Thompson v. State

• Decision Date: 05 October 2005
• Docket Number: No. 668,668
• Citation: 884 A.2d 678,164 Md. App. 652
• Parties: Warren THOMPSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

884 A.2d 678

164 Md. App. 652

Warren THOMPSON v. STATE of Maryland.

No. 668, September Term, 2004.

Court of Special Appeals of Maryland.

October 5, 2005.

Brian M. Saccenti (Nancy S. Forster, Public Defender, on brief), for appellant.

Gregory D'Allesandro (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel MURPHY, C.J., EYLER, JAMES R., and BARBERA, JJ.

EYLER, JAMES R., J.

Warren Anthony Thompson, appellant, was convicted by a jury in the Circuit Court for Baltimore City of first-degree assault; second-degree assault; reckless endangerment; use of a handgun in the commission of a felony or crime of violence; wearing, carrying, or transporting a handgun; and possession of a regulated firearm after having been convicted of a disqualifying crime.¹ The jury acquitted appellant of attempted first-degree murder and attempted second-degree murder. After denying appellant's motion for a new trial, the court sentenced appellant to twenty-five years' imprisonment for assault in the first-degree, the second-degree assault and reckless endangerment counts merging; fifteen years' imprisonment for using a handgun in the commission of a felony or crime of violence, the wearing, carrying, or transporting a handgun count merging; and a concurrent five-year sentence for possession of a regulated firearm after having been convicted of a crime.

On appeal, appellant contends that the court erred 1) in giving the jury a flight instruction; 2) by prohibiting defense counsel from eliciting that appellant was previously acquitted of assaulting two of the State's witnesses; and 3) in denying appellant's motion to suppress the out-of-court photographic identification by a witness. Perceiving no error, we shall affirm.

Factual Background and Procedural History

On the evening of July 17, 2002, Noah Gottesman, William Beaver, and Bradley Kelly were walking to their hotel near the Inner Harbor when they were approached by two men on a bicycle. One of the men on the bicycle, later identified as appellant, said to the group, "I'll make this easy. Put your wallets on the ground." Not realizing that appellant had a gun, the three men kept walking. As they passed appellant, Mr. Kelly noticed that appellant was pulling a gun out of his pocket or waistband. At that point, Mr. Kelly yelled to Mr. Beaver and Mr. Gottesman to run. As they ran, they heard between five and eight shots fired in their direction, and Mr. Gottesman screamed that he had been shot.² As they reached the end of the block, a car stopped and they were told to get in. The two men inside the car drove them to the emergency room.

At the hospital, the three men were met by a police officer, to whom they gave a description of the shooter. Subsequently, a description was broadcast over the police radio that the shooter was a black male on a bicycle, approximately 25 years old, with corn rows, a baggy white t-shirt, and jeans or jean shorts.

Detective Frank Mundy of the Baltimore City Police Department responded to the scene of the shooting. While at the scene, Detective Mundy saw appellant, who matched the description of the shooter and was riding a bicycle. Detective Mundy started to run towards appellant, calling out for him to stop. Appellant saw Detective Mundy and started pedaling away. Although Detective Mundy lost sight of appellant, appellant was apprehended within five minutes by other police officers and taken to the police station.

Later that night, Mr. Kelly, Mr. Beaver, and Mr. Gottesman went to the police station to give statements and to view a photographic array. Mr. Kelly and Mr. Beaver both identified appellant as the shooter from the photo array. Mr. Gottesman was not able to identify appellant from the photo array.

I. The first trial

Appellant was originally charged in three separate indictments with, inter alia, attempted murder, assault, and use of a handgun against Mr. Kelly, Mr. Beaver, and Mr. Gottesman. Appellant was also charged with possession of a controlled dangerous substance. Following his arrest, appellant, in a tape-recorded statement, explained to police the reason for his presence at the scene as follows.

[APPELLANT]: I was riding my bike I was coming from my house . . . and . . . I observed . . . police officer's pulling [a] couple of people over I thought it was a[n] accident, actually I thought it was a car accident and farther up in the next block, it was some more police officers um and I just rode though [sic]. On my way back police officer pulled me over and um I ride because I was dirty.

* * *

DETECTIVE: When you say you ran because you was dirty, what was you carrying?

[APPELLANT]: Um, crack cocaine, probably cocaine.

(Emphasis added). The police had in fact recovered 86 vials of cocaine from appellant upon his arrest. Before trial, however, the circuit court suppressed evidence of the drugs, apparently because of a break in the chain of custody. Thus, the State did not seek to prosecute appellant on the possession charge. Appellant's taped confession was allowed into evidence. However, at appellant's request, the court redacted the portions of the statement relating to the drugs, because of their prejudicial nature.

