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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 469 September Term, 2009

KEVIN ARMSTEAD A/K/A KEVIN ARMSTAED v. STATE OF MARYLAND

*Davis, Hollander, Kenney, James A., III (Retired, Specially Assigned) JJ.

Opinion by Kenney, J.

Filed: October 28, 2010 *Arrie W. Davis, J., participated in the hearing and conference of this case while an active member of this Court; he participated in the adoption of this opinion as a specially assigned member of this Court.

Appellant, Kevin Armstead a/k/a Kevin Armstaed, was indicted in the Circuit Court for Baltimore City and charged with conspiracy to commit murder, murder, use of a handgun in commission of a felony and crime of violence, and wearing, carrying and transporting a handgun. A jury acquitted appellant of first degree murder and the handgun offenses, but convicted him of second degree murder and conspiracy to commit murder. The court then sentenced appellant to thirty years for second degree murder and to a consecutive sentence of life for conspiracy to commit murder. Appellant timely appealed and presents the following questions for our review: I. Did the trial court fail to properly exercise discretion and/or abuse its discretion in refusing to order a presentence investigation report and in proceeding to sentencing immediately following verdict despite defense counsel's assertion that she needed time for preparation? II. Does the record fail to reflect that Appellant was convicted of conspiracy to commit murder in the first degree? III. Did the trial court err in excluding evidence of Jamal Fulton's plea agreement and that he testified at a trial at which he testified inconsistently with the account of Leroy Simon in the present case? IV. Did the trial court err in admitting evidence that a key State's witness had been threatened and in denying a related motion for mistrial? V. Was the evidence legally sufficient to sustain a conviction for conspiracy to murder? For the following reasons, we shall affirm the judgment of the circuit court.

BACKGROUND On March 20, 2007, Ricardo Paige was found lying dead on the living room floor of his residence at 502 East 43rd Street in Baltimore City, Maryland, having suffered multiple gun shot wounds. He was discovered by his daughter, Deneen Woods, and his grandson, Ricardo McDonald. Woods testified at trial that she had seen appellant, also known as "Muggs," on the block on prior occasions with Fulton, who she knew as "Nube," and with Trendon and Tremaine Washington, twin brothers, both of whom she knew as "Twin." Fulton lived in the house next door, 500 East 43rd Street. Drugs were a "big problem" with Fulton. On the Friday before Woods's father was murdered, Fulton came to 502 East 43rd Street and argued with Paige. Fulton told Woods that her father was "making his spot hot." Woods responded by telling Fulton that she did not want any drugs to be around her father, and Fulton replied that "he would not say nothing else to [her] dad." At some point after Paige's death, Woods spoke to a person in the neighborhood she knew as "Lurch." Lurch provided Woods with some information, and Woods conveyed that information to Detective James Lloyd. Leroy Simon testified that he is known as "Lurch" and that he knew Paige through Woods. In late March 2007, intending to exchange drugs for sex, he was with a woman behind the victim's residence. At that time, he saw appellant, Fulton, known to him as

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"Nuke," and "Twin" and another unidentified individual near Paige's house. He observed appellant go into Paige's house first, and then he heard some "tussling." A few minutes later, he saw "Twin" enter the house. Fulton went inside the residence as well. The unidentified person remained outside the residence where he was giving orders. After appellant, Fulton, and "Twin" were inside, Simon heard gunshots. He then heard sounds as if someone was sweeping up some glass and then saw the trio emerge from the residence. Simon knew both Tremaine and Trendon Washington, and was aware that one of them was incarcerated at the time. He identified a photograph of Trendon Washington as the person he was referring to as "Twin" in his testimony. After Simon testified that he spoke to Detective Lloyd on three occasions, the State sought to refresh his recollection with a statement, but Simon testified that he could not read or write. Because there was some confusion about whether Simon ever told police that he saw Fulton enter the residence, the jury was excused, and the tape of Simon's third interview was played to refresh Simon's recollection. After the jury returned, Simon testified that Fulton was standing outside of the house and actually never went inside. Simon admitted he had made a mistake earlier during his testimony when he said Fulton had gone inside. Simon continued his testimony as follows: While appellant, "Twin" (Trendon Washington), and an unidentified third person

