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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND Consolidated Cases No. 1770, September Term, 2010

CLAYTON COLKLEY v. STATE OF MARYLAND ________________________________________

No. 1764, September Term, 2010

DARNELL FIELDS v. STATE OF MARYLAND _________________________________________ Eyler, James R.,

Matricciani, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.

Opinion by Moylan, J.

Filed: April 26, 2012

In a retrial, the appellants, Clayton "Coco" Colkley and Darnell "Pooh" Fields, were convicted in the Circuit Court for Baltimore City by a jury, presided over by Judge George L. Russell, III. Colkley was found guilty of second-degree murder, attempted first-degree murder, conspiracy to commit first-degree murder, the illegal use of a handgun, and two counts of unlawfully wearing or carrying a handgun. Fields was convicted of conspiracy to commit first-degree murder, second-degree assault, and the unlawful wearing or carrying of a handgun. In this consolidated appeal, we must address a veritable decathlon of challenges.
The Opening Round The crimes in this case were committed almost a decade ago, on May 28, 2003. Following an initial jury trial, presided over by Judge John M. Glynn in March of 2005, both Colkley and Fields were convicted in a variety of crimes. Both appealed to this Court. On February 2, 2007, we filed an opinion in Fields v. State, 172 Md. App. 496, 916 A.2d 357, cert. denied, 399 Md. 33 (2007), in which we reversed the convictions because of an improper response to a note from one of the jurors. The case was remanded for further proceedings. The Final Round The retrial before Judge Russell and a jury consumed eleven trial days. Colkley was convicted of the second-degree murder of James "Buck" Bowens, the attempted first-degree murder of William Courts, conspiracy to commit the first-degree murder of William Courts, and various handgun offenses. Fields was also convicted of conspiracy to commit the firstdegree murder of William Courts, a second-degree assault on William Courts, and a handgun

charge. Although Yvette Hollie, as unintended collateral damage, was shot in the arm and hospitalized, none of the convictions was based on the attack on her. The Back Story The May 28, 2003 crimes constituted a single skirmish in an ongoing turf war between two rival drug-selling organizations in Baltimore City. In the larger picture, which inevitably intrudes itself into the narrative of May 28, 2003, there are so many murderers, accomplices of murderers, hirers of murderers, murder victims, and intended murder victims, all of whom have both legal names and wildly unrelated street names, that it is impossible to follow the game without a well-annotated scorecard. If we appreciate from the opening scene that the appellant Clayton Colkley was a contract killer, the whole story will be a lot easier to follow. The accessory-before-the-fact who hired Colkley as a hit man was Eric Horsey. Horsey was the head of a major drugdistributing operation in East Baltimore. The apparently smaller but rival drug organization was run by the brothers William and David Courts. Their operation distributed drugs from a geographic base centered on the intersection of Lafayette Avenue and Port Street, also in East Baltimore. It was the William and David Courts group that was the target of the May 28, 2003 shooting spree in the 1700 block of Port Street. Bad blood between Horsey and the Courts brothers had been brewing for at least five months. In January of 2003, David Courts had shot two of Horsey's close associates in front of a Teamsters' Hall. Killed was a man known as "Tool," who was Horsey's best friend.

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Wounded was a man known as "Gigit," who was Horsey's brother. For the next month or so, Horsey went on a revenge-inspired shooting spree, by his own admission shooting "quite a few individuals" in the area of Port Street and Lafayette Avenues. Jermaine "Polish" Lee, a member of the Courts brothers' group, was shot, along with several other members of the group, while "standing around Lafayette and Port." It was in March of 2003 that Colkley first peddled his services to Horsey as a hired gun who, for a price, offered to eliminate both William Courts and David Courts. The deal with Horsey was then on and off for several months. It was Colkley who led the executionstyle raid of May 28, 2003. Horsey refused to pay him, however, when it came to light that one of the two desired targets, William Courts, had survived even after receiving ten bullets at point-blank range. When Colkley and Brian "Bee" Smith were successful in killing David Courts on the very next day, however, Horsey readily paid them $10,000 for the job. This background is the context for a full understanding of what happened on May 28, 2003.

May 28, 2003: Armageddon Instead of the Earps versus the Clantons, May 28, 2003 was scripted to be the showdown between Horsey and the Courts brothers, although neither Eric Horsey nor David Courts literally showed up at the corral that day. A key witness to the events of that day was Jermaine Lee. Lee was a part of the Courts brothers' organization. He was sitting on the steps of a house in the middle of the 1700 block of Port Street with William Courts and James Bowen when a car pulled quickly around the corner and stopped in front of them.

