Wilkerson v. State, 2044

• Decision Date: 10 July 2001
• Docket Number: No. 2044,2044
• Citation: 776 A.2d 685,139 Md. App. 557
• Parties: Omar WILKERSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

776 A.2d 685

139 Md. App. 557

Omar WILKERSON v. STATE of Maryland.

No. 2044, Sept. Term, 2000.

Court of Special Appeals of Maryland.

July 10, 2001.

Michael R. Malloy, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Devy Patterson Russell, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General and Patricia Jessamy, State's Attorney for Baltimore City, on the brief), Baltimore, for appellee.

Argued before SONNER, CHARLES E. MOYLAN, JR., (Ret'd, Specially Assigned) and RAYMOND G. THIEME, JR., (Ret'd, Specially Assigned), JJ. THIEME, Judge.

Appellant Omar Wilkerson was tried and convicted of murder and related charges in a jury trial in the Circuit Court for the City of Baltimore. He was sentenced to life for first degree murder, and twenty years consecutive, the first five years without parole, for use of a handgun in a crime of violence. The third count of conviction, for carrying a handgun, was merged with the latter count. Wilkerson appeals and asks:

1. Did the court below err by overruling Wilkerson's objection to the use of "other crimes" evidence regarding robbery of a drug dealer on March 13, 1999?

2. Did the court below err by excluding Prince Broadway-Bey's testimony about Antoine Lucas's alleged admission that he had murdered the victim?

3. Did the court below err by allowing the detective's hearsay testimony about Lakisha Pridgeon's unreliable identification of appellant's photograph when Pridgeon was not present to testify?

To these questions, we answer "no" and explain.

Facts

Wilkerson was charged with the murder of Shaborn Shabazz Allah on North Avenue in the City of Baltimore on the afternoon of March 5, 1999. He became a suspect on March 13 after police found a handgun, later shown to be the likely murder weapon, in a car he occupied with three others. He was convicted after a four-day trial in which the State presented evidence regarding both the March 13 incident and the homicide itself.

A

The largest body of evidence at trial pertained to an incident that occurred on March 13, a robbery of a drug dealer in which Wilkerson allegedly participated, along with Prince Broadway-Bey and Antoine Lucas. Police recovered a handgun from the back of the car in which the three were riding; it was found at the foot of the seat in which Lucas had been sitting. On the first day of the trial, Wilkerson objected to admission of any evidence of the robbery, except for the discovery of the handgun itself. The court reserved its ruling.

The next day, prior to the beginning of testimony, the State offered its rationale for admitting the "other crimes" evidence pertaining to the robbery, namely:

i. to show identity, i.e., that the person in possession of the weapon on March 13 also possessed that weapon on March 5;

ii. to show lack of mistake, i.e., that the State had found the right suspect, because that suspect was in possession of the murder weapon; and

iii. that the State needed the evidence of the weapon's use for the robbery to establish Wilkerson's possession of it.¹

The defense argued for exclusion of this "other crimes" evidence as being unfairly prejudicial, especially after another witness had testified that the murder "looked like, to him, like a robbery gone bad, and then you have the state trying to show there was a robbery a week later involving Mr. Wilkerson." The court rejected this argument:

The testimony is, as proffered, appears to be relevant, certainly on identity and also on what Solomon v[.] State refers to [as] assumption of the risk, including when several offenses are so connected in point in time and of time, or circumstances, that one can't fully prove or fully show without proving the other, which I think is the case here.

And the evidence has been proffered for reasons other than to prove the criminal character of the defendant. In other words, it transcends mere evidence of bad character.

The court, however, granted the defense a continuing objection to any testimony related to the March 13 robbery.

Richard Jolley testified about the March 13 incident. On that day, he was hacking, i.e., offering rides in his Pontiac Grand Am in exchange for money. He picked up three men, including Wilkerson, who sat in the front passenger seat. One of the men asked Jolley to stop so that he could buy marijuana. Jolley complied, and Wilkerson and the others got out.

Over defense objections, Jolley testified that he saw Wilkerson grab the drug dealer's arm, keeping his other hand in his pocket. The second passenger rummaged through the dealer's pockets. Jolley testified, however, that he saw no weapon brandished during the robbery. When Wilkerson and the others got back into the car, he "gave the boy [sitting behind Jolley] the bag of weed they had took from the guy." Shortly thereafter, police stopped the car and arrested its occupants. In doing so, they found the handgun. The police search was the first time Jolley noticed the gun. Though Jolley was charged in the robbery, the charges were later dropped when it was determined he had not been involved.

