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Wagner v. State

Court of Special Appeals of Maryland

September 4, 2013


Woodward, Graeff, Raker, Irma S. (Retired, Specially Assigned), JJ.


Graeff, J.

After an eight-day trial, a jury sitting in the Circuit Court for Baltimore City convicted John Wagner, appellant, of first degree felony murder, armed robbery, and conspiracy to commit armed robbery. The court imposed a sentence of life imprisonment for the felony murder conviction and a consecutive sentence of twenty years for the conspiracy conviction.[1]

On appeal, appellant presents seven questions for our review, which we have rephrased slightly as follows:

1. Did the trial court err by refusing to ask appellant's requested voir dire question?
2. Must appellant's convictions be reversed as a result of the introduction of other crimes evidence?
3. Did the trial court err in admitting evidence that appellant called out his girlfriend's name while in custody, and thereafter in refusing to allow appellant to introduce evidence to explain his action?
4. Did the trial court err in restricting appellant's ability to cross-examine a witness regarding her eligibility for parole?
5. Did the trial court err in admitting hearsay evidence?
6. Did the trial court err in refusing to tailor its flight and concealment of evidence instructions to both sides' theories of the case?
7. Did the trial court err in denying appellant's request to appear without shackles during the announcement of the verdict and polling of the jury?

For the reasons set forth below, we shall affirm the judgments of the circuit court.


On July 25, 2010, at approximately 11:00 p.m., Stephen Pitcairn arrived at Penn Station in Baltimore City. He was returning from a trip to New York, where he celebrated his 24th birthday with his sisters.

While Mr. Pitcairn was walking from the station to his apartment, located in the Charles Village section of Baltimore City, he was attacked and robbed by two individuals. Less than an hour later, at 12:05 a.m. on July 26, 2010, Mr. Pitcairn died due to a stab wound to his chest.

When Mr. Pitcairn arrived at the train station at approximately 11:00 p.m., he called his mother, Gwen Pitcairn, to let her know that he was back in Baltimore. He said he was going to walk home from the station, which he estimated to be a 15-20 minute walk. Mr. Pitcairn asked his mother to talk to him on his cell phone until he got home, stating: "I always feel so safe when you're on the phone with me."

Mr. Pitcairn was telling Ms. Pitcairn about his weekend with his sisters when Ms. Pitcairn heard "a lot of noise and commotion." She heard Mr. Pitcairn state that he did not have any money, and he said: "Here, take my wallet." Ms. Pitcairn heard a man say "shut up" twice. She then heard "something [that] sounded like [Mr. Pitcairn] got punched" and "shuffling" sounds. Someone then disconnected the call from Mr. Pitcairn's phone.

Ms. Pitcairn, who was at her home in Florida, called 411 and was connected to 911 in Baltimore. By the time she spoke with the 911 operator, the Baltimore police already were aware that there had been an incident. At 2:45 a.m. on July 26, 2010, Ms. Pitcairn learned that Mr. Pitcairn had been killed.

Prior to the assault, Reggie Higgins was at his home on St. Paul Street. He heard loud noises outside, looked out of his second-floor window, and saw three people scuffling on the sidewalk in front of his home. Mr. Higgins observed a thin white male who was approximately six feet tall, whom he later learned was Mr. Pitcairn, backing away from two black individuals, both of whom Mr. Higgins believed were men. One of the individuals had braided hair or twists, and the other had short hair.

Mr. Pitcairn yelled: "[H]elp, " and Mr. Higgins ran down the stairs to his first-floor window to get a better view. He saw the two individuals tussling with Mr. Pitcairn, and he went to get his keys to go outside. When he looked back out the window, he saw Mr. Pitcairn on the ground. The assailant with short hair was leaning over Mr. Pitcairn, and the other was holding something, which appeared to be a wallet. Mr. Higgins used his keys to open his security door and yelled: "Hey!" By that time, however, the two assailants were gone.

Mr. Higgins ran to Mr. Pitcairn, saw that he was badly injured, and ran back inside to call 911. When he returned, he told Mr. Pitcairn that the police and an ambulance were on the way. Mr. Pitcairn kept struggling to speak, but the only word Mr. Higgins could make out was: "Mom."

