Wagner v. State, 2129

CourtCourt of Special Appeals of Maryland
Citation74 A.3d 765,213 Md.App. 419
Docket NumberNo. 2129,Sept. Term, 2011.,2129
PartiesJohn WAGNER v. STATE of Maryland.
Decision Date04 September 2013


Brian L. Zavin (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Sarah P. Pritzlaff (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: WOODWARD, GRAEFF, IRMA S. RAKER (Retired, Specially Assigned), JJ.


After an eight-day trial, a jury sitting in the Circuit Court for Baltimore City convicted John Wagner, appellant, of first degree felony murder, armed robbery, and conspiracy to commit armed robbery. The court imposed a sentence of life imprisonment for the felony murder conviction and a consecutive sentence of twenty years for the conspiracy conviction.1

On appeal, appellant presents seven questions for our review, which we have rephrased slightly as follows:

1. Did the trial court err by refusing to ask appellant's requested voir dire question?

2. Must appellant's convictions be reversed as a result of the introduction of other crimes evidence?

3. Did the trial court err in admitting evidence that appellant called out his girlfriend's name while in custody, and thereafter in refusing to allow appellant to introduce evidence to explain his action?

4. Did the trial court err in restricting appellant's ability to cross-examine a witness regarding her eligibility for parole?

5. Did the trial court err in admitting hearsay evidence?

6. Did the trial court err in refusing to tailor its flight and concealment of evidence instructions to both sides' theories of the case?

7. Did the trial court err in denying appellant's request to appear without shackles during the announcement of the verdict and polling of the jury?

For the reasons set forth below, we shall affirm the judgments of the circuit court.


On July 25, 2010, at approximately 11:00 p.m., Stephen Pitcairn arrived at Penn Station in Baltimore City. He was returning from a trip to New York, where he celebrated his 24th birthday with his sisters.

While Mr. Pitcairn was walking from the station to his apartment, located in the Charles Village section of Baltimore City, he was attacked and robbed by two individuals. Less than an hour later, at 12:05 a.m. on July 26, 2010, Mr. Pitcairn died due to a stab wound to his chest.

When Mr. Pitcairn arrived at the train station at approximately 11:00 p.m., he called his mother, Gwen Pitcairn, to let her know that he was back in Baltimore. He said he was going to walk home from the station, which he estimated to be a 15–20 minute walk. Mr. Pitcairn asked his mother to talk to him on his cell phone until he got home, stating: “I always feel so safe when you're on the phone with me.”

Mr. Pitcairn was telling Ms. Pitcairn about his weekend with his sisters when Ms. Pitcairn heard “a lot of noise and commotion.” She heard Mr. Pitcairn state that he did not have any money, and he said: “Here, take my wallet.” Ms. Pitcairn heard a man say “shut up” twice. She then heard “something [that] sounded like [Mr. Pitcairn] got punched” and “shuffling” sounds. Someone then disconnected the call from Mr. Pitcairn's phone.

Ms. Pitcairn, who was at her home in Florida, called 411 and was connected to 911 in Baltimore. By the time she spoke with the 911 operator, the Baltimore police already were aware that there had been an incident. At 2:45 a.m. on July 26, 2010, Ms. Pitcairn learned that Mr. Pitcairn had been killed.

Prior to the assault, Reggie Higgins was at his home on St. Paul Street. He heard loud noises outside, looked out of his second-floor window, and saw three people scuffling on the sidewalk in front of his home. Mr. Higgins observed a thin white male who was approximately six feet tall, whom he later learned was Mr. Pitcairn, backing away from two black individuals, both of whom Mr. Higgins believed were men. One of the individuals had braided hair or twists, and the other had short hair.

Mr. Pitcairn yelled: [H]elp,” and Mr. Higgins ran down the stairs to his first-floor window to get a better view. He saw the two individuals tussling with Mr. Pitcairn, and he went to get his keys to go outside. When he looked back out the window, he saw Mr. Pitcairn on the ground. The assailant with short hair was leaning over Mr. Pitcairn, and the other was holding something, which appeared to be a wallet. Mr. Higgins used his keys to open his security door and yelled: “Hey!” By that time, however, the two assailants were gone.

Mr. Higgins ran to Mr. Pitcairn, saw that he was badly injured, and ran back inside to call 911. When he returned, he told Mr. Pitcairn that the police and an ambulance were on the way. Mr. Pitcairn kept struggling to speak, but the only word Mr. Higgins could make out was: “Mom.”

