Thompson v. State
| Decision Date | 20 June 2006 |
| Docket Number | No. 110, September Term, 2005.,110, September Term, 2005. |
| Citation | 901 A.2d 208,393 Md. 291 |
| Parties | Warren THOMPSON v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
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.
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.
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, 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 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 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:
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:
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