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were inside the residence, Simon heard tussling. After he heard these sounds, Fulton, "who remained outside, hollered, `handle your business.'" Simon then heard two to three gunshots. After the shooting, Simon saw all four individuals run from the residence. Simon identified a photo of appellant as a person who was present at the crime scene and had entered the residence. He also identified both Tremaine and Trendon Washington, distinguishing between them and identifying Trendon Washington as the twin present at the scene. Simon was originally unable to identify the person who remained outside the residence, but, after refreshing his recollection, recalled that during the third interview with police, he identified a photograph of Fulton, indicating that he was the one who stayed outside and "gave orders." Asked why he did not go to the police earlier, Simon stated: "It ain't good to snitch, it ain't good to snitch. Snitchers get stitches, that's how I always looked at it." However, when he learned that the victim was Wood's father, Simon decided to come forward. He learned two days after he saw the individuals at Paige's residence that Paige had died. On cross-examination, Simon testified that he had not testified in the trial involving Trendon Washington and that he was incarcerated when he first spoke to Detective Lloyd about this case.
Detective Chris Glanville testified that he encountered appellant, and both Trendon and Tremaine Washington, on April 28, 2007. At that time, he recovered a loaded .45 caliber Springfield nineteen eleven model firearm from Trendon Washington. All of the bullets

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recovered in this case were .45 auto caliber. The ballistics evidence was compared to the recovered firearm, and two of the cartridge casings recovered from the crime scene were fired from that pistol. Other bullet specimens could neither be identified nor eliminated as being fired from the recovered gun. However, three of the five bullets recovered in this case were fired by the same firearm, while the two remaining bullets lacked proper markings for comparison. Detective Lloyd testified that Trendon Washington, Fulton, and appellant were arrested in connection with this case. Appellant was arrested in Decatur, Georgia, where he gave the name "James L. Jefferson." When appellant was interviewed on April 10, 2008, the parties stipulated that appellant stated: "I already looked up the case. Why am I not just charged with conspiracy, what about the other three?" The charging documents at that time did not mention conspiracy. Also, Detective Lloyd testified that he had never told appellant about a conspiracy charge or that there were three other people involved in the crime. Detective Lloyd testified that he was aware that DNA evidence had been collected at the crime scene, but the parties stipulated that all of that evidence came back as being consistent with the victim's DNA. Latent fingerprints recovered from the crime scene were also consistent with being from the victim. Additionally, a search warrant was obtained for appellant's home and nothing was recovered from that search relating to this investigation. The State's last witness was the medical examiner, Dr. Theodore King. According to Dr. King, Paige died of multiple gunshot wounds, and the manner of death was homicide. He could not pinpoint the exact time of death. 5

After the State rested, defense counsel called Fulton. Fulton testified that he knew appellant and that he knew him by the name of "Muggs." Fulton used to live at 500 East 43rd Street in Baltimore City, "[u]p to prior to [his] arrest" in 2007. Paige, who Fulton knew

as "Poppy," lived next door at 502 East 43rd Street. Fulton also knew Woods, Woods's son, Ricky, and Simon, also known as "Lurch." Fulton stated that he was originally charged with Paige's murder. Fulton testified that, on March 18, 2007, Trendon Washington called and asked Fulton to drive him to the "vial store." Trendon Washington sold drugs, including crack and marijuana, and usually stored his drugs in a vacant house located nearby at 508 East 43rd Street. Fulton, along with appellant, accompanied Washington to the store to buy vials so he could package his drugs. When they returned, Fulton parked in front of 508 East 43rd Street while Washington went inside. Moments later, Washington emerged and angrily informed them that his drugs were missing and that the back door to that location had been knocked down. Recalling that Paige was outside when the three of them left to go to the "vial store," Washington and appellant then went to Paige's home, while Fulton remained with his car. Trendon Washington engaged Paige in a conversation, but Fulton could not hear what they were saying. After that conversation, Washington and appellant returned to Fulton's car, and Washington said, "I'm going to go do that." Fulton understood this to mean that Washington was going to beat and then kill Paige.

