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Preston v. State

Court of Special Appeals of Maryland

July 30, 2014

DONTAYA PRESTON A/K/A DONTAE PRESTON
v.
STATE OF MARYLAND

Page 801

Appeal from the Circuit Court for Baltimore City, Barry G. Williams, JUDGE.

SUBMITTED BY Daniel Kobrin (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD FOR APPELLANT.

SUBMITTED BY Gary E. O'Connor (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD FOR APPELLEE.

Panel: Eyler, Deborah S., Matricciani[*], Raker, Irma S. (Retired, specially assigned), JJ.

OPINION

Page 802

[218 Md.App. 62] Raker, J.

Dontae Preston, appellant, was convicted in the Circuit Court for Baltimore City of first-degree murder, use of a handgun in the commission of a crime of violence, and wearing, carrying, and transporting a handgun. Before this Court he presents the following question for our review: Did the court abuse its discretion in declining to give a " witness promised benefit" jury instruction? We shall hold that the trial court did not abuse its discretion and affirm.

I.

Appellant was indicted by the Grand Jury for Baltimore City with first-degree murder, use of a handgun in the commission of a crime of violence, and wearing, carrying, and transporting a handgun. Appellant proceeded to trial before a jury in the Circuit Court for Baltimore City.

On the evening of March 14, 2009, Keon Barnes was shot and killed outside Nichelle Payton's house in Baltimore City where he and appellant were attending a " pajama party." There were two eyewitnesses to the events. Katrina Harrell [218 Md.App. 63] testified that when she was going to her car, she saw Mr. Barnes and appellant talking to each other on Ms. Payton's porch. After entering her car, she heard gunshots, and when she looked up, she saw Mr. Barnes lying on the steps and appellant standing over him holding a gun. Ms. Payton testified that she heard gunshots when she was preparing for the party. She ran upstairs, and when she looked out her bedroom window she saw Mr. Barnes lying on the steps and appellant heading toward his car. Both Ms. Harrell and Ms. Payton selected appellant from a photo array. Ms. Harrell identified appellant as the person who shot Mr. Barnes, and Ms. Payton stated that appellant was at her party and that she saw him going to his car after Mr. Barnes was shot.

Defense counsel attempted to establish that Ms. Payton cooperated fully with the State only because the police agreed to move her to free, protective housing for several months. Defense counsel told the court that the State paid $13,530 to move and house Ms. Payton rent-free from July 2009 through February 2010. Ms. Payton testified that some days after the murder, appellant came to her house and knocked on the door, but that she did not answer because she was scared. Sometime after, she called the police and asked to be moved. Ms. Payton testified on direct examination that when she provided her statement to the police and identified appellant in the photo array, the police had not yet promised to move her. On cross-examination, Ms. Payton admitted that she did not tell the police initially that she witnessed a portion of the shooting. Defense counsel then questioned Ms. Payton as follows:

" [DEFENSE COUNSEL]: And, in fact, you didn't cooperate or talk to the police or tell them anything about anything until after the point in time in which you say [appellant] came and knocked on your door? Is that correct?
MS. PAYTON: Correct.
[DEFENSE COUNSEL]: And that's when you then went and called the detectives and said I want to be moved, correct?
MS. PAYTON: He came to my house again.
[218 Md.App. 64] [DEFENSE COUNSEL]: And you said that you wanted to be moved?
MS. PAYTON: Right.

Page 803

[DEFENSE COUNSEL]: And on that day when they came to your house, you didn't give them a statement saying anything about anybody going across the street, did you?
MS. PAYTON: No.
[DEFENSE COUNSEL]: It wasn't until after you got assurances that they were going to move you, put you up and pay for you that you then gave a taped statement, isn't that correct?
MS. PAYTON: Correct. No."

Detective Michael Moran testified that he spoke to Ms. Payton on several different occasions during the course of his investigation because she was scared and only volunteered small amounts of information at each interview. He acknowledged that no statement was taken from Ms. Payton on the night of the murder or shortly thereafter. Detective Moran testified that on April 3, 2009, Ms. Payton contacted him and told him that she was afraid for her life. He advised her to come to his office that day, but she declined, saying that she had something pressing to do with her children. On April 8, Ms. Payton came to the Homicide Department, provided a taped statement in which she stated that she witnessed a portion of the shooting, and picked out appellant from a photo array. On April 14, Detective Moran requested to have Ms. Payton moved to protective housing.

Defense counsel questioned Detective Moran as follows:

" [DEFENSE COUNSEL]: So, Detective, when you first got this phone call talking about how scared she was, why wouldn't you make the request then?
DETECTIVE MORAN: At that time, she was not completely honest as to what she saw. She was still really scared. She knows --
[DEFENSE COUNSEL]: So was it not until she ...

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