Prior to trial, on March 10, 2003, a motions hearing was held. At the hearing, appellant challenged the admissibility of Mr. Kelly's pre-trial identification of appellant. Specifically, appellant argued that the array was "unnecessarily suggestive," as it contained only one photograph — appellant's — where the individual was wearing a "white t-shirt." In support of this motion, appellant proffered the testimony of Detective Michael Debord of the Baltimore City Police Department. Detective Debord testified that, at 11:46 p.m. on July 17, 2002, Mr. Kelly gave a description of the shooter "as being a black male, under 25, 5'10 to 5'9, 160, 165 pounds, white shirt, baggy jeans and dreadlocks or corn rows." At 12:09 a.m. on July 18, 2002, Mr. Kelly, as a witness to the shooting, was shown a photographic array containing the photographs of six black males. The instructions on the back of the array, given to Mr. Kelly before the photo array was shown, provided as follows:

This group of photographs may or may not contain the picture of the person who committed the crime now being investigated. Keep in mind that hair-styles, beards and mustaches may easily be changed. Also, photographs may not always depict the true complexion of a person. Complexion may be lighter or darker than shown in the photo. When you've looked at all the photos tell me whether or not you see the person who committed the crime. Do not tell other witnesses you have or have not identified anybody.

Appellant's counsel³ asked Detective Debord about the clothing worn by the subjects in the photo array, and the following occurred.

[APPELLANT'S COUNSEL]: Okay. And out of those six photographs could you tell the court who is the — which gentleman [sic] are in white T-shirts? You can do it by numbers.

DETECTIVE DEBORD: Number two has a white T-shirt. Number four has a white T-shirt. Number five has a white tank top T-shirt.

[APPELLANT'S COUNSEL]: Okay. But as far as the description of Mr. Kelly goes, did Mr. Kelly describe a tank T-shirt?

DETECTIVE DEBORD: No.

[APPELLANT'S COUNSEL]: He described a white T-shirt, is that correct?

DETECTIVE DEBORD: Yes. Yes, ma'am.

[APPELLANT'S COUNSEL]: And as far as the only individual who is wearing a white T-shirt without a jacket over it it's number two, is that correct?

DETECTIVE DEBORD: Yes, ma'am.

[APPELLANT'S COUNSEL]: Okay. Were you present when Mr. Kelly made a statement on the — wrote a statement on the back of that photo array?

DETECTIVE DEBORD: Yes.

[APPELLANT'S COUNSEL]: Do you have a copy of that?

DETECTIVE DEBORD: Yes, ma'am.

[APPELLANT'S COUNSEL]: And you were there when Mr. Kelly wrote down the statement, is that correct?

DETECTIVE DEBORD: Yes, I was.

[APPELLANT'S COUNSEL]: Could you read that statement into the record?

DETECTIVE DEBORD: "I believe it's number two because I recognize his facial features and the white T-shirt."

[APPELLANT'S COUNSEL]: And the white T-shirt, is that correct?

DETECTIVE DEBORD: Yes, ma'am. Yes, ma'am.

[APPELLANT'S COUNSEL]: Okay. Had you told Mr. Kelly when this picture of [appellant] was taken?

DETECTIVE DEBORD: No.

[APPELLANT'S COUNSEL]: Did you tell him that it was taken that day or sometime previously?

DETECTIVE DEBORD: No.

[APPELLANT'S COUNSEL]: So Mr. Kelly basically described this gentleman on behalf of his — by his facial features and his white T-shirt, is that correct?

DETECTIVE DEBORD: That's what he wrote down, yes.

[APPELLANT'S COUNSEL]: Were there any other people in the room when Mr. Kelly made this identification?

DETECTIVE DEBORD: Just Detective Mundy and I.

[APPELLANT'S COUNSEL]: Did Mr. Kelly have reason to believe that any suspect had been arrested in this case?

DETECTIVE DEBORD: No.

On cross-examination, Detective Debord testified to the following.

THE STATE: Detective, who assembled this photo array?

DETECTIVE DEBORD: I did.

THE STATE: Okay. Any why — can you tell us part of your reasoning that goes into assembling a photo array?

DETECTIVE DEBORD: Well, you get photographs to try to find other photographs that meet the same general description to try to get close to age. I mean, you don't want somebody with a real big face and a real — you don't want to have somebody with a real large face and then put him in with arrays with people — try to — try to get their description as close as you can, but not too close to confuse the witnesses.

THE STATE: And you did that based upon their facial features, correct?

DETECTIVE DEBORD: Yes.

THE STATE: You do it based on their hairstyles, correct?

DETECTIVE DEBORD: Yes.

THE STATE: Do you do it based on their clothing description?

DETECTIVE DEBORD: No, I try not to, no.

The court denied appellant's motion to suppress the photo array identification by Mr. Kelly, stating:

Motion is denied. The

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