Officer Michael Harren, a police officer with the Baltimore City Police Department, responded to Mr. Higgins' address at 11:25 p.m. He saw Mr. Higgins holding and comforting Mr. Pitcairn. Mr. Pitcairn was alive, but he was not very responsive. Medics arrived at the scene three to four minutes later and rushed Mr. Pitcairn to Johns Hopkins Hospital. Forty minutes later, Officer Harren learned that Mr. Pitcairn had died at the hospital.

Mr. Higgins told the police that Mr. Pitcairn was attacked by two men. He believed that both assailants were men: (1) because he assumed that a woman would not be involved in that kind of activity; and (2) based on their build and stature. Both assailants were shorter than six feet tall and slightly built. Due to the low light, he was unable to get a close look at their faces, but he could tell that they both had medium complexions. Mr. Higgins observed that the attacker with the short hair was wearing blue jeans and a white or light gray T-shirt. He was not sure about the color of the attacker's clothing, however, as he is "a little colorblind" and has trouble seeing certain colors.

Mr. Higgins believed that the assailants had run south, down St. Paul Street. Police investigators later obtained video footage from the intersection of Charles Street and 26th Street that showed two people running westbound on 26th Street, between St. Paul and Charles Streets, at 11:22 p.m.

At approximately 11:50 p.m., Gregory Boris, the lead detective in the investigation of Mr. Pitcairn's murder, arrived at Mr. Higgins' address. The crime scene, which took up a small portion of the sidewalk, consisted of Mr. Pitcairn's "red and black gym bag, a flip-flop" and a pool of blood. After returning to the Baltimore Police Department Homicide Unit, Detective Boris called Ms. Pitcairn, who advised that her son had offered his iPhone and brown leather wallet to the assailants.

In response to the murder, Officer Kevin Ege was assigned to patrol the area. At 2:54 a.m. on July 26, 2010, as Officer Ege was driving north on Charles Street approaching 25th Street, he saw two individuals talking animatedly and gesturing abruptly. As he got closer, one of the two, Tyrene Williams, flagged him down. The person with Ms. Williams, a black male wearing dark-colored shorts and a white t-shirt, ran away as Officer Ege approached.[2]Ms. Williams pointed to the man and said: "[Y]ou're looking for him for the robbery at the gas station tonight." Officer Ege believed that Ms. Williams' comment was related to Mr. Pitcairn's robbery and murder. He detained Ms. Williams and tried to follow the man who had been with her, but he was unable to locate the man. Officer Ege took Ms. Williams to the Homicide Unit; she arrived at the police station at 3:04 a.m.

At 4:00 a.m., Detective Boris was notified that Officer Ege had located a possible witness to Mr. Pitcairn's murder. He interviewed Ms. Williams, who gave a taped statement to the police at 4:27 a.m., stating that appellant robbed a white man, hurt him, and took his credit card. Ms. Williams advised that she had gone to a gas station as part of a scheme to use Mr. Pitcairn's credit card to buy gas for people in exchange for money. Based on information from Ms. Williams, the police obtained a search and seizure warrant for the second floor apartment at 2607 Maryland Avenue, where Ms. Williams lived with a number of other individuals, including appellant.

At 5:52 a.m., before the search warrant was executed, a police officer located Kevin Cosby. He was walking on the 2400 block of Charles Street, and the officer flashed his lights and told Mr. Cosby to stop. In response to the officer's question regarding a murder, Mr. Cosby told him that he did not know anything about anyone getting killed. The officer took Mr. Cosby to the Homicide Unit, where he was immediately placed in a holding cell. Mr. Cosby was wearing a white tank top, checkered shorts, white tennis shoes with green stripes, and a white baseball cap.

Detective Boris interviewed Mr. Cosby at the police station. After receiving his Miranda[3] rights, Mr. Cosby agreed to speak with the police about his actions the night of July 25, 2010. Mr. Cosby stated that appellant advised that he "beat a man to death, " and Mr. Cosby then used the victim's credit card to get money. Mr. Cosby told Detective Boris the location of Mr. Pitcairn's credit card, he went with Detective Boris to a location several blocks from appellant's apartment, and he pointed out where the credit card was concealed. Detective Boris found the card hidden in a wall, wrapped in a Powerball ticket.

