Tirado v. State, 759

CourtCourt of Special Appeals of Maryland
Citation95 Md.App. 536,622 A.2d 187
Docket NumberNo. 759,759
PartiesEric Joseph TIRADO v. STATE of Maryland. ,
Decision Date01 September 1992

James Wyda, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), both of Baltimore, for appellant.

Gwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both of Baltimore, and William R. Hymes, State's Atty. for Howard County of Ellicott City, on the brief), for appellee.

Submitted before MOYLAN, BISHOP and ROSALYN B. BELL, JJ.

BISHOP, Judge.

Eric Joseph Tirado (Tirado) was charged with first degree murder, robbery with a dangerous and deadly weapon, two handgun violations, and being an accessory after the fact to murder. The State filed a notice of intent to seek the death penalty. After a jury trial in the Circuit Court for Howard County, Tirado was convicted of all charges except accessory after the fact. He was sentenced by a jury to life without parole for murder, twenty years for robbery, and two five year terms for the handgun violations; each sentence was consecutive to the others. Because a notice of appeal was not timely filed, our jurisdiction to decide this matter arises pursuant to the court's granting Tirado post-conviction relief in the form of a belated appeal.

Issues

Tirado presents the following nine issues for our review: whether the court erred when it

I. failed to grant defense counsel's requested relief for the State's discovery violation;

II. limited Tirado's impeachment of witness Devarie;

III. admitted evidence of other crimes;

IV. admitted Trooper Coppinger's opinion testimony V. admitted identification testimony;

VI. admitted the expert opinion of Special Agent Spaulding regarding the sequence of shots;

VII. instructed the jury on felony murder;

VIII. instructed the jury on armed robbery; and

IX. whether the court's cumulative errors require reversal?

Facts

The record in this case is extensive. Tirado's trial commenced on June 17, 1991, and concluded about a month later on July 18, 1991. (Beginning April 17, 1991, and ending on June 12, 1991, a total of seven days of pre-trial motions hearings were held; jury selection began on June 13, 1991.) Numerous witnesses testified at Tirado's trial.

On March 29, 1990, John Anderson was driving a tractor-trailer northbound on I-95 at a speed of about seventy-two miles per hour. He and the driver of a car were "running parallel at approximately the same speed." Anderson saw a State trooper pull his police vehicle in between the tractor-trailer and the car; he then saw the trooper drop back behind the car and activate his car's emergency lights. The trooper and the driver of the car continued at the same speed for "approximately five-eights of a mile." He noticed that there were two occupants in the car. When the trooper turned on his spotlight, the light "reflected off the rear view mirror and [lit] the driver's face up." Subsequently, in November 1990, while watching television, Anderson saw the driver of the car being escorted in handcuffs by the police. Anderson recognized Tirado as being the driver of the car.

Also on March 29th, Wilbur Farver was driving his truck northbound on I-95 sometime between 3:54 and 3:56 a.m. He noticed, alongside the highway, a State trooper's vehicle with its lights on and a car stopped in front of it. Farver saw "a male get out of the front right side of the trooper's car." He noticed that the male "just slowly walked up to the car that was apparently stopped in front of the trooper." The door of the police vehicle was left open. He then saw the man open the passenger door of the car, lean inside, and talk to the person seated inside. The occupant was leaning from the driver's side to the passenger's side. He then observed the man slowly walk back to the police vehicle.

Later that morning, at around 4:00 or 5:00 a.m., Officer Robert Loproto of the District of Columbia Metropolitan Police Department was travelling northbound on I-95 when he observed Corporal Wolf seated in a State Police vehicle with his head "slightly down." The vehicle's interior lights, emergency lights, and headlights were on. Officer Loproto stopped, walked toward the passenger side of the vehicle, and saw "blood on the front seat and ... blood all over [Trooper Wolf's] face."

At about 5:15 a.m., Officer Louis Martin of the Baltimore County Police Department responded to a call for a suspected stolen vehicle discovered behind a local restaurant. He saw what he believed to be blood inside the car and on the car's exterior. He found the "charred remains of what [he] believed to be a trooper's warning book, on the ground, approximately ten feet in front of the car toward the back door of [the restaurant]."

