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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 3043 September Term, 2007

RAYMOND CARROLL HANDY v. STATE of MARYLAND

Eyler, James R., Woodward, Sharer, J. Frederick (Retired Specially Assigned) JJ.

Opinion by Sharer, J.

Filed: October 26, 2011

Appellant, Raymond Carroll Handy, was charged in the Circuit Court for Baltimore City with the first degree murder of Mark Christopher Jones, use of a handgun in the commission of a felony and crime of violence, and wearing, carrying, and transporting a handgun. Appellant's first jury trial ended in a mistrial on March 27, 2006. At the conclusion of appellant's second trial on December 13, 2007, the jury found him guilty of all three crimes. Appellant was sentenced to life imprisonment for the first degree murder, consecutive to a sentence already being served, followed by a consecutive sentence of 20 years for use of a handgun, the first five years without possibility of parole. The remaining handgun conviction was merged. In his timely appeal, appellant asserts, as slightly rephrased, that: 1. The trial court erred in admitting into evidence portions of his statement made to police. 2. The trial court erred by failing to disclose notes received from the jury and by failing to comply with Maryland Rule 4-326 governing communications with the jury. 3. The evidence is legally insufficient to sustain the convictions. Finding neither error nor abuse of discretion, we shall affirm.

FACTUAL BACKGROUND
Mark Jones suffered fatal wounds in a shooting that occurred in the 2900 block of Greenmount Avenue in Baltimore City on May 1, 2005. He sustained three gunshot wounds to his back, one to the back of his left thigh, and one to his right forearm. The medical examiner who performed the autopsy opined at trial that Jones died as a result of multiple gunshot wounds, and that the manner of death was homicide.

Duvalle Johnson, a firefighter/paramedic with the Baltimore City Fire Department, testified that on May 1, 2005, she was training with another firefighter paramedic, David Couvillion. During that afternoon, Johnson and Couvillion were traveling northbound on Greenmount Avenue in a medic unit, driving from a nearby hospital to the fire station located at Greenmount Avenue and 32nd Street. They observed the victim, Mark Jones, and appellant walking on the southbound side of Greenmount Avenue. After stopping briefly at the fire station, Johnson and Couvillion continued driving several blocks south on Greenmount Avenue. Appellant and Jones, apparently carrying a bag of groceries, were still walking southbound. Johnson testified that, as she stopped the medic unit at a traffic light, she saw appellant remove a handgun from his waistband and point the gun at Jones. Jones turned to see appellant, and then tried to run away. At that point, appellant fired four or five shots in quick succession. Johnson, who was only 15 feet away from the shooting, clarified that she saw the first gunshot and heard the remaining shots. After the shooting, appellant, described as being five feet nine or ten inches tall, with a medium to light-brown complexion and with cornrows in his hair, ran north on Greenmount Avenue. As Couvillion described the events to their dispatcher, Johnson stopped the medic unit and began to treat Jones, who was unable to speak at the time. Johnson cut Jones's shirt off and noticed two holes in his chest. Jones was transported to Johns Hopkins Hospital. At appellant's second trial, Johnson identified appellant in court as the person who shot

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Jones. However, on cross-examination by appellant's counsel, Johnson agreed that she was shown a photo array on December 30, 2005, by Detective Robert Dohony, and was unable to make an identification of the shooter at that time. At the conclusion of the State's case-in-chief, Johnson was re-called as a defense witness. A videotaped portion of her testimony from the prior trial was played for the jury. The tape revealed that when Johnson was asked at the first trial whether she recognized the individual she saw shoot the victim, she replied, "I cannot say with 100 percent certainty that I do right now." Johnson did not recall whether she identified appellant at the prior trial. Also during the defense case, Johnson was asked on cross-examination, whether she remembered saying that she recognized appellant as the shooter. Johnson replied that "I said it at a point, but it wasn't in the courtroom when I did it. The initial time, that was the first time that I actually saw him in person." Johnson testified that she "didn't exactly feel comfortable at that point when I looked at him, because I only seen him in passin', and then when I looked at him in court, I didn't honestly feel exactly comfortable and a hundred percent sure sayin' it right then and there when I said it." When asked whether she was certain of her identification of appellant during the second trial, Johnson replied: "I felt a hundred percent certain sittin' right there in that chair lookin' at the Defendant in his eyes that I saw that shoot. [sic]" On redirect, Johnson denied that her identification of appellant was based on the fact that she saw him at the prior trial because, according to Johnson, "I have nothin' to gain by doin' it."

