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State v. Mann

Court of Appeals of Maryland

December 19, 2019

STATE OF MARYLAND
v.
CHRISTOPHER MANN

          Argued: October 31, 2019

          Circuit Court for Baltimore City Case No. 104002009 to 104002014

          Barbera, C.J. McDonald Watts Hotten Booth Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned) Greene, Clayton, Jr. (Senior Judge, Specially Assigned), JJ.

          OPINION

          WATTS, J.

         An alibi is "[a] defense [that is] based on the physical impossibility of a defendant's guilt by placing the defendant in a location other than the scene of the crime at the relevant time." Alibi, Black's Law Dictionary (11th ed. 2019). An alibi is not an affirmative defense-that is, a defense that "[t]he defendant bears the burden of proving[.]" Affirmative Defense, Black's Law Dictionary. "An alibi is not an affirmative defense" because it "simply negates an element of the crime"-namely, the allegation that the defendant was the one who committed the crime, which the State has the burden of proving beyond a reasonable doubt. Harris v. State, 458 Md. 370, 411 n.31, 182 A.3d 821, 845 n.31 (2018) (citations omitted).

         Maryland Criminal Pattern Jury Instruction 5:00, addressing alibis, provides:

You have heard evidence that the defendant was not present when the crime was committed. You should consider this evidence along with all other evidence in this case. In order to convict the defendant, the State must prove, beyond a reasonable doubt, that the crime was committed and the defendant committed it.

         Although Maryland Criminal Pattern Jury Instruction 5:00 is known as an "alibi jury instruction," it does not use the word "alibi" because doing so could "incorrectly suggest that alibi is an affirmative defense." MPJI-Cr 5:00 cmt. Where an alibi jury instruction is applicable under a case's facts, on request, a trial court must give an alibi jury instruction. See Smith v. State, 302 Md. 175, 180-81, 486 A.2d 196, 198-99 (1985).

         This case requires us to determine whether a petitioner for postconviction relief has satisfied, under Strickland v. Washington, 466 U.S. 668 (1984), the burden of proving that he was prejudiced by his trial counsel not requesting, and the trial court not giving, an alibi jury instruction where purported alibi witnesses testified at trial.

          In the Circuit Court for Baltimore City, the State, Petitioner, charged Christopher "Crack" Mann, Respondent, with first-degree felony murder, kidnapping, conspiracy to kidnap, and other crimes. At trial, the State offered evidence of the following events. On April 22, 2003, sometime between 6:43 p.m. and 7:03 p.m., Mann and two of his friends, Tayvon "Tay" Whetstone and Kenneth "Kane" / "Kenny" Fleet, [1] confronted the victim, Ricky "Little Rick" Prince, at a McDonald's on Liberty Road near its intersection with Rolling Road, about him having been a witness for the State in a criminal case. Fleet got into Prince's vehicle and drove away. Whetstone told Prince that he would take Prince to his vehicle. Mann, Whetstone, and Prince got into a vehicle. Ultimately, Whetstone drove to the area behind a nightclub called "Fantasies," which is in the Curtis Bay neighborhood of Baltimore City. There, in Mann's presence, sometime during the evening of April 22, 2003, Whetstone shot Prince.

         Mann's trial counsel called four alleged alibi witnesses, who purported to account for Mann's whereabouts from approximately 7:30 p.m. or 7:45 p.m. on April 22, 2003 to the morning of April 23, 2003. Mann's trial counsel did not request, and the circuit court did not give, an alibi jury instruction.

         After being convicted and pursuing an unsuccessful direct appeal, Mann petitioned for postconviction relief, contending that his trial counsel provided ineffective assistance of counsel by not requesting an alibi jury instruction. The circuit court agreed and ordered a new trial. The State successfully applied for leave to appeal, and the Court of Special Appeals affirmed. The State filed a petition for a writ of certiorari, which this Court granted.