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The sound of the car startled the three men, who were "on point" (on their guard) as a result of the series of shootings that had been going on since January. They let down their guard immediately, however, when Bowens recognized the driver of the car as the appellant Darnell "Pooh" Fields, saying, "Nah. That car's cool. That's Pooh's car." Lee testified that he also knew Fields from prior drug deals and had no reason to fear him. He described the car as a "cream colored" older model car, possibly a Grand Marquis, with tinted windows. After signaling to the others that there was no danger, Bowens approached the passenger side of the car "with his hand on his dip." At that moment, however, the passenger door swung open, the appellant Colkley dove out in "a falling motion," and Colkley shot Bowens in the chest from a distance of about the length of a car door. Despite being shot, Bowens ran in the direction of Lafayette Avenue. Lee ran as well. As he did so, he noticed that the other occupants of the car had also opened their respective car doors and were firing guns. Lee fled through an alley to a friend's house, from which he called an ambulance to the scene. He then ran to Lafayette Avenue where Bowens was lying on the ground, bleeding. Lee then returned to Port Street, where he found William Courts also lying on the ground, badly wounded. Lee left the scene without waiting for the ambulance to arrive. Later that evening, Lee did go out with David Courts in an unsuccessful retaliatory effort to find Colkley and Fields. Two days later, Lee learned that David Courts had been shot and killed. After his arrest on July 2, 2003, Lee, through a series of photo arrays, identified both Colkley and Fields to the police as two of the May 28 shooters.

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The post-mortem examination showed that Bowens had died from a single gunshot wound to the chest. At the Johns Hopkins Hospital, William Courts survived,

notwithstanding having received ten gunshot wounds at point-blank range. Yvette Hollie, who was not involved with either of the drug-distributing organizations, was simply visiting with friends at 1702 Port Street when she heard "a whole lot of shots" coming from down the street. As she tried to lead a child inside the house, she was shot in the arm. In the taped statement Qonta Waddell gave to the police on July 2, 2003, which was played for the jury, Waddell stated that he, a member of the Courts brothers group, had been standing at the top of Port Street when the Grand Marquis drove down the street and stopped. He heard James Bowens approach the car and say, "That's Pooh." He then saw four people get out of the car and start shooting. Waddell hid behind a van until the shooting was over. From photo arrays, he later identified three of the gunmen as the appellant Colkley, the appellant Fields, and Edwin Boyd, who was later murdered after Colkley discovered that he was turning over information to the police. The taped statement that Edwin Boyd had given to the police was also played before the jury. In that statement, Boyd said that he had been a part of the execution squad that drove to Port Street under the command of Colkley. When the shooting began, Boyd himself was in a one-on-one confrontation with Broderick Campbell, a member of the Courts brothers organization, and he, Boyd, took a bullet in the eye, ultimately losing the eye.

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Eric Horsey, although he did not testify at the first trial, was a key witness at the retrial. As we have already fully described in setting out the background for May 28, 2003, Horsey testified as to Colkley's having solicited the job of hit man for both William and David Courts. He testified as to how Colkley, on the morning after the May 28 shootings, boasted about killing William Courts, describing how he had stood over Courts's prostrate body and put ten bullets in him, in his chest, stomach, side, back, hip and arm. When it was learned that William Courts was not dead, however, Horsey refused to pay Colkley for that job. In the world of Murder for Hire, the effort does not count; only the result matters. When a day or two later, Colkley reported that he had killed David Courts and that fact was then verified, Horsey paid Colkley $10,000 for the successful "hit." The ballistics survey of the scene indicated that at least four (but possibly more) handguns had been fired, including one .45 caliber handgun, two nine millimeter handguns, and one .38 caliber or .357 caliber handgun. Except for Broderick Campbell, one of whose bullets hit Edwin Boyd in the eye, the Port Street target group was able to get off very little, if anything, by the way of defensive fire. Neither Colkley nor Fields have challenged the legal sufficiency of the evidence to support their convictions. Their complaints are procedural. The Contentions Both appellants raise the following four questions: 1. Did the trial court err in excluding "exculpatory" testimony by one of the alleged victims, William Courts, from the first trial? -6-

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Did the trial court err in denying appellants' request for a missing witness instruction relating to William Courts? Did the trial court err in denying appellants' motion for a new trial after it was discovered that the jury conducted independent investigation during deliberations? Did the trial court err in refusing to disclose to the defense Baltimore Police Department Internal Investigation Division files concerning misconduct by officers who testified for the State and later in refusing to allow appellants to cross examine the officers about misconduct?

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Colkley alone raises five additional questions: 5. Did the trial court err in admitting a taped statement by a witness who died prior to retrial on the ground that appellant Colkley procured his unavailability? Did the trial court err in permitting the State to elicit a detective's opinion of Colkley's credibility? Did the trial court err in admitting improper lay opinion testimony? Must Colkley's convictions be reversed as a result of the State's failure to fulfill its discovery obligations? Did the trial court impose an illegal sentence on Colkley?

