Allen v. State

ADKINS, Judge. Kenneth M. Allen, appellant, was convicted by a jury in the Circuit Court for Baltimore City of theft of property valued over $500, and unauthorized use. The jury found him not guilty of automobile theft. Allen presents six questions on appeal, which we have rephrased and reordered: I. Did the trial court err in refusing to instruct the jury on the “honest belief’ defense?

II

Did the trial court render a judgment of acquittal on the theft charge?

III

Did the trial court err in failing to vacate the conviction for unauthorized use?

IV

Did the trial court err in concluding that defense counsel had not established a prima facie case of discrimination in jury selection? V. Did the trial court err in refusing to permit defense counsel to refer to the “honest belief” defense in her closing? ¹⁸⁰ VI. Did the trial court err in permitting a police officer to testify regarding the significance of the keys being in the stolen automobile when it was recovered? We agree that the trial court erred in refusing to instruct the jury on the “honest belief’ defense and, accordingly, reverse Allen’s convictions.

Because we are reversing the convictions, we need not answer questions IV, V, and VI. We address questions II and III because they concern double jeopardy issues. FACTS AND LEGAL PROCEEDINGS On the night of Friday, February 7, 2003, Richard Sullivan parked his four or five year old Pontiac near his home, in the 1000 block of Guilford Avenue. When he looked for it at 6:30 a.m. on Monday, February 10, 2003, he could not find it.

Sullivan’s keys had been in his apartment all weekend and only his wife had another set of keys. Sullivan had not given anyone permission to use the car. After ascertaining that the vehicle had not been towed by the city, Sullivan telephoned the police. Nine days later, Detective Brian Brennan, a member of the Baltimore County/Baltimore City Regional Auto Task Force, was working on routine patrol in the 500 block of North Fulton Avenue.

At trial, Brennan explained that the area was a target area “that our unit has designated as a high volume of stolen cars being taken and driven through.” The detective saw a green Pontiac with Maryland tag HTH-023 and decided to check with NCIC 1 to ascertain whether the vehicle had been reported stolen. He learned that the car had been reported stolen from Baltimore City on February 10, 2003. Brennan and other officers in his unit followed the car and blocked it in as its driver was attempting to park. The ¹⁸¹ officers removed the driver from the car and arrested him.

At trial, Brennan identified Allen as the driver of the vehicle. Allen made no attempt to flee. When he was arrested, the keys were in the car and the ignition was undamaged. Allen told the officers that “he rented a car for $10.00 from an individual in the 600 block of Pitcher.” He told them that he did not know the name or address of the person from whom he rented the car, and that he did not have a written rental agreement for the car.

Additional facts will be set forth as needed in our discussion of the questions presented. DISCUSSION I. “Honest Belief’ Instruction Defense counsel asked the trial court to give an instruction on the honest belief defense. The trial court did not say whether it would give that instruction to the jury. Later, the prosecutor asked the trial court if the court needed to address the instruction.

The trial court replied, no, but told defense counsel that she could argue it in her closing. Defense counsel objected to the trial court’s ruling and asked that the instruction be placed in the court file. 2 The court noted the objection, saying that it was still denied. Later, defense counsel asked the court if it had reconsidered the honest belief instruction. The court responded that it had not.

After the court gave its instructions, defense counsel initially said, “No exceptions.” Before the State started its closing argument, however, she again tried to raise the “honest belief’ issue: ¹⁸² [DEFENSE COUNSEL]: I’d like to raise the issue of the honest— THE COURT: Don’t go there three times. Denied. I denied it twice. I don’t need to do it three times.

It was preserved. The trial court later instructed the jury: The defendant is also charged with the crime or offense of what we commonly call unauthorized use, and I instruct you that in order for the State to prove that charge, the State must prove that the defendant wilfully or knowingly obtained or exerted unauthorized control over the property of the owner, and that the defendant had the purpose of depriving the owner of the property, and that the value of the property was at least $500.00.[ 3 ] The defendant is charged also with the offense of theft, as I indicated. The other theft provision is that the State must prove that the defendant possessed stolen property, that the defendant knew that the property was stolen or believed that it was probably stolen, and that the defendant had the purpose of depriving the owner of the property, and that the value of the property was at least $500.00. The court also told the jury: You are further instructed that one who is found in exclusive possession of recently stolen property unless reasonably explained, that may be evidence of theft.

If you find that the defendant was in possession of the property shortly after it was stolen, and the defendant’s possession was not otherwise explained by the evidence, you may, but are not required to find the defendant guilty of theft. The Parties’ Contentions Allen asserts that Detective Brennan’s testimony that Allen said he had rented the car from another individual generated ¹⁸³ an “honest defense” instruction. The State responds that Allen waived the issue when counsel said that she had no exceptions to the instructions. Alternatively, the State argues that, even if the request was preserved, other instructions sufficiently covered the defense.

