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An unreported opinion from a court case in which Johnny Butler was indicted for the murder of Sintia Mesa. background information on the case, including the relationship between Butler and Jermarl Jones, the discovery of Ms. Mesa's body, and the testimony of witnesses. The analysis section of the document discusses the application of the Coconspirators Exception to the Hearsay Rule in this case. most likely a legal document or a summary of a legal case, and could be useful for university students studying law, particularly those focusing on criminal law or evidence law.
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UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2074 September Term, 2011
JOHNNY BUTLER v. STATE OF MARYLAND
Graeff,Friedman, Salmon, James P. (Retired, Specially Assigned), JJ.
Opinion by Salmon, J.
Filed: September 4, 2015
*document filed in this Court or any other Maryland Court as either precedent within the rule ofThis is an unreported opinion, and it may not be cited in any paper, brief, motion, or other stare decisis or as persuasive authority. Md. Rule 1-104.
On January 26, 2007, the lifeless body of Sintia Mesa (“Ms. Mesa”) was found naked in her car. She had been tortured and died from strangulation. On October 19, 2009, a grand jury in the Circuit Court for Baltimore City indicted appellant, Johnny Butler (“Butler”), along with one Calvin Wright (“Wright”), for first degree murder, conspiracy to commit first degree murder, and other crimes related to the death of Ms. Mesa.^1 After a six-day trial concerning the just mentioned charges, a jury convicted Butler of first degree murder, conspiracy to commit murder, and third degree sexual offense. The jury acquitted Butler of first and second degree rape. Butler was sentenced to life imprisonment for first degree murder, a consecutive life sentence for conspiracy to murder, and a ten-year consecutive sentence for the third degree sexual offense conviction. Butler filed this timely appeal and raises two questions, which we have reordered and reworded: 1).statement of Calvin Wright, Butler’s alleged coconspirator? Did the trial court commit reversible error in admitting the hearsay 2). Did the trial court erroneously permit the State to introduce testimonialstatements of a non-testifying medical examiner through the in-court testimony of another medical examiner?[2]
(^1) Prior to Butler’s trial, Calvin Wright pled guilty to the crime of conspiracy to murder Sintia Mesa. (^2) Butler phrased the questions presented as follows: (1) Did the trial court erroneously permit the State to introduce testimonialstatements of a non-testifying medical examiner through the in-court testimony of a medical examiner who did not make the ultimate determination(continued...)
A. Ms. Mesa’s Disappearance Ms. Mesa, the murder victim, operated a beauty salon called Coco Brown in Pikesville, Baltimore County, Maryland. On the morning of January 26, 2007, Ms. Mesa and her sister talked on the phone. During that phone conversation, Ms. Mesa said she was headed into work at her hair salon. She also said that because the weather was very cold, she was wearing “a black sweat suit and a mink coat.” Next, at 11:00 a.m. on January 26, 2007, Ms. Mesa sent her sister a text message. Her sister never heard from Ms. Mesa again. At approximately 9:00 p.m. on January 26, 2007, friends and relatives of Ms. Mesa became worried because they could not contact her. Two days later, on January 28, 2007, the police received a call notifying them that a cell phone had been found in a dumpster. It was later learned that the cell phone belonged to the decedent. The police searched the dumpster and found many items that belonged to the decedent. Among the items recovered in the dumpster were Ms. Mesa’s mink coat and her sweat pants. B. The Relationship Between Jermarl Jones and Butler Jermarl Jones, decedent’s boyfriend, testified that Butler knew him very well and that they spent a lot of time together before Ms. Mesa was killed. Nevertheless, in the period between June, 2006, and January 6, 2007, Butler and Jones saw each other much less frequently because there was a federal fugitive warrant out for his [Jones’s] arrest; the existence of the warrant caused Jones to do everything he could to elude capture including avoiding occasions when he would be in Butler’s company.
