Wright, Kehoe, Alpert, Paul E., (Retired, Specially Assigned), JJ.
This appeal arises from the conviction upon retrial of appellant, Dajuan Marshall, of conspiracy to murder and gang association resulting in death. Marshall was first tried by a jury in the Circuit Court for Baltimore City on July 30 and August 2, 3, 4, 5, 6, and 9, 2010, and convicted of first degree murder, conspiracy to murder, conspiracy to kidnap, and a handgun violation. Marshall filed a motion for a new trial, based on juror misconduct, which was granted on September 10, 2010. Marshall's retrial was held on October 18, 19, 20, 21, and 24, 2011. On December 20, 2011, Marshall was sentenced to life imprisonment for conspiracy to murder plus twenty years to be served consecutively for gang association resulting in death. Marshall then filed this timely appeal.
Marshall presents three questions for our review, which we quote verbatim:
1.Was it error to admit certain portions of the prior testimony of Appellant, from his first trial?
2.Was it an abuse of discretion to deny the motion in limine?
3.Should the trial court have granted the motion to dismiss the charge of gang participation resulting in death, because the statute is void for vagueness?
For the reasons that follow, we answer questions 1 and 2 in the negative and affirm the decision of the trial court. We find that Marshall failed to renew his motion to dismiss after the grant of a new trial and, therefore, we decline to address Marshall's third question as it was not preserved for our review.
Facts and Procedural History
On June 9, 2008, Kenneth "Kash" Jones, the alleged leader, or original gangster ("OG") of the Bloods gang known as the Pasadena Denver Lanes ("PDL"), was kidnapped from the corner of Water Street and Custom House in downtown Baltimore City. Jones was found murdered in the 4500 block of Bonner Road shortly after midnight on June 10, 2008.
Marshall was arrested and charged with Jones's murder and other related offenses. On August 9, 2010, a jury convicted Marshall of first degree murder, conspiracy to commit murder, conspiracy to kidnap, and a handgun violation. On September 10, 2010, Marshall moved for a new trial on the ground of juror misconduct, which was granted by the trial court. Following a retrial in October 2011, Marshall was acquitted of the first degree murder charge, but he was found guilty of conspiracy to commit murder and gang association resulting in death and was sentenced to life imprisonment plus twenty years.
During his first trial, Marshall testified that, in 2007, he had left the Bloods gang called Family Over Everything ("FOE") to form the Spider or "Spyda" Gang as a community improvement group. At retrial, according to State's witness, Omar Woods, Marshall was the OG of the Spider Gang, a Blood gang and rival of the PDL. Woods testified that he joined the Spider Gang because he "thought it was a brotherhood to where as though we take care of each other and take care of the community and try to uplift the community." Woods testified that when he joined the Spider Gang, it was explained to him that "we was supposed to be bounty hunters. We were bounty hunters. We was supposed to be like police department to the city. Watch over other gangs. Make sure they're doing everything the right way like helping the community and being our brother's keeper and we're not doing a bunch of wrong."
However, when questioned further, Woods testified that the Spider Gang was "[n]ot at all" as described to him and was really "nothing but a bunch of mischief. Tearing the community down. A lot of robbing people, petty crimes." Woods testified that the Spider Gang supported itself "[t]hrough a bunch of crimes around the city. Robberies, selling drugs, however we can get money." Woods testified that the Spider Gang's goal was to be the "last gang alive" in order to "take over the city" and, therefore, the gang had many enemies.
Regarding Jones's murder, Woods testified that he knew Jones was the "leader" of the PDL and that "[Jones] was on the menu, " or targeted to be "killed on sight." Woods testified that Marshall had likewise been "placed on the menu" by the PDL. According to Woods, the Spider Gang would benefit by killing Jones because "if you take away the head of the organization the rest of the organization would fold" and the Spider Gang would "be one of the last standing . . . . [t]hat was the whole thing we was trying to do."
Woods testified that he was asked to participate in Jones's murder by Marshall and he would ride around Baltimore City with Marshall looking for Jones. After Jones's murder, Woods testified that the gang members were gathered and Marshall stated that he and several others had taken care of Jones, although Marshall was not the trigger man. Woods testified that the gang members involved in Jones's murder were Marshall, "Nose Bleed, " "Rick Flare, " and "Nephew." Woods testified that he had identified Marshall to the police as the person who "initiated" Jones's murder.
Woods testified that he was ordered by the Spider Gang's other OG, known as "Gotti, " to "rob some people so we can earn some money to send to [Marshall]." When Woods was arrested after attempting to rob a store, he gave police information about the Spider Gang and Jones's murder because he wanted "leverage to help get out of the gang." In his discussions with police, Woods recounted an incident involving a business called JT's Bar. According to Woods, he called a senior gang member, "Kuran, " about meeting an individual at JT's Bar to "get a bunch of guns." After Kuran told Woods that they were going to rob the bar, Woods testified that Marshall "showed up there and he was telling me they was together." Woods testified that he "opened the side door so they could come in and rob the store and everybody else in it." The robbery of JT's Bar occurred approximately one month after Jones's murder.
Additional facts will be included in the relevant sections below.
Marshall contends that the trial court erred in admitting prior testimony from his first trial related to the defense's nonproduction of corroborating witnesses. Marshall argues that the admission of the prior cross-examination impermissibly shifted the burden of proof to the defense. Marshall maintains that, because the corroborating witnesses were claimed by his previous defense counsel in advance of his prior trial, the trial court erred in "shackling the new defense attorney to his predecessor's flawed, trial strategy." Marshall does not argue that the prior testimony was inadmissible, only that it was an abuse of discretion to admit it.
The State responds that the trial court did not abuse its discretion in admitting Marshall's prior testimony. The State asserts that the prosecutor was permitted to comment on the lack of corroboration during Marshall's first trial because Marshall had elected to testify and raise the issue of whether Spyda was a civic organization rather than a criminal gang. The State argues that "whether or not Spyda was a charitable organization . . . was not a fact inconsistent with guilt that the State bore the burden of disproving" and, therefore, any comment on it could not shift the burden of proof. The State avers that Marshall's prior testimony was admissible under a hearsay exception and the "inter-trial shift in tack in describing Spyda" during the first trial was "relevant to [Marshall's] credibility on the gang-participation charge." According to the State, "the prior testimony was independently relevant to show [Marshall's] shift in tack."
At his retrial, Marshall's counsel objected to the State's introduction of an audio recording of Marshall's prior testimony regarding the nature and purpose of the Spider Gang and the lack of corroborating witnesses as to that purpose. The trial court allowed Marshall's prior testimony to be played for the jury, with certain portions redacted. The admitted portion complained about on appeal is as follows:
[THE STATE]: Well, what about Ali Muhammad? You said he's like a brother?
[THE STATE]: Can he back up your version of what the Spider ...