GRAEFF, LEAHY, THIEME, RAYMOND G., Jr. (Retired, Specially
Johnson, ("Appellant"), and Derrick Toomer were
charged and tried separately for the contract killing of bail
bondsman Ralph Hall. Mr. Hall was found early in the morning
on July 30, 2008, lying dead from gunshot wounds in the
parking lot of KIPP Harmony Academy, a public charter
elementary school located in Baltimore City.
was tried before a jury in the Circuit Court for Baltimore
City after his codefendant Toomer had been convicted of
murder. The State attempted to present Toomer as a witness
against Appellant, but when called before the jury to
testify, Toomer refused to answer questions and invoked his
Fifth Amendment privilege against self-incrimination. Acting
swiftly, the circuit court halted questioning and excused the
jury before examining the merits of Toomer's assertion of
privilege. The circuit court did not compel Toomer's
the jury convicted Appellant of Mr. Hall's murder,
Appellant filed a motion for a new trial arguing, inter
alia, that the State called Toomer for the impermissible
purpose of using Toomer's reliance on the Fifth Amendment
privilege before the jury to imply Appellant's guilt.
Toomer maintained that the State had been made aware that he
would not testify. The court, however, rejected
Appellant's contentions of error and denied his motion
for a new trial. Appellant asks this Court to examine:
I. Whether Appellant was denied his right to a fair trial, in
violation of the Due Process Clauses of the Fifth and
Fourteenth Amendments, when the prosecution called his
separately tried and convicted codefendant as a witness in
its case in chief with full knowledge that the witness would
invoke a valid Fifth Amendment privilege and refuse to
II. Whether the trial court erred in denying appellant's
motion for new trial when the prosecution,
a. Improperly called appellant's separately tried and
convicted codefendant as a witness with full knowledge that
the witness would invoke his Fifth Amendment privilege and
refuse to testify;
b. Committed a Brady violation by failing to
disclose impeachment information relating to a critical
c. Improperly displayed a firearm to the jury, which was not
admitted into evidence or forensically linked to crime, in
support of its closing argument asserting that the firearm
was, in fact, the murder weapon used by appellant?
the factors enumerated in Vandegrift v. State, 237
Md. 305, 309-10 (1965), we conclude Appellant was not
prejudiced by codefendant Toomer's brief appearance
before the jury because (1) the prosecutor did not call
Toomer solely to gain the benefit of "the effect of the
claim of privilege on the jury"; (2) the circuit court
minimized any negative effects of Toomer's refusal to
testify when it halted questioning expeditiously and excused
the jury; and (3) during the course of the trial Appellant
never requested any curative instruction nor did he move for
a mistrial. Regarding the other issues Appellant presented in
his motion for a new trial, we perceive no error or abuse of
discretion on the part of the circuit court and conclude that
Appellant was not denied his right to a fair trial.
15, 2011, a grand jury indicted Appellant for Mr. Hall's
murder on the charges of: murder in the first degree; use of
a handgun in the commission of a crime of violence; wearing,
carrying, and transporting a handgun upon his person; and
possession of a handgun after being convicted of a
disqualifying crime. The grand jury also indicted Appellant
of conspiring with codefendant Derrick Toomer to commit Mr.
Hall's murder. Appellant's case was severed from
Derrick Toomer's on March 11, 2013, and Appellant's
first trial commenced on March 22, 2013, in the Baltimore
City Circuit Court. Appellant moved for a mistrial in that
proceeding, and the court granted the motion on April 1,
second trial began on March 18, 2014. The following events
transpired as the story unfolded over the six-day trial.
The Testimony of Hall's Fiancé
State presented as its first witness, Ms. Faaizah Seals, who
was Mr. Hall's fiancé at the time of his death.
She testified that she and Mr. Hall were co-owners of Muscles
Bail Bonds. Ms. Seals related that Muscles Bail Bonds was
seeking a new insurer following the 2008 departure of another
employee who had acted as the company surety insurer under
his license as an insurance producer in
Maryland. Mr. Hall was looking for another person
who was licensed through which Muscles Bail Bonds could be
early evening hours of July 29, 2008, while Ms. Seals was
cooking dinner, Mr. Hall was taking a nap. Mr. Hall's
phone rang at approximately 7:00 p.m., so Ms. Seals woke him
up to tell him about the call. He listened to the voicemail
left by the caller and prepared to leave their home.
