Wise v. State, 012021 MDSCA, 800-2019

Docket Nº:800-2019
Opinion Judge:Salmon, J.
Party Name:DAVID WISE v. STATE OF MARYLAND
Judge Panel:Kehoe, Gould, Salmon, James P., (Senior Judge, Specially Assigned), JJ.
Case Date:January 20, 2021
Court:Court of Special Appeals of Maryland

DAVID WISE

v.

STATE OF MARYLAND

No. 800-2019

Court of Special Appeals of Maryland

January 20, 2021

Circuit Court for Baltimore City Case Nos. 118071009 - 010

Kehoe, Gould, Salmon, James P., (Senior Judge, Specially Assigned), JJ.

OPINION [*]

Salmon, J.

After a jury trial in the Circuit Court for Baltimore City, David Wise, appellant, was found guilty of two counts of first-degree murder; two counts of use of a handgun in the commission of a crime of violence; two counts of wearing, carrying, and transporting a handgun; and two counts of conspiracy to commit first-degree murder. In case number 11871009, appellant was sentenced to life for the first-degree murder conviction; a concurrent term of five years without the possibility of parole for use of a handgun in the commission of a crime of violence; a concurrent term of three years for wearing, carrying, and transporting a handgun; and a concurrent term of life for the conspiracy conviction. In case number 11871010, appellant was sentenced to life for the first-degree murder conviction, to run consecutive to the life sentence imposed in case number 118071009; a concurrent term of 5 years for use of a handgun in the commission of a crime of violence; a concurrent term of three years for wearing, carrying, and transporting a handgun; and a concurrent term of life for the conspiracy conviction. All the sentences were consecutive to a sentence appellant was serving in the federal system. This timely appeal followed.

QUESTIONS PRESENTED

Appellant presents the following questions for our consideration: I. Did the trial court err by asking a voir dire question about bias against defense witnesses, where the defense did not have any witnesses and objected to the question?

II. Did the trial court err by admitting a disc containing alleged surveillance video that was not properly authenticated?

III. Did the trial court err by allowing the State to argue a fact not in evidence?

For the reasons set forth below, we shall affirm.

FACTUAL BACKGROUND

This case arises out of the shooting deaths of twenty-year-old Anthony Daniels and fifteen-year-old Quindell Ford on February 20, 2016. The shootings occurred at the corner of Lafayette Avenue and Bentalou Street in Baltimore City. On the day of the shooting, Gina Clay-Harcum was working at the Raven Mart, located on Lafayette Avenue near Bentalou Street, when she heard more than four gunshots. She dropped to the floor and, after a short time, walked toward the front door and looked out. She saw someone wearing an "all gray" sweatsuit with a hoodie covering his face. The person was standing near the hood of a car and the driver's door was open. She saw a body in the passenger's seat. The person wearing the gray sweatsuit "ran off." Clay-Harcum called the police and reported a shooting.

When the police arrived, they found a green 1998 Honda Accord parked in front of the Raven Mart and the two shooting victims, Daniels and Ford. One victim was found in the front seat of the Honda and the other was found less than a block away. An ambulance was called, but both victims died. Police observed a revolver in the Honda between the seat and the console and later recovered a black mask from the trunk. Baltimore City Police Detective Lee Brandt downloaded video from the Raven Mart's surveillance camera. A portion of that video was played at trial.

An assistant medical examiner who testified as an expert in the field of forensic pathology, performed autopsies on Daniels and Ford. During the autopsies, bullets were recovered and given to the police. The assistant medical examiner opined that the cause of Daniels's death was gunshot wounds to the head and back and the manner of death was homicide. The cause of Ford's death was multiple gunshot wounds to the chest, back, and hip, and the manner of death was homicide.

Police recovered bullets and bullet fragments from the crime scene. Forensic examiner Christopher Faber, who testified as an expert in the field of firearms examination, identification, and operability, testified that none of the bullets or bullet fragments he examined were fired from the .22 caliber revolver recovered from the crime scene. He could not determine if the bullets or bullet fragments were all fired with the same unknown firearm.

