Ware v. State

Citation906 A.2d 969,170 Md. App. 1
Decision Date07 September 2006
Docket NumberNo. 2103, September Term, 2004.,2103, September Term, 2004.
PartiesDarris Alaric WARE v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

John Marston (Donald P. Salzman, Albert H. Turkus, on brief), Washington, DC, for appellant.

Shannon E. Avery (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel HOLLANDER, DEBORAH S. EYLER, MEREDITH, JJ.

HOLLANDER, J.

This protracted litigation arises from the brutal murders of two young women in 1993. In 1995, Darris Ware, appellant, was convicted in the Circuit Court for Howard County (Sweeney, J.), on two counts of first-degree murder, for which he was sentenced to death. That conviction was reversed by the Court of Appeals, which determined that the State had unlawfully suppressed material evidence favorable to Ware. See Ware v. State, 348 Md. 19, 52, 702 A.2d 699 (1997) ("Ware I"). Ware was re-tried in 1999 in the Circuit Court for Anne Arundel County (Thieme, J.), and was again convicted and sentenced to death. That conviction was affirmed. See Ware v. State, 360 Md. 650, 759 A.2d 764 (2000), cert. denied, 531 U.S. 1115, 121 S.Ct. 864, 148 L.Ed.2d 776 (2001) ("Ware II").

Thereafter, appellant filed a petition for post-conviction relief in April of 2002. The Circuit Court for Anne Arundel County (Heller, J.) granted the petition, in part, on June 28, 2002 ("Ware III"). It found that, for two reasons, appellant received ineffective assistance of counsel in Ware II.

First, the Ware III Court determined that Ware's appellate attorney failed to argue that the trial court erred in allowing the prosecution to introduce evidence of appellant's post-Miranda silence. As to that issue, the circuit court granted appellant a "belated appeal." Second, the Ware III Court found that Ware received ineffective assistance of trial counsel during the 1999 sentencing proceeding, because his defense attorney was not adequately prepared. Therefore, it granted Ware a new sentencing.

The Court of Appeals subsequently denied the parties' cross applications for leave to appeal. State v. Ware, 373 Md. 550, 819 A.2d 1030 (2002) ("Ware IV"). Of import here, the Ware IV Court ordered, id. at 550-51, 819 A.2d 1030,

that, as to the belated appeal ordered by the Circuit Court on the single issue of whether Darris Ware had received ineffective assistance of appellate counsel, consideration of that appeal is deferred pending the new sentencing proceeding, and the belated appeal will be considered with the appeal, if any, from the decision in the sentencing hearing.

On October 14, 2004, the circuit court (Manck, J.) held a new sentencing hearing, at which the State withdrew its intent to seek the death penalty and instead sought a sentence of life imprisonment, without parole. However, the court did not obtain a new pre-sentence investigation ("PSI"). Instead, at the sentencing on October 14, 2004, the court had the two earlier PSI reports, from 1995 and 1999, and imposed a sentence of life without parole.

This appeal followed, in which appellant raises the Miranda issue permitted by Judge Heller by way of a belated appeal, and challenges Judge Manck's sentence. The State challenges Judge Heller's ruling permitting the belated appeal of the Miranda issue.

Ware poses the following two issues:

I. Whether the trial court erred, under the United States Constitution and the Maryland Declaration of Rights, by allowing the prosecution to introduce and emphasize evidence of post-Miranda silence[.]

II. Whether the trial court's error in allowing the prosecution to introduce and emphasize evidence of post-Miranda silence was not harmless beyond a reasonable doubt when the prosecution used that silence as evidence of guilt and to fill a significant evidentiary gap in the State's case, and when the other evidence presented by the [S]tate was circumstantial and the State's key witness was substantially impeached[.]

III. Whether the sentencing court committed plain error by failing to order and consider an updated PSI report, but instead relied upon two previous PSI reports which excluded five years of Mr. Ware's history [during his incarceration.]

The State asks:

1. To the extent preserved, did the trial court properly exercise discretion in admitting the testimony of Detective Michael Praley regarding his post-arrest interview with Ware?

For the reasons that follow, we shall affirm.

FACTUAL AND PROCEDURAL SUMMARY

On September 11, 1995, appellant was found guilty of two counts of first-degree murder and two counts of the use of a handgun in the commission of the murders, for which he was sentenced to death. See Ware I, 348 Md. at 28, 702 A.2d 699. However, the Court of Appeals reversed those convictions. See Ware I. Consequently, Ware was retried and again convicted in 1999; the Court of Appeals affirmed. Ware II, 360 Md. 650, 759 A.2d 764. Thereafter, appellant brought the post-conviction proceeding that led to this appeal. As the appeal is based on the 1999 trial (Ware II), we shall rely on the factual summary set forth by the Court of Appeals in Ware II,1 and supplement it with facts pertinent to this appeal.