According to Ms. Seals, "[Mr. Hall] said he was going to
meet up with someone named G concerning insurance . . .
." That evening Mr. Hall drove away in a Ford Expedition
XL2-a vehicle they both shared and used in their business.
After Mr. Hall did not return, Ms. Seals tried to reach him
unsuccessfully on his cell phone multiple times throughout
the night and, after getting no answer, she also tried a
couple of hospitals to no avail. In the morning when she
awoke, she found a card under the front door from homicide
detective Michael Moran asking her to give him a call.
Michael Moran of the Baltimore City Police Department,
Homicide Unit, was called to testify regarding his role as
the primary investigating officer in this case. He testified
that at 6:01 a.m. on July 30, 2008, he responded to a call
notifying him that there was a deceased person in the parking
lot of KIPP Academy at 4701 Greenspring Avenue. When Det.
Moran arrived at the scene he observed "the deceased,
Mr. Ralph Hall, face down wearing blue jeans[ and] a red
polo, " and he noted that a medical technician had
already pronounced Mr. Hall dead. Det. Moran also testified
that, when he arrived, "[Mr. Hall] had on a pair of
white tennis shoes that said Muscles on them [, and] [h]e was
Moran oversaw the collection of crime scene evidence,
including photographs, measurements, and other physical
evidence. Under his supervision, Baltimore City Crime Lab
technicians processed the scene; however, no weapon or bullet
casings were recovered. Det. Moran testified that he was also
present at the autopsy of Mr. Hall, and that the Assistant
Medical Examiner who conducted the autopsy recovered two
projectiles from Mr. Hall's body and submitted them for
ballistic analysis. Baltimore City Firearms Examiner
Christopher Faber later determined that the projectiles were
lead bullets of the .38/.357 caliber class.
his evaluation of the scene, Det. Moran noticed a security
camera on a nearby building "up high and . . . facing
towards the parking lot where the victim was found." He
directed officers to recover the whole security system from
KIPP Academy so that the footage from multiple cameras could
be downloaded and viewed as part of the investigation.
Moran confirmed that the next day, July 31, Mr. Hall's
Ford Expedition was recovered on the 2800 block of Roslyn
Avenue, and towed to the crime lab where it was processed as
part of the crime scene. Crime lab technicians then collected
DNA samples from the vehicle.
his investigation into the homicide, Det. Moran recounted
that "[b]ecause Mr. Hall had a badge and the cuffs and
he had Muscles written on his shoes, we knew there was
Muscles [Bail Bonds] on Bel Air Road." This led the
detective to contact Ms. Seals who, according to Det. Moran,
was hysterical when he interviewed her. She told him that Mr.
Hall received a voicemail and that an individual known as
"Credit Card Mike, set this insurance up for his
business because Ralph Hall needed his own insurance to start
his business with the bail bonds. And that he wanted to meet
this guy at 7:30."
second interview with Ms. Seals, Det. Moran was informed that
Credit Card Mike-now identified as Michael Hayes-believed
that Mr. Hall set him up to be robbed earlier in 2008. Det.
Moran then interviewed Michael Hayes, who had recently been
arrested on a handgun violation. Det. Moran testified that
Hayes told him that Derrick Toomer was involved in the
murder. Hayes also identified one of the vehicles connected
to the murder; and provided police with an address, "806
Tipton, " and a hand drawn map to where they could find
the vehicle. Upon investigating the address, Det. Moran
located and photographed a vehicle matching the vehicle in
the security footage recovered from KIPP Academy, and that
vehicle was found to be registered under the name
Moran also testified that, on November 12, 2008, he
interviewed James Nelson, who helped him narrow the suspects
to Appellant and Derrick Toomer. Nelson identified both
Appellant and Derrick Toomer in photographic arrays shown to
him by Det. Moran.
March 21 and 24, the State's principal witness, James
Nelson, appeared before the jury in a prison uniform. Nelson
testified that he had been incarcerated twice between the
time Mr. Hall was killed and Appellant's trial and that
he was currently serving a thirteen-year sentence. Nelson
testified that Derrick Toomer and Appellant typically drove a
burgundy red Crown Victoria. Nelson also testified that he
had a conversation with both Derrick Toomer and Appellant in
which Appellant admitted to killing Mr. Hall. The following
exchange took place:
[THE STATE]: What did [Appellant] tell you about [Mr. Hall]?