         Before us, the State contends that an alibi jury instruction would not have significantly affected the jury's deliberations. Mann responds that it is reasonably possible that, in the absence of an alibi jury instruction, the jury believed that he had the burden to prove an alibi or did not consider the purported alibi witnesses' testimony at all. We hold that Mann has failed to satisfy the burden to prove that there is a reasonable probability, or a substantial or significant possibility, that the jury would have acquitted him if his trial counsel had requested an alibi jury instruction and the circuit court had given the instruction. The circumstance that Mann's trial counsel did not request an alibi jury instruction did not prejudice Mann because, upon closer inspection, none of the four purported alibi witnesses' testimony indicated that Mann could not have been at the murder scene when Whetstone shot Prince, and the circuit court's giving of other instructions regarding the State's burden to prove guilt beyond a reasonable doubt diminishes the claim of prejudice.

         BACKGROUND

         Trial and Direct Appeal

         At trial, as a witness for the State, Detective Kevin Klimko of the Baltimore County Police Department testified that, on April 15, 2003, Jerrard "Tick" Bazemore pled guilty to the murder of Charles Edward Sharp. During Mr. Bazemore's guilty plea hearing, the prosecutor in that matter proffered that, had there been a trial, Prince-the murder victim in this case-would have testified that he provided Bazemore with the gun that was used to fatally shoot Sharp. After Bazemore said that he was pleading guilty, two individuals in the gallery "stood up and said[:] 'You don't have to go down like that, man,' and pretty much objected to the fact that he was pleading guilty." The two individuals then left the courtroom. Detective Klimko testified that he would not recognize the two individuals if he saw them again.

         As a witness for the State, Detective Gerald D'Angelo of the Baltimore County Police Department testified that, on April 23, 2003, he interviewed Mann, who said that, on the evening of April 22, 2003, he went to the McDonald's to get something to eat and saw Prince there. Mann said that he and Prince calmly talked about Prince having been a witness against Bazemore, and that, while they were talking, someone got into Prince's vehicle and drove away. Detective D'Angelo responded that he did not believe that Mann had told the truth. Detective D'Angelo also said that he knew that Mann had gone to the McDonald's with two other individuals, and that his conversation with Prince had been heated. During the interview, Mann acknowledged that he had not told the truth. Mann said that he had been driving a Ford Escort that belonged to his girlfriend, Tanea Jenkins, and needed to return it to her before her shift at a Target[2] ended. Mann said that two of his friends, Whetstone and Fleet, gave him a ride from the Target to the McDonald's in a black 1991 Chevrolet Caprice that belonged to Whetstone's girlfriend. Mann acknowledged that he had gotten into a heated argument with Prince about Prince having been, as Mann put it, a "snitch" against Bazemore. Mann said that Fleet got into Prince's vehicle, a Toyota Corolla, and drove away, and that he told Prince that that he would get Prince's vehicle back for him. Mann said that he and Whetstone went to Mann's father's house, [3] and then returned to the McDonald's.

         While testifying, Detective D'Angelo read aloud a statement that Mann had handwritten and signed. In his written statement, Mann alleged the following events, which we summarize. On April 22, 2003, at 11 a.m. or 11:30 a.m., Mann drove Jenkins to the Target. Afterward, Mann visited one of his friends, Jeffrey Johnson, at his house.[4] At approximately 1:45 p.m. or 2 p.m., Mann left Johnson's house. At approximately 4:30 p.m. or 5 p.m., Mann went to his mother's house.[5] Mann met with Whetstone and Fleet, who followed him to the Target. At approximately 6:30 p.m. or 6:45 p.m., Mann dropped Jenkins's vehicle off at the Target. Jenkins gave Mann six dollars, and he, Whetstone, and Fleet left the Target. At approximately 7 p.m., Mann, Whetstone, and Fleet arrived at the McDonald's. There, Mann talked to Prince about Bazemore. While Mann was talking to Prince, Fleet got into Prince's vehicle and drove away. Mann and Whetstone went to Mann's father's house, where they stayed for at least five to ten minutes. Afterward, Mann and Whetstone went to Johnson's house. After that, Mann and Johnson's girlfriend went to Mann's mother's house. Mann requested a ride from Jenkins, who picked him up, dropped one of her friends off, and drove to Mann's father's house, where they spent the night.

