Winston v. State, CONSOLIDATED CASES No. 2838, Sept. Term, 2015

CourtCourt of Special Appeals of Maryland
Writing for the CourtArthur, J.
Citation178 A.3d 643,235 Md.App. 540
Parties Stanley Ray WINSTON v. STATE of Maryland Brian Cuffie Mayhew v. State of Maryland Anthony Cannon v. State of Maryland
Docket NumberNo. 70, Sept. Term, 2016,CONSOLIDATED CASES No. 2838, Sept. Term, 2015,No. 74, Sept. Term, 2016,70, Sept. Term, 2016,74, Sept. Term, 2016
Decision Date02 February 2018

Argued by: Joseph B. Tetrault, Baltimore, MD, Gregory W. Gardner, Boulder, CO, and Kenneth E. McPherson, Riverdale, MD, all on the briefs, for Appellant.

Argued by: Robert Taylor, Jr. (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: Meredith, Graeff, Arthur, JJ.

Arthur, J.

In this consolidated appeal, appellants Stanley Winston, Brian Mayhew, and Anthony Cannon challenge their convictions for first-degree murder and other related offenses. The convictions resulted from a multi-week jury trial in which the appellants were tried jointly for killing Mayhew's uncle, Nicoh Mayhew, in order to prevent him from testifying against Mayhew in another murder case.1 Because the circuit court did not err or abuse its discretion, we affirm.

A. The Murder of Nicoh Mayhew

On the morning of December 19, 2012, Cynthia Dinkins–Mayhew awoke to the sound of gunshots. When she heard her two-year-old grandson, M., crying outside of her apartment, she opened the front door. She saw her son, Nicoh, lying dead on the floor of the breezeway and her grandson sitting in a pool of blood with a gunshot wound

to his arm. She grabbed the child and took him back into the apartment.

Police officers arrived and questioned Ms. Dinkins–Mayhew. She identified Brian Mayhew as a suspect, because Nicoh was scheduled to appear as a witness against him for the murders of Sean Ellis and Anthony McKelvin.

Oscar Saravia, a maintenance worker, was near Ms. Dinkins–Mayhew's apartment building at the time of the shooting. Through an interpreter, he testified that he saw two "slender ... black" men in the parking lot "with gray, black jackets" and hoods covering their faces. The men "were observing the guy with his child ... and waited for him to get out of the car with the boy[.]" When Nicoh and his son were walking towards Ms. Dinkins–Mayhew's apartment building, Mr. Saravia said, "they started running out with a gun in hand." He heard gunshots and yelling. His account was corroborated by video surveillance footage, which was played for the jury.2

The surveillance video shows one of the men inspecting Ms. Dinkins–Mayhew's gold Hyundai seconds before Nicoh and his son arrived in a white Kia. In a recorded telephone call that Mayhew made from jail before Nicoh's murder, he had told Winston and Cannon that Ms. Dinkins–Mayhew had a gold Hyundai that was "banged up in the front." In another jailhouse call, on the day before the murder, Mayhew instructed Cannon to wait near the gold car in front of the apartment. In the same call, Mayhew used coded language ("a white girl named Kia"), to tell Cannon and Winston that Nicoh would arrive in a white Kia.

Mayhew attempted to conceal his participation in the jailhouse calls in several ways. First, he used another detainee's identification number to place the calls. Second, he would typically call his girlfriend, Asha Smythe, who would connect him via a third-party call to Cannon, Winston, and others, thereby preventing the authorities from learning the telephone numbers of the persons with whom he was speaking. The State introduced text messages in which Winston had instructed Smythe about how to set up the third-party calls.3

In one jailhouse call, a week before Nicoh's murder, Mayhew instructed Winston and Cannon to "[c]hill until you see something and then we snap it up." Mayhew gave a description of where he wanted "this incident to happen," which coincided with a description of the outside of Ms. Dinkins–Mayhew's apartment ("[t]he first flight up, ... straight back to your right"). In another call, Mayhew said something about "9 to 11," which was a reference to when Nicoh would arrive with his son at his mother's apartment.4

On December 16, 2012, three days before the murder, Mayhew spoke to Nicoh and told him, "Nicoh, I love you." Six minutes after the call ended, Mayhew called Winston to discuss the hit on Nicoh.

In a call on the day before the murder, Mayhew instructed Winston to coordinate a three-way call with Cannon. During that call, Mayhew said that it was "show time tomorrow." In that same call, one of the participants referred to "S and W," meaning "Smith & Wesson."

In yet another call, which appears from its context to have occurred after the murder, one of the participants made an oblique reference to Nicoh's son, M., saying, "It didn't get in the way."