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David Couvillion, of the Baltimore City Fire Department, testified in the State's casein-chief that he was a firefighter/paramedic on May 1, 2005, and that he was the passenger in the medic unit being driven by Johnson. While they were driving, Couvillion heard gunshots and saw appellant shooting the victim, Mark Jones. Couvillion testified that he heard five shots and that he actually saw a black handgun being fired. He also saw appellant run past the medic unit, proceeding north on Greenmount Avenue until he turned left onto 30th Street. Couvillion further testified that appellant's hairstyle at trial was different because his hair was styled in cornrows on the day of the shooting. Couvillion began treating Jones, who was "obviously in, in a lot of trouble. He had obvious gunshot wounds to his chest and after that he pretty much stopped breathing." Couvillion and other paramedics attempted to advance an airway into Jones's throat and administered various drugs via an IV to attempt to restart his heart. Couvillion also went with Jones to Johns Hopkins Hospital, where he stayed for approximately two hours. Later that day, Couvillion spoke with police and was asked to look at a photo array. Couvillion identified appellant's photograph and then wrote on the back, "[a]s best as my recollection serves, serves me, the individual that I have selected on the back of this form is the man that closely resembles the man that I witnessed shooting another man." When asked to explain why he indicated the photograph "resembles" the shooter, Couvillion explained that "the shooting occurred in a very dynamic and fluid setting and, and this picture is, is a 2-D representation of a man looking directly in my eyes, which is, you know,

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not exactly the way that it transpired on the street." Couvillion testified that he did not have any doubt that the person he identified was the person who shot Jones.1 Couvillion gave further detail about the location of the shooting and how long he observed appellant and Jones. Couvillion testified that he observed appellant for "a total of 10 seconds, ya know, from the beginning of the shooting to when he passed the medic unit to when he went around the corner." Couvillion was asked how he could be so certain, and he replied that having a person shot in front of you "kinda stays with you" and that "it's very, it's extremely vivid." Couvillion further testified: When I heard the first two shots, I wasn't looking directly at them, but those first two shots brought my attention directly back to those two individuals who at that time were, it appeared to be they were walking towards me and the, Mr. Handy had come around from his left side and was shooting at, it looked like from my perspective in the chest and running back this way towards 30th Street and maybe three or four more shots after that.2 Theresa Manley testified that she was in the area near the shooting on May 1, 2005, and she saw appellant shoot Jones. Although Manley did not see a gun, she heard the gunshots. Manley testified that while she did not know appellant, she had seen him in the neighborhood on prior occasions. On July 6, 2005, Manley identified appellant in a photo
Couvillion was then asked by the court about the basis for picking appellant's picture and what effect the cornrows had on his selection. As these questions were based on questions proposed by the jury, and as they are the subject of appellant's second issue presented, we will provide more detail in the following discussion. After he testified concerning photographs of appellant with different hairstyles, Couvillion's direct examination concluded with the court asking another juror question about whether and when Couvillion saw appellant's face. Again, further detail will be provided in the following discussion of appellant's second issue presented. 5
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array and wrote on the back of that array that "[t]his is the guy that I saw shoot Floyd on Greenmount Avenue." Manley explained that she knew both Mark and Floyd Jones and that the brothers looked similar. On cross-examination, Manley admitted that she gave a statement to police, in which she said she saw the shooter get out of a car, walk over, then shoot the victim. She told police that the shooter got back into a car and left the scene. She also stated that she heard the victim say, "I've been shot." After being asked to clarify her testimony, Manley, who earlier admitted to having problems with drugs, replied, "[y]ou know, on that day, I mean, I really don't really remember." However, Manley testified that she saw appellant's face as he ran across the street after the shooting. Kanakia Feagins testified that, after she was arrested in 2005 on a charge of drug distribution, she gave a statement to police concerning the shooting of Jones on May 1, 2005, on Greenmount Avenue. Feagins testified that she was on Bethel Avenue on or about May 13, 2005, when she encountered appellant. At that time, appellant had a handgun in his hand and "was mad" and yelling. When asked what appellant said, Feagins replied that appellant said "[h]e was going to teach people about messin' with his family and that's all I know." She testified that appellant also told her that he shot someone three times in the back in broad daylight, and that he was going to "kill the rest of `em." Feagins identified a photograph of appellant in a photo array.

