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Carter v. Graham

United States District Court, D. Maryland

October 2, 2018




         In answer to the above-entitled Petition for Writ of Habeas Corpus Respondents seek denial of the relief sought. ECF No. 6. Petitioner Marvin Terrell Carter filed a Reply (ECF No. 8) as well as a Motion for Summary Judgment. ECF No. 7. No. hearing is necessary to resolve the matters pending. 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 reasons to follow, the Petition shall be dismissed and the pending Motion for Summary Judgment denied.

         I. BACKGROUND

         A. Pre-Trial Matters

         Carter was convicted of three counts of burglary and two counts of malicious destruction of property in the Circuit Court for Montgomery County following a jury trial. At a pre-trial hearing, Carter moved for a substitution of counsel, insisting that the State had not turned over all discovery. ECF No. 6-2 at 7-10. Carter's trial counsel, a member of the public defender's office, explained that Carter was referring to GPS evidence that did not exist because a warrant was never issued for police to pursue it. Id. at 11. Counsel further explained that the State did not intend to use the phone pinging evidence gathered in the context of another burglary case in Prince George's County. Id. The trial court ruled, pursuant to Md. Rule 4-215(e), that Carter did not have a meritorious reason for discharging his counsel, noted that counsel had prepared a complete and thoughtful pre-trial motion to sever and that discovery was requested and provided. Id. at 18-19. The trial court further noted that Carter simply wanted a different attorney and would disagree with any attorney appointed. Id. The court was unmoved by Carter's pending Attorney Grievance Commission complaint he filed against appointed counsel and referred to the complaint as frivolous. Id. Carter was given a choice to discharge his counsel and proceed pro se, or to keep assigned counsel; Carter chose to proceed pro se. Id.

         At another pre-trial hearing, the court considered several motions Carter filed to suppress evidence, to return property, to sever the counts in the indictment which concerned four different burglaries at three different stores, to reconsider the matter regarding trial counsel, and for bond review. ECF No. 6-3 at 6-15. The court granted Carter's motion to compel the detention center where he was being held to arrange for Carter to view all of the video discs that the State intended to introduce into evidence at trial. Id. at 21. Carter's motion to suppress all evidence removed from his car, but not listed on the search warrant was denied. Id. at 26. The court also denied the motion to sever the counts because the evidence as to each count was relevant to a common plan or scheme. Id. The court viewed Carter as too great a flight risk to allow for his release on bond pending trial despite the problems incarceration presented in terms of his choice to represent himself at trial. Id. The court denied Carter's motion to appoint new counsel. Following the court's decision, a jury was chosen and trial began. Id. at 21-36 (judge's explanation of general trial procedure and pre-emptory challenges to Carter); id. at 36-153 (jury voir dire).

         B. Evidence Produced at Trial

         a. Golden China Restaurant

         The State first presented evidence regarding the burglary of the Golden China Restaurant, which took place on March 30, 2012. The police officer who responded to the scene following a phoned-in report of a burglary was Officer Mi Ley. ECF No. 6-4 at 165-87. Ley testified he could not find any signs of a break-in on the doors or windows of the restaurant. Id. at pp. 166-67. During a search of the scene, a flashlight and a latex glove were found along with a shoe print on a stack of wrapping paper located near an air vent in the kitchen. Id. at 173. On the roof of the restaurant, another similar shoe print was seen next to the air vent. Id. at 177. Ley testified that the air vent was big enough for an average sized person to fit into. Id. at 178. The video surveillance taken inside the restaurant showing the actual burglary was then played for the jury. Id. at 179-80.

         Testimony was also provided concerning the processing of the latex glove found at the scene. Detective Paul Craine testified that a buccal[1] swab, explained as a collection of the DNA cells from the inside of a person's cheek, was taken of Carter for purposes of comparing it to any DNA found at the scene. ECF No. 6-4 at 154-64. Ryan Costello testified that he swabbed the latex glove to collect any DNA that might be on it.[2] ECF No. 6-5 at 25-29. Jennifer McMurray, a forensic scientist with the Montgomery County Crime Lab, testified that she compared the DNA taken from the buccal swab of Carter with the DNA found on the latex glove at the Golden China Restaurant and concluded that the two DNA samples matched at every comparison level. Id. at 46-51. During a search of Carter's car, police found a box of latex gloves in the trunk. Id. at 61- 62.

         Mengying Wang, the owner of the Golden China Restaurant, testified that she had locked the doors the previous night; and that she left twenty one-dollar bills and six five-dollar bills in the cash register, all of which was gone the next morning. ECF No. 6-4 at 190-91.

         b. Goshen Beer and Wine Store

         The Goshen store was burglarized in a similar manner on January 13, 2012, and Officer John Witherstein was the responding officer. ECF No. 6-5 at 74-77. He testified there were no signs of forced entry at the doors or windows, but that he noticed there was an access shaft when he was on the roof of the store investigating. Id. at 75-76.

         Three employees from the Goshen store testified. Nirmal Patel, whose parents own the store, testified that the store had 12 to 14 video surveillance cameras inside and this burglary was captured on those cameras. ECF No. 6-5 at 91-95. The video was then played for the jury without objection from Carter. Id. at 94.

         Priti Patel, who worked as a manager at the Goshen store, testified that five or six cartons of cigarettes, priced at $65.99 per carton, along with $4000 in lottery scratch off tickets were stolen. Id. at 95-106. She was uncertain regarding the amount of cash stolen from the store. Id. at 102-03.

