Thompson v. State, No. 110, September Term, 2005.

CourtMaryland Court of Special Appeals
Writing for the CourtBattaglia
Citation901 A.2d 208,393 Md. 291
PartiesWarren THOMPSON v. STATE of Maryland.
Decision Date20 June 2006
Docket NumberNo. 110, September Term, 2005.

Page 208

901 A.2d 208
393 Md. 291
Warren THOMPSON
v.
STATE of Maryland.
No. 110, September Term, 2005.
Court of Appeals of Maryland.
June 20, 2006.

Page 209

Brian M. Saccenti, Assistant Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, for petitioner.

Gregory D'Alesandro, Assistant Attorney General (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

BATTAGLIA, J.


The case sub judice presents us with the issue of whether a jury instruction on flight should ever be given in a criminal case. Although we determine that flight instructions are not per se improper, we conclude, nevertheless, that the trial judge abused his discretion in the case at bar in providing a flight instruction to the jury.

Facts

On July 17, 2002, Noah Gottesman, William Beaver, and Bradley Kelly were walking back to their hotel near the Inner Harbor in Baltimore City after dinner. On the 1300 block of East Pratt Street, two men on bicycles approached the trio. One of the men said, "I'll make this easy. Put your wallets on the ground." Messrs. Gottesman, Beaver, and Kelly did not stop. The would-be robber pulled a gun, and Messrs. Gottesman, Beaver, and Kelly ran as at least five shots were fired, one of which hit Mr. Gottesman in the right arm. At the end of the block, two men in a sports utility vehicle stopped and offered to take Messrs. Gottesman, Beaver, and Kelly to the hospital, an offer which was accepted.

Police officers met them at the hospital. After interviewing Messrs. Gottesman, Beaver, and Kelly, the officers broadcasted that they were looking for an African-American

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male with corn rows, who was approximately twenty-five years old, wearing a baggy white t-shirt and jeans or jean shorts on a bicycle accompanied by another person.

Detective Frank Mundy arrived at the location of the shooting and saw Warren Thompson, the Petitioner, who fit the broadcast description, on a bicycle. Detective Mundy ran toward him, identified himself as a police officer, and yelled for him to stop. Mr. Thompson saw Detective Mundy and continued to pedal faster away from him. Detective Mundy lost sight of him, but within five minutes, other police officers caught Mr. Thompson within a mile. When he was apprehended, the police recovered a significant quantity of cocaine on Mr. Thompson.

Mr. Thompson was charged with three counts each of attempted first degree murder, attempted second degree murder, first degree assault, second degree assault, use of a handgun in the commission of a felony or crime of violence, reckless endangerment, and one count each of wearing, carrying, or transporting a handgun illegal possession of a regulated firearm, possession of a controlled dangerous substance with intent to manufacture and distribute, and possession of a controlled dangerous substance

At a pretrial hearing held on July 15, 2003 in the Circuit Court for Baltimore City, Mr. Thompson argued that, due to some anomalies in the chain of custody of the cocaine recovered from him when he was arrested, the drugs, the results of the chemical analysis conducted by the police and any statements made by Mr. Thompson concerning the drugs should be suppressed. The State opposed Mr. Thompson's motion and asserted that the drugs were admissible, regardless of any issues in the chain of custody, because Mr. Thompson made statements to the police acknowledging his possession of the drugs. The Circuit Court took the matter under advisement and two days later, immediately prior to the impaneling of the jury, ruled that the cocaine, the results of the chemical analysis, and those portions of Mr. Thompson's statement to police regarding his possession of the drugs were inadmissible. The court also dismissed the charges arising out of his possession of controlled dangerous substances.

During the trial, the prosecution called Messrs. Gottesman, Beaver, and Kelly, each of whom testified concerning the events on July 17, 2002 and identified Mr. Thompson as the shooter. The prosecution also called Baltimore City Detective Frank Mundy, who interviewed the victims and Mr. Thompson after his arrest. Detective Mundy testified that Mr. Thompson fled on his bicycle when Detective Mundy approached and identified himself as the police. The prosecution also played a redacted version of a tape recording of Detective Mundy and Baltimore City Detective Mike Debord's conversation with Mr. Thompson. The defense called Detective Debord, who testified concerning Mr. Gottesman's failure to identify Mr. Thompson as the shooter after viewing a photo array. Mr. Thompson also called Mr. Joseph Harant, a criminalist with the Baltimore City Police Department Laboratory in the Trace Analysis Unit, who testified that there was no gunshot residue on Mr. Thompson's hands.

