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Bannerman v. Stouffer

United States District Court, D. Maryland

May 12, 2017



          J. Frederick Motz United States District Judge.

         In answer to the above-entitled petition for writ of habeas corpus, respondents assert that the petition should be denied on its merits. ECF 13. Petitioner Alexander Bannerman filed a reply to the response. ECF 14. Upon review of the pleadings filed, the court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2016); 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 that follow, the petition shall be denied and a certificate of appealability shall not issue.


         Facts produced at trial

         Bannerman was tried before a jury in the Circuit Court for Baltimore City with Judge John Prevas presiding. The voir dire process for choosing the jury utilized groups of questions put to the entire array with instructions to those who had an affirmative answer to the question to stand and approach the bench to provide that answer. The first group of questions was designed to determine whether the potential jurors knew the parties, court staff, counsel, police officers or anyone else involved in the case and also addressed whether jurors had a racial bias, their religion prohibited judgment of another, and whether their knowledge or lack of knowledge of firearms would prevent them from considering evidence in a neutral fashion. ECF 13 at Ex. 2, pp. 17 - 19. The second group of questions asked jurors if they lived near the crime scene; if they had ever served on a jury; and whether they possessed an inability to vote guilty or not guilty in their capacity as a juror. Id. at pp. 45 - 46. Potential jurors were then asked if they would automatically believe or disbelieve witnesses who were members of law enforcement or who otherwise testified for the state or for the defense; and also asked if jurors had an affiliation or had a relative who was in law enforcement, including correctional officers and staff. Id. at pp. 80-81. Finally, jurors were asked if they had any other issue that would affect service such as serious scheduling issues. Id. at pp. 118 - 20. The process of eliminating jurors for cause took place after all the questions were asked; counsel were required to respond to the judge's inquiry regarding each juror's potential for excuse for cause at the end of the entire process. The jury was then seated with three alternates.[1]

         The first witness put on by the State was David Mitchell, the victim of the shooting. ECF 13 at Ex. 2, pp. 164-219. Mitchell testified that he went to J & J Discount Liquors on the night of November 9, 2007, with his cousin, Quaisi[2] (aka, Dante) Sutton, and a friend of the family, Thomas Royster. While Mitchell was in the store with his two companions, two men walked into the store. One of the men, who was wearing a bandana covering the lower half of his face, was holding a handgun and told everyone to get on the floor when he came into the store. Id. at pp. 169 - 70. Mitchell said that no one got on the floor and the gun was pointed at him, Id. Mitchell said he did not move as he felt panicked and he surmised that it made the shooter angry when no one got on the floor. Id. Mitchell was then shot in the upper part of his legs and passed out shortly after being shot, but noticed that his two companions left the store after the shooter left. Id. at pp. 170-71. When Mitchell briefly regained consciousness, he saw a police officer leaning over him.[3] Id. at p. 174.

         Mitchell later told police that he recognized one of the men who came into the store as Orlando Johnson. ECF 13 at Ex. 2, pp. 176 - 78; 188. He testified that he knew Johnson because he lived in the same neighborhood and Johnson had dated Mitchell's ex-girlfriend. Id. at pp. 176 -.78, Mitchell could not identify the shooter, however, because the lower half of the shooter's. face was hidden by a bandana. Id.

         Mitchell testified under cross-examination that he did not know whether Johnson was with the shooter or not, but said that Johnson stood behind the shooter, closer to the door during the incident and that it appeared to Mitchell that Johnson could have safely left if he was not involved in the shooting. Id. at pp. 200 - 201. Mitchell further stated under cross-examination that Johnson appeared to leave with the shooter. Id. at p. 202. He also testified that he was looking at Johnson throughout the incident; that he has known Johnson for approximately four years; and that he knows Johnson to sell cocaine and "dope." Id. at pp. 203 - 4, Although Mitchell testified that the shooter was "light skinned" with long hair, in his statement to police he said that the shooter had "cornrows." Id. at p. 206. While Mitchell maintained there was no ill-will between himself and Johnson regarding Mitchell's ex-girl friend, he admitted during cross-examination that it was possible that Johnson thought otherwise. Id. at p. 201. On redirect, however, Mitchell explained that the situation regarding his ex-girlfriend had occurred a "couple of years" before the shooting. Id., at pp. 217-19.

         Officer Dathan Garrett was the first police officer to respond to the scene of the shooting; he testified at trial regarding his role in securing medical assistance for the victim and identifying potential witnesses. ECF 13 at Ex. 3, pp. 11 - 25. Garrett explained that upon his arrival Mitchell was lying on the floor, barely conscious, sweating profusely, and bleeding heavily. Id. at p. 14. Because of the severity of his injuries, Mitchell was unable to provide any information prior to being transported to the hospital. Id. Garrett testified that he asked Quaisi Sutton to stand by for questions and that Sutton, along with three other witnesses, were transported to the police station for questioning. Id. at pp. 15- 16. When Garrett canvassed the area he located and collected one 9 millimeter shell casing. Id. at p. 17. He was later called back to the scene to collect a bullet fragment found on the floor in the store. Id. at p. 18, Garrett also confirmed that the store had a video surveillance system inside the store. Id. at p. 41.

