burglary, the first five without parole, as well as a concurrent twenty (20) year sentence, the first five without parole, for the second use conviction. Finally, appellant was sentenced to a consecutive fifteen (15) years, the first five without parole, for illegal possession of a regulated firearm, and that sentence also was ordered to run consecutively to the life sentence for attempted murder. On this timely appeal, appellant asks this Court to address the following:

1. Did the circuit court err in denying defense counsel's motion to suppress the photo array identifications made by Ms. Jacobs and Ms. Donaldson?

2. Did the circuit court err or abuse its discretion in admitting irrelevant evidence as motive evidence?

3. Did the circuit court err and abuse its discretion in admitting "other bad acts" evidence?

4. Must the docket entries and the commitment record be corrected to reflect that the sentence on Count 7 was imposed consecutively to Count 1 but not to Count 5?

For the following reasons, we shall remand this case so the commitment record and docket entries may be corrected on Count 7. Otherwise, the judgments are affirmed.

BACKGROUND

Motions Hearing

This case involves a home invasion and a shooting that occurred in Edgewood, Maryland on September 20, 2014, shortly after 4:00 a.m. The victim, Latonya Jacobs, survived and identified appellant as her assailant. Several motions were litigated prior to trial, and one of those concerned the photographic lineup prepared in connection with this case. Detective Michael Pachkoski, of the Forensic Service Unit for the Harford County Sheriff's Office, created that photographic lineup.² To his knowledge, these six photographs, one of which was appellant's photograph, were shown separately to two witnesses, on or around September 30, 2014 and October 1, 2014, by another detective.³

Detective Pachkoski explained that, in selecting the five other photographs used in the lineup, he selected two subjects from the Harford County inmate database, and three subjects from the database for the New Jersey Department of Corrections. New Jersey "provide[s] very good image quality," and the detective was able to "search through a widerrange of images as far as date of birth, race, ethnicity." That database also provided a variety of subjects with "beards, mustaches, long hair, short hair."

Using appellant's photograph, which he obtained from Detective Andrew Lane, Detective Pachkoski observed that appellant was an African-American male with long hair and a goatee, wearing a red shirt. The detective then found five other similar images, testifying that he tried "to be fair to the defendant by trying to find images that depicts a subject who is listed as the same race, same approximate age, similar hair and facial features."

On cross-examination, Detective Pachkoski testified that he had been assigned to the Forensic Service Unit for eleven of his thirteen years with the Sheriff's Office, that he was trained in the preparation of photo arrays, and that he had prepared over a hundred photo arrays. He explained the process for selecting the photographs in more detail, indicating that he began with the suspect's photograph, as well as their listed age and race, and then accessed other databases in an effort to match age, race, facial hair, hair color, hair length, and skin tone. He also testified that, although he tried to find similar looking subjects, "I can't make them all look the same because what would the point of the lineup be?" He confirmed that he used this process to create the photo lineup in this case.

On redirect examination, Detective Pachkoski acknowledged that skin tone was a factor when he selected the photographs in this case. He testified that "several of the subjects had darker skin tones. Several subjects had a lighter skin tone. I try to make a variety, create variety."

At the conclusion of the testimony, defense counsel alleged that the photographs selected by Detective Pachkoski were "[n]ot a fair and accurate depiction" on the grounds that "[t]he composition of the line-up would lead to a very easy identification" and was impermissibly suggestive. Appellant's counsel continued that "his photo is off the rails different from the other five photos[.]" More specifically, counsel argued:

Now, our client is clearly a light-skinned African-American individual. When you go through those photos, all six of them, you really only see one true light-skinned African-American individual. There are photos in there of extremely dark-skinned African-American individuals. Knowing that the witnesses already have an idea in their head of what they're looking for, as soon as they see it's a dark-skinned individual, they're flipping past him immediately. That's what makes it impermissibly suggestive. Looking through that line-up, you don't have - I'm not looking for an exact composition - but not even a similar composition of other individuals in that line-up. You have essentially someone who looks like [the prosecutor] and someone who looks like myself and saying, Can you pick the differences between the two. It's just an unfair line-up to begin with, Your Honor. ...

After hearing from the State, the court denied the motion to suppress the extra-judicial identification. The court first found, in pertinent part:

[I] don't agree with you that every single mail [sic] in this array is of a dark-skinned African-American male. That is the furthest from the truth. The document will speak for itself. We have different variations of color. The first one appears to be darker. The second one does not, it appears to be lighter skin. The third one appears to be actually more lighter than the first one. The next one appears to be a lighter skin. The one after that also appears to be a lighter skin. And the last one is maybe a darker skin. So I don't know how you can say they're all darker than Mr. Nordine.

The court then ruled, in part, as follows:

The [c]ourt considered the testimony of the detective, who was not part of the investigation, who was someone who was given a photograph of Mr. Nordine and, based on that photograph, looked for individuals who had some similar but not exact qualities. As he testified, he does that for purposes of fairness to Mr. Nordine and not to anyone else and to ensure there is nothing that would suggest to anyone viewing it one person over another.

The photograph of Mr. Nordine is a photograph of him in a red shirt. His hair is long. The texture of his hair is unclear to me as to whether it's braids or straight. It's not a completely accurate picture in terms of telling the manner or style of hair. Long - loose is not consistent. It appears it has some type of texture to it. The other individuals have long hair. Some of them are in a red shirt. The photograph of Mr. Nordine, he is a lighter skinned African-American male. As I mentioned before, there are photographs of ranging skin colors. The first one, I would say, is probably the darkest one, followed by perhaps the lightest one, maybe a little bit darker. But the other ones appear to have lightness in their skin tone, as well.

There is nothing about these pictures, in looking at both sets that were presented to the witnesses, that jumps out in flipping through them that would suggest that one picture in particular is the one that someone would fall upon. So the [c]ourt does not find the defense has met their burden to establish that the photo arrays were impermissibly suggestive at all. So your motion is denied.

Trial

On September 20, 2014, at approximately 4:22 a.m., officers from the Harford County Sheriff's Office responded to 1002 Crimson Tree Court, Apartment C, located in what was described as a high crime area of Edgewood, Maryland, after receiving a call from a neighbor about possible shots fired. Officers found Latonya Jacobs inside the apartment, in the first bedroom at the top of the stairs, suffering from a gunshot wound to the head. Although she was seriously wounded, Jacobs was able to tell the responding officers that she was shot by a "black male, light-skinned, approximately six feet tall, wearing a gray hooded sweatshirt that was covering his face."⁴

Latonya Jacobs survived the ordeal and testified at trial. She explained that she lived in a two-story condominium with her three children. She was asleep in her upstairs bedroom with her three-year-old daughter when, at around 4:00 a.m., she heard a "loud banging sound" coming from downstairs. Jacobs got up, ran downstairs, and saw that two men had kicked the locked door down and entered her residence without permission. Jacobs turned and ran back up the stairs to her bedroom, followed by these home invaders. Although she tried, Jacobs was unable to prevent the men from pushing the bedroom door open.

Jacobs then testified that one of the men, without...