James Simms, a fingerprint expert with the Maryland State Police Department, testified that Tirado's fingerprints matched three fingerprints recovered from the driver's side of the stolen car. According to Simms, Tirado's right ring fingerprint was "positively identical in friction ridge characteristics to the blood print taken from the armrest" of the car. Tirado's fingerprints were also matched to three prints recovered from the clothing store bag found in the car's back seat. The fingerprints of Tirado's accomplice, Francisco Rodriguez, were found on papers that belonged to the car's owner.

Sharon Dubey, a forensic serologist with the Maryland State Police, testified that, based on tests conducted on the blood stains found in the stolen car and in the police vehicle Corporal Wolf was the sole source of the blood, and Tirado and Rodriguez were excluded as possible sources.

James Kaplan, a former Maryland assistant medical examiner, and an expert in forensic pathology, performed the autopsy of Corporal Wolf. In his opinion, Corporal Wolf sustained gunshot wounds to the lips, right cheek, and back of the head. According to Kaplan, Corporal Wolf was first shot in the lips--which caused his head to droop--and was subsequently shot in the cheek.

F.B.I. Special Agent Robert Spaulding, an expert in blood stain pattern analysis, testified that the blood stain patterns in the police vehicle's front and back seat areas were "consistent with the wounds that he suffered," but he "would not necessarily feel comfortable associating them with either particular shot."

Professor Herbert Leon McDonald, also an expert in blood stain analysis, testified that "both shots were fired from outside of the door [of the trooper's car]." He posited that the "back seat is uniformly spattered, and if a person were in the back seat, they would have intercepted the blood." He opined that no one could have been in the back seat when the shot was fired that caused the blood spatter in the vehicle because there were "no streaks or smears anywhere on the front or the back seat."

Edgar Devarie (Devarie), a friend of Tirado's, testified that, during the first week of April 1990, he went to Tirado's family's house in New York City to visit Tirado and Rodriguez. Tirado told Devarie that he shot a police officer. Tirado explained to Devarie that he and Rodriguez were travelling from Virginia through Maryland in a stolen car. Tirado said that he was the driver of the car, and that he was speeding. Tirado told Devarie that he stole the car because he did not have enough money to get back to New York.

According to Devarie, Tirado told him that a State trooper pulled over the stolen car, and after talking with Tirado, walked back to his vehicle with Tirado's license and registration. At that point, Tirado and Rodriguez discussed who would kill the officer. Tirado said, "I'll do it." Rodriguez handed Tirado a .357 magnum and Tirado "put it in his pants." The trooper then told Tirado and Rodriguez to come to his vehicle, and Tirado got in the front passenger seat of the police vehicle and Rodriguez got in the back. The trooper then told Rodriguez to close the door, and Rodriguez got out of the vehicle to go close the door of the stolen car. The trooper said, "Hey what are you doing? Where are you going?" Rodriguez said he was going to close the door of the car, and the trooper said, "No, not that door, this door." Then Rodriguez got in the back seat of the car, and the trooper started to write a ticket. Tirado then pulled out the gun and shot Corporal Wolf. Tirado told Devarie that the trooper "straightened up, opened his eyes." Because "he didn't know where the first bullet went," Tirado shot the trooper a second time in the head.

Tirado went on to tell Devarie that, after he shot the trooper, he took the ticket book, his driver's license, and other papers. He then "cleaned up a bit and he ran." The two men got back in the stolen car and drove to the next exit and abandoned the vehicle. As they ran away, they burned Corporal Wolf's ticket book because it had Tirado's name on it.

Finally, Rosalinda Santos's prior recorded statements were admitted into evidence. Before Tirado and Rodriguez left for New York, Santos heard Rodriguez exclaim that "[h]e was so mad that if somebody got in his way or stopped--or stopped him he would kill the person." She overheard Rodriguez say, "I have nothing to lose, I'm going to jail." Santos added that he said he "hates police."

Additional facts are provided in the discussion, infra, where necessary.

I.

Tirado first contends that the trial court erred when it refused to declare a mistrial, or in the alternative, strike Devarie's testimony, or grant a continuance. Specifically, he argues that the State violated discovery rules when it failed to disclose: 1) Devarie's correct address; 2) the fact that he relocated from New York to Maryland; and, 3) promises and inducements made by the State to Devarie to secure his testimony at trial. Tirado maintains that the State was required to disclose Devarie's most recent address--1035 Woodycrest Avenue. Even though the State notified defense counsel of Devarie's 40 Mont...

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