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McClurkin v. State

Court of Special Appeals of Maryland

April 1, 2015

DIJON MCCLURKIN
v.
STATE OF MARYLAND; TAVON JACKSON
v.
STATE OF MARYLAND

Page 1112

Appeal from the Circuit Court for Baltimore City, Martin P. Welch, Judge.

IN APPEAL 2746 OF THE SEPTEMBER 2011 TERM, JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY MCCLURKIN. IN APPEAL 2749 OF THE SEPTEMBER 2011 TERM, JACKSON'S SENTENCE FOR RECKLESS ENDANGERMENT IS HEREBY VACATED; JACKSON'S CONVICTIONS AND SENTENCES FOR CONSPIRACY TO USE A HANDGUN IN THE COMMISSION OF A CRIME OF VIOLENCE AND CONSPIRACY TO WEAR, CARRY, OR TRANSPORT A HANDGUN UPON HIS PERSON ARE HEREBY VACATED; ALL OTHER JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY OTHERWISE AFFIRMED. COSTS TO BE PAID 75% BY JACKSON AND 25% BY MAYOR AND CITY COUNCIL OF BALTIMORE.

Argued by: William L. Welch, III of Baltimore, MD. Nancy S. Forster (Kadish, Forster & Fastovsky on the brief) of Baltimore, MD, for Appellant.

Argued by: Robert Taylor, Jr. (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD, for Appellee.

Krauser, C.J., Kehoe, Kenney, James A., III (Retired, Specially Assigned), JJ. Opinion by Krauser, C.J.

OPINION

Page 1113

[222 Md.App. 466] Krauser, C.J.

Tavon Jackson and Dijon McClurkin, appellants, were tried together, by a jury in the Circuit Court for Baltimore City, for the attempted first-degree murder of Reginald Devon Maynard (whom we shall hereafter refer to as " the victim" ) as well as for the offenses they perpetrated in committing that crime, which included the separate offense of assault upon the victim's

Page 1114

mother.[1] At their joint trial, recordings of telephone calls made by the then-incarcerated appellants, in which they sought to have others pressure the victim into recanting his identification of them as his assailants, were played for the jury. After they were convicted and sentenced for attempted first-degree murder and multiple attendant crimes, appellants noted separate appeals, which we subsequently consolidated, as they raise a common issue and that is:

I. Whether appellants' rights of confrontation under the Sixth Amendment were violated when the circuit court admitted into evidence, at their joint trial, recordings of telephone calls made by both appellants from jail.

McClurkin separately raises the following issue:

II. Whether the circuit court erred in admitting into evidence a recording of a telephone call made by McClurkin's co-defendant, Jackson, as that call, according to McClurkin, constituted inadmissible hearsay.

And Jackson presents three issues of his own. They are:

[222 Md.App. 467] III. Whether the evidence was sufficient to convict him.
IV. Whether the circuit court erred in failing to merge his conviction and sentence for reckless endangerment into his conviction and sentence for attempted first-degree murder.
V. Whether the circuit court erred in sentencing him for three separate conspiracies.

Because the telephone calls were not of a testimonial nature, we hold that their introduction at trial did not violate the Confrontation Clause. We further hold that, although Jackson's call was properly admitted against him as a statement of a party-opponent, it was inadmissible against McClurkin, but that erroneous admission amounted to no more than harmless error. Hence, we shall affirm all of McClurkin's judgments of conviction.

We reach, however, a different result as to Jackson: Although there was sufficient evidence to sustain Jackson's convictions for attempted first-degree murder, use of a handgun in the commission of a crime of violence, reckless endangerment, and illegal possession of a firearm, there was no evidence that he engaged in three separate conspiracies in the commission of those crimes. Consequently, the circuit court did err in sentencing him on more than one conspiracy count, and, because we also find that the court below erred in failing to merge Jackson's conviction of reckless endangerment into his conviction of attempted first-degree murder, we shall not only reverse two of Jackson's three convictions for conspiracy and vacate their corresponding sentences (leaving intact his conviction and sentence for conspiracy to murder) but also vacate his sentence for reckless endangerment as well.

Page 1115

The Shooting[2]

The victim, Devon Maynard, on the date of the shooting in question, not only lived on the same block as Tavon [222 Md.App. 468] Jackson, but the two men were once friends. That amicable relationship ended, about a year before the shooting, when they had a falling out over Jackson's failure to repay a $200 loan he had received from the victim. Eventually, their monetary dispute led to a " fistfight" between the two men that ended when the victim, in his words, " got the best of" Jackson. Although they shook hands after the fight was over, Jackson would, in the months that followed, " taunt" the victim, pick fights with him, and " bump" into him " once or twice a week." And, on one noteworthy occasion, Jackson, accompanied by his future co-defendant, McClurkin, tried to start a fight with the victim in an alleyway.