At the close of the case, included in the instructions given to the jury was the following instruction on flight:

A person's flight immediately after the commission of a crime or after being accused of committing a crime is not enough by itself to establish guilt, but it is a fact that may be considered by you as evidence of guilt. Flight under these circumstances may be motivated by a

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variety of factors, some of which are fully consistent with innocence.

You must first decide whether there is evidence of flight. If you decide there is evidence of flight, you must then decide whether the Defendant's flight shows consciousness of guilt.

On July 21, 2003, the jury acquitted Mr. Thompson of the counts of first degree assault and second degree assault relating to Messrs. Beaver and Kelly, but was unable to reach a verdict on the remaining counts of attempted murder, assault, use of a handgun in the commission of a crime of violence, reckless endangerment, wearing, carrying, or transporting a handgun, and illegal possession of a regulated firearm with respect to Messrs. Beaver and Kelly. The jury was unable to reach a verdict on any of the charges concerning Mr. Gottesman.

The State elected to retry Mr. Thompson only with respect to the charges relating to Mr. Gottesman, which included one count of: attempted first degree murder, attempted second degree murder, 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. As with the first trial, the tape recording of Mr. Thompson's statements to the police that he fled was played again for the jury and a transcript of the statement also was provided, without objection. The State also called Detective Mundy to testify, which he did as follows:

[THE STATE]: Where were you when you first saw the defendant?

[DETECTIVE MUNDY]: I was in the 1100 block of East Pratt Street.

[THE STATE]: Where was he?

[DETECTIVE MUNDY]: He was on a bicycle heading—I guess it would be westbound on the 1100 block of East Pratt Street.

[THE STATE]: If you could help us out, is that towards the Inner Harbor or away from the Inner Harbor?

[DETECTIVE MUNDY]: It would be towards the Inner Harbor.

* * *

[THE STATE]: What did you personally do?

[DETECTIVE MUNDY]: I attempted to approach the defendant.

[THE STATE]: Okay. Did you walk toward him?

[DETECTIVE MUNDY]: Well, I had to run up to him because he was pedaling a bicycle away.

[THE STATE]: Okay. Did you say, "Stop, police"?

[DETECTIVE MUNDY]: Well, what happened was, when I started running up towards him, he turned around and saw me, and he started to pedal away faster, and I did yell at that point to stop.

[THE STATE]: Okay. Before he saw you—I mean, before he started to pedal away, when you first approached him, did you have your gun drawn?

[DETECTIVE MUNDY]: No.

[THE STATE]: Did you say, "Stop, police"?

[DETECTIVE MUNDY]: No, I don't think I did.

[THE STATE]: Okay. As he pedaled away, what did you do?

[DETECTIVE MUNDY]: What, after he saw me?

[THE STATE]: Yes.

[DETECTIVE MUNDY]: After he saw me and he pedaled away, I called it out

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to try to get him stopped. I did tell him at that point I was the police, to stop.

* * *

[THE STATE]: Detective, before you saw the defendant fleeing on the bicycle, was he under arrest at that time?

[DETECTIVE MUNDY]: No.

[THE STATE]: Okay. And how do you know that he heard you?

[DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: If you know how you know, or if you just assumed it, you can tell us that. Overruled.

[DETECTIVE MUNDY]: Well, like I said, I ran towards. He saw me. He started pedaling faster away and I yelled, "Stop, police!" I don't know for certain that he heard me, but ...

Mr. Thompson did not object to the admission of the evidence concerning his flight from police, although he did object to the form of the questions.

During the bench conference preceding the jury instructions, the State requested a flight instruction and the following colloquy occurred:

[THE STATE]: The State would also ask for [Maryland Pattern Jury Instruction—Criminal] 3:24,1, which is flight of the defendant.

[DEFENSE COUNSEL]: I would like to be heard on that, Your Honor.

THE COURT: Sure.

