[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the Circuit Court for Baltimore City, M. Brooke Murdock, Judge.
Argued by: David P. Kennedy (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD. for Appellant.
Argued by: Todd W. Hesel (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD. for Appellee.
Panel: Woodward, Nazarian, Reed, JJ. Opinion by Nazarian, J.
[217 Md.App. 683] Nazarian, J.
A spectator at appellant Antomar Jones's trial in the Circuit Court for Baltimore City could be forgiven for wondering whether the prosecution and defense were describing the same series of events. The two stories shared common elements, not least the core fact that Anthony Taylor, the main prosecution witness, was shot and Corey Alexander killed on the night of February 1, 2012. But although there was, as we find below, sufficient evidence to support the jury's eventual decision to convict Mr. Jones on a variety of charges, no physical evidence connected Mr. Jones to the shooting, and the case turned heavily on the relative credibility of Mr. Jones versus Mr. Taylor. For that reason, we hold that the prosecutor's reliance during closing argument on a fact not in evidence strayed beyond the bounds of fair advocacy and that the error was not harmless. We reverse Mr. Jones's convictions, remand for further proceedings, and address one other legal question that could well re-emerge on remand.
Because our analysis relates more to witness credibility than to the jury's resolution of fact disputes, we begin by recounting the contrasting versions of events that witnesses offered at trial.
A. Mr. Taylor's Account
Mr. Taylor testified that he and Mr. Alexander were best friends and roommates before the shooting. He knew Mr. Jones, whose friend had been mentored by Mr. Alexander through a program called Life Renewal Services, and testified that Mr. Alexander had begun mentoring Mr. Jones as well.
At about 8:45 p.m. on February 1, 2012, Mr. Alexander told Mr. Taylor that he was driving to Mr. Jones's residence in Baltimore
City to give him a ride, and Mr. Taylor decided to join him. When they arrived, Mr. Jones entered the back seat, and they drove toward Caton Avenue, where they had planned to drop Mr. Jones off. However, when Mr. Alexander [217 Md.App. 684] reached back to shake Mr. Jones's hand, Mr. Jones pulled out a large caliber automatic gun and said, " you all know what time it is" and that he " want[ed] everything out of [their] pocket[s]." Mr. Taylor had about sixteen dollars and Mr. Alexander had " a couple" of dollars. They each threw their money and a phone into the back seat. Mr. Jones then demanded they drive to Mr. Alexander's house, but when they arrived, Mr. Taylor told Mr. Jones that the neighbors had surveillance cameras, so Mr. Jones told him to " pull off," and they drove instead to a nearby alley. Upon arriving, Mr. Taylor attempted to exit the car, and Mr. Jones shot him in the face; he was able to run to Good Samaritan Hospital, and he said that he thought he heard another gunshot as he ran. While Mr. Taylor was being treated, a Baltimore City police officer asked him to identify the shooter, but he responded " that it was an unknown assailant" and that he " didn't know."
Good Samaritan transferred Mr. Taylor to University of Maryland Shock Trauma, and while there, he was interviewed by Baltimore City Police officers. During that interview, he explained that Mr. Jones had shot him, and he identified Mr. Jones from a photo array. He remained in Shock Trauma for two weeks.
B. Mr. Jones's Account
Mr. Jones testified that he knew Mr. Alexander through his brother's Life Renewal Services mentor, and had met Mr. Taylor through Mr. Alexander. He also said that he began [217 Md.App. 685] purchasing marijuana from them in October or November 2011.
On January 31, 2012, Mr. Jones spoke with Mr. Alexander by phone at 9:37 p.m., then again on February 1 at around 12:30 p.m. During the February 1 conversation, Mr. Alexander informed Mr. Jones that he would be acquiring marijuana later that day and asked Mr. Jones to check back with him later. Mr. Jones called Mr. Alexander at 9:19 p.m., and Mr. Alexander told him he would come to his house with the marijuana. They spoke again at 9:25 p.m. and at 9:34 p.m. After receiving the 9:34 p.m. call from Mr. Alexander, Mr. Jones left the house to meet Mr. Alexander outside. He described a very different interaction with Messrs. Alexander and Taylor:
[MR. JONES]: Okay. I got in the car, first [Mr. Alexander] turned around and said hey, what's up, shook my hand. Then I talked to [Mr. Taylor], he turned around and said hey, what's up, shook my hand.
At that moment I noticed my phone had vibrated, so I looked down and saw that it was my girlfriend, when I go to answer it, the phone cut off. So, I said can I use my car charger? Plugged my
phone up, we began talking, asked me what I was doing all day, I said I was in the house with my girlfriend all day.
Then after that, purchased the marijuana, got out of the car, went back in the house.
[217 Md.App. 686] [COUNSEL FOR MR. JONES:] Now, when you got out of the car--how long do you think you were in the car?
[MR. JONES:] I want to say I was in the car like . . . five minutes tops, but when you talking it could run over.
* * *
[COUNSEL FOR MR. JONES:] Okay. Now you were in the car five plus minutes, you get out of the car, what happens, if anything, next?
[MR. JONES:] I'm walking back to my house and they honk the horn, they say hey you left your phone. I come back, I get my phone and then I run in the house.
[COUNSEL FOR MR. JONES:] Okay. And do you recall about what time you may have gotten in the house?
[MR. JONES:] It probably was like 9:40, maybe 9:45.
* * *
[COUNSEL FOR MR. JONES:] Did you have any situation where you were riding around in the car . . . ?
* * *
[MR. JONES:] No. I never left my home. I don't know where they went when they left, but I went back in the house.
[COUNSEL FOR MR. JONES:] Did you have any involvement with the homicide of Mr. Alexander . . . and attempted homicide of Mr. Taylor?
[MR. JONES:] I had no idea what happened to them.
According to Mr. Jones, he had no additional communications or interactions with Messrs. Alexander and Taylor that night.
The State questioned Mr. Jones later on about the make and model phone he had that night, an exchange that will prove important later:
[COUNSEL FOR THE STATE:] And what kind of phone did you have?
[MR. JONES:] I can tell you it was a 3G. I don't--
[217 Md.App. 687] [COUNSEL FOR THE STATE:] Well, what did it look like?
[MR. JONES:] It was a touch screen phone.
[COUNSEL FOR THE STATE:] Okay. Was it a Galaxy?
[MR. JONES:] No.
[COUNSEL FOR THE STATE:] Was it an Android?
[MR. JONES:] I really don't remember.
[COUNSEL FOR THE STATE:] Was it an [iPhone]?
[MR. JONES:] It definitely wasn't an [iPhone].
C. The Investigation
On February 1, 2012, Detective Shawn Reitchenberg of the Baltimore ...