         As a witness for the State, Detective Raymond Laslett of the Baltimore City Police Department testified that he recovered a recording that was made on April 22, 2003 by at least one surveillance camera at the Target where Jenkins worked. The recording was played during Detective Laslett's direct-examination, and he testified that it showed the following events, which we summarize. In the Target's parking lot, a black Ford Escort followed a black Chevrolet Caprice. Afterward, Mann, Whetstone, and Fleet appeared together. Then, Mann and Jenkins appeared together. At 6:43 p.m., the Caprice left the Target's parking lot. According to Detective Laslett, the Escort that appeared in the recording belonged to Jenkins, and the Caprice that appeared in the recording belonged to Whetstone's girlfriend.

         As a witness for the State, Jackie Davis, Prince's mother, testified that, on the evening of April 22, 2003, Prince borrowed her burgundy Toyota Corolla so that he could pick up his paycheck from a Checkers. At approximately 6:45 p.m., while Davis was at her house, Prince telephoned her, sounding "anxious and talking fast[.]" According to Davis, Prince said that someone had "approached him and said that he had snitched" against Bazemore, and that someone had taken the Corolla. Prince also said that "one individual out there was" Mann. After hanging up, Davis telephoned 911 and reported the Corolla's theft. Two law enforcement officers arrived at Davis's house and took her to a gas station on Liberty Road. Along the way, Davis and the officers passed by the McDonald's. Davis, who was looking for Prince, did not see him in the area of the McDonald's.

         As a witness for the State, Officer Morris Gardner of the Baltimore County Police Department testified that, on April 22, 2003, at 7:03 p.m., he heard about a report of a theft of a burgundy Toyota Corolla in the area of the McDonald's. Officer Gardner drove to the area, saw a burgundy Toyota Corolla, contacted his supervisor, and confirmed that the license plate was that of the stolen Corolla. The Corolla pulled into a gas station, and the driver, Fleet, exited the Corolla. Officer Gardner parked his vehicle and arrested Fleet. Davis was brought to the gas station and said that she did not recognize Fleet.

         As a witness for the State, Derrick Harper ("Mr. Harper")[6] testified that he had known Prince, Mann, Whetstone, and Fleet. On April 25, 2003, Whetstone asked Mr. Harper to move the Caprice (i.e., Whetstone's girlfriend's vehicle) because Whetstone did not want it to get towed and did not have a driver's license. That was the first occasion on which Mr. Harper had seen the Caprice. Mr. Harper started driving the Caprice, and officers initiated a traffic stop and arrested Mr. Harper.

         From the night of April 25, 2003 to the morning of April 26, 2003, officers questioned Mr. Harper, who handwrote certain answers on a document. The circuit court admitted the document into evidence, and the prosecutor read certain excerpts of it aloud while direct-examining Mr. Harper. The document indicated that Mr. Harper wrote that Mann had alleged the following events, which we summarize. When Mann was with Whetstone and Fleet at the McDonald's, they encountered Prince. Fleet punched Prince twice, Mann kicked Prince, and Fleet got into Prince's vehicle and drove away. Whetstone was afraid that he would get implicated in Fleet's theft of Prince's vehicle. Mann wanted to scare Prince into not telling anyone about Fleet's theft of Prince's vehicle. Whetstone told Prince that he would take Prince to his vehicle. Mann, Whetstone, and Prince got into Whetstone's vehicle, which was in the area of the McDonald's, and Whetstone drove away. While Whetstone was driving, Mann tried to persuade Prince not to tell anyone about Fleet's theft of Prince's vehicle, and Prince promised not to do so. Mann was satisfied with Prince's promise, but Whetstone was not. Whetstone shot Prince in the head.