In Ware II, 360 Md. at 661-63, 759 A.2d 764, the Court wrote:

Ware and Kristi Gentry [] met and began dating in 1991. Their relationship became serious, and Ware moved into the house in Severn where Kristi lived with her mother, Nina Gentry, in August of 1993. In September of 1993, however, according to Nina Gentry's testimony the relationship became strained, and Ware moved out.

On December 30, 1993, Nina Gentry returned home from work at midday and found Kristi, then 19, and her friend Cynthia Allen, 22, lying on the floor in the house. Each had been shot in the chest and at point-blank range in the head. Kristi was dead, and Cynthia died later in the hospital. Projectiles fired from a .380 caliber gun were found in the victims' bodies, and .380 caliber shell casings were found on the floor near the victims.

Most of the critical testimony in the case concerned events occurring the morning of the day of the murders, a few hours before Nina Gentry discovered the victims. At approximately 9:00 a.m., Kristi's friend Adrian Washington telephoned Kristi at the house. Adrian testified that Kristi sounded scared and that she abruptly hung up the phone twice. He then received a call from an angry male caller who quickly hung up; Ware's statement to the police indicated that Ware used caller ID to return Adrian's call, and told Adrian not to call the house again. Then, Adrian received a call from Kristi, during which he heard Kristi say, "Darris, I can't breathe. Get off me. You're hurting me."

After this call, Adrian immediately called his brother Thomas Washington, who in turn called the Gentrys' house. Thomas spoke to Ware, and the two argued. Thomas told Ware to stop what he was doing to Kristi, and Ware became angry. Ware asked Thomas whether he "was bulletproof" and threatened to "get [him] and [his] punk-ass brother."

After this conversation, at about 10:00 a.m., Thomas telephoned Kristi's brother Kevin Gentry at his place of employment in Laurel. Along with a co-worker, Kevin then drove to his mother's house, where he confronted Ware, beating him. Afterward, Kevin testified, Ware left the house, went to his car, retrieved a gun and pointed it at Kevin, threatening to kill him. Ware subsequently drove away. When Kevin also drove away to return to work, he came upon Ware returning to the house in his car; according to Kevin, Ware stopped and got out of the car and brandished a gun, as Kevin attempted to run Ware over with his car. Ware escaped harm. Kevin then returned to work in Laurel, arriving there before 12:00 noon.

Deborah Amrhein, a sales clerk at the On Target shooting range and sporting goods store in Severn, told police she saw Ware in the store at about lunch time on December 30. A store manager testified that one box of .380 caliber ammunition of the type and make used by the killer was sold on December 30 at about 12:10 p.m. Neighbors of the Gentrys testified that they saw Appellant arrive back at the house between 12:00 and 12:30 p.m. In his statement to the police, Ware admitted that he owned a .380 caliber handgun. The murder weapon was never found.

At about 12:00 noon, Edward Anderson, an inmate at the Maryland House of Corrections Annex in Jessup and a friend of Kristi, telephoned the house. He spoke to Cynthia, who told him that Ware was in the house and that Kristi and Ware were arguing. Anderson heard Kristi screaming. Then, Anderson heard three gunshots, followed by silence and the sound of someone hanging up the phone. Prison records indicated that this call terminated at 12:31 p.m. Anderson then called neighbors of the Gentrys and asked them to check on the house; neighbor Clyburn Cunningham, Jr. went to the house and rang the doorbell. There was no answer.

Nina Gentry had spoken to Kevin Gentry earlier in the morning when he came, upset, to see her at her workplace, after his encounter with Ware. Some time after noon, she decided to leave work and go to the house. After finding the victims, she called 911. Paramedics and police came to the house. While the police were in the house, Ware called, identified himself, and spoke to police officers. Ware asked if Kristi was there. A police officer asked Ware to come to the house; the officer then departed to look for Ware at an address where he was believed to live. The officer encountered Ware a short distance away, driving toward the house, and arrested him.

The Court also referred to the testimony of Antonio Barnes, Ware's roommate. He "testified on direct examination to Ware's possession of a gun and to the search of their apartment after the shootings." Id. at 683, 759 A.2d 764.

After his arrest, Mr. Ware was advised of his Miranda warnings.2 Mr. Ware initialed and signed an advice of rights form, indicating that he was willing to talk...

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