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Wilkins v. Warden

United States District Court, D. Maryland

September 29, 2014

DAVON WILKINS Petitioner,
v.
WARDEN, et al. Respondents.

MEMORANDUM

JAMES K. BREDAR, District Judge.

An answer seeking dismissal of this petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 is pending. ECF 9. Petitioner has filed a reply. ECF 10. No hearing is required. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2014); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C. § 2254(e)(2)). For the reasons set forth below, the petition must be denied.

Background

Petitioner Davon Wilkins ("Wilkins") was charged with murder and related gun offenses on January 28, 2011, in the Circuit Court for Baltimore City. Wilkins was accused of the shooting death of Renato Broom, who died from a single gunshot wound on July 1, 2010. Wilkins was charged with first-degree murder, second-degree murder, manslaughter, use of a handgun in the commission of a crime of violence, and wearing, carrying, or transporting a handgun.

Wilkins was tried before a jury on April 20 and 23, 2012. The only issue for trial was whether Wilkins shot Broom intentionally. The evidence presented by the State consisted of the testimony and identification of Wilkins by two witnesses, Allen Simpson and William Goode. ECF 9 at Ex. 2, pp. 48 - 103 and 133 - 162. Simpson identified Wilkins as the shooter in a photographic array and provided a tape-recorded statement to police. He testified that Wilkins and Broom were arguing about money related to a dice game and that Wilkins pointed a gun at Broom to scare him, but then shot him. Simpson maintained at trial that the shooting was an accident. In his recorded statement to the police, Simpson claimed he had witnessed the entire incident. He described Wilkins and Broom as best friends and related they were playing dice. When they began to argue about money, Wilkins left the game and came back with a gun, waiving it around and trying to scare Broom. Simpson recalled that Wilkins said, "Yo, give me my mother fucking money back" and "your life is in my hands." At that point Wilkins shot Broom. Simpson related his opinion in his recorded statement that the shooting was an accident. When identifying Wilkins in the photo array, Simpson wrote on the back that "on summer day on Lennox and Park Ave, [Broom] and others were shooting dice when things got out of hand and [Broom's] best friend (Wilkins) went to get a gun to get his money back and try to scare him. That's when he got shot." ECF 9 at Ex. 2, pp. 48 - 103.

William Goode's testimony also varied from the recorded statement he provided to police. At trial he testified that on July 1, 2010, the day of the shooting, he was at his sister's apartment on the first floor of a building located on North Avenue. While Goode was in the living room listening to music or watching television he heard loud noises outside and looked out the window to see a lot of people walking away. He stated he heard someone screaming "it was an accident" but claimed he did not see anyone with a gun or running away. Goode waffled about whether he saw Wilkins uttering the words "it was an accident." At first he maintained he did not see the person's face who said it; then he claimed several people said it. When asked on direct examination if Wilkins, the person who Goode had identified in a photo array, was one of the people who had said "it was an accident, " Goode claimed that Wilkins had not been among those who made that statement. After reminding Goode of his prior statement identifying Wilkins, he admitted that Wilkins was one of the persons making that statement. Goode further maintained that Wilkins looked emotional and concerned and described Wilkins and Broom as the best of friends.

Goode also testified he did not hear a gunshot, but had told police on July 15, 2010, that he had heard a shot prior to getting up to look through the window. Because Goode testified inconsistently with his recorded statement, the State was permitted to play Goode's taped statement for the jury. In that statement Goode explained he had identified Wilkins, "because that's the one I seen (sic) standing, made the statement saying it was accident." On crossexamination, Goode's testimony was impeached with his pre-trial suppression hearing testimony that he had not seen who said it was an accident. Goode further admitted he was suffering from personal problems about which he did not provide details. ECF 9 at Ex. 2, 133 - 162.

No evidence was presented by the defense and the jury returned a verdict acquitting Wilkins of the murder charges, but finding him guilty of involuntary manslaughter and the handgun offences. At sentencing, the State presented two witnesses who were family members of Broom, who was 16 years old at the time of his death. Additionally, the State noted that Wilkins was 19 at the time of the offense, but already had an adult criminal history. At the time of the offense, Wilkins was on probation for second-degree assault on a 16-year-old special needs child. A warrant for probation violation had been issued for Wilkins because he did not obey an order to stay away from the victim and did not attend court-ordered anger management classes. While in jail awaiting trial on the murder charges in this case, Wilkins incurred infractions including possession of escape paraphernalia, contraband (cell phones), and assault on correctional staff. The State asked the court to sentence Wilkins to the maximum of 10 years for the manslaughter conviction and 20 years[1] consecutive for the use of a handgun in the commission of a crime of violence and described the shooting death of Broom as "heartless and cold." ECF 9 at Ex. 4, pp. 7 - 10.

In mitigation, defense counsel had a social worker who "worked with Wilkins" testify that Wilkins's mother has an intellectual disability that, in the social worker's opinion, made it difficult for her to obtain services for Wilkins through the public school system. She further opined that Wilkins also suffers from a similar disability that largely affects his verbal communication skills. Wilkins had consistently been tested in the bottom five percent in reading and comprehension and did not receive the proper services in school to address those deficits. She asked the court not to hold any perceived dishonesty in Wilkins's pre-sentence investigation interviews against him as his difficulties in relating information was to blame for inconsistencies. ECF 9 at Ex. 4, pp. 11 - 14.

In sentencing Wilkins, Judge Young made the following statement, relevant to the issue pending before this court:

I always, when I sentence people, keep three concepts in mind, the first concept is justice. Justice is if you take a life you give, you forfeit yours. We don't have that.
Justice is that when you mete out pain, you experience pain. We don't have that, some countries do. I've learned not to loose [sic] sleep and debate the wisdom of a jury. But I'd be less than honest if I didn't say that I have read over my bench notes, and read over the PSI, and I still am not sure how this jury arrived at manslaughter other than they took Mr. Wilkins' age into consideration.
... [T]here was a crap game, there was an argument. Apparently he lost his money and he left the crap game and he traveled to wherever he had to get a gun. And he came back and shot the victim in this case. How that's manslaughter I don't know. So in my opinion, the jury gave him a break.
Then there's mercy. And mercy is when you want to hold out hope that somebody has seen the light or has recognized the error or the gravity of what they've done. And I'm a great believer in mercy when people, and even at the time of sentencing, express remorse. There has been, not throughout the trial, there has been not at the time of the interview, any expression of remorse ...

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