C. Gerald Wilkerson’s Testimony Gerald Wilkerson (“Wilkerson”), an acquaintance of both Butler and Jones, testified that at the beginning of 2007 he had a conversation with Butler about money. Butler told Wilkerson that he didn’t “mess with” Jones anymore because Jones owed him $50,000. Butler also told Wilkerson that he knew how to get Jones “where it hurt” and that was through “his girl.” He also said he knew where Jones kept his money.^4 D. Discovery of the Fact that Jones’s Money was Missing Randy Stealy (Mr. Stealy”), the manager and owner of Route One Self Storage, testified that in January of 2007, his facility was monitored by security cameras on a 24 hour per day basis. He testified that once the appropriate security code was punched in at the entrance to the facility, the computer would disarm the alarm to the unit being accessed. In regard to one of the storage units to which Ms. Mesa had access, Mr. Stealy testified that he found that the latch to that unit had been cut. He explained that a gate code had been used that allowed Ms. Mesa’s car to enter the facility on January 26, 2007. He further explained that when customers rent more than one unit, it takes more than one code to silence both
selling illegal drugs.^4 Wilkerson, like many of the witnesses that testified in this case, had a history of During his testimony, Wilkerson admitted that he was awaiting sentencing for a federal drug conspiracy conviction and that he had entered into a plea agreement with the U.S. Attorney’s Office in which the government had agreed to lower thefederal sentencing guidelines for his conspiracy conviction by two levels in exchange for Wilkerson’s testimony in the subject case.
explaining that he had rented two storage units; but one of the units was in the name of Ms. Mesa and the other was in his name. F. Testimony of Walter Horton Walter Horton, an acquaintance of Wright and Butler, testified that in January 2007, he was at a house located at 707 Macdill Way, Baltimore County, Maryland. The house was rented in Butler’s name and was used as a “social house.” Horton arrived at the social house at approximately 7:00 a.m. on January 26, 2007. Later that day, at approximately 5:00 p.m., Wright came to the social house and asked him to follow him out to the garage and to open it. Horton went to the garage, opened it, and watched Wright drive Ms. Mesa’s silver Toyota Solara automobile into the garage. At that point he saw Butler in the back seat of the vehicle. 5 Wright then asked Horton if he would give him a ride. Horton agreed to do so. Next, driving his own vehicle, Horton drove Wright to where Wright’s green Dodge Caravan was parked. According to Horton, the Dodge Caravan was parked in front of Coco Brown Salon which, as previously mentioned, was owned by the decedent. Afterward, Horton drove to a residence that he shared with his mother. When Horton was later interviewed by police officers, he selected Wright’s picture out of a photographic lineup as the person to whom he had given a ride to Coco Brown
indicated that he was not sure that Butler was the person he saw in the back of the vehicle.^5 Prior to trial, Mr. Horton made a statement to a law enforcement officer in which he
Salon. This identification was made on August 29, 2009, which was more than two and one-half years after the murder. At trial, over objection, Horton read to the jury what he wrote on the back of Wright’s photograph, viz. : I know Turkey [Mr. Wright] as one who, on the date Ms. Mesa’s car showed up at Butler’s rental home[;] I answered the door and he told me to leavebecause him and JR [Butler] were up to something, and he asked me [to] open the garage, and he drove Ms. Mesa’s car inside the garage. And then he asked me to give him a ride to where he had left his parked van, and it was inRandallstown, where Ms. Mesa was last seen at her hair salon. She had visited hours before. (Emphasis added.) Horton also testified that about two months after Ms. Mesa’s murder, at a price of about $27,000, Butler purchased nine pounds of marijuana from him. Butler paid in cash. G. Discovery of Ms. Mesa’s Body On January 29, 2007, Ms. Mesa’s Toyota automobile was found in the parking lot of an apartment complex located in the 5700 Block of Crest Way in Baltimore City. When Ms. Mesa’s body was found in the car’s trunk, it had numerous cut marks on it. H. Other Materials Found in the Dumpster Among the items found on January 28, 2007 in the dumpster near where Ms. Mesa’s cell phone was recovered, were other items belonging to the decedent including a shoulder bag, a wallet, and a black t-shirt with duct tape attached. Also found in the dumpster were floor mats from a car like the one owned by the decedent and a bag with a piece of duct tape stuck to it.