         During Mr. Harper's cross-examination, Mann's trial counsel asked: "If you don't take the beltway[, ] and you go from [the] McDonald's on Liberty Road to the 5[5]00 block of Pennington Avenue, [7] it would take about an hour, would it not?" Mr. Harper responded: "Around. I mean, that's past Cherry Hill, Patapsco[ Avenue], and all that."

         As a witness for the State, Officer Mark William Rejrat of the Baltimore City Police Department testified that, on April 23, 2003, at approximately 4 p.m., he went to the area behind a nightclub called "Fantasies," which is at 5520 Pennington Avenue in the Curtis Bay neighborhood of Baltimore City. Officer Rejrat explained that the area behind Fantasies is a former "city dump" that is "commonly known as . . . 'bloody pond.'" In a ditch near the pond, Officer Rejrat found a deceased man's body. A detective found a driver's license with Prince's name inside a wallet on the deceased man's person.

          As a witness for the State, Jack Titus, M.D., the Deputy Chief Medical Examiner, was admitted as an expert in forensic pathology and postmortem examination. Dr. Titus testified that, on April 24, 2003, he autopsied Prince's body. Prince had a gunshot entry wound on the back of the right side of his head, and a gunshot exit wound on the left side of his forehead. Dr. Titus opined that the cause of death was a gunshot wound to the head, and the manner of death was homicide. Dr. Titus estimated that the time of death was the evening of April 22, 2003, "roughly." Dr. Titus cautioned that he could make only a "[r]eal general approximation" as to the time of death because there were "just too many variables to say an exact hour."

         As a witness for Mann, Johnson testified that, on April 22, 2003, sometime between 12 p.m. and 2 p.m., Mann arrived at Johnson's house. For approximately fifteen minutes, Mann and Johnson talked; afterward, Mann left. At approximately 7:30 p.m. or 7:45 p.m., Mann returned to Johnson's house and said that Whetstone had just dropped him off. For approximately forty-five minutes, Mann and Johnson played a video game. At approximately 8:30 p.m., Mann and Johnson left Johnson's house. At approximately 8:45 p.m., Mann and Johnson arrived at Mann's mother's house. Shortly afterward, Johnson left.

         As a witness for Mann, Jenkins, his girlfriend, testified that, on April 22, 2003, she worked at the Target from 11 a.m. to 7 p.m. At approximately 6:43 p.m. or 6:44 p.m., Mann, Whetstone, and Fleet came to see Jenkins. Mann gave Jenkins the key to her vehicle. Shortly afterward, Mann left. After leaving the Target, Jenkins went to her house, then picked up one of her friends, Nikita Peay. Afterward, Jenkins and Peay "just drove around." At approximately 9 p.m., Mann telephoned Jenkins and asked her to pick him up from his mother's house. At approximately 9:30 p.m., Jenkins arrived at Mann's mother's house. For approximately two hours, Mann, Jenkins, and Peay "just drove around[.]" Afterward, Jenkins dropped Peay off and drove herself and Mann to his father's house, where they spent the night.

         As a witness for Mann, Peay testified that, on April 22, 2003, at 8 p.m., Jenkins picked her up. Peay and Jenkins "drove around for a while[.]" Mann telephoned Jenkins and asked her to pick him up. At 9:30 p.m., Jenkins picked Mann up. Afterward, Mann, Jenkins, and Peay "drove around." At 11:15 p.m., Jenkins dropped Peay off at her house.

         As a witness for Mann, Rhonda Harper ("Ms. Harper"), Mann's cousin, testified that she lived with his father. On April 22, 2003, sometime after 7 p.m., Ms. Harper left Mann's father's house to give a friend a ride. At approximately 11:30 p.m. or 11:45 p.m., Ms. Harper returned to Mann's father's house, and saw Mann and Jenkins sitting outside.