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Fulton testified that he saw Trendon Washington the next day, but he did not mention Paige or the drugs. Fulton then saw Trendon Washington again, on March 20, 2007, at around noon or 1:00 p.m., and Fulton asked him where Paige was because he had not seen him in two days. Washington replied, "I done what I said I was going to do." Fulton understood this to mean that Washington had killed Paige. Around 5:00 or 6:00 p.m. that same day, Fulton learned that Paige was dead. Fulton further testified that he had seen Trendon Washington carry a .45 caliber semiautomatic handgun on prior occasions, including in January and February of 2007. Fulton described the gun, and then identified State's Exhibit 6A as Trendon Washington's gun. On cross-examination by the State, Fulton confirmed that he was not present at the time of the murder, and, further, that Trendon Washington did not provide him with any details of what he had done. Nor did Washington tell Fulton if he was with anyone at the time of the murder. We shall include additional facts in the discussion of the issues presented. DISCUSSION I. Appellant first contends that we should remand this case for a new sentencing hearing because the trial court failed to exercise any discretion when it denied his request to order a pre-sentence investigation ("PSI"). The State responds that, even if the court erred, the record demonstrates that any error was harmless beyond a reasonable doubt. Considering

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the record as a whole, we agree with the State. After the jury returned its verdict convicting appellant of second degree murder and conspiracy to commit murder, the following ensued: THE COURT: All right, counsel, are we ready for sentencing? [DEFENSE COUNSEL]: Your Honor, we would request a PSI. THE COURT: Denied. I think what I need to know to sentence in this case, [defense counsel], is anything good you can tell me about him, but I've heard this case. I want to see the sentencing guidelines. I want to hear about his prior record. I want to hear anything good you can tell me about him. Do you have the sentencing guidelines computations [prosecutor]? The State then informed the court that he had calculated the guidelines and shown them to defense counsel. Those guidelines called for a range of sentencing for second degree murder between twenty to thirty years, and, for conspiracy, between thirty years to life imprisonment. Defense counsel could not agree with those guidelines because she did not prepare guidelines herself. The court replied: "Well if you disagree get back to me subsequently." Both parties then agreed that appellant was previously convicted of attempted second degree murder in 1998, and had received a sentence of ten years, with all but five suspended. Appellant had also been convicted of a deadly weapon charge, although it was unclear whether that was for use of a deadly weapon or carrying a deadly weapon. Appellant was also convicted of third degree sexual offense, as well as breaking and entering, but neither defense counsel nor the State knew what the sentence was on those convictions.
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The court then asked defense counsel appellant's age, and, after defense counsel replied that appellant was twenty-six years old, defense counsel asked if the court was going to sentence at that time. The court replied in the affirmative, stating that it was within the court's discretion whether to order a PSI. Counsel then indicated that she was not prepared for sentencing because she did not bring her folder containing appellant's file. After counsel also indicated that she could not have someone bring her the file, the court replied: Well, with the crowded dockets we have and the resources we have, I think sentencing is appropriate now. If you want to file anything with me for reconsideration, I'll certainly be glad to consider it, but what can you tell me good about your client? Counsel then asked for and was granted a brief recess to retrieve her file folder. When defense counsel returned to the courtroom, she began by moving to strike the second degree murder verdict on the grounds that it was inconsistent with the jury's acquittal on the handgun charges. Counsel stated, "absent an instrument, it would seem to me how could the second degree verdict survive." The court denied the motion, indicating that counsel did not make this motion prior to excusing the jury. Defense counsel then noted that she had a right to file a motion for new trial within ten days of the verdict, and, by immediately proceeding to sentencing, the court was denying appellant the opportunity to file such a motion. The court disagreed, observing that appellant could file all post-trial motions after sentencing. Defense counsel then objected to sentencing without a PSI, stating that appellant "should have an opportunity to prepare information for the Court, information in mitigation,