J. Motion In Limine, Autopsy Report, and Testimony of Mark Shelly, M.D. The autopsy of Ms. Mesa was performed by Dr. Mark Shelly on January 29, 2007. He testified that it took him between two and three hours to complete the autopsy. Before Dr. Shelly began his testimony, counsel for Butler made a motion in limine. The in limine motion was based on two grounds. First, appellant contended that Dr. Shelly was not qualified to give an expert opinion in this case. The second reason, was expressed by defense counsel as follows: “under Bullcoming [ v. New Mexico , 131 S.Ct. 2705 (2011)], Melendez - Diaz [ v. Massachusetts , 557 U.S. 305 (2009)], if Dr. Shelly were allowed to testify, the defendant’s right to confront witnesses would be violated under the Federal Constitution.” At the in limine hearing, Dr. Shelly testified that he had been licensed to practice medicine in Virginia since 1999. After he graduated from medical school at the Western University of Health Science in California, Dr. Shelly did his residency in pathology under the supervision of the “Armed Forces Medical Examiner System” in Maryland. In January, 2007, when he performed the Mesa autopsy, Dr. Shelly was doing his fellowship training in forensic pathology. Four months of that training was spent at the Office of the Chief Medical Examiner (OCME) in Baltimore. He was at the medical examiner’s office between November 2006 and March 2007. At the time of trial, Dr. Shelly was a Commander in the United States Navy and stationed at the Naval Hospital in Portsmouth, Virginia.
Dr. Shelly testified that as of the date of trial he had performed approximately 400 autopsies. His speciality was “[a]natomic and forensic pathology.” He has been board certified in anatomic and clinical pathology since 2005 and has been board certified in forensic pathology since 2007. During the motion in limine hearing, Dr. Shelly testified that in the four months that he was with the OCME in Baltimore, he performed autopsies “almost every day.” His duties, during his fellowship training, were to perform autopsies and to write a report concerning each autopsy he performed. Each autopsy report he wrote included his opinion as to the cause of death. During cross-examination, at the motion in limine hearing, Dr. Shelly admitted that at the time he performed the autopsy on Ms. Mesa, he was not board certified in forensic pathology. He also admitted that the autopsies that he performed were under the direct supervision of an assistant medical examiner at the OCME. When Dr. Shelly wrote his first report concerning Ms. Mesa’s autopsy, it was a preliminary report only. The final report was reviewed by Dr. Tasha F. Greenberg, an assistant medical examiner. He explained that although he performed the autopsy, Dr. Greenberg was in the same room and supervised his performance to make sure that the correct protocols and procedures were being followed. On cross-examination, defense counsel established that when the preliminary report was completed by him, it was not likely that the toxicology report had been completed. In
examined “skin samples” and Dr. Greenberg would then approve any preliminary findings that he made about those microscopic examinations. He concluded his testimony at the in limine hearing by testifying that there were no differences in the opinions and conclusions reached as reflected in the rough draft that he wrote and in the “finalized autopsy report.” At the conclusion of the motion in limine , the trial judge ruled that Dr. Shelly was qualified to testify as an expert and to testify about the autopsy he performed on Ms. Mesa’s body. Before the jury, Dr. Shelly related his background and credentials in accordance with his testimony during the motion in limine. Also, in his testimony before the jury, Dr. Shelly identified State’s Exhibit No. 39 as Ms. Mesa’s autopsy, which was prepared at the OCME. State’s Exhibit No. 39 was signed by Dr. Shelly, Dr. Greenberg, and by the Chief Medical Examiner for the State of Maryland, Dr. David Fowler. Before allowing the exhibit to be introduced, the trial judge asked defense counsel whether she had any objection; defense counsel replied “No. Your Honor.” The judge then said “there being no objection, so [the Exhibit is] admitted.” State’s Exhibit No. 39, under the caption “Opinion,” read as follows: This 25 year old, Hispanic female, SINTIA MESA, died of ASPHYXIA. Theinjuries identified at the time of autopsy are consistent with ligature strangulation, however a component of manual strangulation cannot beentirely ruled out. Additional injuries included abrasions and contusions on the upper extremities, buttocks, right thigh and left great toe, some similarly patterned to those on the neck, as well as a broken fingernail. The manner ofdeath is HOMICIDE.
