Waller v. State
| Decision Date | 21 June 2016 |
| Docket Number | No. 1537,1537 |
| Parties | MICHAEL WALLER v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
*Zarnoch, Reed, Sharer, J. Frederick (Retired, Specially Assigned), JJ.
Opinion by Reed, J.
*Zarnoch, Robert A., J., participated in the conference of this case while an active member of this Court; he participated in the adoption of this opinion as a retired, specially assigned member of this Court.
**This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
The appellant, Michael Waller, was tried twice in connection with the May 29, 2010, shooting death of Ronald Anderson, Jr. His first trial, held in March 2012, ended in a hung jury and was declared a mistrial. His second trial, which took place from August 27-30, 2013, concluded with a jury convicting the appellant of both first-degree murder and wearing and carrying openly a dangerous weapon. The appellant was sentenced to life in prison for first-degree murder and five years of concurrent imprisonment for openly carrying a dangerous weapon.
Having noted a timely appeal, the appellant presents four questions for our review, which, for clarity, we have rephrased as follows:1
We answer each of these questions in the negative. Therefore, we affirm the judgments of the circuit court.
On May 29, 2010, Ronald Anderson, Jr. (the "victim") was shot and killed on the 4100 block of Pennington Avenue in Baltimore City. Located near the body were a cell phone, foam cups, and suspected saliva and blood, as well as five 12-gauge Remington shotgun spent shells. The medical examiner confirmed that the victim's death was caused by multiple shotgun wounds. The appellant was subsequently indicted for first-degree murder in violation of Md. Code Ann., Crim. Law Art. ("C.L.") § 2-201, openly carrying a dangerous weapon in violation of C.L. § 4-101(c)(1), and carrying a dangerous weapon with intent or purpose of injuring another in violation of C.L. § 4-101(c)(2).
The appellant's first trial began on March 1, 2012, and ended in a hung jury on March 14, 2012. The appellant was then retried on August 27-30, 2013. As indicated above, it was this second trial, i.e., the retrial, that resulted in the convictions from which the present appeal stems.
Shaun Schroeder testified at both trials as a fact witness for the State. Prior to the trial that began on August 27, 2013, the appellant made a motion in limine to exclude any evidence relating to Ms. Schroeder's pre-trial statement to the police that a third person named Sierra told her that the shooter's name was "Mike." The appellant's counsel specifically requested that the State "redact any such references to th[e] third-party hearsay statement in a written copy and/or a taped statement." Ms. Schroeder had made the statement at issue—i.e., identified the appellant as "Mike"—in an interview on June 2, 2010, in which she picked the appellant out of a photo array and identified him as the shooter. The circuit court granted the appellant's motion. In doing so, the court instructed the State to redact all references to the contested hearsay from any written or tape-recorded evidence. However, during the trial, the State played an un-redacted tape recording of Ms. Schroeder's pre-trial interview with the police. The appellant's counsel renewed the objection from the motion in limine, stating specifically that any reference to the name "Mike" should be redacted because it was hearsay. The circuit court overruled the objection on the grounds that Ms. Schroeder had picked the appellant out of a photo array not because she learned from a third party that his name was Mike, but because she was an eye-witness to the crime.
The State played the tape of Ms. Schroeder's pre-trial interview only after she took the stand and testified that she did not recall speaking with the police or, for that matter, anything that occurred on May 29, 2010. She testified that her lack of memory was the result of the alcoholism she previously suffered from. Immediately after listening to her former statements, she continued to deny remembering the events of the murder.However, upon further direct-examination, she testified that while her original plan was to insist that she could not recall the murder, she now felt like she had to "do what's right." Therefore, she confirmed that she had seen the murder and identified appellant as the person who shot the victim.
William Grimes also testified for the State as a fact witness; however, he died before the second trial was presented and, thus, was only able to testify in person at the first trial. Nevertheless, a recording of his original testimony was played for the jury at the trial that began in August 2013. Mr. Grimes was a retired policeman who lived nearby the location of the crime. He testified that on the night of the shooting, he called 911 and explained to the dispatcher that he heard four or five gunshots and saw two men, who looked like black males, running down the street. One of the men he saw was wearing a green hoodie and jeans. During this testimony, he stated that both men had guns and that another individual asked the appellant "did you get the guy?", to which the appellant answered in the affirmative. It is disputed whether Mr. Grimes was sitting on his steps when the shooting occurred or if he was inside of the house opening his door. Prior to his testimony, Mr. Grimes identified the appellant in a photo array.
Prior to the start of the second trial, the appellant requested that Mr. Grimes' statements made during a police interview be admitted on the grounds that the interview was similar to a deposition pursuant to Rule 5-804(b)(1)2 and 5-803(b)(24).3 Counsel for the appellant planned to use this evidence for impeachment purposes. The trial court denied this request on the basis that a pre-trial interview with the police is not equivalentto a deposition, which is given under oath while the parties are present and able to conduct cross-examination. In addition, it held that the statement did not fall under any of the other hearsay exceptions. During trial, the appellant again asked the court to admit Mr. Grimes' statements as extrinsic evidence of a prior inconsistent statement under Md. Rule 5-613.4 The circuit court denied the request because Mr. Grimes never denied making the statement and explained them during the first trial.
The appellant's version of the events of May 29, 2010, differed from the versions told by Ms. Schroeder and Mr. Grimes. Following his June 7, 2010, arrest, the appellant was interrogated by Detective Yost, the primary detective investigating the case. During the interrogation, the appellant told Detective Yost that on the night of the shooting, he had gone to the home of Audrey Gary, the mother of his then-girlfriend, which is wherehe found out about the shooting. The appellant claimed that while at Ms. Gary's home, he watched wrestling with a child whom Ms. Gary was babysitting.
Ms. Younger, the appellant's girlfriend in May 2010, testified that she picked the appellant up from Ms. Gary's home after the shooting. She testified that she had gone to a party with the appellant earlier that evening. The victim was also at the party, but Ms. Younger testified that he and the appellant greeted each other warmly. Ms. Gary testified that she saw the appellant a few hours before the shooting wearing a blue pullover hoodie, but that she did not see him again after the shooting.
On September 20, 2013, after his second trial resulted in convictions of first-degree murder and openly carrying a dangerous weapon, the appellant noted a timely appeal.
The appellant argues that the circuit court erred in denying his motion to dismiss for violation of his Sixth Amendment right to a speedy trial. The appellant asserts that the delay of three years and two months between the time of his arrest and the time of his second trial was a violation of his constitutional right to a speedy trial. We disagree. The appellant also contends that even if this Court only considers the delay from the date the mistrial was declared until the date the second trial began (a period of one year, five months, and twenty six days), then that amount of time, in and of itself, is "substantial enough to trigger an analysis of the . . . factors" from Barker v. Wingo, 407 U.S. 514,530-32 (1972), which are: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right; and (4) whether the defendant suffered prejudice. The appellant argues that he at no point waived or gave up his right to a speedy trial, that the reasons for delay were not "wholly neutral," and that he was prejudiced by the delay. We disagree.
The State responds that the circuit court properly denied the appellant's motion to dismiss. The State argues that the length of delay is measured from the date of declaration of a mistrial to the date of the second trial. The State argues that the eighteen-month delay is not sufficient to compel dismissal because similar periods of time have been found to be constitutionally permissible. The State also asserts that all the delays between the mistrial and the retrial were approved by...
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