Taylor v. State, No. 2190

CourtCourt of Special Appeals of Maryland
Writing for the CourtOpinion by Harrell, J.
PartiesDEVON JORDAN TAYLOR v. STATE OF MARYLAND
Decision Date02 April 2018
Docket NumberNo. 2190

DEVON JORDAN TAYLOR
v.
STATE OF MARYLAND

No. 2190

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016
April 2, 2018


HEADNOTES

APPELLATE PROCEDURE - PRESERVATION - MARYLAND RULE 4-325(e) - SUBSTANTIAL COMPLIANCE

The Court of Special Appeals held that a challenge to a trial court's allegedly erroneous jury instruction was preserved for appellate review where the party alleging the error complied substantially with Maryland Rule 4-325(e). The trial judge included an unrequested anti-CSI effect jury instruction (at the dawn of Maryland's anti-CSI effect jurisprudence when Evans v. State, 174 Md. App. 549, 570-71 922 A.2d 620, 632-33 (2007), was the sole reported opinion on the subject), which instruction he had given in prior cases, and then asked counsel whether there were any additions or exceptions to the given instructions. Taylor asserted a blanket objection to the court's anti-CSI effect jury instruction. The trial judge noted Taylor's objection, but did not request a further explanation from Taylor as to his grounds. The appellate court inferred that the trial judge and counsel were conversant with Evans, including its concern that such an instruction might be problematic if it operated "ultimately to relieve the State of its burden of persuasion in a criminal case." The trial judge appeared to comprehend the thrust of Taylor's exception within the context of Evans. Taylor's general objection, while not specifying the grounds, complied with the purpose of Md. rule 4-325(e) in these particular circumstances.

POST CONVICTION - BELATED APPEAL - DIRECT APPEAL

Belated appeals have been permitted when a timely direct appeal was attempted, but thwarted by the action of State officials, or when a defendant is denied an appeal through no fault of his own. The Uniform Post-Conviction Procedure Act contemplates that belated appeals insure remedially that a defendant receive a full appellate review of his or her case as if his or her appeal had been timely and properly pursued. The Court of Special Appeals concluded that a belated appeal, granted as post-conviction relief, restores the opportunity for the retrospective application of case law decided after the trial in question.

POST CONVICTION - CRIMINAL PROCEDURE - ANTI CSI EFFECT JURY INSTRUCTION - HARMLESS ERROR

The Court of Special Appeals held that the trial judge's anti-CSI effect jury instruction fell within the prohibited circumstances staked-out in Robinson v. State, 436 Md. 560, 580, 84 A.3d 69, 81 (2014), Stabb v. State, 423 Md. 454, 31 A.3d 922 (2011), and Atkins v. State, 421 Md. 434, 26 A.3d 979 (2011). Although the trial judge erred by giving preemptively a CSI effect instruction, the Court was satisfied beyond a reasonable doubt that the error was harmless. There was a direct eyewitness identification of Taylor by the victim as the

Page 2

perpetrator, which we have found in many cases to be sufficient unto itself to permit a jury to find guilt beyond a reasonable doubt. Any fingerprint or DNA evidence connecting Taylor to the crime scene (although none was offered) would have bolstered the victim's testimony, but would have been cumulative and thus not essential in the State meeting its burden of proof.

Page 3

Circuit Court for Wicomico County
Case No. 22-K-07-000921

REPORTED

Wright, Kehoe, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Harrell, J.

Page 4

"Lucy, you got some 'splainin' to do."1

Desi Arnaz (as Ricky Ricardo) to Lucille Ball, "I Love Lucy." (CBS, 1951-57)

Appellant, Devon Taylor, condemns the Circuit Court for Wicomico County for abusing its discretion during his 4 December 2008 criminal trial. The principal vehicle of abuse was the giving preemptively and sua sponte by the trial judge of an "anti-CSI effect"2 instruction to the jury, which had the now asserted effect of relieving the State of meeting its high burden of proof. As a result, he maintains that the instruction invaded the province of the jury and deprived him of a fair trial. Moreover, the trial judge abused his discretion further by "coercing the jury to come to a verdict," and by relying impermissibly on certain considerations in sentencing Taylor.

Appellee, the State of Maryland, responds that Taylor failed to preserve properly his challenge to the CSI effect jury instruction because his objection "failed to state distinctly the matter to which he objected and the grounds of the objection," as required by Md. Rule 4-325(e). Furthermore, the State maintains that the trial judge adhered to the

Page 5

language of the Maryland Pattern Jury Instructions (MPJI) when instructing the jury regarding the unanimity requirement, and sentenced properly Taylor.