On the night of the shooting, the victim spent the evening at the house of a friend, Antwon Weston, who lived on the same street as the victim and Jackson. Jackson lived in a house that was between the homes of the victim and Weston. While walking home that night, the victim noticed, as he passed by Jackson's house, that Jackson was " peeking out his door" at him. After arriving home and having something to eat, the victim told his mother, Katrina Dorsey, that he was going to return to Weston's house and that he wanted her to watch him as he walked up the street, despairing that he would have to pass by Jackson's house to reach Weston's residence. His mother agreed, and, from the sidewalk in front of her house, she watched as he tread up the street toward Weston's house.

As the victim began his perambulation, he observed Jackson standing outside his house and saw a maroon sport utility vehicle (" SUV" ) double parked in front of Jackson's house. That vehicle was occupied by McClurkin and another individual (later identified as " Donte Anderson" ). When the victim drew near, McClurkin got out of the SUV, whereupon Jackson said something to McClurkin, who then reached into the back seat of the SUV. Once the victim had walked past Jackson, McClurkin, and the maroon SUV, Jackson began to follow the victim at a " slow pace," while McClurkin, seemingly in tandem, [222 Md.App. 469] walked quickly up the street, in what appeared to be an attempt to get ahead of the victim. As the victim turned around to see what Jackson was up to, McClurkin approached and called out his name. When the two men were " face to face," McClurkin shot the victim.

Wounded, the victim began to run from the scene. While he was in flight, McClurkin fired several more times at him, wounding the victim once more. The victim then fell but was soon able to pick himself up and continue his flight, crossing the street and then a park, before ending up in an adjacent street, where he saw a police car. To draw attention to himself, the victim threw his cell phone at that vehicle. The patrol car then stopped, and the officer got out and rendered assistance to the victim.

Meanwhile, the victim's mother, Katrina Dorsey, having observed the shooting, ran up the street toward McClurkin " screaming and shouting." At that point, McClurkin pointed the gun at Dorsey, whereupon Jackson instructed McClurkin (whose nickname was " Man Man" ), " No, Man, no." In compliance with that command, McClurkin declined to take any further action. He

Page 1116

and Jackson then left the area, and Dorsey began to look for her son.

After a few minutes had passed, a neighbor, upon hearing dogs barking behind her house, looked out the window and saw two men using a cell phone, while " looking back and forth" suspiciously. A few moments later, that same neighbor saw a maroon SUV drive up the alley with its headlights off. She then observed the vehicle stop, pick up the two men, and drive away.

Within minutes, officers in a police helicopter, who were responding to reports of a shooting, observed the same maroon SUV drive down the alley without its headlights on and relayed that information to officers on the ground. A police cruiser then pulled up behind the SUV and activated its lights, whereupon the SUV stopped, and three men " bailed out." Minutes later, all three were apprehended.

Forty days after the shooting, the now-hospitalized victim identified, for police, " Man Man," that is, McClurkin, whom he [222 Md.App. 470] had known for " a couple of years," as the person who had shot him; Jackson, with whom he had once been good friends, as the other individual who had participated in the shooting; and Anderson, whom he did not know, as the driver of the SUV. At that time, detectives presented the victim with three separate photographic arrays, and he selected McClurkin from the first array, Jackson from the second, and Anderson from the third.

The Telephone Calls at Issue

Five days after the shooting, while incarcerated in the Baltimore City Detention Center, Jackson and McClurkin made separate telephone calls to unidentified women. In accordance with correctional policy and procedures, those calls were recorded, and, before any recordation began, an auditory notice was given to anyone on the line that the call would be recorded. During one of those calls, Jackson told the woman, with whom he was speaking, that he needed someone to pressure the victim and to stop him from telling people that he and McClurkin were involved in the shooting. McClurkin gave similar instructions to the person he called that day.

Two days later, McClurkin made two more telephone calls from the detention center, to another individual, hoping to enlist that person in an effort to induce the victim to sign a " paper," which stated that McClurkin, Jackson, and Anderson had nothing to do with the shooting. During a second call to the same person later that day, McClurkin said that the " paper," which he now identified as a " letter," from the victim, would be a " help." Otherwise, he warned that he and Jackson would be doomed to spend their lives in jail.

Trial and Sentencing

During the joint trial of Jackson and McClurkin,[3] the State offered, among other witnesses, the testimony of the victim [222 Md.App. 471] and his mother, Katrina Dorsey. Then, over the objections of appellants, the State played, for the jury, the recordings of the four telephone calls--one made by Jackson, the other three by McClurkin--while the two men were incarcerated and awaiting trial. Neither appellant ever took the stand nor presented any evidence.

At the conclusion of appellants' joint trial, the jury found Jackson guilty of attempted first-degree murder; using a handgun in the commission of a crime of ...


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