[NELSON]: That he got robbed and that Mike paid [Derrick
Toomer] for him to be killed.
[THE STATE]: So [Appellant] told you that Mike paid [Derrick
Toomer] to have [Mr. Hall] killed?
[THE STATE]: What else did he tell you?
[NELSON]: That he killed him.
[THE STATE]: Who killed [Mr. Hall]?
[THE STATE]: Did he tell you how?
[NELSON]: He shot him in the truck.
[THE STATE]: And did he tell you with what weapon?
[NELSON]: A .38.
[THE STATE]: Are you familiar with any .38's?
[THE STATE]: He tell you about that?
[NELSON]: We all used to use it.
[THE STATE]: Can you describe the .38 you used?
[THE STATE]: What color was it?
[THE STATE]: And any other color on that gun?
[NELSON]: The handle's brown.
testified that he and Appellant discussed Mr. Hall's
murder "probably eight, nine times[, ]" and that
Appellant told him that
Derrick rode him up there to meet [Mr. Hall] and [Appellant]
got out the car and walked over to [Mr. Hall's] car --
truck and, you know.
. . . [Appellant] said when he got up there he got out the
car, talked to Derrick for a minute. Walked over to [Mr.
Hall's] car and talked to him.
[Appellant] said he pulled out the gun and shot him.
[Appellant] said he pulled [Mr. Hall] out the car and drove
off in the car.
the State introduced a photographic array in which Nelson had
identified Derrick Toomer. Nelson read his handwritten
statement, made at the time of the photographic array, in
The person in the picture is Derrick Toomer. Face,
[Appellant], told me that it was easy to kill [Mr. Hall].
When [Appellant] got out the driver's seat of the car
Derrick Toomer asked [Appellant] was he sure he could handle
the shooting. [Appellant] replied, it's nothing.
[Appellant] met [Mr. Hall] and talked to him for a minute and
pulled out a .38 and shot him and took his money and necklace
They went back to Nicole's house, [Derrick Toomer's]
girlfriend, and split the money up. That's when [Derrick
Toomer] called me and we met up, he told me the whole story
and that he was waiting for Mike to come over to give him the
money for killing [Mr. Hall].
The next day [Derrick Toomer] told me that he went back over
to Greenspring to see if [Mr. Hall's] body was still
there and it was. [Appellant] then bragged that he should
have shot [Mr. Hall] in the head for being cruddy for setting
Mike to get robbed.
also testified that he met with officers investigating Mr.
Hall's murder prior to entering a plea agreement in his
own case. Nelson denied that he was either threatened or
promised anything in exchange for his testimony. The State
did not disclose that Nelson was also a witness in an
unrelated murder trial.
Admission of the .38 Caliber Handgun
March 21, 2014, the State called Kelly Toomer-codefendant
Derrick Toomer's son. Kelly Toomer identified Appellant
in the courtroom and testified that he, Appellant, Derrick
Toomer, and James Nelson spent time together in
direct examination, Kelly Toomer testified that, in 2008, he
had a "[f]ew different guns, " but he could not
recall the calibers of the weapons. However, he also
testified to the events surrounding his arrest on August 31,
2008. Kelly Toomer was arrested while seated in the front
passenger seat of a Crown Victoria, from which two handguns
were recovered by the police. When the State presented him
with a revolver, marked as State's Exhibit 20, the
following exchange occurred:
[THE STATE]: Mr. Toomer, can you tell the members of the jury
what kind of gun this is, if you're able to tell?
[KELLY TOOMER]: My revolver, .38.
* * *
[THE STATE]: You don't remember this being one of the two
guns that was in the Crown Vic glove compartment?
[KELLY TOOMER]: No, I had [a] .38. I don't know if that
was the gun though.
assist Kelly Toomer's recollection, the State introduced
a portion of a document that Kelly Toomer had identified as
his signed plea agreement entered into following his arrest
on August 31, 2008. The following portion of the plea
agreement was read before the jury:
On August 31, 2008 Kelly and Derrick Toomer were together
with James Nelson and [Appellant]. Derrick Toomer handed
[Kelly Toomer] a .38 revolver. Both James Nelson and
[Appellant] observed this transaction between father and son.