During his direct examination, Dr. Shelly testified, without objection, that to a reasonable degree of medical certainty, the cause of Ms. Mesa’s death was “[a]sphyxia” and that the “manner of death” was “[h]omicide.” During Dr. Shelly’s direct testimony, four photographs of Ms. Mesa’s corpse were introduced. Dr. Shelly testified that the pictures fairly and accurately depicted what the decedent’s body looked like at the time he performed the autopsy. At that point in the trial, which was ten transcript pages after the autopsy report had been admitted into evidence, defense counsel said that she had “completely misspoke” when she said that she did not object to the autopsy report. The judge then admitted the autopsy photographs. Also admitted into evidence during Dr. Shelly’s testimony were the notes Dr. Shelly made contemporaneously with performing the autopsy. In his notes, Dr. Shelly diagramed the decedent’s body and then showed on that diagram where her injuries were located. Defense counsel objected to the notes being admitted into evidence because: 1) Dr. Shelly, purportedly, was not qualified to give a medical opinion in this case; and 2) the notes reflected “findings” that “would have had to have been reviewed by Dr. Greenberg.” The objections were overruled. Also during Dr. Shelly’s testimony, another diagram by Dr. Shelly was admitted. That diagram [State’s Exhibit No. 45] depicted the front and back of the decedent’s hands and showed the injuries to her hands. After the notes and diagrams were introduced, Dr. Shelly went over, in detail, all of the injuries and abrasions that he found on the decedent’s body and told the jury exactly where the injuries were located. On
(a) Statement by party-opponent. A statement that is offered against a party and is:
(5) a statement by a coconspirator of the party during the course and in furtherance of the conspiracy. In overruling the objection by defense counsel, the trial judge said: Your objection is noted. Your client is also charged with conspiracy in lightof the fact that the charge is before the court. The court overrules the objection in light of the conspiracy charge. Objection overruled. Butler argues on appeal that the trial judge “erred in admitting the alleged coconspirator’s hearsay statements on the basis that he [appellant] was charged with a conspiracy” along with Wright. Appellant points out that the rule in Maryland is that “before the declarations of one conspirator are admissible against a coconspirator, the existence of the conspiracy and the connection of the coconspirators therewith must be established.” In support of that argument he cites Mason v. State , 18 Md. App. 130, 136-37 (1973). Butler also argues that the aforementioned rule is applicable where, as here, declarations of the coconspirator are sought to be introduced through a third person, such as Horton. Butler maintains that Horton should not have been allowed to testify as to what the coconspirator (Wright) told him (Horton) until Butler’s connection with the conspiracy “is prove[n] by evidence aliunde
(evidence independent of the declarations themselves).” For this proposition, Butler cites, once again, Mason , supra. The State counters: Butler challenges the existence of independent evidence of a conspiracy, and that the statement was made in the course of and infurtherance of the conspiracy. The record does not support his contention.