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Fields alone raises a single question: 10. Did the trial court impose an illegal sentence on Fields, giving him a greater sentence than he had received at his first trial?
I. Prior Testimony of William Courts Both appellants were convicted of conspiring to murder William Courts. Colkley was

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also convicted of the attempted first-degree murder of William Courts. Fields was convicted of a second-degree assault on William Courts. The targeted victim, William Courts, testified at the first trial in March of 2005. Because of his intervening conviction for perjury, however, William Courts was no longer competent to testify at the retrial in February of 2010. Because of Courts's unavailability as a witness at the retrial, both appellants offered in evidence his recorded testimony from the first trial. The State objected. Judge Russell ruled that the recorded testimony from the first trial was not admissible. The appellants now contend that they were thereby erroneously denied their right to offer "exculpatory" testimony. This seemingly simple contention proliferates into an omnibus cluster of subcontentions. A. "Exculpatory" Versus "Non-Inculpatory" Although our first observation is by no means critical to our ultimate resolution of the larger contention, it is in our judgment worthy of note. We must raise an eyebrow at the zeal with which both appellants brandish the adjective "exculpatory." With reference to the content of Courts's earlier testimony, both appellants rely on Judge Davis's summary of that testimony in Fields v. State, 172 Md. App. at 504-05: Neither Courts nor Hollie identified appellants as the shooters. Courts testified that, at the time of the shooting, he was sitting by himself on the steps of a house in the middle of the 1700 block of Port Street drinking beer and Jack Daniels. Bowens or "Buck" was down the street. At some point, Courts heard a car slam on its brakes. The car was gray and had "dark tinted" windows. Someone wearing a baseball cap - Courts did not see who as he kept his head down - "hopped out" of the car and shot him. Courts attempted to flee, but fell to the ground

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and the gunman stood over him and continued shooting. Courts was later taken to Johns Hopkins Hospital, where he was treated for ten gunshot wounds to his chest, stomach, side, back, hip and arm. Courts subsequently learned that Bowens and Hollie had also been shot and that Bowens had died. Courts did not recall Bowens saying anything to him or to anyone in the gray car prior to the shooting. He also was not acquainted with Colkley or Fields and did not know why anyone, including Colkley and Fields, would want to kill him or Bowens. (Emphasis supplied). Unlike defense counsel, we do not interpret that testimony as "exculpatory." It was valuable to the State at the first trial, of course, because it at least helped to establish the corpus delicti of the crimes. In terms of establishing the criminal agency of his assailants, on the other hand, Courts's testimony offered nothing for the self-evident reason that he had allegedly kept his head down and did not even look at his assailants. In terms of criminal agency, the testimony was neither inculpatory nor exculpatory. It was frustratingly neutral; perhaps he was keeping faith with the code of the street. In any event, William Courts did not say that Colkley shot him, but neither did he say that someone other than Colkley shot him. Nor did he say that Colkley did not shoot him. His impact on criminal agency was, for whatever reason, zero. In State v. Giles, 239 Md. 458, 469, 212 A.2d 101 (1965), the Court of Appeals commented upon the necessary content of the term "exculpatory": While we agree that evidence which is claimed to have been suppressed must be reasonably considered to be admissible and useful before suppression may be said to exist, this is not the sole test in

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determining when a suppression of evidence can be said to amount to a denial of due process. Not only must the evidence withheld be admissible and useful, but it must be such, if it had been offered in evidence, as would be capable of clearing or tending to clear the accused of guilt -- i.e., it must be exculpatory. For a definition of "exculpatory" see Dean v. State, 381 P. 2d 178 (Okl. 1963). (Emphasis supplied). That Oklahoma case of Dean v. State, to which State v. Giles referred, offered its definition of "exculpatory" at 381 P.2d 181: 'Exculpatory' is defined in Webster's Dictionary as 'clearing or tending to clear from alleged fault or guilt'. The various jurisdictions have adhered basically to this definition. The State of Texas in the case of Moore v. State, 124 Tex.Cr.R. 97, 60 S.W.2d 453, said that 'Exculpatory' means clearing or tending to clear from alleged fault or guilt; excusing.' In the case of State v. Langdon, 46 N.M. 277, 127 P.2d 875, used the following language: 'The word 'exculpate' is employed in the sense of excuse or justification.' (Emphasis supplied). Our point is that all that is non-inculpatory is not thereby exculpatory, just as all that is non-exculpatory is not thereby inculpatory. The absence of a quality is not the same thing as the opposite of that quality. There is a wide "No Man's Land" of neutral connotation between the opposing verbal trench lines. The world is not necessarily black or white. In any event, this is nothing more than a passing observation on the uses and abuses of language and an affirmation that things are sometimes gray. B. Perjury and Testimonial Incompetence As of the retrial of this case, it is indisputable that William Courts was unavailable as

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a witness. In the Circuit Court for Baltimore City in September of 2009, Courts was found guilty, upon his plea of guilty, of perjury. Pursuant to Maryland Code, Courts and Judicial Proceedings Article,

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