At 7:10 a.m., a SWAT team executed the search warrant for appellant's apartment. Detective Boris arrived at the residence after all the individuals present had been secured in the kitchen. These individuals, including appellant, appellant's girlfriend Lavelva Merritt, Howard Michael Martin, Earlene Thomas, Tameka Quashie, Rodney Brown, as well as Rodney Brown's infant son, were then transported from the residence to the Homicide Unit.

When Detective Boris arrived at the residence, he noticed what appeared to be blood smudges on the door. After the arrival of the crime lab, Detective Boris began searching the apartment for evidence related to the murder. In the front bedroom, Detective Boris noticed a LeBron James jersey that was draped over the back of a chair. The jersey appeared to be damp and cool, indicating that it could have been washed recently. Underneath the jersey was a pair of blue jean shorts, which Detective Boris placed on top of the jersey.[4] Detective Boris also observed under the chair a pair of white tennis shoes, which appeared to have been worn recently and had possible blood stains. He recovered a cell phone from inside one of the shoes.

On a shelf in the bedroom, in plain view, Detective Boris saw the card insert portion of a brown leather Coach wallet, which Ms. Pitcairn later identified as a portion of Mr. Pitcairn's wallet. He asked the crime scene technician to photograph and recover the wallet insert.

In addition to the other clothing items, the police also recovered a white hat that appeared to have blood on the brim, along with a second pair of white tennis shoes inside of a milk crate on the floor of the room. Detective Boris discovered a black folding knife inside the left shoe, and Mr. Pitcairn's iPhone in the right shoe. Under a bed in the room, he found three other knives, two sharpened screwdrivers, a brown or maroon wallet, and several cell phones.

On July 27, 2010, appellant was charged with first degree murder, second degree murder, armed robbery, robbery, first degree assault, second degree assault, theft, conspiracy to commit murder, and conspiracy to commit armed robbery. Five of the residents of 2607 Maryland Avenue testified at appellant's trial as witnesses for the State, including Ms. Merritt, who was charged with the same crimes as appellant for her role in Mr. Pitcairn's death.

Ms. Merritt testified that, prior to July 25, 2010, she had been living at 2607 Maryland Avenue with appellant, her boyfriend; her mother, Ms. Thomas; her mother's boyfriend, Mr. Martin; her cousin, Mr. Cosby; and Ms. Williams, for a few weeks.[5] She and appellant, whom she also called "Ya-Ya, " had been dating for two years and they had a good relationship. At that time, she was using "a lot of drugs, " including heroin and cocaine.

On July 25, 2010, Ms. Merritt was at home during the day; she had not used any drugs. That evening, Ms. Merritt and appellant left the apartment because appellant said he "wanted some money." Ms. Merritt understood appellant to mean that he "wanted to rob somebody." She agreed to go with him to find someone to rob, and they left, without having any particular destination. Ms. Merritt did not bring a weapon with her, but appellant brought a "pocket knife." Ms. Merritt described appellant's clothing that day as khaki shorts, white Nike Airs, and a LeBron James jersey. She wore pink stretch pants, a grey shirt, and flip flops.

A couple hours later, they saw Ms. Williams and Mr. Cosby. Ms. Merritt, appellant, and Mr. Cosby talked about robbing people, and Ms. Williams listened. Mr. Cosby told the group that he previously had "robbed a white lady" and "had no problem with robbing anybody." They discussed profiling victims based on whether or not they looked like they had any money, and at the end of the conversation, the two couples went their separate ways, with no plans to meet up again.

Ms. Merritt and appellant went to a bar on St. Paul Street, near the train station, waiting for a victim. They noticed Mr. Pitcairn as he was leaving the train station. Appellant and Ms. Merritt looked at each other to signal that "he was our victim." They followed Mr. Pitcairn up the street, and when he reached a part of the street where Ms. Merritt and appellant thought no one would see them, Ms. Merritt and appellant grabbed him from behind. Mr. Pitcairn told them he did not have any money; he tried to back away as appellant held him with one hand and pulled the knife out with the other. Appellant attempted to close the knife while keeping his grip on Mr. Pitcairn, and as he swung Mr. Pitcairn around to get a better grip, he stabbed him with the knife.

