Washington v. State

• Decision Date: 06 March 2008
• Docket Number: No. 938, Sept. Term, 2006.,938, Sept. Term, 2006.
• Citation: 943 A.2d 704,179 Md. App. 32
• Parties: Rory Howard WASHINGTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

943 A.2d 704

179 Md. App. 32

Rory Howard WASHINGTON v. STATE of Maryland.

No. 938, Sept. Term, 2006.

Court of Special Appeals of Maryland.

March 6, 2008.

Renee M. Hutchins and Yedidyah Charner, Baltimore, for Appellant.

Diane E. Keller (Douglas F. Gansler, Atty. General on the brief), Baltimore, for Appellee.

Panel: DAVIS, DEBORAH S. EYLER and JAMES S. GETTY, (retired, specially assigned), JJ.

DAVIS, Judge.

Appellant, Rory Howard Washington, was charged with seven counts, including attempted murder in the first degree, attempted murder in the second degree, assault in the first degree, assault in the second degree, illegal use of a handgun in the commission of a felony or crime of violence, illegal carrying or transporting of a handgun and illegal possession of a regulated firearm, respectively.

After a three-day trial beginning on March 20, 2006, a jury sitting in the Circuit Court for Baltimore City found appellant guilty, inter alia, of counts three through seven, but acquitted appellant of attempted first-degree murder. The jury deadlocked on the count charging attempted second-degree murder.¹

On June 6, 2006, the court sentenced appellant to the jurisdiction of the Division of Corrections for a period of twenty years for his conviction of assault in the first degree.² Appellant was also sentenced to fifteen years for use of a handgun in the commission of a crime of violence, three years for illegally carrying a handgun and five years for possession of a regulated firearm, these sentences to run concurrent with the twenty-year sentence for assault.

This appeal was thereafter timely noted, in which appellant presents the following issues for our review:

1. Whether the trial court improperly admitted a videotape which purported to be a recording of the events surrounding the shooting, where that videotape was never properly authenticated.

2. Whether the trial court improperly admitted a detective's lay opinion testimony implicitly identifying appellant in the videotape which purported to depict the events surrounding the shooting.

3. Whether [appellant's] jury was inappropriately pressured into reaching a verdict by the trial court's premature, repetitive and improperly worded Allen[³] charges.

4. Whether [appellant's] conviction for possession of a regulated firearm must be reversed where proof of the size of the firearm is a necessary element of the offense and the State failed to produce any evidence that [appellant] possessed a gun smaller than sixteen inches.

For the reasons that follow, we resolve the issues in favor of the State and, accordingly, affirm the judgment of the Circuit Court for Baltimore City.

FACTUAL BACKGROUND

During the evening of June 23, 2005, Jermaine Wright frequented Jerry's Bar, a bar and liquor store, located at 604 Poplar Grove Street in Baltimore City. At approximately 10:00 p.m., Wright stepped outside of Jerry's Bar and was shot. A bullet entered the right-side of Wright's stomach and became lodged in his spinal cord, resulting in L3 spinal cord injury.

After arriving on the scene, police officers found narcotics on Wright's person and recovered a pink hat that was later determined to belong to Wright. Pursuant to police investigations, Wright told the officers that he did not know his assailant, but described him as "a black male," having a "thick build" and "wearing a white T-shirt." Wright also told the officers that he did not see the weapon used to shoot him.

Appellant was subsequently apprehended for the shooting of Wright and was charged under the seven counts set forth, supra. The lead detective working Wright's case, Carlos Vila, met with Wright on three separate occasions, including the day before trial, in an effort to identify his assailant. On those different occasions, Wright either refused to view the photo array that Detective Vila had prepared or claimed that he needed more time.

Appellant's trial began on March 20, 2006 and spanned three days. Despite Wright's failure to identify appellant prior to trial, Wright testified that he and appellant had an argument. Appellant subsequently left Jerry's Bar, returned ten minutes later and asked Wright to step outside. Believing that appellant wanted to "rumble," Wright followed appellant out of the bar. According to Wright, once outside of Jerry's Bar, appellant "whipped out his gun and shot [him]," and everything "happened real fast."

