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Johnson v. State

Court of Special Appeals of Maryland

June 28, 2016

GEORGE JOHNSON
v.
STATE OF MARYLAND

          GRAEFF, LEAHY, THIEME, RAYMOND G., Jr. (Retired, Specially Assigned) JJ.

          OPINION

          LEAHY, J.

         George 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.

         Appellant 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 testimony.

         After 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 testify?
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 prosecution witness;
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?

         Applying 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.

         BACKGROUND

         On July 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, 2013.

         Appellant's second trial began on March 18, 2014. The following events transpired as the story unfolded over the six-day trial.

         A. The Testimony of Hall's Fiancé

         The 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.[1] Mr. Hall was looking for another person who was licensed through which Muscles Bail Bonds could be insured.[2]

         In the 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.

         B. Detective Moran

         Detective 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 stiff."

         Det. 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.

         During 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.

         Det. 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.

         C. The Conspiracy

         Detailing 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."

         In his 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 "Darrell Toomer."

         Det. 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.

         On 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?
[NELSON]: Yeah.
[THE STATE]: What else did he tell you?
[NELSON]: That he killed him.
[THE STATE]: Who killed [Mr. Hall]?
[NELSON]: [Appellant].
[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?
[NELSON]: Yeah.
[THE STATE]: He tell you about that?
[NELSON]: We all used to use it.
[THE STATE]: Can you describe the .38 you used?
[NELSON]: Revolver.
[THE STATE]: What color was it?
[NELSON]: Black.
[THE STATE]: And any other color on that gun?
[NELSON]: The handle's brown.

         Nelson 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.

         Additionally, 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 open court:

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 and left.
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.

         Nelson 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.

         D. Admission of the .38 Caliber Handgun

         On 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 2008.[3]

         On 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.

         To 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 arrive[d].
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.

         Thereafter, 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.[4]

         Following 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.

         E. DNA Evidence

         On 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."

         That 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."

         F. Security Footage

         Det. 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 ground.

         G. Codefendant's Refusal to Testify

         On 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 ...


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