The State introduced evidence showing that within 10 minutes of the murder Cannon's telephone5 used cell phone towers near Ms. Dinkins–Mayhew's apartment in Seat Pleasant. That phone had not used those towers at all in the two months before the murder.

After the murder, Cannon and Winston exchanged text messages in which they included a picture of a Washington Post article about the murder.

B. The Murders of Sean Ellis and Anthony McKelvin

The State alleged that Mayhew had conspired with Cannon and Winston to kill Nicoh because he wanted to prevent Nicoh from testifying against him in a criminal case in which he was charged with murdering Sean Ellis and Anthony McKelvin.

Ellis and McKelvin had been shot to death on May 30, 2011. Days later, after the police had identified Nicoh as an accessory, he gave a recorded statement and testified before the grand jury that indicted Mayhew for the murders. See Mayhew v. State , No. 475, Sept. Term 2014, 2015 WL 5885170 (filed Aug. 19, 2015), Mayhew's trial for the Ellis and McKelvin murders was scheduled to begin in February 2013, a few weeks after Nicoh was killed.6

C. Witness Intimidation

While awaiting trial for the murders of Ellis and McKelvin, Mayhew and his co-defendant, Kenan Myers, were jailed at the Prince George's County Detention Center. Nicoh's brother was jailed in the same housing unit at that time.

On November 27, 2012, Nicoh visited his brother at the detention center. During the visit, Mayhew and Myers were also in the visitor area. Mayhew asked the correctional officer if he could talk to Nicoh. The officer permitted him to do so and observed Mayhew, Myers, and Nicoh talking to each other for about a minute.

After his visit to the jail, Nicoh's girlfriend described him as "scared, more paranoid ... [and] [w]orried that somebody was, like, going to do something to him." Nicoh's mother similarly described Nicoh as "scared." She added that he "didn't want to leave the baby."7 In a jailhouse call, one of the conspirators remarked that Nicoh was "camouflaging" himself ("you're dealing with a dude who be camouflaging for real").

In the months leading up to Mayhew's trial for the Ellis and McKelvin murders, the lead detective had difficulty locating Nicoh. The detective had to call Nicoh's mother or girlfriend in order to reach him. According to the detective, Nicoh appeared to be avoiding him.

Nicoh was scheduled to meet with the detective during the week after Christmas. He was gunned down on December 19, 2012.

D. The Trials

The case against Cannon, Mayhew, and Winston initially went to trial on June 29, 2015. The jury, however, was unable to reach a verdict. Consequently, on July 8, 2015, the court declared a mistrial.

The State elected to retry Cannon, Mayhew, and Winston, and a second trial began on February 1, 2016. After nine days of testimony, the jury returned a verdict of guilty on all counts.

The court sentenced Mayhew to life imprisonment without the possibility of parole, plus a consecutive 105 years (of which 10 were to be served without the possibility of parole).8 The sentences were to run concurrently with the sentence of life imprisonment plus 20 years that the court had previously imposed on Mayhew for the murders of Ellis and McKelvin.

The court sentenced Cannon and Winston to life imprisonment, plus a consecutive 105 years (of which 10 were to be served without the possibility of parole).9 The sentences were to run consecutively to any other sentences that Cannon and Winston were serving.10

Winston, Mayhew, and Cannon noted timely appeals.

We shall provide additional facts as necessary in our discussion of some of the issues presented.


In this consolidated appeal, Cannon, Winston, and Mayhew present a total of seven issues.

Cannon presents the following two questions:

1. Did the circuit court err in denying motions for severance?
2. Did the circuit court err in admitting "other crimes" evidence concerning the Ellis and McKelvin murders?11

Cannon and Winston both present two additional questions:

3. Did the circuit court err in admitting recordings of jailhouse calls without proper authentication?
4. Did the circuit court err in admitting hearsay statements under the co-conspirator exception when the State has not specified when the conspiracy began?

Mayhew joins in Question 3 (regarding the authentication of the recordings) and presents two additional questions:

5. Did the circuit court err in denying a motion for a mistrial when the State allegedly violated an earlier evidentiary ruling by playing a recording, made after the conspiracy had ended, of Cannon saying Winston's name?
6. Did the circuit court err in overruling an objection to the State's argument, in rebuttal closing, that Mayhew had threatened to injure Nicoh's child, M.?

Finally, Cannon and Mayhew, but not Winston, question whether the evidence was insufficient to support their convictions.

For the reasons that follow, we answer all questions in the negative. Consequently, we shall affirm the convictions against Winston, Mayhew, and Cannon.


After the cases against the three co-conspirators were joined, Cannon and Winston moved to sever the cases against them from the case against Mayhew. As the basis for...

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