         Hedtiyakandage Nonis, who also worked at the Goshen store, testified that at the time of the burglary there was two to three-thousand dollars in cash in the office, $400 in each of six cash registers, and a box containing cash, all of which were gone after the burglary. Id. at 107- 17.

         c. Glenmont Beer and Wine Store

         The Glenmont store was burglarized on January 20, 2008 and on April 10, 2011. Both burglaries were captured on surveillance video. ECF No. 6-6 at 68-69. Officer Oscar Jerome testified that for the January 20, 2008 burglary the suspect gained entry into the store through the roof vent. Id. at 40-48. Through Jerome's testimony, still pictures from the surveillance video were introduced, as well as the surveillance video itself. Id. Chung Lee, the owner of Glenmont, testified that following the January 20, 2008 burglary his store was left in disarray and there was cash missing as well as lottery tickets, and cigarettes. Id. at 53-67.

         Officer Marvin Walker responded to the scene on April 10, 2011, when the Glenmont store had again been burglarized. ECF No. 6-6 at 32-39. Walker noted no damage to the doors and windows and after reviewing surveillance video, determined the suspect had come in through the sky vent. Id. at 34-36. Also, based on his review of the video, Walker developed a description of the suspect. Id. at 35-36. Chung Lee also testified with regard to the April 10, 2011 burglary of his store; and confirmed that the same thing happened this time with cash, cigarettes, and lottery tickets being stolen, and added that phone cards were taken. Id. at p. 59. Lee claimed that $14, 000 in cash was stolen and provided authentication of the two video surveillance recordings inside the store during the burglary before they were shown to the jury without objection. Id. at 59, 68-69.

         d. Defense's Case in Chief

         Carter focused his defense on a theory of misidentification and limited most of his questions on cross-examination of the business owners to whether they had seen him before. See ECF No. 6-5 at 94-95; ECF No. 6-6 at 66. Carter also questioned Officer Walker about the suspect description he developed after watching the video surveillance. ECF No. 6-6 at 37-39.

         Carter called Detective Darrell Farewell, Officer Fernandez, Detective Burgess, Lt. Robert Carter, Detective Heather Ives, Mildred and Gilbert Jones (Carter's parents), and Officer Kye Pak as witnesses during his case in chief.

         Through the testimony of Detective Farewell, Carter established that the investigation into the April 10, 2011 burglary was suspended on April 19, 2011. ECF No. 6-6 at 17-27. Farewell also testified that there was no forensic evidence collected after the burglary and admitted the arrest warrant was issued one year later on April 18, 2012. Id.

         Officer Fernandez was also called as a witness by Carter. Fernandez responded to the January 13, 2012 Goshen Beer and Wine burglary call ten days after the burglary occurred. ECF No. 6-6 at 71-72. Fernandez explained that he viewed the surveillance video and developed a description of the suspect based on that. Id. at 74-75. He also testified that he communicated with other Montgomery County police officers regarding the established pattern of night time commercial rooftop burglaries. Id. at 77-78. Carter offered into evidence an email from Fernandez that theorized the same suspect committed a burglary at Family Beer and Wine, an offense with which Carter was not charged. Id. at 79-80. Although the trial judge clarified for Carter three times that by introducing the document into evidence Carter was implicating himself in another crime and that he would not have allowed the state to introduce such a document, Carter acknowledged the trial judge's concerns and stated he still wished to move forward with introducing it. Id.

         Detective Burgess was also called as witness by Carter and, similar to the Fernandez email, Burgess was asked to authenticate an email he authored regarding the burglaries. ECF No. 6-6 at 113-16. Again, the trial judge cautioned Carter that the content of the email was inculpatory, but Carter insisted on entering it into evidence. Id.

         Lt. Robert Carter was called to testify about another police officer's use of GPS technology in her investigation of the Golden China burglary. ECF No. 6-6 at 119-21. Upon objection lodged by the State, the trial court stopped Carter's examination of the police officer and explained the matter had been settled at pre-trial. Id. at 121. The trial judge further noted that he was not going to let Carter cause a mistrial. Id.

         Detective Heather Ives was called to the stand and questioned about the search warrants obtained for Carter's car. ECF No. 6-7 at 16-19. The trial court sustained an objection to the line of questioning because the matters regarding the search warrants and the evidence obtained upon their execution had already been by the court prior to the trial. Id.

         Carter called his mother and his step father, Mildred and Gilbert Jones, to testify about his appearance from 2010 to the present. Id. at 20-34. Through his mother's testimony, Carter established that he had always maintained facial hair. Id. at 20-27.

         Officer Kye Pak was called as a witness by Carter and Carter proffered that the testimony would involve an investigation of a burglary at the New Hampshire Beer and Wine, a crime for which Carter was not charged. Id. at 49-58. Carter wanted to elicit testimony that police believed the same suspect was involved in all of the burglaries, but the State's objection on grounds of relevance was sustained. Id. at 52.

         Carter maintained that the trial court had not provided him with enough assistance to get his witnesses to court via subpoena and had asked for more assistance. ECF No. 6-6 at 123-24. When the State pointed out that some of the witnesses Carter had listed had never been issued a subpoena, Carter's request for additional assistance was denied. Id. The following day in court, Carter raised objections regarding the material provided to him by the State during discovery, insisting that the State had not provided him with an unedited version of the Golden China video nor had they provided him with copies of the GPS warrants. ECF No. 6-7 at 5-12. During the course of argument, the State provided the trial court with a 17-page letter written by Carter to the State's Attorney stating in part that he knew what he was doing when he fired his attorney. Id. at 13. When it denied Carter's motions, the trial court noted that it appeared Carter was attempting to cause a mistrial, and that there had never been any GPS warrants issued nor had any GPS devices been placed on his car. Id. at 15.

         At the end of Officer Pak's testimony, Carter again raised the issue regarding unavailable witnesses who he wished to call. ECF No. 6-7 at 58-60. The witnesses Carter asked for had not been subpoenaed, thus the court forced Carter to rest his case. Id.

         e. Jury's ...

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