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Feagins testified on cross-examination that she was told that the person she saw on the street was named Michael Poole. Feagins was given this information by a fellow drug user named Howard, who claimed that Michael Poole was his nephew. She also admitted that she was using drugs and was "high" at the time. On redirect examination, Feagins testified that she actually did not know the name of the person who was waving the gun, but she was positive that it was the same person she picked out in a photo array. Floyd Jones, the victim's younger brother, testified that Mark Jones was living near 25th Street and Greenmount Avenue, in May 2005. After being informed that his brother had been shot, Floyd Jones went to his brother's house, where he spoke with Detective Robert Dohony. Floyd Jones told the police that his brother "had been in some trouble in the past with certain people and these certain people, now they're home and was threatenin' my brother's life." When asked to explain, Floyd Jones testified that he knew that appellant had just returned from prison and that appellant lived near his brother's house. Floyd Jones knew appellant from the neighborhood and testified that appellant's nickname was "Yuck." Floyd Jones further testified that a person named Michael Poole had been shot five years earlier, and there were rumors in the neighborhood that Mark Jones was somehow involved in that shooting. Floyd Jones did not have reason to believe that his brother had any problems with Michael Poole, and he also did not know of any relationship between appellant and Poole.

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Michael Poole testified that he knew appellant and that his daughter was appellant's cousin. When asked if he knew that appellant, who called Poole "Unc," had identified Poole as the person who shot Mark Jones, Poole testified that he "never heard him say that directly, that I was the one, so I can't comment on that." When asked to assume that appellant identified him as the shooter, Poole replied that he did not know why appellant would say that. Poole testified that he learned that Mark Jones had been shot by reading about it in the newspaper. Poole also testified that he did not ask his brother "Brad," to obtain a gun for him in 2005; that he never told appellant in a telephone conversation that he shot Mark Jones;3 that he was shot in 1999, but that he did not recall being shot by Mark Jones; and that he had heard the nickname "Jabo," and believed that referred to a brother of Mark Jones. Poole further testified that he was five feet, five inches tall and weighed approximately 230-240 pounds in 2005; was dark complected and always wore his hair short, and not in cornrows. Poole also admitted that he told police that he heard that appellant's nickname was "Yuck." Detective Robert Dohony, of the Baltimore City Police Department's Homicide Unit, testified that he responded to the scene of the shooting on May 1, 2005, where he met with, and was briefed by, Officer Jean Nolet. Dohony also spoke to the Jones family and, as a

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"Brad's" last name does not appear to be included in the record. 8

result, appellant became a possible suspect. Dohony also spoke to Manley and Feagins and showed each of them a photo array. Both Manley, a witness to the shooting, and Feagins, identified appellant as the shooter. Dohony spoke to the firefighter/paramedics who witnessed the shooting, and he testified that Johnson initially was unable to make an identification from a photo array. Johnson informed the detective that she could identify appellant if she saw him again, and Detective Dohony believed that Johnson did, in fact, eventually identify appellant. The other firefighter paramedic, Couvillion, made an identification of appellant. Dohony told the jury that he learned of a possible connection between appellant and Jones, based on the prior shooting of Michael Poole. Poole and appellant were related. After testifying that Feagins informed police that she saw appellant waving a gun, and saying that "he had shot someone who had done something to his family in the past," Dohony further explained that the investigation of the Poole shooting revealed that the shooting was related to money owed as a result of a dice game. Mark Jones was involved in that game. In his investigation, Dohony spoke with Poole about that incident and whether he had any connection with the murder of Jones. Poole was not considered by the police as a suspect in the murder because he did not match the descriptions given of the shooter. Poole was shorter, balder, heavier, and darker-complected than the person the witnesses described as the shooter. The suspect in the Jones shooting was described as a black male in his late

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20's, about 5'9" to 5'10", and with a cornrow hairstyle. A photograph of appellant, taken when he was arrested on July 19, 2005, was admitted into evidence. Forensic evidence was also admitted at appellant's trial. Shell casings were recovered near the scene of the shooting, suggesting that the weapon used was a semiautomatic gun. A firearms expert opined that the shell casings were all fired from the same firearm. We shall provide additional facts as necessary to our discussion.

DISCUSSION
1. Appellant's statement to police After being taken into custody, appellant waived his rights under Miranda 4 and made a statement to police. During Dohony's direct examination, the court permitted portions of that statement to be read to the jury. In this respect, appellant asserts that the court erred.

Prior to hearing testimony on the second day of trial, and after Michael Poole had testified on the first day, appellant's counsel objected to the State playing a recording of appellant's statement to police on the grounds that the statement was hearsay, testimonial, and had no probative value. Specifically, counsel argued: [I]t's hearsay. It's definitely an out of court statement. It's being used to prove the fact that Mr. Handy said these things, Your Honor. And I don't believe it falls within any of the exceptions. It's not an exception against any penal interest because he didn't make [sic] anything that would be inculpatory in these statements, Your Honor.

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Miranda v. Arizona, 384 U.S. 436 (1966) 10

Appellant's counsel further contended that there were no admissions in the statement and, in fact, there were several denials made by appellant. The State responded that the statement was admissible as a statement of a party opponent. The court ruled as follows: THE COURT: Well, I think you're both right, actually. The whole statement doesn't come in because

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