         Through cross-examination of Garrett it was established that Sutton, who had accompanied Mitchell to the store, had described the shooter as a black male who was approximately 5'9" tall and 160 pounds, wearing a blue and white scarf over his face. ECF 13 at Ex. 3, pp. 29 - 30. Garrett stated that Sutton informed him that he could not see the shooter's hair and did not describe it. Id. at p. 34. Garrett also confirmed that nothing had been taken from any of the people who had been in the store at the time of the shooting. Id. at p. 35.

         The witness for the state who testified regarding the transfer of the store's video surveillance footage from VHS format to digital was Officer Laylla Strand from the Media Production Unit of the Baltimore Police Department. ECF 13 at Ex, 3, pp. 43 - 92. Strand testified that she was trained in forensic video examination and the presiding judge advised that the State's Attorney had to offer Strand as an expert witness based on Maryland case law that requires the use of an expert witness to introduce any scientific evidence. Id. at pp. 47 - 48. The suggestion that Strand should be qualified as an expert witness drew an objection from defense counsel because Strand was not listed as an expert witness by the State in pre-trial disclosure documents. Id. After hearing argument as to whether the State had complied with Maryland Rule 4-263, regarding discovery in a criminal trial, the court overruled the objection by defense counsel. The court observed that while the State had not formally complied with the rule, the nature of the expert's opinion is "so basic and so patently clear" that identification of Strand and of the subject matter would lead the defense to the "inescapable conclusion that she would explain to the jury how she got the store videotape to CD format." Id. at pp. 52 - 54. Defense counsel moved for a continuance and for a mistrial on the grounds that the State failed to comply with discovery; both motions were denied but the court granted the defense 48 hours at the close of the State's case to locate an expert witness for rebuttal. Id. at pp. 55 - 56. Defense counsel then objected to Strand being admitted as an expert witness for lack of a proper foundation because there had been no questions about slowing down a videotape to make the playback real time speed. Id. at pp. 65 - 66. Counsel further argued that simply providing the defense with 48 hours to locate its own expert witness violates the defendant's due process rights. Id. The court overruled counsel's objection on the foundational requirements and accepted Strand as an expert witness. Id. at pp. 67 - 78.

         Strand testified that she received the videotape from Detective Bennett who asked for the tape to be slowed down and for images to be extracted for still photographs. ECF 13 at Ex. 3, pp. 81 - 82. Strand explained that the surveillance video was recorded on a VCR type of machine and the playback was at a faster than real time speed, making it difficult to discern what was happening in each frame of the tape. Id. The portion of the VHS tape of interest to the case was approximately one minute long; Strand slowed down the speed of playback and transferred the video to digital media, which was identified and entered into evidence over the objection of defense counsel. Id. at pp. 83-85. The video of the shooting was then played for the jury (id. at p. 86) and the still photographs pulled from the video were published to the jury. Id. at pp. 87 -89. Strand testified that no changes were made to the still photographs, but that the images were enhanced using the application "Photoshop." Id. at p. 89. On cross-examination Strand clarified that "enhancement" of an image does not change it; rather, it is similar to turning on a light in a darkened room. Id. at p. 94.

         Initially the court overruled a defense objection to the introduction of video footage from a CCTV camera, stationed outside of the liquor store and operated by the city of Baltimore, through Strand. ECF 13 at Ex. 3, p. 92. The court subsequently reversed its ruling and noted that Strand did not work on the CCTV footage. Id. at p. 98 - 99. The court noted that there had been no harm to the defense because Strand had not testified as to the content of the CCTV footage. Id. at p. 100.

         Keith James was working as a stock clerk at J&J Discount Liquors on the night of the shooting and testified for the state at trial. ECF 13 at Ex. 3, pp. 139 - 165 (direct); pp. 166 - 188 (cross-examination); pp. 118 - 226 (redirect and re-cross). James testified that three men came into the store near closing time to buy liquor and they walked to the window and placed an order. Id. at pp. 142-3. He stated that a "minute or two later" two other men came into the store but not all the way in. Id. He claimed that one of the two men said, "kick it out, kick it all the way out" after coming into the doorway. Id. James recalled that immediately after making that statement, the man holding the handgun shot Mitchell. Id. at p. 143. James related that he assumed the statement made was a statement made to indicate that a robbery was taking place and said he was unsure whether the robbery was focused on the store or the customers inside it. Id. at p. 144. Over objection from defense counsel, James identified Bannerman as the gunman he saw in the store that night. Id. at p. 145.

