Page v. State

• Decision Date: 30 April 2015
• Docket Number: No. 2730, Sept. Term, 2013.,2730, Sept. Term, 2013.
• Citation: 114 A.3d 283,222 Md.App. 648
• Parties: Jamal Marcus PAGE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

222 Md.App. 648

114 A.3d 283

Jamal Marcus PAGE

v.STATE of Maryland.

No. 2730, Sept. Term, 2013.

Court of Special Appeals of Maryland.

April 30, 2015.

Marc A. DeSimone (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.

Jason J. George (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: BERGER, NAZARIAN and LEAHY, JJ.

Opinion

LEAHY, J.

The victim in this case was shot six times at point blank range and lived to testify at trial on January 8, 2014, in the Circuit Court for Prince George's County, that Appellant Jamal Marcus Page was the shooter, and, that Appellant tried to shoot him on a prior occasion during an argument over money owed, but the handgun jammed. The jury convicted Appellant of attempted second-degree murder and use of a handgun in the commission of a felony or crime of violence, as well as other related crimes, but acquitted him of attempted first-degree murder. The court imposed an aggregate sentence of 50 years of incarceration with all but 35 years suspended.

In his timely appeal, Appellant raises two questions for our review:

I. “Did the lower court err in admitting evidence of an alleged other assault committed by the appellant against the victim about two weeks before the charged offense?”

II. “Did the lower court err in instructing the jury that the appellant's ‘flight’ from the scene of a shooting could be considered as consciousness of his guilt where the evidence established, at most, only simple departure from the scene of the crime?”

We hold that the circuit court did not err in admitting the prior assault into evidence because of its heightened relevance in establishing the identity of Appellant as the shooter by showing that Appellant had the motive and intent to commit the crime. We also conclude that based on testimony that Appellant immediately ran away from the crime scene after the shooting, the court did not err in delivering a flight instruction. Accordingly, we affirm the judgments of the circuit court.

BACKGROUND

Though Appellant does not challenge the sufficiency of the evidence, we nevertheless review, briefly, the facts presented at trial to provide context for our examination of Appellant's contentions of error. See Goldstein v. State, 220 Md. 39, 42, 150 A.2d 900 (1959) (noting that “[t]o understand the contentions made, it is necessary to relate some of the background of the case”); Washington v. State, 180 Md.App. 458, 462 n. 2, 951 A.2d 885 (2008).

According to the victim, Rubearth Nichols, at about 2 p.m. on June 7, 2013, he and his then-fiancée drove to a barbershop in a Prince George's County shopping center. After they arrived, Nichols stood outside of his vehicle conversing with a man named Javon. Suddenly Appellant ran up, wearing a camouflage jacket, and said “What's up? What's up, Slim? What's up now?” Then Appellant started shooting Nichols at point blank range with a handgun. Nichols fell to the ground, and Appellant continued shooting. After he shot Nichols six times, including three times in the head, he “ran in the other direction.” Shortly thereafter the police arrived at the scene and Nichols was taken to the hospital.

Nichols testified at trial that he had known Appellant for at least nine or ten years, and he provided both in-court and out-of-court identifications of Appellant as the shooter. He recounted an incident that occurred about two weeks prior to the shooting, when he and Appellant had an argument over money that Appellant owed him for a pair of shoes. According to Nichols, before the argument was over, Appellant tried to shoot him, but Appellant's gun jammed. Nichols was then able to run away to safety.

Lazema Nichols, Nichols's fiancée at the time, testified that after she drove Nichols to the barbershop on June 7, 2013, she remained in the vehicle while Nichols spoke to someone wearing a dark jacket and blue jeans directly behind the car. When she heard gunshots, however, she looked in her rear-view mirror, and saw “a gentleman with an army fatigue jacket on and blue jeans.” Hearing more gunshots, she quickly drove off out of the parking lot. She testified that as she drove off, she looked over and saw “the same gentleman in the mirror now standing over my husband shooting him” and confirmed that he was wearing a camouflage jacket. The man then “took off running” around the corner of the shopping center toward a nearby apartment complex, so she drove back into the parking lot to assist her fiancé.

