Ware v. State, 42

CourtCourt of Appeals of Maryland
Citation348 Md. 19,702 A.2d 699
Docket NumberNo. 42,42
PartiesDarris Alaric WARE v. STATE of Maryland. ,
Decision Date01 September 1996

Page 19

348 Md. 19
702 A.2d 699
Darris Alaric WARE
STATE of Maryland.
No. 42, Sept. Term, 1996.
Court of Appeals of Maryland.
Nov. 18, 1997.

[702 A.2d 701]

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Julia Doyle Bernhardt, Asst. Public Defender, Nancy S. Forster, Asst. Public Defender, Stephen E. Harris, Public Defender, on brief, Baltimore, for appellant.

Gwynn X. Kinsey, Jr. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

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RAKER, Judge.

This case is a direct appeal from a sentence of death imposed by a jury. Md.Code (1957, 1996 Repl.Vol., 1997 Supp.) Article 27, § 414. 1 Appellant Darris Ware was convicted by a jury in the Circuit Court for Howard County of two counts of first degree murder for the murders of Bettina Krista Gentry and Cynthia Allen. The same jury then sentenced him to death. Ware raises eight issues for our review.

I. Did the State's failure to disclose information concerning Edward Anderson, a State's witness with a pending motion for reconsideration of sentence in an unrelated case, violate the State's constitutional obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and deprive Ware of a fair trial?

II. Did the trial court erroneously instruct the jury concerning the need for unanimity on the portion of the verdict sheet that asks whether the State has proven that the aggravating circumstances outweigh the mitigating circumstances?

III. Did the trial court err in accepting written victim impact statements that had been submitted to the Division of Parole and Probation by the State's Attorney's office?

IV. Did the trial court err in denying Ware's request to introduce a tire iron as demonstrative evidence during the testimony of a defense witness who testified she saw Ware holding an item matching the description of the tire iron?

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V. Did the trial court err by allowing the State to cross-examine defense witness Antonio Barnes concerning money that Ware told Barnes was buried in the backyard of the Gentry home?

VI. Did the trial court err in refusing to voir dire the jurors during its sentencing deliberations concerning a contact between a juror and police officers that Ware claimed he saw while being transported from the courthouse to the detention center?

VII. Did the trial court err in overruling Ware's objections to the prosecutor's closing argument at sentencing?

VIII. Did the trial court err in rejecting Ware's claim that irregularities in the jury's sentencing determination required setting aside the sentence of death?

[702 A.2d 702] I.

On December 30, 1993, eighteen year old Bettina Krista Gentry (Kristi) 2 was found dead in her home. When the emergency personnel arrived, Kristi's friend, twenty-two year old Cynthia Allen (Allen), was injured but still alive. Allen subsequently died from her injuries. Both women had suffered gunshot wounds.

Ware and Kristi Gentry had dated since 1992 and were engaged to be married. 3 Ware visited the Gentry home on the morning of December 30, 1993. Much of what is known about that morning comes from a series of telephone calls to and from the Gentry household. While Ware was at the Gentry home that morning, Kristi received a phone call from her friend Adrian Washington. Adrian Washington testified that

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he spoke to Kristi twice that morning and that both times she sounded "scared," "shaky," and "desperate." Immediately after finishing the conversation with Kristi, Adrian Washington received a phone call from a man with an "angry" voice who threatened him. Washington testified that he heard Kristi's voice in the background during this conversation. Adrian Washington then called his brother, Thomas Washington, and described his phone conversations with Kristi. Thomas Washington called the Gentry residence and he testified that Kristi sounded upset when he spoke with her. Kristi told Thomas Washington that Ware and she had been fighting and arguing and that Ware would not leave the house. Thomas Washington then asked to speak with Ware and told him to leave the Gentry house.

At approximately 10:30 a.m., Thomas Washington called Kevin Gentry, Kristi's brother, at work. Kevin Gentry left work and went to the house of his mother and sister immediately after receiving Thomas Washington's call. Ware answered the door at the Gentry residence. Kevin Gentry then beat him and threw him out of the house. Kevin Gentry testified that after he threw Ware out of the house, Ware took a gun from his Jeep and pointed it at Kevin Gentry. In Ware's statement to the detectives after his arrest, however, he stated that he had instead thrown a crowbar at Kevin Gentry in self-defense. Other witnesses testify that they saw Ware near the Gentry home holding a long, dark object. Kevin Gentry and Ware encountered one another again on the road leaving the Gentry home. Kevin Gentry testified that Ware approached Gentry's car with a gun. A fifteen year old neighbor who was outside shoveling snow witnessed the altercation between Kevin Gentry and Ware and testified that it occurred sometime between 11:00 a.m. and noon. After the fight, the witness saw Ware go inside the Gentry home, and shortly thereafter, he saw Kristi and a friend also enter the Gentry home.