         James was transported to the police station after the shooting, but did not provide police with a description of the shooter when he was initially questioned. ECF 13 at Ex. 3, p. 148. At a second more lengthy interview, James identified Bannerman in a photographic array as the man who shot Mitchell. Id. at p. 153. James further testified that the shooter was wearing a blue and white bandana over his face when came into the store. Id. at p. 159. He explained that he had seen Bannerman around the neighborhood about a dozen times prior to the shooting and that he had no problems with Bannerman. Id. at pp. 160-61. For a second time, the surveillance video from inside the store was played for the jury while James described and identified what he saw depicted in the video. Id. at pp. 162 - 64.

         During cross-examination of Keith James it was established that he was a drug addict who had been arrested on a frequent basis, but possession charges against him that had been pending around the time he spoke with police about this case were nolle prossed. ECF 13 at Ex. 3, pp. 169 - 88; p. 222. James admitted that he did not tell police the first or the second time he was interviewed that he had seen Bannerman around the neighborhood and that he could not see most of the shooter's face during the incident. Id. at pp. 170-71. On redirect it was established that James identified Bannerman by his eyes and that he claimed his familiarity with Bannerman made him recognizable even though his face was partially covered. Id. at pp. 211 - 219.

         Orlando Johnson, the man who allegedly walked into J&J Discount Liquors with Bannerman on the night of the shooting, testified for the State. ECF 13 at Ex. 4, pp. 22-61 (direct testimony). He explained he knew Bannerman because they had grown up together and on the night of the shooting he saw Bannerman walking down the street and offered him a ride. Id. at pp. 24 - 26. Johnson said that he drove Bannerman to J&J, parked in front of the store, and followed Bannerman into the store. He claimed that he did not see Bannerman pull the bandana up over his face on his way into the store because he was walking behind him, Id. at pp. 25 - 26. According to Johnson, once inside the store Bannerman pulled out a gun and told the people in the store, "you know what this is." Id. at p. 27. Johnson characterized Bannerman's actions as a robbery attempt. Id. Johnson testified that the victim, David Mitchell, told Bannerman he didn't have anything and that is when Bannerman shot him in the leg. Id. at pp. 27-28.

         Immediately following the shooting, Johnson testified that he left and got into his car. Id. at p. 28. Bannerman followed Johnson and got into the car with him. Id. Johnson told the jury that he drove a few blocks with Bannerman in the car but then stopped the car and told Bannerman to get out of the car and that he wanted nothing further to do with him. Id. at p. 28. Johnson claimed he did not know that Bannerman had a gun until he pulled it out inside the store. Id. at p. 29. Johnson stated he also knew Mitchell, but did not think Bannerman knew him and had never seen the two men together. Id. at pp. 31 - 33. The surveillance video was played during Johnson's testimony and Johnson identified himself as well as Bannerman in the video. Id. at p. 34. Johnson stated that he believed Bannerman shot Mitchell because Mitchell did not have anything to give him when Bannerman attempted to rob him. Id.

         In exchange for his testimony during Bannerman's trial, Johnson pled guilty to first degree assault. Id., at pp. 54 - 56. The plea agreement specified that Johnson would receive a sentence of 18 years with all but 4 years suspended, followed by 5 years of probation. Id. During cross-examination it was established that Johnson had not yet been sentenced and that the agreement on sentencing was dependent upon his testimony in Bannerman's case. Id. at pp. 82 -86. Defense counsel also attempted to impeach Johnson's character with evidence that he had been sued for failing to pay child support. Id. at pp. 63 - 64. It was also established during cross-examination that at the time of his testimony, Johnson was almost done serving the unsuspended portion of the agreed to sentence of 4 years. Id. at p. 98. Johnson admitted during cross-examination that at the time of the shooting he had long hair that he wore in braids, but denied he was the shooter. Id. at pp. 100 - 101. Johnson was further impeached with prior convictions for marijuana possession and his admitted reputation as a person who sells drugs. Id. at pp. 104-5. The State attempted to rehabilitate Johnson during redirect by having him affirm that the plea agreement he entered into did not specify what he was supposed to say during his testimony. Id. at pp. 106-8.

         Sgt. Simmons, a supervisor for the non-fatal shootings unit of the Baltimore City Police at the time of the shooting, testified that he responded to the shooting at J&J Liquors and spoke with Officer Garrett at the scene. ECF 13 at Ex. 4, pp. 115 - 137. Simmons testified that the victim, David Mitchell, was rushed to emergency surgery upon arrival at the hospital because a bullet hit his femoral artery and he was losing a lot of blood. Id. at pp. 120-21. ...

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