Officers responded to the scene and received a description of the suspect as wearing a camouflage coat and jeans and that he was “approximately five eight in height with a handgun.” Officers then canvassed the surrounding area, and a canine track indicated a positive hit at an apartment located about 300 to 400 yards away from the crime scene. The owner of that apartment consented to a search, and when officers entered, they observed Appellant in the rear bedroom. The search discovered a camouflage jacket, a pair of gloves, and a mask in the back bedroom. A black and silver semiautomatic handgun was also found in the jacket, but no latent prints were recovered from the gun. An expert in firearms examination and identification testified that the cartridge casings and bullet items recovered from the scene of the shooting were fired from the same handgun.

Additional facts are presented as they pertain to the issues examined next.

DISCUSSION

I.

Appellant contends that the circuit court erred in admitting evidence of the prior assault as an exception to Maryland Rule 5–404(b) because it had no special relevance to a contested issue at trial, was not supported by clear and convincing evidence, and was more unduly prejudicial than probative. Rule 5–404(b) provides:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts including delinquent acts as defined by Code, Courts Article, § 3–8A–01 is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of notice, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.

The disputed testimony occurred during the direct examination of Nichols when the State asked him whether he had seen Appellant any time within the month before June 7th. Defense counsel objected, and the court responded, “ Basis. Approach.” When both parties approached the bench, the court asked for a proffer, and the State responded that Nichols “saw the defendant two weeks prior and that at that time the defendant attempted to shoot him, but the gun jammed and that he ran and he heard later that the gun was firing but he had already run away.” The court then asked, “Is there going to be any link with any type of motive[,]” to which the State responded, “Yes. It's over money, basically.” The State expounded:

My victim will say that he sold him articles of clothing or shoes and that the defendant owed him money. He asked the defendant for the money and he said he's not giving him any, and that's when he pulled the gun on him. It jammed and then he sees him two weeks later and that's when he does shoot him.

In response, defense counsel argued:

[DEFENSE COUNSEL]: We're talking about an incident that, if it did happen, was never reported to the police. He never complained about it. He comes up after—as a matter of fact, this is not even the first statement he made. This is in the second statement. In the first statement there's no mention of this whatsoever. From what I'm hearing, he allegedly had an argument with him over money. He then runs away and at some distance away, he allegedly hears what he thinks will be gunfire.

[COURT]: Gunshots coming from the direction where the defendant was.

[DEFENSE COUNSEL]: It's not the defendant shooting at him. He's not able to say that. He's not able to say that the person who is firing, if this is gunshots, if he believes this is gunshots, he's not able to say this particular person is firing the gun.

* * *

... I'm saying there's no direct link between this defendant attempting to shoot this individual on a prior occasion and then this individual supposedly witnessing this individual shoot at him or fire a gun whatsoever. There's no direct link. That's highly prejudicial, not only because there's no direct evidence to it, but also if, in fact, this happened, why didn't he go to the cops?

[COURT]: The direct evidence would be the proffered testimony of the witness. And it is probative on the issue of whether or not this is a premeditated act. So I find that it's probative value is not substantially outweighed by the prejudice that inures from the prior bad act.^{[ 1 ]}

The court further noted that defense counsel's concerns could be explored during cross-examination. The parties resumed trial tables, and the following testimony occurred:

[STATE]: Mr. Nichols, I was asking you you've known the defendant for at least nine or ten years. Within the past year of 2013, had there come an occasion where you met with the defendant in person?

[MR. NICHOLS]: Yes, ma'am.

[STATE]: And how soon before this incident was that?

[MR. NICHOLS]: About two weeks.

[STATE]: Why were you going to meet with the defendant?

[MR. NICHOLS]: Because he had got some shoes from me. I actually wasn't going to meet with him. I was just walking, eating my fish sandwich, and I seen him and he had gotten some shoes from me. I asked him what's going on with the money for the shoes? And he said what you mean what's going on with the money for your shoes? I haven't seen you in how long? What you mean what's going on with the money for the shoes? So me and him got into an altercation. That's when he pulled a gun out and pointed at me. He clicked it, but I guess it didn't fire. So I ran. And when I was running, that's when I heard the shots go off. About eight or nine shots went off and I kept running.

[STATE]: You said this was two

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