After unequivocally identifying appellant, whom he had known for three years, as the man who shot him, Wright explained his reasoning for not coming forward until trial. He said: "I wanted [appellant] to still be out there because, you know, I was going to take advantage myself. I was going to get him." "I was so mad and angry I wanted — you know, I was going to deal with it myself." Wright testified that, although he was still "mad," he decided to come to court because he thought "it's best."

An employee of Jerry's Bar, Charles Burrell, however, recounted a different version of events that occurred during the night of June 23, 2005. According to Burrell, a man named "E" and Wright engaged in a fight at approximately 9:00 p.m Burrell broke up the fight and "put the guy named `E' out of the bar." Burrell then told Wright to sit in a chair, while he (Burrell) went next door to pick up food that he had ordered. While Burrell was waiting for his food, he heard gun shots. Burrell ran outside to find Wright "at the front door of Jerry's Bar laying down on the ground."

The State pointed out that, contrary to his trial testimony, Burrell had told police that he saw appellant on the day of the shooting. After refreshing Burrell's recollection with his taped statement to police, Burrell agreed that appellant "had been in and out" of the bar. Burrell additionally testified that appellant is known to wear a white T-shirt on his head "like he an Arab or something."

Gregory Jennings confirmed Burrell's testimony that appellant always wore a T-shirt or towel around his head. Jennings also agreed that, on the day after the shooting, he identified appellant's photograph for the police. On the back of a photograph, Jennings wrote and signed that "[he] saw [appellant] outside arguing with [Wright]." At trial, however, Jennings claimed that it was his understanding that he was not free to leave during police questioning until he provided a statement to police. He further claimed that police officers informed him of what to say in his statement.

During appellant's trial, the State presented the testimony of Detective Vila regarding his investigation. Detective Vila testified that, once he discovered that David Kim, the owner of Jerry's Bar, had installed eight surveillance cameras, he requested a copy of the footage. Kim, however, did not know how to extract data from the computerized system and, in turn, called a "technician" to transfer the recorded data to a compact disc. Thereafter, Kim provided the disc to Detective Vila, which was later converted to VHS. The State offered the videotape and excerpted photographic stills therefrom into evidence. Over appellant's specific objection that the videotape lacked proper authentication, the court allowed the State to play the videotape in the courtroom and permitted the jury to view the videotape during its deliberations. Additionally, Detective Vila conveyed to the jury his observations of the still photographs. Appellant takes issue with the detective's testimony, claiming that he repeatedly "implied" that an individual pictured in the photographs was appellant.

After hours of deliberation, the jury returned its verdict. As noted, appellant was found guilty of first-degree assault, second-degree assault, use of a handgun in a felony or crime of violence, possession of a regulated firearm and illegally carrying a handgun. Appellant was acquitted of attempted first-degree murder. The jury, despite an Allen charge, remained deadlocked on the charge of attempted second-degree murder.

Additional facts will be discussed as warranted throughout our analysis.

ANALYSIS

I

Appellant initially argues that the videotape of the surveillance footage taken from Jerry's Bar was not properly authenticated. Specifically, he argues that, pursuant to the "silent witness" theory of authentication, the State failed to present sufficient evidence describing the process that produced the videotape and excerpted still photographs therefrom. To the extent preserved, the State contends that it presented sufficient evidence to permit a reasonable jury to infer that the videotape is an accurate recording of events surrounding the shooting.

Preliminarily, the State argues that appellant's specific contention that the State failed to establish if and how the videotape was "edited" is unpreserved for appellate review. At trial, Kim testified that the computerized surveillance system of Jerry's Bar records automatically, twenty-four hours a day. To provide Detective Vila with the footage of the shooting, Kim asked a "technician" to transfer the data from the system to a compact disc because he did not know how to do so himself. A compact disc was subsequently provided to Detective Vila that night.⁴

Appellant objected to the admittance of the videotape into evidence, arguing that the State failed to present testimony of someone familiar with the computer generated system. Thus, he asserts that "there's a hole that's not filled" regarding the copying of the computer data onto compact disc. On appeal, appellant contends that, "without specific evidence describing how the video data recorded from multiple cameras was transferred and compiled into a single viewable format, and how the portions of the video admitted into evidence were edited, a trial court could not know whether the video was presented in a manner which significantly altered the accuracy of the tape." Because appellant failed to explicitly mention the possibility of "editing" to the trial...