Marc A. DeSimone, Jr. (Paul B. DeWolfe, Public Defender, on the brief), for Appellant.
Cathleen C. Brockmeyer (Douglas F. Gansler, Attorney General, on the brief), Baltimore, MD, for Appellee.
Panel: KRAUSER, C.J., MATRICCIANI, CHARLES E. MOYLAN JR. (Retired, Specially Assigned), JJ.
[216 Md.App. 3] Forfeiture by wrongdoing is a recent and, indeed, incongruous recruit to the ranks of the hearsay exceptions. Its energizing focus is not on the inherent trustworthiness of the [216 Md.App. 4] hearsay declarant but on the inherent skulduggery of the hearsay opponent.
An Enigmatic Factual Background
The appellant, Marcus Lee Smiley, was convicted in the Circuit Court for Wicomico County by a jury, presided over by Judge D. William Simpson, of the attempted murder in the first degree of Travis Green and related assault and handgun offenses. He was sentenced to a term of life imprisonment plus ten years.
There is an obvious back story linking the three leading characters in this criminal drama, but the trial record is frustratingly obscure as to what exactly that narrative thread might be. What we do know is that the appellant, Marcus Lee Smiley, was a drug dealer. We also know that the man he shot for no apparent reason, Travis Green, was also a drug dealer. What is missing is a motive.
As unenlightening as the trial testimony is, however, it will help to frame the appellate contentions that follow. At the time of the shooting, December 10, 2011, Travis Green had just spent the night at 729 Dennis Street in Salisbury, the home of Amanda Faulcon. Ms. Faulcon is the mother of Green's three young children, who live at that address with their mother. Just after arising, Green walked out the back door, stood on the back steps, and just looked around, while smoking a cigarette. At that point, he " observed this guy sitting on the next step, to the left." He was describing the " house next door to Amanda's, to the left, an abandoned house." Green said that he did not " know him personally," but he identified that person in the courtroom as the appellant. Green described the appellant's behavior.
Yeah, he was just sitting there, looking a little bogie, crazy, looking crazy and everything, I didn't pay it no mind, you know, when I went there before, in the past I've seen people sitting on that back step and I, you know, it was none of my business, I didn't pay him no mind.
[216 Md.App. 5] Amanda then called Green back in the house as she knew that he was about to leave. Green's truck was parked behind Amanda's house. He went out the rear door and approached the front of the truck. As he did so, the person who had been sitting on the steps next door came up to him and asked an innocuous question. As Green opened the driver's side door, that individual suddenly fired a shot at Green.
Then that's when he was saying what he said to me, Did you see where he went? And I looked back and I just, like, shook my head, like, you know, I didn't know what he was talking about. And then he fired a shot.
Green attempted to escape the fire by sliding across the front seat of the truck from the driver's side to the passenger's side. The shooting continued.
A. I jumped in the truck, as soon as I felt the shot to my arm I jumped in the truck to the, I tried to, you know, try to, I didn't know what he was, you know, what this guy was doing.
Q. When you jumped in the truck, what did you try to do?
A. Slide out the passenger door, and I did, but he fired a shot obviously over the, over the, you know, towards my way, when I was trying to get out of the truck, and I slid out, and I looked up and he was trying to put on his mask. And I tried to dart, I had time enough to run back in the house from that point, from the, because you see in the truck, from the truck door the back door was right there, but I didn't want to take a chance and run back in the house and this fool running behind me and my kids in there, and Amanda, so I just kept on running beside the house. And I turned around, I don't know why I turned around, to see if he was still, if he was still behind me, and then came pow, pow, two more times.
Q. How many times were you hit?
A. Three times.
Q. Where were you hit?
[216 Md.App. 6] A. In my leg, my— well, the first shot was my arm, my leg and my abdomen.
Green insisted that he did not know the appellant before that morning, but nonetheless said that he had " heard of him." During the encounter, the two men were within about five feet of each other. Green ran to the side of the house as two final shots were fired.
A. I didn't go in the, I didn't go in the back, in the back door, I ran to the side of the house. That's where the last two shots were fired into my body, and he ran off.
Q. Okay. So, just for clarification, you run this way—
A. Right there, I made it right there.
Q. And you're shot again here?
A. Yes. I looked back and he was right behind me, he was on my heels.
After the appellant's gun was empty, Green sought some explanation for the shooting, but the appellant fled the scene without answering.
Q. Did the Defendant ever ask you for anything at all?
A. No. I asked him. On the side of the house, what, what, you know, what is it, a robbery? What is this about, money? What is this about?
Q. Did he say anything?
Q. At what point did that occur? When did you ask him that?
A. On the side of the house.
Q. As you were running?
A. Yeah. No, not while I was running, after he fired the last shot, I said, boy, what you keep shooting me for? He kept clicking the gun, you know, it wasn't no more bullets [216 Md.App. 7] left in it, I said what are you still trying to shoot me for, what is this about, money? I'm asking, right?
Q. Did he answer?
A. No, he just took off after.
Amanda drove Green to the hospital. Green next remembers waking up in the Shock Trauma Unit of the University of Maryland Hospital in Baltimore, where he remained for five days. He had had a conviction in federal court for possession of crack cocaine and at the time of the shooting was apparently working in cooperation with federal drug authorities.
The entire confrontation between the appellant and Travis Green was witnessed by Elmer Duffy. On December 13, 2011,
three days after the shooting, Elmer Duffy gave a statement about what he had observed. That statement was recorded and transcribed and subsequently introduced into evidence.
