Criminal Law Update

1st Mariner Bank

The September Amicus contains, among other cases, three Court of Special Appeals decisions which practitioners may find helpful.

 Wallace v. State, No. 2100, September Term 2012, filed August 27, 2014 (Opinion by Nazarian, J.)

 A fellow named Womack was beaten and robbed by two men. Shortly before the incident, he had a conversation with Wallace. A brief time after the robbery, Wallace was seen at two convenience stores where Womack’s stolen credit card was used. A few weeks later detectives showed Womack a photo array. Before showing Womack the photos, the detectives told him that the culprit had been found. Womack identified the Wallace photo as that of one of two men who had robbed him. Wallace was arrested, charged and convicted of robbery and other crimes, but, at trial, he was acquitted of second degree assault. Wallace was sentenced and appealed to the Court of Special Appeals.

 Wallace made three arguments on appeal: That insufficient evidence supported his conviction for robbery; that the trial court erred by denying his motion to suppress the extrajudicial identification of him from a photo array and that an inconsistent jury verdict was accepted. His conviction for robbery was vacated and remanded for a new trial, but the trial court’s judgments were affirmed in all other respects.

 As to the insufficiency of the evidence, Wallace conceded that Womack had been robbed but argued that the State had failed to establish that he was one of the robbers. COSA noted that the jury inferred Wallace’s role in the crime from circumstantial evidence regarding his whereabouts between the time he spoke with Womack and when surveillance cameras caught him making purchases at the stores where Womack’s stolen credit card was used. Because the jury did not need to resort to speculation or conjecture to infer from the evidence that Wallace robbed Womack during the intervening time, COSA found that the evidence supported the conviction.

 As to the identification from a photo array, COSA recognized that extrajudicial identifications obtained through impermissibly suggestive procedures are not admissible. James v. State, 191 Md. App. 233 (2010). Wallace argued that the Womack identification was impermissibly suggested when a detective, before showing the array, told Womack that the police had found his assailant. In analyzing the identification procedure, COSA focused on whether detectives contaminated the test by slipping the answer to Womack. Jenkins v. State, 146 Md. App. 83 (2002) and whether they left it to Womack to pick the person who had committed the robbery. COSA decided that the detective did not in any way suggest which photograph was of the suspect or why the person in the photograph was suspected of having committed the robbery and held that the trial judge correctly refused to suppress the extrajudicial identification.

 As to the inconsistent verdicts, COSA noted the recent shift in Maryland case law. McNeal v. State, 426 Md. 455 (2012). Jury verdict inconsistency occurs when a jury convicts a defendant on one charge but acquits on another charge that is an essential element of the first charge. The State conceded that second degree assault, of which Wallace was acquitted, is a lesser included offense of robbery. However, the State contended that the acquittal for second degree assault was not legally inconsistent because the evidence produced at trial supported two separate and distinct assaults. COSA evaluated whether the robbery and second degree assault charges arose out of one or more criminal transactions. Instead of considering whether the testimony offered at trial supported a finding of two assaults, though, COSA looked at whether separate instances of assault were actually charged. Noting that Wallace was not charged with separate assaults and that the indictment was ambiguous as to the particular act giving rise to the second degree assault charge, COSA concluded that the second degree assault and robbery charges came from the same criminal transaction. Thus, COSA decided that the acquittal on the second degree assault was legally inconsistent with the guilty robbery verdict. The trial court had erred in accepting inconsistent verdicts.

 Bishop v. State, No. 2106, September Term 2011, filed August 26, 2014 (Opinion by Nazarian, J.)

 Bishop was charged in a murder for hire scheme. Before trial, he sought the judge’s recusal on two grounds. His counsel had discovered that years earlier, trial judge Mickey J. Norman (then a prosecutor) had been the victim of an unsuccessful murder for hire plot by a defendant he had prosecuted. At that time, he had submitted a victim impact statement in which he discussed the fear he felt after discovering the plot. Counsel argued that the trial judge could not impartially preside over Bishop’s case because of his prior victim status. Counsel had also discovered that the judge’s intern had once worked on Bishop’s case when she served as an intern in the public defender’s office. The judge denied the motion for recusal.