Officer Elihea Rushdan of the Housing Authority Police testified that, on March 13 at 5:25 p.m., he was on patrol in the 700 block of Lanvale Street. After a citizen pointed out the Grand Am to him, he and other officers pursued it for three blocks, then successfully stopped it and ordered the occupants out of the car. The front seat passenger ran away. Officer Rushdan chased that passenger, Wilkerson, who eventually hid behind a shed. After ordering the escapee into the open, Officer Rushdan arrested him. The three other persons in the car, Jolley, Broadway-Bey,² and Lucas, were also arrested. The officers who searched the car told Officer Rushdan that they found a .38 caliber handgun on the floor of the right rear side of the passenger compartment.

Officer Joseph Green, also of the Housing Authority Police, testified regarding the March 13 incident as well. While on patrol in a marked vehicle with Officer John Ross, Officer Green participated in the stop of the Grand Am and stood guard over the car's other occupants, including Jolley, the driver, Broadway-Bey, the left rear passenger, and Lucas, the right rear passenger; during the period in which Wilkerson was fleeing the scene. Officer Green testified that he found the handgun in the Grand Am. He described Wilkerson as standing five feet and five inches tall and weighing 160 pounds. Officer Green also averred that the stop on March 13 was unrelated to the murder investigation pertaining to the incident of March 5.

Officer Christopher Reisanger, also of the Housing Authority Police, testified that he participated in the March 13 stop of the Grand Am. He saw Wilkerson exit the right front seat of the car and flee. Officer Reisanger participated in the chase and arrest of Wilkerson.

Mark Takacs, a firearms expert for the Baltimore City Police Department, testified that two bullets were recovered from the murder scene on March 5 and one from the victim's body. Takacs examined the handgun seized on March 13 and, after firing test rounds and making comparisons, he determined that its rifling characteristics closely resembled those for the seized weapon. He noted that both the seized gun and the murder weapon had the same unusual rifling characteristics.

Kathleen Lundy, a materials analyst for the Federal Bureau of Investigation, testified that she had performed comparative analysis on the three projectiles and three live cartridges she received from the Baltimore City Police Department. She concluded that all six items contained similar lead material and were probably manufactured by Remington Peters. The lead material in one bullet and one projectile was analytically indistinguishable, as was the lead in one bullet and the other two projectiles.

Prince Broadway-Bey testified that, on March 13, he was in the Grand Am with Wilkerson, Lucas, and the driver who was operating his car as a hack for the day. The handgun in the car belonged to Lucas, who normally kept the weapon in his possession. While the robbery was in progress, however, Wilkerson had possession of the gun, and he handed it over to Lucas just before he got back into the car. Lucas then put the gun under his coat.

B

As to the homicide on March 5, Officer Scott Davis of the Baltimore City Police Department testified that he responded to the report of a shooting in the 600 block of North Avenue. There, he saw the victim lying face down in the median strip. By the time Officer Davis reached the scene, the victim had no vital signs, and appeared to have died from a single visible bullet wound. The victim was carrying a small quantity of marijuana.

Gregory Stewart, a crime lab technician for the Baltimore City Police Department, testified that he recovered two bullets, one from the victim's back and the other from the ground at the corner of North and Park Avenues. The body was found 88 feet from that corner.

A witness to the shooting, Carl Shifflet, testified that he heard people arguing, then saw one man chase another down the median strip on North Avenue. He then heard three or four popping sounds, and the man being chased fell. The other man turned and ran in the direction from which he came.

Detective Joseph Kleinota of the Baltimore City Police Department testified that another eyewitness, Linmark Pearson, identified Wilkerson from a photographic array on March 26, 1999. That array, he admitted, did not include photographs of the other three occupants of the Grand Am. Over defense objections, the detective was also allowed to testify that Lakisha Pridgeon had viewed the array and told him that she was 60 to 70 percent sure that the photograph of Wilkerson was, in fact, the man she saw on March 5. She could not, however, be positive.

Detective Kleinota also testified that Broadway-Bey had told him that, on March 13, Wilkerson produced...