At the end of the day, although we shall hold that the trial judge abused his discretion in propounding to the jury the CSI effect instruction, the error was harmless, beyond a reasonable doubt, on this record. Moreover, we hold that Taylor waived his challenge to the trial judge's continuing deliberation instruction to the jury. Finally, the trial court did not abuse its discretion in considering evidence of Taylor's adult and juvenile records during sentencing. Consequently, we affirm the judgment of the circuit court.

The Facts

The following evidence was adduced by the State at trial. On the morning of 13 June 2008, the victim was alone in her apartment in Salisbury. At approximately 1:00 a.m., someone knocked on her front door. She opened the door "just a crack" and saw a nude man masturbating, while standing to the left on her patio and looking at, but not facing directly, her. As she was shutting the door, the man tried unsuccessfully to push his way in. The victim locked the door and dialed 9-1-1. The man broke the lock on the door and entered the apartment. He wore only a t-shirt hanging around his neck, which he pulled over the lower part of his face upon entering the apartment. The shirt, according to the victim, fell to his neck and revealed his full face during the encounter.

The victim ran to her kitchen and retrieved a 12-inch knife. The man approached her and "grabbed or touched her arm" holding the knife. She was able to twist her arm free, which, in the process, caused the knife to make contact with the intruder, without

Page 6

inflicting apparent injury.3 The victim was able to see clearly the man's face because her living room lights, and possibly her kitchen lights, were on during the encounter in the apartment.

The man backed-off when the knife touched him. Then, he noticed the victim's purse on the kitchen counter. He seized the purse, containing the victim's wallet, and fled the apartment. The victim testified that the incident lasted "three to four minutes."

Officer Baker arrived at the scene at 1:03 a.m., shortly after the man fled. He observed "golf-ball sized holes or dents" in the victim's apartment door. The victim told Officer Baker that the intruder was "medium skinned with no tattoos or scars, and that he had a grey t-shirt around his neck."4 The officer did not seize the knife from the crime scene for forensic testing.

Later, Detective Corporal Richard Kaiser became the lead investigator regarding the incident. During his review of the police case file compiled to that point, he noticed that the apartment door had not been processed for fingerprints or the holes/dents photographed. Detective Kaiser contacted the property manager for the apartment complex and learned that a maintenance person had replaced the victim's door, moving her former door to another apartment in the complex. He went to the location of the "suspect" door and dusted its knob for prints. No usable fingerprints were recovered. Detective Kaiser noted also that the door had several large "golf ball size[d]" dents in it. He too did not seize the

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victim's kitchen knife5 for forensic examination nor attempt to secure any fingerprints from inside the apartment.

On 12 July 2008, one month after the incident, Detective Scott Elliott requested the victim look at a photo array to see if she could identify anyone as the person who exposed himself to and robbed her. She identified Taylor after "4 seconds."

The State charged Taylor in the circuit court with first, third, and fourth-degree burglary, attempted second-degree rape, robbery, second-degree assault, indecent exposure, malicious destruction of property, and theft less than $100. At the close of the evidence at his trial, during jury instructions, the following occurred:

[The Court to the jury]: There is no legal requirement that the State offer scientific evidence as part of its case, such as DNA, fingerprinting, blood typing, fiber analysis, hair follicle analysis, or anything of that nature.[6]

* * *

[At the close of all instructions]

[The Court to counsel]: Any additions or exceptions?

[Taylor's Counsel]: We would except, [y]our Honor.

[The Court]: Yes.

* * *

[Taylor's Counsel]: Your honor, I would just except to the Court's scientific evidence instruction.

[The Court]: All right.

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The jury convicted Taylor of all charges, save attempted second-degree rape.7 The trial court "sentenced [Taylor] to [seventeen] years for count one, first-degree burglary; ten years for count four, robbery; and three years for count seven, indecent exposure. The sentences were to run consecutively, for a total of [thirty] years executed time. The remaining convictions merged."

No appeal was filed timely. Appellant filed a pro se petition for post-conviction relief on 9 June 2016, alleging that his trial attorney's performance was ineffective and prejudiced Taylor's rights by failing to "file both a notice of appeal and an application for review of his sentence by a three-judge panel." On 1 December 2016, Taylor's recently-acquired post-conviction public defender (joined by the State and accepted by the circuit court) entered into "a consent order that [among other forms of relief] allowed [Taylor] to file a belated notice of appeal [from his 2008 conviction] and [an]...

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