Clarence Coleman witnessed the shooting as he was driving on Bentalou Street. According to Coleman, a friend was in the car with him at the time of the shooting, but that person had since died. Coleman observed four or five people one of whom was wearing gray clothing and shooting a gun. Coleman testified that he saw smoke coming from the gun. When Coleman heard the gun shots, he sped up to avoid being hit by a bullet. Another vehicle attempting to get out of the way of the shooting almost collided with him. Coleman did not immediately contact the police because he did not know that someone had died. Some time later, after he saw something about the shooting on television, Coleman contacted the police because he "thought [he] might get a reward or something[.]" Coleman did not receive a reward, but, on February 25, 2016, he met with detectives, viewed photographs, and identified two photographs as men who looked alike and looked like the man he saw shooting a gun on February 20, 2016. Neither of those photographs depicted appellant, but one of them depicted Troy Bradner.

A year and a half later, on November 27, 2017, detectives showed Coleman a different photographic array. He selected a photograph of appellant and identified him as the person he saw "in the middle of the street shooting at someone with a handgun out running after him with gun out shooting at them on February the 20th." At trial, Coleman identified appellant as the shooter.

Troy Bradner was charged with, and pleaded guilty to, the murders of Daniels and Ford. He testified for the State pursuant to a plea agreement in which he agreed to testify at appellant's trial in a manner consistent with a February 2016 proffer session with the prosecutor and a detective, and a December 12, 2017 recorded statement he provided to police. In exchange, Bradner received a sentence of life with all but forty years suspended and five years of probation. Contrary to his agreement, at appellant's trial, Bradner testified that he did not know appellant, did not speak with him on the day of the shooting, and lied in his 2017 recorded statement. In response to Bradner's testimony, the State played his 2017 recorded statement for the jury. In that recorded statement, Bradner stated that he and appellant shot Daniels and Ford in retaliation for a prior robbery the victims had committed.

Baltimore City Police Detective Christopher Kazmarek testified that Bradner's sister, Lakeira Hall, reported that Bradner was responsible for the shootings. She provided police with text messages exchanged between her and Bradner. Those text messages were admitted in evidence. In them, Bradner wrote, "I did it Cara, but don't tell mommy." When his sister asked why he did it, Bradner responded, "[t]hey robbed me." Bradner's sister texted that "[b]oth the boys died," and Bradner responded, "I know."

Bradner admitted that he had a .9-millimeter gun on his waist at the time of the shootings but stated that he did not fire it and did not know who was shooting. A photographic array in which Bradner identified appellant as the shooter was admitted in evidence.

We shall include additional facts as necessary in our discussion of the questions presented.

DISCUSSION

I.

Appellant contends that the trial court abused its discretion by asking a voir dire question about bias against defense witnesses when he did not have any witnesses and objected to the question. Prior to trial, defense counsel objected to a proposed voir dire question, "Question 11, Subsection C," on the ground that it "creates the inference that the Defense has witnesses, should have witnesses. It's in no way the burden of the Defense to live [sic] witnesses. At this point in time, there'd be no witnesses for the Defense so for that reason I think that the Court would be comfortable in striking 11(c) and I don't think it would have a substantial effect on the case itself." The State objected, arguing that "the intent is to bring up whether or not a juror has bias. If somebody's going to say, yeah, you know, I believe the Defense witness more than a state witness or that - that's the whole point of the question because there are people that would stand up to answer that question if they felt that bias[.]" The court denied appellant's request stating, "[t]hese questions are to find individuals' biases. We can ask questions when they come up, and I'll allow you to ask questions when you come here."

During voir dire, the judge questioned potential jurors as follows: This question has three parts so please listen carefully. Do not stand until I've read all three parts of the question. First, would any member of the jury panel be inclined to give either more or less weight to the testimony of a police officer than any other witness in this case merely because the witness is a police officer? Second, would any member of the jury panel be inclined to give either more or less weight to the testimony of a witness for the prosecution merely because he or she is a prosecution witness? Or three, would any member of the jury panel be inclined to give either more or less weight to the testimony of a witness called by the defense merely because he or she is a defense witness? If so, please stand.

When the judge finished questioning the jurors, defense counsel renewed his objection concerning Question 11, Subsection C. No juror responded affirmatively to the question...

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