On the morning of December 10, 2011, Duffy had arrived to do some house painting at the vacant house immediately adjacent to Amanda Faulcon's home at 729 Dennis Street. Duffy knew the appellant from their frequent playing of basketball together some years earlier. Duffy also knew the appellant's mother and his sisters. When Duffy first saw the appellant standing in the driveway, the two greeted each other.
So I spoke to him, " Hey, Mark. " He said, " Hey, Elmer. " And I went on in the house. When I went in the house, I let the blinds up so I could see what he be doing[.]
Duffy then described the shooting scene itself.
A He [Travis Green] stood there at that back door and looked around. Then when he came off that back stoop, he walked around the back side of his vehicle, opened this door up—
A — and when he got in, I look and there was Mark running.
[216 Md.App. 8] Q Okay. So—
A Running towards him.
Q The guy that come out of the house went to the driver's side of the—
A He went around the back of his vehicle, then got into the driver's side.
Q Open the driver— okay.
A And once he got in the driver's side, I looked and Mark was running towards that vehicle coming up from the back side.
Q Okay. From where he was standing?
A From where he was standing. So that means he came up in the back of the vehicle.
A And he ran around on this side, opened that door and just pow, pow, pow, pow, pow, and I was, like— I'm standing to the window, and I'm, like, damn. I figured the guy was dead, so help me God. Some kind of why he jumped out on this side—
A — on the ground—
Q Come out the passenger's side on the—
A Come out the passenger's side on the— and jumped on the ground. Mark came around the front side of the vehicle and like he was trying to shoot him again. And what made me think that that guy was shooting back at Mark was because Mark was ducking. Do you understand what I'm saying?
A When he ran around this side to try to shoot the guy, he ducked and ran back to this side. Then the guy got up off the ground, and then I don't know if he shot at Mark or Mark shot him again, then he bust in the back door. Then when he bust in the back door, like, Mark shot a couple [216 Md.App. 9] more times. And then when Mark come running back this a way [.]
Elmer Duffy did not testify at the appellant's trial on October 10, 2012, for the obvious reason that he was murdered on February 20, 2012. The introduction into evidence of his recorded statement to the police is the most noteworthy of the contentions before us.
Ironically, the testimony of the appellant himself helped to fill in what otherwise might have been arguable gaps in the State's case. The appellant placed himself right at the scene of the crime at approximately 8:30 a.m. on December 10, 2011. The appellant testified that he went to the area, specifically to a Richard Blake's house, because he " had some furniture that needed to be taken to Delmar Recycling." Richard Blake's house was next door to the house where Elmer Duffy was to do some painting. Elmer Duffy arrived in the area about 15 minutes after the appellant got there. The two men, who knew each other, conversed for a time. At that point, two of the appellant's " associates" came up and inquired of the appellant if he knew where they could get some drugs. " Associates" means buyers of narcotics and " anything" means narcotic drugs.
A Well, like I said, Mr. Duffy pulled up, and then I had two friends that come to me, associates that came to me and asked me did I know anybody that had anything. I said no, I don't know nobody got anything because—
Q What does that mean, had anything?
A Talking about drugs.
In his further testimony, the appellant elaborated:
THE WITNESS: Like I said I had two associates who come up, approached me, asked me did I know anybody who had anything as far as—
BY [DEFENSE COUNSEL]:
Q Mr. Smiley, what does that mean?
[216 Md.App. 10] A Drugs.
Q And what do you mean by associates?
A Well, two guys that I knew. Not friends but ...
Q Not friends?
A People that I associate with.
Q Okay. And they came up, and what did you do after they came up?
A Well, like I said, they asked me did I know anybody that had anything.
From that point on, the appellant took up the cause of getting his associates some drugs, as he took the associates' purchase money.
THE WITNESS: Okay. Well, what I did next was, I took the money that he had given me, I took the money, and I was in the process, like I say he asked me did I know anybody had anything, I said no, I don't know anybody have anything. He said, well, he knows Travis [.]
Even if the appellant and Travis Green were not close acquaintances, the appellant knew that Travis Green sold drugs. The appellant waved to Green, called him by name, and ran in his direction in an effort to purchase drugs.
I ended up going towards Mr. Green. I had about, about, the house was about 40 to 50 yards away, and I went to Mr. Green. And I didn't know him, I was just going to him, and as I was going to him I waved my hand in the air like this, I was asking him, I said Travis, I'm trying to get something, I'm trying to get something. And he looked at me like I'm crazy, and I'm looking at him like he's crazy, because we didn't know each other. We didn't know each other. And I said I'm going to, I'm running to him trying to buy something, trying to get some drugs, and in the process of me running to him I get about a good, like I said, a good about 40, 50 yards away from him, and when I get about a good 25 to 30 yards away, and he said—
[216 Md.App. 11] As I was getting closer to Travis, about 15 yards away, and he's standing, he's standing on the back porch, he's standing on the back porch, and as though he's talking to somebody in the driveway, and like I said, as I'm running towards him saying, I'm trying to catch him before he leaves, and I'm trying to, trying to say I want to get something from him. And in the process, like I said, somebody, he act as though he's talking to somebody in the driveway. And as I get to about, a good ten yards away from him, I see this person in all black, with a black ski mask on, he jumps in between the house, I hear two shots. When I ...