United States District Court, D. Maryland
Frederick Motz United States District Judge.
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.
produced at trial
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.
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 (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
Id. at p. 174.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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. ...