Mr. Pitcairn fell to the ground and said: "[T]ake my wallet, I don't have [any] money." Once Mr. Pitcairn was on the ground, appellant took his wallet, and Ms. Merritt punched him in the head and took his phone. Ms. Merritt heard a female voice on the phone saying "hello, hello, hello, " and then hanging up. Mr. Pitcairn's phone subsequently rang and displayed the name "dad, " at which point Ms. Merritt turned the phone off.

After taking Mr. Pitcairn's wallet and phone, appellant and Ms. Merritt ran back to their apartment. Ms. Merritt did not realize that appellant had stabbed Mr. Pitcairn until she saw "a bunch of blood" on appellant's hands. Appellant told Ms. Merritt that he thought he hurt Mr. Pitcairn "really bad, " and he had "never seen this much blood in my life." When they got to the apartment, appellant opened the front door, and they headed straight to the bathroom to take off appellant's jersey, shorts, and shoes, and to wash the knife. Ms. Merritt washed Mr. Pitcairn's blood off the knife, and appellant washed his jersey and shoes. Ms. Merritt and appellant also washed their hands. Appellant took off his khaki shorts and put them in a plastic bag, along with Mr. Pitcairn's wallet, and tied the bag. Ms. Merritt told appellant to get rid of the jersey, but instead, he placed it on top of a chair in their room.

After cleaning up, Ms. Merritt and appellant went to the front bedroom. Appellant was upset over what happened with Mr. Pitcairn, and he began crying, stating: "[A]ll that over a phone, I didn't mean to do it" and "I think I stabbed him twice . . . that was a lot of blood." Ms. Merritt told appellant not to worry about it, that "he's going to make it." After Ms. Merritt and appellant talked about what had happened, they "got down to business" to try to figure out how they could get money. Ms. Merritt stated that she was "going to sell his phone tomorrow." Appellant suggested that they use Mr. Pitcairn's credit card to get money, but he stated that he did not know how to use a credit card to get cash.

While appellant and Ms. Merritt were talking in the bedroom, Ms. Williams and Mr. Cosby arrived. Appellant asked Ms. Merritt if she wanted to ask Mr. Cosby how to get cash from the credit card, but Ms. Merritt stated: "I don't trust [Mr. Cosby] like that." Appellant told them that "we just hurt this white boy pretty bad." He did not give them specifics as to what happened, just that they had hurt Mr. Pitcairn. He explained that they had taken Mr. Pitcairn's credit card, but he did not know what to do with it. Ms. Williams then suggested they use it to sell gas. Ms. Merritt and appellant told Mr. Cosby and Ms. Williams that they could not go outside for fear of the police. Mr. Cosby and Ms. Williams then offered to use Mr. Pitcairn's credit card to sell gas, on the condition that Mr. Cosby and appellant would split whatever money they made.

As they were leaving the house, Mr. Cosby took the bag containing appellant's shorts and Mr. Pitcairn's wallet and put it in a dumpster. Mr. Cosby and Ms. Williams returned to the house shortly thereafter; they were unable to use Mr. Pitcairn's credit card without having his zip code. Mr. Cosby got Mr. Pitcairn's wallet from the dumpster, obtained his Florida ID, and then appellant wrote Mr. Pitcairn's zip code on a lottery ticket and gave it to Mr. Cosby. Appellant removed the insert portion of appellant's wallet, which contained cards and photos, put the rest of the wallet back in the plastic bag, and Mr. Cosby threw the bag back in the dumpster.

Mr. Cosby returned later with money and "ready, " which Ms. Merritt testified was a form of crack cocaine. Appellant and Mr. Cosby smoked the crack in the bathroom and split the money between them. Mr. Cosby then woke Ms. Williams, who was sleeping on the floor, to go with him to the gas station.