[DEFENSE COUNSEL]: Your Honor, the previous motion suppressed drugs that allegedly were found on Mr. Warren's person—Mr. Thompson's person—and in his statement, which was redacted from the jury, he says basically, "I ran because I was dirty." That was redacted. Now, if you let this flight instruction in front of the jury, they're going to think that he ran because he committed the shooting, not perhaps the real reason: he ran because he was dirty. That was kept from the jury and I think this is misleading, given the facts that the jury actually did hear.

THE COURT: Well, the instruction says, "Flight under these circumstances may...

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129 practice notes
  • Grimes v. State , No. 1838
    • United States
    • Court of Special Appeals of Maryland
    • October 28, 2011
    ...“We review a trial judge's decision whether to give a jury instruction under the abuse of discretion standard.” Thompson v. State, 393 Md. 291, 311, 901 A.2d 208 (2006). Pursuant to Rule 4–325(c), the court may, and at the request of any party shall, instruct the jury as to the applicable l......
  • Wagner v. State, No. 2129
    • United States
    • Court of Special Appeals of Maryland
    • September 4, 2013
    ...elsewhere in the jury instruction actually given.’ ” McMillan v. State, 428 Md. 333, 354, 51 A.3d 623 (2012) (quoting Thompson v. State, 393 Md. 291, 302–03, 901 A.2d 208 (2006)). As we recently explained, “[a]n appellate court reviews a trial court's decision not to grant a jury instructio......
  • Armacost v. Davis, No. 69, Sept. Term, 2017
    • United States
    • Court of Special Appeals of Maryland
    • January 25, 2019
    ...under an abuse of discretion standard. CSX Transportation, Inc. v. Pitts , 430 Md. 431, 458, 61 A.3d 767 (2013) ; Thompson v. State , 393 Md. 291, 311, 901 A.2d 208 (2006). A trial court abuses its discretion if it commits an error of law in giving a particular jury instruction. Harris v. S......
  • Harris v. State, No. 1515, Sept. Term, 2019
    • United States
    • Court of Special Appeals of Maryland
    • July 28, 2021
    ...elsewhere in jury instructions actually given." Wright v. State , 474 Md. 467, 484, 255 A.3d 73 (2021) (quoting Thompson v. State , 393 Md. 291, 302, 901 A.2d 208 (2006). An instruction regarding the duty to contact a parent set forth in CJ § 3-8A-14(b) did not meet those requirements ......
  • Request a trial to view additional results
129 cases
  • Grimes v. State , No. 1838
    • United States
    • Court of Special Appeals of Maryland
    • October 28, 2011
    ...“We review a trial judge's decision whether to give a jury instruction under the abuse of discretion standard.” Thompson v. State, 393 Md. 291, 311, 901 A.2d 208 (2006). Pursuant to Rule 4–325(c), the court may, and at the request of any party shall, instruct the jury as to the applicable l......
  • Wagner v. State, No. 2129
    • United States
    • Court of Special Appeals of Maryland
    • September 4, 2013
    ...elsewhere in the jury instruction actually given.’ ” McMillan v. State, 428 Md. 333, 354, 51 A.3d 623 (2012) (quoting Thompson v. State, 393 Md. 291, 302–03, 901 A.2d 208 (2006)). As we recently explained, “[a]n appellate court reviews a trial court's decision not to grant a jury instructio......
  • Armacost v. Davis, No. 69, Sept. Term, 2017
    • United States
    • Court of Special Appeals of Maryland
    • January 25, 2019
    ...under an abuse of discretion standard. CSX Transportation, Inc. v. Pitts , 430 Md. 431, 458, 61 A.3d 767 (2013) ; Thompson v. State , 393 Md. 291, 311, 901 A.2d 208 (2006). A trial court abuses its discretion if it commits an error of law in giving a particular jury instruction. Harris v. S......
  • Harris v. State, No. 1515, Sept. Term, 2019
    • United States
    • Court of Special Appeals of Maryland
    • July 28, 2021
    ...elsewhere in jury instructions actually given." Wright v. State , 474 Md. 467, 484, 255 A.3d 73 (2021) (quoting Thompson v. State , 393 Md. 291, 302, 901 A.2d 208 (2006). An instruction regarding the duty to contact a parent set forth in CJ § 3-8A-14(b) did not meet those requirements ......
  • Request a trial to view additional results

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