[Kelly Toomer] and [Appellant] then left together in a red
Crown Victoria. At approximately 1:30 in the afternoon,
[Appellant], who was driving the Crown Victoria, became
thirsty and pulled over in the 2300 Block of Biddle Street.
He left the car running with Kelly Toomer in the front seat
while he went to find something to drink.
At the same time officers were patrolling in the block when
an unknown male approached the officer with information that
two African-Americans had just robbed someone and that they
were both armed with handguns.
Officer[s] McCullough and Jones approached the car to further
investigate the allegation. They observed [Appellant] exit
the vehicle but did not approach until their backup
They approach[ed] the vehicle and s[aw] [Kelly Toomer] in the
front seat. The officers also receive[d] information that the
car [wa]s not register[ed]. The officers order[ed] a tow
truck and conduct[ed] an inventory search pursuant to policy,
discovering the .38 handgun in the glove box. All events took
place in Baltimore City, Maryland.
the circuit court resolved to admit into evidence the portion
of the plea agreement that had been read before the jury,
along with the caption on the cover page.
Kelly Toomer's testimony, the State called Officer
Reginald Jones. Officer Jones testified that he conducted the
August 31 search of the Crown Victoria and recovered the .38
revolver from the vehicle. Upon identification by Officer
Jones, the "black, snub nose .38 with a brown wooden
handle[, ]" was admitted into evidence as State's
Exhibit 20 without objection from Appellant.
March 24, 2014, Baltimore City Crime Lab technician Jennifer
Ingbretson testified that she compared DNA swabs from both
Appellant and Derrick Toomer to DNA swabs collected from the
vehicle in which Mr. Hall was killed and from Mr. Hall's
clothing. Her analysis identified Appellant as a contributor
to a DNA sample collected from the steering wheel. Ms.
Ingbretson also testified that Appellant could not be
excluded as a contributor to samples taken from "the
pockets and adjacent areas of [Mr. Hall's] jeans."
same day, Baltimore City Firearms Examiner, Christopher
Faber, testified that he was asked to compare the .38
revolver found in the burgundy Crown Victoria to the two lead
bullets recovered from Mr. Hall's body. Mr. Faber
testified that both bullets were of the .38/.357 caliber
class and, although he was unable to determine whether the
bullets were fired from the same gun, that the two "bear
the same class characteristics." Similarly, Mr. Faber
was unable to determine definitively whether the two bullets
were fired with the .38 revolver in this case. However, he
indicated that the rifling in the revolver barrel had "6
lands and grooves on a left hand twist" and that the
dimensions between the lands and grooves "were almost
exactly the same as [the markings on] the bullets."
Moran narrated as the security footage from the KIPP Academy
parking lot was played for the jury. He described the
relevant portion of the security footage, beginning at
approximately 8:30 p.m. on July 29, 2013 when "a dark
color four door vehicle pulls up, [and] backs into a spot in
the same parking lot where Mr. Hall [wa]s found." His
narration highlighted the moment when Mr. Hall's Ford
Expedition pulled into the parking lot and a person from the
other vehicle sat in the vehicle with Mr. Hall. After a few
minutes, passed Det. Moran instructed:
If you could just pay attention to the door of the
driver's side vehicle. The body falls out. The door opens
up and the body falls out of the vehicle.
The individual walks around the back of the vehicle. See the
lights on the bottom here?
The individual is standing next to the body. Still standing.
The individual now bends over.
Still bent over. Now kneels down.
The individual stands up. The door opens. See the lights? He
gets in. The door shuts. The brake lights come on. He backs
up. He leaves the parking lot. Mr. Hall is still on the
Codefendant's Refusal to Testify
March 25, 2014, the State sought to call codefendant Derrick
Toomer as a witness. Toomer had already been convicted of
Hall's murder, and his case was on appeal. Toomer's
counsel, Celia A. Davis, would later explain during a
post-trial motions hearing that on the fourth day of trial,
March 24, 2014, "after 5:00 p.m. [she] received a phone
call from [the prosecutor] indicating that he wanted to speak
to Mr. Toomer, [her] client, about his testimony in
[Appellant's] murder case." Ms. Davis testified that
she then spoke with her client via video conference and
arranged to speak to him again ...