After Ms. Williams and Mr. Cosby left, appellant began crying again. Ms. Merritt tried to console him, telling him that Mr. Pitcairn would be alright. Appellant and Ms. Merritt fell asleep, and they woke up to the sound of the police coming into the apartment. Appellant put Mr. Pitcairn's phone and the knife in a pair of shoes in a crate.

At trial, Ms. Merritt used a laser pointer to identify herself and appellant from the video footage taken of two people running on 26th and Charles Streets. She described appellant's clothing in the video, including the LeBron James jersey, khaki shorts, white tennis shoes, and a white hat. From the footage, it appeared that Ms. Merritt had something in her hands, which she testified were her flip-flops and Mr. Pitcairn's phone. Ms. Merritt identified the knife police found in the white shoe as the knife that appellant used to stab Mr. Pitcairn. She and appellant shared the white tennis shoes that were worn by appellant the night of the murder, which the police found underneath a chair in the room.

Ms. Merritt acknowledged that the facts she gave in her testimony were different from those she gave when she first spoke to the police. The initial version of events that she gave to the police, in a taped statement, was that, on July 25, 2010, she and appellant were at home all day, and that her cousin, Mr. Cosby, had come to the apartment with a credit card around 11:00 p.m. She gave the statement to protect appellant because she "didn't want him to go to jail."

After giving her initial statement, she went back to her cell. Later that day, she decided she wanted to speak to the detectives again because she "wanted the truth to get out, " because "what happened to Mr. [Pitcairn] was wrong and it shouldn't never happened." Ms. Merritt was led back to an interview room, passing appellant's cell on the way, and she began giving the police different information regarding her involvement. While in the interview room, she heard appellant shouting her name several times. After hearing appellant, she "felt that [she] was doing him wrong, so I told the police that I didn't want to cooperate." At that point, she ended the interview.

On September 13, 2010, after Ms. Merritt had been charged with murder and other offenses, she met with police detectives and an Assistant State's Attorney to discuss a proffer agreement. Ms. Merritt understood the terms of the agreement to be that nothing she said that day would be used against her in court unless she were to testify in her own defense. Ms. Merritt decided to tell the police what happened on July 25, 2010, because she "felt bad for the family, " and Mr. Pitcairn's murder "wasn't even supposed to go down like that and it should have never happened." She initially lied about what happened to protect appellant, not herself, explaining: "[I]f I really wanted to protect myself then I would still not say nothing whatsoever."

On May 11, 2011, Ms. Merritt entered into a plea agreement, pursuant to which she would be given a 15-year sentence, the State would dismiss the murder charges and conspiracy to commit murder charges, and she would testify against appellant. Ms. Merritt acknowledged that she "could still be prosecuted for first-degree murder and conspiracy to commit first degree murder if the State [was] not satisfied with [her] testimony." Ms. Merritt, who had two prior convictions for possession of narcotics with intent to distribute was aware that, on April 18, 2011, her thumb print was found on Mr. Pitcairn's iPhone.

Ms. Williams and Mr. Cosby both testified for the State regarding the events leading up to and following Mr. Pitcairn's murder.[6] Ms. Williams had lived at 2607 Maryland Avenue for three months prior to July 25, 2010. She described the sleeping arrangements in the bedroom she shared, as follows: Ms. Thomas and Mr. Martin slept on the one bed in the room; appellant, whom Ms. Williams knew only as "Ya-Ya, " and Ms. Merritt slept on a mattress on the floor; and Ms. Williams and Mr. Cosby slept on blankets on the floor. The back room of the apartment was occupied by a young woman, her boyfriend, and their baby.

On July 25, 2010, Ms. Williams, who described herself as a "moderate drug user, " used cocaine and heroin throughout the day, stating that her drug use went "from the moment I woke up until like twelve o'clock that night." Mr. Cosby, who described himself as a "light drug user, " testified that he used heroin and cocaine with Ms. Williams throughout the day. Ms. Williams and Mr. Cosby left the apartment around 9:00 a.m. and walked to Charles Street, and they remained out of the apartment all day.