Preservation Md. Rule 4-325(e) provides, in pertinent part: (e) Objection. No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. The purpose of the rule is to give the court an opportunity to correct the instruction before the jury starts to deliberate. See Bowman v. State, 337 Md. 65, 69 , 650 A.2d 954 (1994); Morris v. State, 153 Md.App. 480, 509 , 837 A.2d 248 (2003).

In this instance, although defense counsel stated that she had no exceptions to the instructions, she already had asked twice for an “honest belief’ instruction. She also requested that the instruction be placed in the court file. The court explicitly noted the objection. In addition, shortly after telling the court that she had no exceptions, defense counsel attempted to renew her request for the instruction, but she was not permitted to do so.

At that point, counsel and the trial court were still discussing the instructions, and the trial court could have given the honest belief instruction. In these circumstances, defense counsel adequately preserved the issue for our review. See Banks v. State, 84 Md.App. 582, 588-90 , 581 A.2d 439 (1990)(when “a party provides the court with additional grounds for an objection before the action which the objection sought to avoid has occurred,” the court has the opportunity to correct any error it may have made and the challenge is preserved for appellate review). ¹⁸⁴ Need For The Honest Belief Defense McLCode (2002), section 7-110(c)(2) of the Criminal Law Article provides that it is a defense to the crime of theft that “the defendant acted in the honest belief that the defendant had the right to obtain or exert control over the property as the defendant did.” Md. Rule 4-325(c) states that “[t]he court may, and at the request of any party shall, instruct the jury as to the applicable law.” When requested to do so by a party, the trial court is required to give an instruction that correctly states the applicable law if it has not been fairly covered in the instructions actually given. See id; State v. Martin, 329 Md. 351, 356 , 619 A.2d 992 , cert. denied, 510 U.S. 855 , 114 S.Ct. 161 , 126 L.Ed.2d 122 (1993).

The instruction must be given if there is “some evidence” giving rise to a jury issue on the defense. See Dykes v. State, 319 Md. 206, 216 , 571 A.2d 1251 (1990). We conclude that the evidence here generated an “honest belief’ issue. The car had been stolen nine days earlier.

Allen told the officers who stopped him that he had rented it for $10 from someone he had met on the street. The ignition of the vehicle was intact and the key was in it. Allen did not try to flee when police stopped him. Although Brennan testified that many stolen cars had intact ignitions and keys, the jury could conclude that many lay persons, including Allen, did not have experience with stolen cars and did not know that.

One inference that a reasonable juror might draw from this evidence is that Allen believed the car was not stolen. Indeed, the trial court considered the “honest belief’ issue sufficiently raised to merit defense counsel arguing it to the jury in her closing. The State contends that the instructions given adequately covered the issue. We disagree.

The trial court instructed the jury, in accordance with MPJI—Crim. 4:32:2, that the State had to prove that “the defendant knew that the property was stolen or believed that it was probably stolen.” That instruction was similar to the one given by the trial court ¹⁸⁵ in Sibert, v. State, 301 Md. 141, 152 , 482 A.2d 483 (1984), that “a person commits theft ‘if he possesses stolen property-knowing that it has been stolen, or believing that it has probably been stolenf.]’ ” The Sibert Court was clear, however, that if the evidence generates an honest belief issue, this pattern instruction is inadequate: For us to conclude that jury instructions encompassing the elements of theft by possession fairly cover the honest belief defense when generated by the evidence would be for us to ignore the legislative intent in enacting § 343(c)(2) and render the language of this section surplusage and a nullity. In effect, this could create a per se rule that jury instructions are never required for a § 343(c)(2) defense in a § 342(c) theft by possession case. We do not believe the legislature intended such an anomalous result. As we see it, then, when the legislature explicitly enumerated four defenses to the crime of theft, it intended a defendant to be entitled to a jury instruction on any defense generated by the evidence.

We hold that an instruction that merely delineates the mental elements of theft by possession under § 342(c) does not fairly cover the honest belief defense under § 342(c)(2) and consequently the trial court erred in refusing to instruct the jury as to the honest belief defense in this case. Id. at 154, 482 A.2d 483 . The Court of Appeals affirmed that holding in Binnie v. State, 321 Md. 572, 582 , 583 A.2d 1037 (1991), reiterating that, “once the honest belief defense is fairly generated by the evidence, the trial court may not refuse the defendant’s request to instruct the jury regarding it.” See generally Prathyusha Reddy, Clarifying the “Fairly Covered” Component of Maryland Rule 4-325(c), 62 Md. L.Rev. 782 (2003)(reviewing Court of Appeals decisions holding that “fairly covered” includes “instructions that help direct the jury’s attention to the defendant’s theory of the case”). Sibe/rt explains the rationale for giving a specific “honest belief’ instruction: ¹⁸⁶ The commentary to the Model Penal Code (Model Code) is particularly instructive as to the purpose for the inclusion of the honest belief defense in its draft.