         During the State's initial closing argument, the prosecutor addressed the purported alibi witnesses, in pertinent part, as follows:

Johnson [is] the one [whom] you should actually look for -- look at [] most closely, because this murder[ --] we know that [Prince] was taken right away from [the] McDonald's, because we know that[, ] when [Davis] gets there[, ] [Prince is] not there. Neither is [] Mann.
Who had the motive and the opportunity? [Mann] and [] Whetstone. Who else was there at the time? And[, ] ladies and gentlemen, this murder happened as soon as it -- as long as it takes to get from [the] McDonald's to Curtis Bay; in that time period. So[, ] did [] Jenkins pick up [Mann] at 9:30[ p.m.]? Maybe. And ride around with [Peay] in the [Escort]? Sure. Maybe. After the murder. Did [Ms.] Harper see [] Jenkins and [Mann] at [his father's] house that night? Sure. Maybe. Was [Mann] with [] Johnson at his house? I submit to you, no.

         During Mann's closing argument, his trial counsel addressed Mr. Harper's and Johnson's testimony, in pertinent part, as follows:

[Mr.] Harper[] was arrested with the [] Caprice [] in [Baltimore C]ity. And he tells the police . . . that there's a problem with the hood latch[, ] and he can't take it on the highway ..... To go from [the] McDonald's on Liberty Road and Rolling Road to Curtis Bay, [twenty] miles on the [b]eltway[, ] will take you probably a half[-]hour. If you have to go to the side streets[, ] it will take you probably an hour to an hour[-]and[-]a[-]half. Why is that important? Because the time doesn't fit. . . . [Mann] was at [] Johnson's house.

         During the State's rebuttal closing argument, the prosecutor alleged the following events, which we summarize. At 6:43 p.m., Mann, Whetstone, and Fleet left the Target. Afterward, Mann, Whetstone, and Fleet arrived at the McDonald's and encountered Prince. Mann, Whetstone, and Prince got into a vehicle, and it took an hour to drive through Baltimore City and reach Curtis Bay. At approximately 8 p.m., Prince was killed. Afterward, Whetstone drove Mann to Whetstone's house, [8] and Mann walked a short distance to his mother's house. At 9 p.m., Mann telephoned Jenkins and asked her to pick him up from his mother's house.

         Mann's trial counsel did not request, and the circuit court did not give, an alibi jury instruction. While preliminarily instructing the jury at the start of the trial, the circuit court stated in pertinent part: "[T]he defendant may or may not call witnesses. The defendant has no obligation to call witnesses. The State has the burden of proving the defendant's guilt beyond a reasonable doubt. The defendant does not have to prove innocence." While instructing the jury at the conclusion of the trial, the circuit court stated in pertinent part: "The State has the burden of proving the guilt of the Defendant beyond reasonable doubt. The burden remains on the State throughout the trial. The Defendant is not required to prove his innocence." After instructing the jury at the conclusion of the trial, the circuit court initiated a bench conference and asked counsel: "Is there anything [that] you want me to add or subtract?" Mann's trial counsel responded: "No exceptions."

         The jury found Mann guilty of first-degree felony murder, kidnapping, and conspiracy to kidnap. Mann appealed, and the Court of Special Appeals affirmed.

         Petition for Postconviction Relief

         On June 9, 2014, almost ten full years after his conviction, in the circuit court, while representing himself, Mann filed a petition for postconviction relief. On October 6, 2015, on Mann's behalf, his postconviction counsel filed a supplemental petition for postconviction relief. Both the petition and supplemental petition included the contention that Mann's trial counsel rendered ineffective assistance of counsel by not requesting an alibi jury instruction. On September 27, 2017, the circuit court conducted a hearing on the petitions.

         At the hearing, as a witness for Mann, his trial counsel testified that, at trial, on Mann's behalf, he pursued an alibi defense. Mann's postconviction counsel asked: "If you [did not] request an alibi [jury] instruction, is that something that you would have had reason for not requesting?" Mann's trial counsel responded: "No. I mean, the defense was alibi." Mann's postconviction counsel asked: "It would have been your expectation that there would have been an alibi [jury] instruction in this case?" Mann's ...


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