Parker v. State
| Decision Date | 07 May 2009 |
| Docket Number | No. 1469, September Term, 2007.,1469, September Term, 2007. |
| Citation | 185 Md. App. 399,970 A.2d 968 |
| Parties | Omar PARKER v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Deborah S. Richardson (Nancy S. Forster, Public Defender, on the brief), Baltimore, for Appellant.
Robert Taylor, Jr. (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for Appellee.
Panel: DAVIS, HOLLANDER and LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.
In an incident that occurred on November 29, 2005, Omar Parker, appellant,1 threatened Kya Hicks with a gun. Appellant was arrested on February 17, 2006, with respect to that incident. Following a trial in May 2007, a jury in the Circuit Court for Baltimore City convicted Parker of second-degree assault, in violation of Md.Code (2002 Repl.Vol., 2005 Supp.), § 3-203 of the Criminal Law Article ("C.L."), and retaliation for testimony, in violation of C.L. § 9-303.2 The court sentenced appellant to five years' incarceration for second-degree assault and, pursuant to C.L. § 9-303(c)(2), to a concurrent term of twenty years for retaliation.
This appeal followed. Appellant presents three questions for our review. Recasted and reordered, they are:
1. Did the trial court err by imposing a sentence of twenty years for the crime of retaliation?
2. Did the trial court err or abuse its discretion in limiting cross-examination of the State's key witness?
3. Did the trial court err or abuse its discretion in declining to allow character evidence from a witness who was not in attendance?
4. If preserved, did the trial court err in admitting prejudicial testimony that the victim was placed in witness protection?
For the reasons set forth below, we shall affirm appellant's convictions but vacate his sentence for retaliation and remand for resentencing.
At trial, the State moved in limine to exclude evidence of a fire in Hicks's apartment that occurred in May 2005, which resulted in Hicks's temporary loss of custody of her children. The State also sought to exclude evidence of various complaints that Hicks made to the police "against numerous different people," which did not result in charges against them. The court granted the State's motions, but ruled that appellant could "ask Hicks if the reason she's telling this situation is because she blames [appellant] for her children being taken away from her without allusion to the fire."
Hicks testified that she lived in an apartment on Lennox Street in Baltimore City, located in a neighborhood that "was really drug infested." She elaborated: "Meaning that drug dealers would stand in front of my doorway, in front of my kids['] window, outside preying, selling drugs in front of our kids." Hicks explained that she thought they were drug dealers because she saw "them serve a couple people .... giving things in little baggy's [sic] or clear bottles, little tiny bottles," and she believed the "things" to be drugs. She added that the drug dealing occurred "[r]ight by [her] doorway," inside the apartment building.
Hicks recounted that between 11 p.m. and midnight on May 23, 2005, she awoke to the sound of a gunshot "coming through [her] son's bedroom window." She "seen a hole through the window and [she] looked over to the wall and [she] seen the hole through the wall." Hicks called 911. The State entered photographs of the room and the window into evidence. When the prosecution asked Hicks how she "handl[ed] the drug dealers" before the May 2005 incident, she replied that she was "[r]eporting them to the police and the rental office." She recalled that the police would respond in a marked patrol car and, "[o]nce the police got there, [the drug dealers] would run."
With respect to the events of November 29, 2005, Hicks stated: "I was coming home from a class I had which got out at twelve o'clock,[3] so I got home like twelve thirty ... and seen about thirty junkies in front of my door." She asked the people "to move" so that she could get into her apartment. She identified appellant as one of the persons who was standing by her steps. According to Hicks, she had seen Parker outside her apartment previously, "selling to junkies" and "[g]iving out testers ... samples of the ... drug product." The following colloquy is pertinent:
Hicks described the weapon as a "little gun" with a silver handle, sticking out of the waistband of appellant's pants. When she saw it, Hicks "ran into the house and called the police." Hicks claimed that she was
On cross-examination, the following ensued:
Baltimore City Police Officer Karl D. Hayes responded to Hicks's 911 call in May 2005. He stated that the bullet came in through the window and "lodged in the wall." But, he did not arrest anyone for the incident, because "[n]o one was at the scene and no one actually visually saw anyone commit this offense."