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including having individuals testify on his behalf, and the Court is denying him the right to do that." After the court stated that appellant could testify on his own behalf, defense counsel then stated, "I just have not had the experience in my 28 years of asking for a PSI and not getting it in a case of this magnitude." It was at this point that the trial court stated: I can tell you, I haven't been here 28 years, but I have been on this job a couple of years and I have always sentenced as soon as the verdict comes in. I have never ordered a PSI, and I guess I shouldn't say this but I will, the only PSI I had was one that was mandatory because it was a life without parole. And I must tell you it didn't help me at all. I mean it was just blabber that he had a grandmother who loved him and, you know, things like that, that you can proffer to me. So while it would be fine to hear from the people, I'll accept your proffer as to what they would have to say on behalf of Mr. Armstead. So what else? Defense counsel then informed the court that appellant was twenty-six years old, had an eighth grade education, and received his GED in 1999. Appellant worked for two different companies between 2002 and 2004, and stopped working when his mother passed away in 2004. Appellant's father was alive, but was suffering from a kidney ailment. Appellant was not married and had no children. He did not suffer from any physical or mental disabilities. He was not taking any medications, but was addicted to drugs and alcohol. With respect to his prior convictions, defense counsel could find no reference to a prior breaking and entering, and the court replied, "Then I won't consider it." The prior sex offense case from 1998 began as a juvenile matter and was transferred to adult court. The prior attempted second degree murder dated from February 1999, where appellant was
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sentenced to ten years, with all but five suspended, followed by four years of probation. The court then heard from appellant's aunt, Tasheena Washington, who informed the court that appellant was "easy going, he is quiet, he is a playful individual." Appellant had had a "hard life" and "he was scared." With respect to the sex offense conviction, Ms. Washington informed the court that the incident involved her niece. According to Ms. Washington, after the niece's mother gave her to her father, the niece thought that "if she would lie[,] that my sister would take her back and she didn't." Ms. Washington also stated that appellant told his grandmother he never touched the niece. Appellant then addressed the court, declaring that, when he was fifteen, he carried a gun and shot someone. He confessed to that crime and did his time, stating: "I admitted to my mistakes." After he came home, appellant stated, "sometimes you just, like you get caught in stuff that you really don't have nothing to do with, and I just, I guess sometimes you pay for the decision of the twelve people you pick on the jury." Appellant then asked for leniency. After appellant concluded, defense counsel then informed the court that she had nothing else to tell the court. The court then stated that it was not considering the breaking and entering, and that it was not attaching any significance to the sex offense conviction based on the fact that appellant was "on the cusp of being a juvenile himself[.]" The court then indicated that this was a "horrible" case and that he agreed with the jury's verdict, "except I think it was a first degree murder case and I think they showed leniency." Appellant was then sentenced to

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thirty years for second degree murder and to a consecutive sentence of life for conspiracy to commit murder. Defense counsel concluded the proceeding by informing appellant of his post-trial rights, including the right to file: a motion for new trial, an appeal to this Court, a request for review of sentence by a three-judge panel, and a request for a modification of sentence.1 Appellant acknowledges on appeal that the decision of the circuit court of whether to
order a PSI is a discretionary one. See Md. Rule 4-341 ("Before imposing a sentence, if required by law the court shall, and in other cases may, order a presentence investigation and report."); Md Code (1999, 2008 Repl. Vol.)

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