 Bishop was found guilty of murder and related charges. Because the State sought the death penalty, his sentence on the murder charge was up to the jury which gave him life with the possibility of parole. The judge then sentenced Bishop on conspiracy and handgun charges. His counsel contended that any sentence should run concurrent to the life sentence because it would effectively undermine the jury’s decision to make parole possible if the other sentences were added. The judge refused to merge the sentences and Bishop appealed.

 COSA affirmed the trial court. It decided that the judge’s decision not to recuse himself because of the previous murder plot had no effect on his ability to preside over the Bishop case which presented an entirely different factual scenario. The trial judge had properly noted that he had an obligation to hear the case unless Bishop presented a proper case for recusal and no legal president or logical basis had been proffered. The judge had also been correct in refusing to recuse himself because of his intern’s presence in his chambers. That presence alone did not suggest any personal bias on the part of the judge, especially in that he had told her early in her tenure that they should not discuss the Bishop case and that no further discussions took place.

 The trial court did not err when it refused to merge the sentences. Conspiracy to murder was a separate crime from the murder because even if the victim had not died, Bishop could still have been convicted for conspiracy to commit murder. The trial judge’s decision to impose consecutive sentences for conspiracy and handgun possession did not constitute an abuse of discretion. That decision did not undermine the jury sentence on the murder charge and Bishop had not suggested any facts pointing to the trial judge being motivated by any personal bias or vindictiveness in sentencing.

 Lindsey v. State, No. 495, September Term 2012, filed August 27, 2014 (opinion by Eyler, Deborah S., J.)

 Lindsey was shot and seriously injured by two men in an attempted robbery. One of the assailant’s, Griffin, entered into a plea agreement to plead guilty to attempted robbery, with a sentence cap of 15 years, suspend all but 18 months, and to testify against his co-defendant. The plea agreement said nothing about probation or restitution. At sentencing, Lindsey asked for restitution. The court denied it on the grounds that the plea agreement did not call for restitution. Thirty days after the sentencing, Lindsey filed a motion under Criminal Procedure Article Section 11-103, asking the court to reconsider its denial of restitution. At a hearing on the motion, the court repeated that it could not order restitution because the plea agreement did not call for it. The court also stated that because Griffin had already been sentenced that ordering restitution would be an illegal increase in the sentence, even if it were ordered as a condition of probation. Lindsey appealed to the Court of Special Appeals and the State and Griffin appeared as appellees. Griffin moved to dismiss the appeal.

 COSA dismissed Griffin’s motion to dismiss the appeal and the circuit court order denying the motion to reconsider its denial of restitution was vacated. Lindsey had not filed a timely appeal from the conviction, but he had filed a timely appeal of the denial of his motion for reconsideration. Because that motion was denied on the same ground as the initial denial of restitution at sentencing, and on the additional grounds of illegality, both issues were before COSA. Both issues were questions of law and if the denial of the motion for reconsideration was based on error of law, the court had abused its discretion.

 COSA decided that even though there was no mention of probation in the plea agreement, a plea agreement that includes suspended time must include a period of probation for the total time agreed upon to have any meaning. Probation was, therefore, implied in the plea agreement. The State did not waive a victim’s right to restitution by virtue of a plea agreement and restitution is a standard and frequently imposed condition of probation. Thus, a reasonable person in Griffin’s position, entering into a plea agreement, would expect that probation would be imposed and that the payment of restitution could be ordered as a condition of probation. The plea agreement did not keep the court from ordering restitution as a condition of probation and the court had erred in concluding that it did.

 The trial court also erred in deciding that ordering restitution as a condition of probation would be an illegal increase in the sentence already imposed. Even if the addition of restitution would be an increase in sentence, it would not be illegal because the legislature has authorized the counts to reconsider a denial of restitution after sentencing and order restitution on reconsideration. A defendant’s double jeopardy right would also not be violated. When a statutory framework at sentencing creates an expectation on the part of a defendant that his sentence can be increased during a particular post-sentencing interval, the defendant does not have a reasonable expectation of finality as to the severity of his sentence until that interval is over.

Nicholas del Pizzo