At the close of the State's case, defense counsel moved for acquittal. With regard to the gun charges, defense counsel argued that "no gun was found." With respect to the assault charges, he asserted that there was "no description of shooting any specific person" and "no actual threat to an individual." As to the retaliation charge, the following ensued:
[APPELLANT'S COUNSEL]: [Hicks] never testified that she actually spoke with anybody in the community about anything about calling the police. There's no testimony that the police were ever called on several occasions besides hers. There's no actual documentation of any of it.... [N]obody knew that [she called the police multiple times]. People have to know to retaliate to something and there was no testimony.
* * *
[PROSECUTOR] ... [Appellant's] own words indicate that he knew that she was calling the police.
The court denied the motion.
Appellant testified that Hicks "live in the neighborhood" and he first had contact with her when he "saved her kids" in May 2005.4 He denied that he had any contact with Hicks after that time.
The prosecutor showed appellant Detective Schuler's notes from an oral statement that appellant gave the police on February 16, 2006, attached to a sheet that Parker signed under the statement: 5 Appellant agreed that he had signed the statement. The following colloquy is pertinent:
Appellant denied that he showed Hicks a gun on November 29, 2005. Indeed, appellant maintained that he did not know Hicks's name and had never talked to her. The following exchange is pertinent:
* * *
She beefs[6] with people. She's the one with, that chased people around like I said.
Appellant admitted that he pleaded guilty to drug distribution in 2004 and possession with intent to distribute in 2006, because he "was guilty."
The defense rested and renewed its motion for acquittal, incorporating its prior arguments. The court again denied the motion.
We shall include additional facts in our discussion.
Appellant challenges his sentence for retaliation under C.L. § 9-303, claiming the court improperly imposed an enhanced sentence because a jury should have determined the underlying factual issues. C.L. § 9-303 provides, in part:
§ 9-303. Retaliation for testimony.
(a) Prohibited. — A person may not intentionally harm another, threaten to harm another, or damage or destroy property with the intent of retaliating against a victim or witness for:
(1) giving testimony in an official proceeding; or
(2) reporting a crime or delinquent act.
* * *
(c) Penalty. — (1) Except as provided in paragraph (2) of this subsection, a person...
To continue reading
Request your trial
-
Devincentz v. State
...‘an undue tendency to persuade the jury to decide the case on an improper basis, usually an emotional one.’ " Parker v. State , 185 Md. App. 399, 438–39, 970 A.2d 968 (2009) (quoting Weiner v. State , 55 Md. App. 548, 555, 464 A.2d 1096 (1983) ). Because the evidence the State presented was......
-
Clark v. Prince George's Cnty.
...Tuer v. McDonald, 112 Md.App. 121, 136, 684 A.2d 478 (1996), aff'd,347 Md. 507, 701 A.2d 1101 (1997)); see also Parker v. State, 185 Md.App. 399, 439, 970 A.2d 968 (2009) (citing Best v. State, 79 Md.App. 241, 259, 556 A.2d 701,cert. denied,317 Md. 70, 562 A.2d 718 (1989)) (“A ruling on rel......
-
Parker v. State
...matter is rooted in an incident that occurred on November 29, 2005, when appellant threatened Kya Hicks with a gun. See Parker I, 185 Md.App. at 403-09, 970 A.2d 968. Appellant was convicted on June 4, 2007. At the initial sentencing proceeding on July 26, 2007, the court said:Well Mr. Park......
-
Wagner v. State
...limit, in their discretion, the extent to which a witness may be cross-examined for the purpose of showing bias.’ ” Parker v. State, 185 Md.App. 399, 426, 970 A.2d 968 (2009) (quoting Merzbacher v. State, 346 Md. 391, 413, 697 A.2d 432 (1997)). Accord Martinez, 416 Md. at 428, 7 A.3d 56 (“A......