First, the commentary notes that “it seems important to make it clear beyond doubt that an honest belief that the property does not belong to another should be a defense to theft.” Model Penal Code and Commentaries, [ (Official Draft and Revised Comments 1980)], § 223.1, at 153. Second, the commentary states that recklessness or negligence should not serve as a basis for theft liability. Id. at 149, 482 A.2d 483 . This clarification is especially important here, because the trial court told the jury that evidence of a person found in possession of recently stolen property, unless the possession is reasonably explained, may be evidence of theft.

Without the honest belief instruction, the jury may have been confused about what the State was required to prove. The importance of making that clear is well illustrated by the State’s Attorney’s comment during trial that the proposed honest belief instruction was “contradictory to one of the other Pattern Instructions,” and by the State’s assertion in this Court that the honest belief instruction “would have been confusing and possibly misleading.” If the instructions given seem somehow contradictory to the “honest belief’ instruction, the instructions cannot be said to fairly explain the defense. We are not persuaded otherwise by Davis v. State, 104 Md.App. 290, 293 , 656 A.2d 326 (1995). In that case, we concluded that the defendant was “entitled to an instruction that embodied the ‘honest belief defense set forth in Art. 27, § 343, and the lack of scienter defense” with respect to a charge of unauthorized use of an automobile, but rejected Davis’ claim that the trial court was required to give the instruction in the language of the statute.

We held an instruction that the jury had to find Davis had “guilty knowledge” before it could find him guilty of unauthorized use fairly covered the defense. See id. at 294, 656 A.2d 326 . In this case, however, the trial court did not give a “guilty knowledge” instruction, but only told the jury that “the State had to prove ¹⁸⁷ that the defendant wilfully or knowingly obtained or exerted unauthorized control over the property of the owner.” Thus, there was no instruction comparable to the one we found sufficient in Davis . Accordingly, we must vacate both the conviction for theft and the conviction for unauthorized use of an automobile.

II

Submission Of The Theft Charge At the close of the State’s case, defense counsel moved for a judgment of acquittal and argued that there had been no evidence that Allen was the individual who stole the car, pointing out that Allen was found in possession of the car nine days after it had been stolen. She submitted on the charge of unauthorized use of the vehicle. The prosecutor argued that, under the auto theft statute, the State was not required to show that Allen was the person who actually stole the vehicle. The trial court corrected the prosecutor, explaining that the auto theft statute required proof that Allen actually took the car, even though the general theft statute did not require such proof.

The State responded that whether Allen took the vehicle was a question of fact for the jury. Then the following occurred: THE COURT: The theft over, she submits, and I’ll grant it. I mean, I’ll deny it anyway. 104,[ 4 ] I will grant it on theft over. [PROSECUTOR]: And, Your Honor— THE COURT: 7-105. [PROSECUTOR]: The standard is, in looking at the evidence— THE COURT: Hold on. Hold on. [PROSECUTOR]:—in the light—okay. ¹⁸⁸ THE COURT: (Pause).

Okay. Pm going to deny it as to the unlawful taking of the motor vehicle. I think it’s broad enough to cover it. I think it’s broad enough to cover it.

That’s under 7-105. A person may not knowingly, wilfully take a motor vehicle out of the owner’s lawful custody, control or without the owner’s consent. I think it’s rather broad. I think it’s enough.

I mean, I think he didn’t give the consent. Now, the argument is whether or not he—it’s a matter, it’s an issue for the jury, I think. Well, let me strike that. Your motion is denied at this point.

The trial court then asked defense counsel if she wanted to advise Allen about his right to testify. As defense co-counsel began to advise Allen about his right to testify, the clerk inquired: THE CLERK: The theft you denied? THE COURT: Yes, I denied the motions as to judgment acquittal as to all three; heard and denied. THE CLERK: Uh-huh.

Allen decided that he would not testify, and defense counsel indicated that they would call the police officer as a defense witness. The trial court and counsel then discussed jury instructions. Later, discussing the jury instructions, the prosecutor requested the theft instruction. The trial court indicated that it would instruct the jury that the State had to prove that the defendant “took and carried away the property of another, and that the defendant did so without authorization.” The prosecutor also asked for an instruction on the inference from exclusive unexplained possession.

The trial court then asked about the instruction for unauthorized use. When the prosecutor asked about instructions on “separate consideration of multiple counts,” the court declined, referring to the counts for submission to the jury: THE COURT: I’m not giving that. I mean, they’ve got three counts to consider. ¹⁸⁹ [DEFENSE COUNSEL]: Two? THE COURT: Huh? [DEFENSE COUNSEL]: Two counts? [PROSECUTOR]: Three.

THE COURT: Three. I kept the other one. [DEFENSE COUNSEL]: I believe, Your Honor, granted my motion on the theft over? [PROSECUTOR]: No. THE COURT: No. [DEFENSE CO-COUNSEL]: I think you