Legal Opinions - Maryland Court of Appeals: April 28, 2008

Daily Record, The (Baltimore), Apr 28, 2008

The Maryland General Assembly's omission of the term "fictitious person" further persuaded the Court that the Legislature did not prohibit the use of a fictitious person's identity within the meaning of CR [section]8-301(c).

Finally, the Court's interpretation of CR [section]8-301(c) is consistent with the statute's legislative history. Although CR [section]8-301(b) and (c) define separate crimes, the structure of CR [section]8-301 indicates that the Legislature intended to prohibit, in [section]8-301(c), the use of the same information it prohibited obtaining or possessing in [section]8-301(b).

DISSENT: The dissent believed that the majority's conclusion that the phrase "identity of another" is ambiguous was error and that the evidence in this case was clearly sufficient to convict Ishola of identity theft.

Criminal Law

Jury Instructions

BOTTOM LINE: Trial court's refusal to give a requested jury instruction on credibility of a drug user or drug addict witness was not error.

CASE: Desmond Ellison Dickey v. State of Maryland, No. 23, September Term, 2007 (decided Apr. 15, 2008) (Judges Bell, RAKER, Harrell, Battaglia, Eldridge (retired, specially assigned), Wilner (retired, specially assigned) & Cathell (retired, specially assigned).

FACTS: Desmond Dickey was indicted by the grand jury for the offenses of first degree murder, attempted first degree murder, conspiracy to commit murder, and related charges. The charges arose from a shooting that resulted in the death of Anthony Carlest and the wounding of his cousin, Melvin McCallister.

The primary issue in the case was the identification of the shooter and the main defense was misidentification. The State's case was based primarily on the testimony of McCallister and three bystanders who were present during the shooting.

Earl Price, the witness whose testimony was the subject of the appeal, testified that he knew both Tucker and Dickey as long-time acquaintances. At around 2:30 p.m. on the day of the shooting, Price was walking on Edmondson Avenue and heard gunshots. He stated that he saw Dickey and Tucker behind a light colored car moving towards the intersection and that Tucker was pointing towards the car while Dickey was kneeling or bending down.

He said at first that he could not tell what was in their hands. After reviewing a transcript of his taped statement from October 2001, however, he testified that he saw Dickey kneeling with his arm extended, and that he had seen "something black" in Dickey's right hand and that he had written on the back of a photo of Dickey after picking him out in a photo array,

"I saw him stooping down pointing in the area of the car with something black [in] this [right] hand. ..." Price testified that he did not know if the object was a gun or whether Dickey was shooting at the car, but upon review of notes from a February 2004 interview with police, he later stated that he saw "Dezzy kneeling down and shooting at Franklin and Pulaski," that the shooting was over by the time Dickey lowered his arm, and that Dickey and Tucker then ran away from the car.