The events inside the Gentry home are revealed as a result of a telephone conversation. Edward Anderson was incarcerated at the Maryland House of Corrections Annex on December

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30, 1993. Anderson knew both Kristi and Allen. Allen was the mother of Anderson's six-year-old daughter, and Kristi had recently visited Anderson in prison. Anderson testified that he called the Gentry home about noon on December 30 4 and that Allen answered the telephone. Allen informed Anderson that Ware was at the Gentry house. A few minutes later Kristi began to scream, and Allen asked Anderson to hold while she checked on Kristi. Anderson testified that Allen then returned to the phone and explained to him that Darris and Kristi were "fussing." Anderson and Allen continued their conversation for about five minutes longer when Allen again told Anderson to [702 A.2d 703] hold while she checked on Kristi. After Allen left the phone the second time, Anderson testified that he heard screaming in the background and then heard three gunshots--two in rapid succession, then a pause lasting between ten and thirty seconds, and then a third shot. Allen never returned to the phone and the phone was "hung up" about thirty seconds later. Anderson then telephoned friends who lived nearby to tell them that he heard gunshots at the Gentry residence and to ask them to go immediately to the Gentry home to make sure everything was alright. Clyburn Cunningham, Jr., who was staying in a house nearby, went to the Gentry home and knocked on the door. No one answered the door and Cunningham did not see anything askew through the windows.

Nina Gentry, Kristi's mother, discovered Kristi and Allen when she returned home from work at approximately 1:30 p.m. Police and rescue workers arrived shortly thereafter and transported Allen, who was still alive, to the hospital. While the police were at the Gentry home, Ware telephoned and spoke with a police officer, Officer Knight, who told him that he should come to the Gentry home to speak with the officers. Officer Knight then spoke with Kevin Gentry, who told him where Ware lived. Officer Knight was leaving the

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Gentry residence to go to Ware's apartment when he encountered Ware approaching the Gentry home in his Jeep. Officer Knight stopped the Jeep and arrested Ware. We shall supply additional facts relevant to the resolution of this appeal as necessary throughout the opinion.

The Grand Jury for Anne Arundel County indicted Ware on two counts of first degree murder, two counts of use of a handgun in the commission of a felony, and two counts of use of a handgun in the commission of a crime of violence. The State filed notice of intent to seek the death penalty, see Md.Code (1957, 1996 Repl.Vol., 1997 Supp.) Art. 27, § 412(b), and the case was removed to the Circuit Court for Howard County for trial. Md. Rule 4-254(b)(1). On September 11, 1995, the jury returned verdicts of guilty on all counts. Sentencing began on October 2, 1995, and the same jury sentenced Ware to death for each count of first degree murder. The court also imposed two twenty year sentences for use of a handgun in the commission of a felony. This appeal followed.

II. The Brady Issue


Ware's first contention is that his trial was unfair because the State failed to disclose material, exculpatory evidence under Brady v. Maryland, 373 U.S. at 86, 83 S.Ct. at 1196, and a new trial is required. We agree.

In February 1994, Ware filed his first Request for Discovery and Motion to Produce Documents. 5 In that discovery motion, he requested, inter alia, disclosure of

[t]he existence, substance and the manner of execution or fulfillment of any promises, inducements, agreements, rewards, understandings or arrangements, either verbal or written, to any witness including but not limited to any

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of the following agreements: ... (5)[t]o assist in any way any witnesses' ability to obtain a favorable ruling on any motion for modification of sentence which is presently pending or will be filed at a future date on any case....

Ware received no response from the State. In late November 1994, Ware filed a Supplemental Discovery Motion to Compel Disclosure of Existence and Substance of Promise of Immunity, Leniency or Preferential Treatment Offered to Any State's Witness. The supplemental motion contained the same request as the original discovery motion. On December 8, 1994, Judge Lawrence Rushworth held a hearing in the Circuit Court for Anne Arundel County to address Ware's pre-trial motions. The parties specifically addressed Ware's request to compel disclosure of any agreements...

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