court had also accepted Wright’s guilty plea to conspiracy to commit murderAs the [trial] court noted, Butler was charged with conspiracy. The at a proceeding a few days prior to the start of Butler’s trial. This included a factual recitation that Wright and Butler arrived at Horton’s home and askedto store Mesa’s car in his garage, and that Wright asked Horton to drive him back to Horton’s van, parked near Mesa’s hair salon.sufficient to allow the court, in its gatekeeper role, to determine that there was This, alone, was sufficient evidence of a conspiracy; Wright had admitted to it in open court. It was not clearly erroneous for the trial court to take judicial notice of thisfact, as it had occurred before the same judge only a week earlier. See Md. Rule 5-201 (court may take judicial notice of “adjudicative facts.”) (References to record omitted.) We reject the State’s argument that the “foundational requirements” were met by the fact that both appellant and Wright had been indicted for conspiracy, coupled with the fact that Wright had pled guilty to being a coconspirator with Butler before the same judge as the one who presided at Butler’s trial. The general rule setting forth and explaining the coconspirators’ exception to the hearsay rule, as applied in Maryland, can be found in McLain , Maryland Evidence–State and Federal, Volume 6A (2 nded. 2001) § 801(5):1(b) (hereinafter “ McLain ”), which states:
appellant and Wright were coconspirators and that the statement by Wright was made “in the course of and in furtherance of the conspiracy.” According to the State, the only “error” on the part of the trial judge was that the judge allowed the hearsay statement into evidence too early. Viewed in that manner, the error was harmless, beyond a reasonable doubt, according to the State. The State words its argument as follows: Harmless error exists when “a reviewing court, upon its own independentreview of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict[.]” Dorsey v. State , 276 Md. 638, 659 (1976).grounds for a new trial. Thus, “[e]very error committed by a trial court is not Reversible error will be found and a new trial warranted only if the error was likely to have affected the verdict below. Ifthe error is merely harmless error, then the judgment will stand.” Conyers v. State , 354 Md. 132, 160, cert. denied , 528 U.S. 910 (1999) (citations omitted). To the extent that the error was in the lack of sufficient foundation to establishthe existence of a conspiracy at that point, the State presented copious evidence of such a conspiracy in the rest of its case-in-chief, and the only“error” would have been in admitting the statement while Horton was on the stand, rather than admitting it provisionally conditioned upon the presentation of additional facts.evidence that DNA testing had found mixed samples of biological evidence Md. Rule 5-104. After Horton testified, there was on Mesa’s body consistent with a mixture of Mesa, Wright, and Butler. Further, there was testimony that Mesa disappeared sometime between 11 a.m.and 9 p.m. on January 26. Moreover, there was testimony that over $100, was missing from the storage unit which had been broken into on theafternoon of Mesa’s disappearance. If the previously discussed evidence were not enough [i.e., the evidence introduced before Horton testified] that evidence combined with the DNA evidence, the estimated time of Mesa’sdisappearance, and Butler’s financial recovery immediately after the theft of $100,000 from Mesa’s storage locker, was sufficient to establish the existence of a conspiracy involving both Butler and Wright when they arrived at the“social house” on the afternoon of January 26. Because this information was part of the State’s case-in-chief, Butler suffered no harm in allowing Horton
to relate Wright’s statement before the testimony of the DNA analyst andMesa’s sister.
(Emphasis added, references to record omitted). In the excerpt just quoted, the State accurately summarizes the evidence (showing that a conspiracy existed) that was admitted after the admission of the statement indicating that Wright had asked Horton to leave because Wright and appellant “were up to something.” Moreover, earlier in its brief, the State accurately summarized the evidence of a conspiracy that was admitted into evidence before Horton quoted Wright as having uttered the remark that he and appellant were “up to something.” The last mentioned summary was as follows: [P]rior to Horton’s testimony regarding Wright’s statement, the State had produced evidence showing that Mesa’s Toyota Solara, with Mesa’s body inthe trunk, was found in an apartment complex in the Park Heights neighborhood of northwest Baltimore. They were notified that on the afternoon of January 26, someone had entered a self-storage complex usinga passcode for a storage unit Mesa was authorized to access, but then went to another storage unit in Mesa’s name and broke the lock. And the State provided evidence that on the same afternoon, January 26, Horton was at a“social house” he rented with Mr. Butler when Mr. Wright arrived, rang the doorbell, and told Horton to leave. Horton then went outside with Wright and opened the garage door, and saw Wright pull Sintia Mesa’s Toyota Solara intothe garage. Horton saw Butler in the back of the car. Then, in response to a request from Wright, Horton drove Wright to Wright’s van, parked in frontof Mesa’s hair salon on Liberty Road. Wright and Butler, Horton observed, “were always together.” Further, Horton believed that Butler was in financial straits at the time he saw Butler and Wright bring Mesa’s car to the garage, butafter the murder, Butler paid Horton $27,000 for nine pounds of marijuana.
(References to record omitted).