At 11:00 p.m. on July 25, 2010, Ms. Williams and Mr. Cosby were sitting on a bench at a bus stop at Charles Street and 25th Street. Appellant and Ms. Merritt joined them and began talking. Ms. Williams testified that appellant said that he was looking for someone to rob, and while he and Ms. Merritt discussed robbing someone, she and Mr. Cosby just listened. Mr. Cosby testified that he did not participate in the conversation about robbing people because he did not want to "go[] to no jail for no stupid stuff." At the end of the conversation, appellant and Ms. Merritt walked away and turned right on 25th Street toward St. Paul Street, and Ms. Williams and Mr. Cosby walked up Charles Street back toward their apartment on Maryland Avenue.

On the way home, Ms. Williams and Mr. Cosby ran into a friend, with whom they used drugs. They then returned to the house and noticed police cars around the area of Charles Street and Maryland Avenue, as well as a police helicopter flying overhead.

When Ms. Williams and Mr. Cosby arrived at the apartment, appellant and Ms. Merritt were in their bedroom, along with Ms. Thomas and Mr. Martin, who were sleeping. Mr. Cosby testified that appellant and Ms. Merritt were "breathing all hard, " and when he asked why they were out of breath, appellant told him that he "just beat this little white guy up so bad, I feel bad about what I did to him." Ms. Williams testified that appellant told her that "he had robbed this guy at the gas station . . . he hurt him real bad." Ms. Merritt and appellant then asked Ms. Williams and Mr. Cosby how to use a credit card to get cash. Appellant showed Ms. Williams and Mr. Cosby Mr. Pitcairn's credit card, wallet, Florida driver's license, and iPhone. Appellant came up with the idea to use the credit card at a gas station to buy people gas in exchange for cash, but he and Ms. Merritt did not want to go outside because the police were out, and appellant knew he had seriously hurt Mr. Pitcairn. Mr. Cosby volunteered to go instead.

Ms. Williams accompanied Mr. Cosby to the gas station, explaining that she was "fading" and wanted more drugs. They unsuccessfully attempted to use the card at one gas station, after which Ms. Williams returned to the house because she "didn't feel right." Mr. Cosby went to another gas station and then returned to the house twenty minutes later after he was unable to use the credit card without Mr. Pitcairn's zip code. Appellant then wrote Mr. Pitcairn's zip code down and gave it to Mr. Cosby.

Mr. Cosby testified that appellant instructed him to throw away Mr. Pitcairn's wallet, and he put the wallet in a dumpster. Mr. Cosby did not recall a pair of bloody shorts being in the bag.

When Mr. Cosby returned to the gas station, he used the card to buy gas in exchange for cash, and he then used some of the money to buy crack cocaine. He returned an hour later with the money and crack, which he split with appellant. Ms. Williams and appellant then got into an argument. They left the apartment and continued arguing until they reached Charles Street and 25th Street.

At that point, Ms. Williams saw a police officer, and she flagged him down for the purpose of telling the officer that Mr. Cosby had a stolen credit card. Mr. Cosby, who had drugs and Mr. Pitcairn's credit card on him, ran. Ms. Williams then told the officer: "[T]here he goes . . . he's the one that did the robbery at the gas station." She made that statement to indicate that Mr. Cosby had the stolen credit card; she did not want him to have it.[7]

Mr. Cosby ran to a friend's house on Charles Street and "stayed in there until it got late." He was sitting on the front steps when he saw a police car coming up the street. Mr. Cosby got up and started walking down the street, with the officer following him. The officer flashed his lights at Mr. Cosby and told him to stop. At that point, Mr. Cosby had hidden Mr. Pitcairn's credit card, and he did not have any drugs on him. Mr. Cosby stopped, gave the officer his name, and the officer said that the police were looking for him. The officer asked Mr. Cosby about a murder, and Mr. Cosby said he did not know anything about anyone getting killed. The officer then took Mr. Cosby to the police station.

Ms. Williams' description of appellant's clothes that evening matched that given by Ms. Merritt, i.e., a LeBron James jersey, khaki-colored pants, a white hat, and white tennis shoes. She identified the white tennis shoes that contained a knife and Mr. Pitcairn's iPhone as appellant's shoes, and she described the knife as "the knife that Ya-Ya ...

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