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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2439 September Term, 2003

COREY RICARDO CALDWELL v. STATE OF MARYLAND

Hollander, Eyler, Deborah S., Eldridge, John C. (Ret'd, Specially Assigned), JJ. Opinion by Eyler, Deborah S., J.

Filed: October 4, 2005

In the Circuit Court for Baltimore City, Corey Caldwell, the appellant, was charged in two indictments with crimes arising from the shooting of Darian Nelson and the attempted shooting of Davon Jackson, in a single incident. a jury. In the Nelson case, the jury returned verdicts of not guilty of attempted first-degree murder and guilty of first-degree The charges were tried together to

assault, reckless endangerment, use of a handgun in the commission of a crime of violence, carrying a handgun, and discharging a handgun in Baltimore City. It did not return a verdict on the

charge of attempted second-degree murder. In the Jackson case, the jury returned a verdict of guilty of first-degree assault, reckless endangerment, use of a handgun in the commission of a crime of violence, carrying a handgun, and discharging a handgun in Baltimore City. It did not return a verdict on the attempted first-degree murder and attempted seconddegree murder charges. The court sua sponte declared a mistrial on the three counts on which no verdicts were returned. The reasons were that the

courthouse was closing in less than an hour because Hurricane Isabel was approaching Baltimore and the subways had been shut down; the courthouse likely would be closed the following day, due to the storm; one of the jurors could not return to deliberate the next business day thereafter, without losing a prepaid vacation the court and counsel had assured her, during voir dire, she would not

lose; and the defense was not willing to proceed with an 11-member jury. After denying a new trial motion, the court vacated one conviction for carrying a handgun and one conviction for

discharging a firearm in Baltimore City, and merged the remaining convictions on those charges. cases.1 The appellant noted a timely appeal. reordered his questions as follows: I. Did the trial court err by taking a partial verdict on the ten counts on which guilty verdicts were returned? Did the trial court err by declaring a mistrial on three counts? We have rephrased and It then imposed sentences in both

II.

III. Must the docket entries be corrected to properly reflect that the appellant was acquitted of attempted first-degree murder of Darian Nelson? IV. Did the trial court err by permitting the State to impeach the appellant with statements he allegedly made to a person who was not called as a witness? Did the sentencing court err by not merging the appellant's sentences for reckless endangerment into his sentences for first-degree assault?

V.

The appellant was sentenced to concurrent 25-year prison terms for the first-degree assault convictions; concurrent 20-year prison terms, the first five years without the possibility of parole, for the use of a handgun convictions, to be served concurrent to the first-degree assault sentences; and concurrent 5year prison terms for the reckless endangerment convictions, to be served concurrent to the first-degree assault convictions. 2

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We answer Question I in the affirmative and therefore shall reverse the ten judgments of conviction and remand the counts on which they are based to the circuit court, for further proceedings. Question II is not properly before us, because there is no final judgment on the three counts on which a mistrial was declared. We

answer Question III in the affirmative, and direct the circuit court to correct the docket entries to reflect that the verdict on the count of attempted first-degree murder in the Nelson case was not guilty. Because of our disposition of Question I, and because

it is highly speculative whether the issues will resurface on retrial, we shall not address Questions IV and V.

FACTS AND PROCEEDINGS
The key events in this case took place around 8:00 p.m. on September 3, 2002, on Berger Avenue in Baltimore City. Darian

Nelson, then ten years old, was standing in front of his family's house, at 4348 Berger Avenue, with his mother and two brothers. He

heard a sound like firecrackers and felt a burning pain in his side. He exclaimed, "firecrackers hit me." At the same time, a

man later identified as Davon Jackson ran past him on the street. Jackson continued around the corner, into the Nelson family's backyard. A few minutes later, Jackson emerged and apologized to

Mrs. Nelson, saying, "they were trying to shoot at me." Emergency medical workers and police arrived on the scene. Nelson was found to have suffered a gunshot wound and was taken to 3

the hospital. station house.

The police arrested Jackson and took him to the Jackson told them the shooter was a man he knew as

"Ron," who was angry with him because he thought Jackson was having an affair with Muriel Brewington, "Ron's" stepsister. is the mother of "Ron's" best friend's children. Jackson showed the police a house near the Nelsons' house where "Ron's" family was living. In a search of the house based on Brewington

a warrant, the police found information that led them to think the appellant and "Ron" were the same person. The police prepared a

photographic array that included the appellant's picture and showed it to Jackson. Jackson selected the appellant's photograph as

depicting "Ron," the shooter. As stated previously, the appellant was charged in two

indictments with crimes arising out of the shooting of Nelson and the attempted shooting of Jackson. The cases were tried together

before a jury beginning on September 11, 2003. The State called as witnesses Nelson, his two brothers, and his mother. They testified about the events surrounding the A neighbor, Michelle Coward,

shooting, as we have recounted them.

testified that she saw the appellant chase Jackson down Berger Avenue and fire a gun at him. She gave the police that information

on the day of the shooting, but told them she did not want to be involved. Nine months later, on June 8, 2003, the police showed She selected the appellant's picture

Coward a photographic array.

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from the array.

She testified that she was certain that the

appellant was the shooter. The State also called Brewington as a witness. She testified

that, in a telephone conversation the morning after the shooting, the appellant told her that he and Jackson had been "tussling" over a gun. When the State called Jackson to testify, he recanted his statement to the police. He testified that he and the appellant

were victims of an attempted robbery by an unknown third person. He said he had blamed the shooting on the appellant because he thought the appellant had "set up" the robbery. Ballistics evidence showed that two cartridge casings

recovered at the scene were fired by the same gun. The appellant testified in his own defense. He said he had

not known Jackson well but had been with him on the evening in question, before the shooting. They were approached by a third They

man, whom the appellant did not know, who tried to rob them.

ran in opposite directions. As he was running, the appellant heard gunshots. He did not have a gun and did not fire a gun. He never He

told Brewington that he and Jackson had tussled over a gun. thought Jackson had "set [him] up" for the robbery.

Another neighbor of the Nelsons, Darrell Brown, testified for the defense. He said that, on the night in question, he saw a man

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running up appellant. We

Berger

Avenue

with

a

gun.

The

man

was

not

the

Brown did not know the appellant. include additional facts as necessary to our

shall

discussion of the issues.

DISCUSSION I.
Did the trial court err in taking partial verdicts? (a) The jury was selected and sworn on September 11, 2003. evidence phase of the trial lasted three days: and 16. The

September 12, 15,

The case went to the jury for deliberation at about noon The jurors deliberated until 5:35 p.m., at which

on September 17.

time they sent a note saying they "ha[d] not decide [sic] a verdict yet. Please let us know when it's time to leave." The court

released the jurors for the evening. The jurors returned at 9:30 a.m. the next day, September 18, and resumed deliberation. In the days before September 18, Hurricane Isabel was moving north, on a path to strike the mid-Atlantic coastline. were calling for the hurricane to be severe. Forecasts

In anticipation that

it would be, and based on tracking information from the National Weather Service, the Governor of Maryland issued an Executive Order declaring a state of emergency as of 11 p.m. on September 16. Md. Regs. Code tit. 01,

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