Officer Michael Harren, a police officer with the Baltimore City Police Department, responded to Mr. Higgins' address at 11:25 p.m. He saw Mr. Higgins holding and comforting Mr. Pitcairn. Mr. Pitcairn was alive, but he was not very responsive. Medics arrived at the scene three to four minutes later and rushed Mr. Pitcairn to Johns Hopkins Hospital. Forty minutes later, Officer Harren learned that Mr. Pitcairn had died at the hospital.

Mr. Higgins told the police that Mr. Pitcairn was attacked by two men. He believed that both assailants were men: (1) because he assumed that a woman would not be involved in that kind of activity; and (2) based on their build and stature. Both assailants were shorter than six feet tall and slightly built. Due to the low light, he was unable to get a close look at their faces, but he could tell that they both had medium complexions. Mr. Higgins observed that the attacker with the short hair was wearing blue jeans and a white or light gray T-shirt. He was not sure about the color of the attacker's clothing, however, as he is “a little colorblind” and has trouble seeing certain colors.

Mr. Higgins believed that the assailants had run south, down St. Paul Street. Police investigators later obtained video footage from the intersection of Charles Street and 26th Street that showed two people running westbound on 26th Street, between St. Paul and Charles Streets, at 11:22 p.m.

At approximately 11:50 p.m., Gregory Boris, the lead detective in the investigation of Mr. Pitcairn's murder, arrived at Mr. Higgins' address. The crime scene, which took up a small portion of the sidewalk, consisted of Mr. Pitcairn's “red and black gym bag, a flip-flop” and a pool of blood. After returning to the Baltimore Police Department Homicide Unit, Detective Boris called Ms. Pitcairn, who advised that her son had offered his iPhone and brown leather wallet to the assailants.

In response to the murder, Officer Kevin Ege was assigned to patrol the area. At 2:54 a.m. on July 26, 2010, as Officer Ege was driving north on Charles Street approaching 25th Street, he saw two individuals talking animatedly and gesturing abruptly. As he got closer, one of the two, Tyrene Williams, flagged him down. The person with Ms. Williams, a black male wearing dark-colored shorts and a white t-shirt, ran away as Officer Ege approached. 2 Ms. Williams pointed to the man and said: [Y]ou're looking for him for the robbery at the gas station tonight.” Officer Ege believed that Ms. Williams' comment was related to Mr. Pitcairn's robbery and murder. He detained Ms. Williams and tried to follow the man who had been with her, but he was unable to locate the man. Officer Ege took Ms. Williams to the Homicide Unit; she arrived at the police station at 3:04 a.m.

At 4:00 a.m., Detective Boris was notified that Officer Ege had located a possible witness to Mr. Pitcairn's murder. He interviewed Ms. Williams, who gave a taped statement to the police at 4:27 a.m., stating that appellant robbed a white man, hurt him, and took his credit card. Ms. Williams advised that she had gone to a gas station as part of a scheme to use Mr. Pitcairn's credit card to buy gas for people in exchange for money. Based on information from Ms. Williams, the police obtained a search and seizure warrant for the second floor apartment at 2607 Maryland Avenue, where Ms. Williams lived with a number of other individuals, including appellant.

At 5:52 a.m., before the search warrant was executed, a police officer located Kevin Cosby. He was walking on the 2400 block of Charles Street, and the officer flashed his lights and told Mr. Cosby to stop. In response to the officer's question regarding a murder, Mr. Cosby told him that he did not know anything about anyone getting killed. The officer took Mr. Cosby to the Homicide Unit, where he was immediately placed in a holding cell. Mr. Cosby was wearing a white tank top, checkered shorts, white tennis shoes with green stripes, and a white baseball cap.

Detective Boris interviewed Mr. Cosby at the police station. After receiving his Miranda3 rights, Mr. Cosby agreed to speak with the police about his actions the night of July 25, 2010. Mr. Cosby stated that appellant advised that he “beat a man to death,” and Mr. Cosby then used the victim's credit card to get money. Mr. Cosby told Detective Boris the location of Mr. Pitcairn's credit card, he went with Detective Boris to a location several blocks from appellant's apartment, and he pointed out where the credit card was concealed. Detective Boris found the card hidden in a wall, wrapped in a Powerball ticket.

At 7:10 a.m., a SWAT team executed the search warrant for appellant's apartment. Detective Boris arrived at the residence after all the individuals present had been secured in the kitchen. These individuals, including appellant, appellant's girlfriend Lavelva Merritt, Howard Michael Martin, Earlene Thomas, Tameka Quashie, Rodney Brown, as well as Rodney Brown's infant son, were then transported from the residence to the Homicide Unit.

When Detective Boris arrived at the residence, he noticed what appeared to be blood smudges on the...

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