Allen v. State

⁶³⁰ MATRICCIANI, J. This case, which is before us for the second time, presents a narrow legal question and one of first impression in this State. At appellant’s second trial, held in August 2008, Jeffrey Edward Allen, appellant, was convicted by a jury in the Circuit Court for Charles County of first-degree felony murder and sentenced to life imprisonment. Appellant raises four questions on appeal: I. Did the trial court err when it: A) informed the venire of appellant’s prior armed robbery conviction, and B) instructed the jury that because he had been previously convicted of the underlying felony, armed robbery, the jury need not decide that element in determining appellant’s guilt or innocence on first-degree felony murder?

II

Did the trial court abuse its discretion when it allowed the State to introduce into evidence appellant’s drug use the day before and the day of the murder?

III

Did the trial court err when it instructed the jury that appellant was “presumed not guilty” instead of “presumed innocent”? TV. Did the trial court abuse its discretion when it allegedly allowed the State to make a “golden rule” argument during closing? We answer the first question in the affirmative and so shall reverse appellant’s conviction.

Of the remaining questions, only the second one may arise again during re-trial. We answer that question in the negative. BACKGROUND AND PROCEDURAL HISTORY In 2002, appellant was charged with several crimes relating to the stabbing death of John Butler. Among the many contested issues at the first trial was appellant’s intent when he stabbed Butler: specifically, whether appellant had intended to kill Butler or whether he had acted in self-defense.

After hearing the evidence presented by the parties, the jury ⁶³¹ returned guilty verdicts on first-degree felony murder, second-degree murder, armed robbery, robbery, theft, and two counts of carrying a weapon openly with the intent to injure. 1 On appeal, we vacated appellant’s felony murder conviction because the trial court gave an erroneous jury instruction. See Allen v. State, 158 Md.App. 194 , 857 A.2d 101 (2004). The trial court had instructed the jury that to convict appellant of the crime of felony murder based on robbery, the jury need not determine when the intent to commit the underlying felony had occurred — the intent could have been formed before, during, or after the murder. Id. at 237-47 , 857 A.2d 101 .

We held that the instruction was in error because an “afterthought” robbery could not form the basis for a felony murder conviction. Id. at 246 , 857 A.2d 101 . Because we did not know whether the jury had found that appellant had formed the intent to steal Butler’s car before or during the commission of the murder (in which case the conviction could stand) or after the murder (in which case the conviction could not stand), and because there was sufficient evidence presented at trial for the jury to base its conviction on any of those three situations, we vacated appellant’s felony murder conviction and remanded to the circuit court. Id. at 246, 249-50 , 857 A.2d 101 .

We affirmed his remaining convictions, specifically finding that there was sufficient evidence to support the underlying felony — the armed robbery of the car. Our mandate read: “FIRST DEGREE FELONY MURDER CONVICTION VACATED; ALL OTHER JUDGMENTS AFFIRMED; CASE REMANDED TO THE CIRCUIT COURT FOR CHARLES COUNTY FOR FURTHER PROCEEDINGS; COSTS TO BE PAID 50% BY APPELLANT, 50% BY CHARLES COUNTY.” Id. at 251 , 857 A.2d 101 . Our decision was affirmed by the Court of Appeals on the same grounds. See State v. Allen, 387 Md. 389 , 875 A.2d 724 (2005).

In August 2008, the State re-tried appellant on the felony murder charge. The State proceeded on the theory that ⁶³² appellant had formed the intent to steal the car prior to the killing, while the defense’s theory was that stealing the car was an afterthought to the murder. Testifying for the State, among others, was Butler’s friend who was in the car when Butler picked up appellant, several police officers who responded to the crime scene and spoke to appellant about the crime, and a person with whom appellant shared his prison cell after his arrest. Appellant, who testified at his first trial, did not testify at his second trial.

Defense counsel introduced no testimonial evidence. The cumulative evidence presented by the witnesses at appellant’s second trial showed that on the evening of October 23, 2001, Butler and two of his friends drove to “the Stroll,” a well-known area in the gay community where gay people meet other gay people. Butler parked his car. He remained seated and a few minutes later appellant walked up to the car.

After a brief conversation, appellant got in the car. Butler drove his two friends to their home. He then drove to his home where he and appellant engaged in consensual sex. The next morning, appellant told Butler that he wanted to leave, but Butler made no effort to take him home.

When Butler refused to take him home, appellant picked up Butler’s car keys. He jingled them loudly at Butler and said that he was driving this “m-fucker” out of here. Butler approached appellant, and when he did, appellant grabbed a kitchen knife, stabbed Butler repeatedly, and then fled in Butler’s car. Several miles from Butler’s home, appellant lost control of the car and ran into a ditch.

Appellant got out of his car and flagged down a passing motorist. The driver drove appellant to a store where he called the police. When the police arrived at the store, appellant, who was covered in blood, explained that he had stabbed someone. Appellant directed the police to Butler’s home where Butler was found naked and dead lying next to a couch.

The police also seized Butler’s car. Appellant, who was taken to the police station, showed no signs of physical injury. Butler had almost two dozen stab wounds to his neck, chest, hands, and face. ⁶³³ The jury again convicted appellant of felony murder, and he was subsequently sentenced to life imprisonment. DISCUSSION I. Appellant argues on appeal that the trial court erred when it: A) told the venire about his prior armed robbery conviction because it impermissibly introduced other crimes evidence which was unduly prejudicial and not probative, and B) instructed the jury that he had previously been convicted of armed robbery so the jury need not determine whether appellant had committed the underlying felony in deciding whether to convict appellant of felony murder.

Appellant argues that the trial court’s instruction collaterally estopped him from arguing an essential element of the crime of felony murder and therefore removed the issue from the jury’s consideration. The State initially argues that appellant has failed to preserve his arguments for our review because he raised different arguments below. The State argues that appellant’s arguments, even if preserved, are meritless. The State argues that appellant was not entitled to re-litigate his armed robbery conviction at his second trial because the remand from his first appeal was a limited remand to determine only when the armed robbery occurred.

Thus, the armed robbery conviction was the “law of the case” and not open to re-litigation. 2 ⁶³⁴ A. Preservation. At the beginning of appellant’s second trial, the parties and the court discussed whether the jury should be told of appellant’s previous convictions. Defense counsel asked the court to tell the venire that appellant had previously been convicted of second-degree murder 3 but not to tell them about the armed robbery conviction, arguing that it was not relevant. When the trial court stated that the jury would have to be informed at some point about the armed robbery conviction, given that the prior robbery conviction was the “law of the case,” defense counsel rejected that characterization, again adding that the armed robbery conviction was not relevant.

Defense counsel also stated during the bench discussion that the only issue before the jury was when the appellant had formed the intent to rob Butler. The State, in response, argued that it made no sense to tell the venire about the second-degree murder conviction but not the robbery conviction. The trial court ultimately agreed with the State. When the venire was brought into the courtroom, the trial court said, among other things: Ladies and gentlemen, you — will hear evidence ... that the Defendant, Mr. Allen, was previously convicted for the offense of Second Degree Murder and Robbery in connection with the incident — that is the subject of today’s trial.

That in part is why or primarily is the reason why the only matter before the jury in this case — before the Court in today’s case or today’s trial, will be the First Degree Murder trial — charge related to the robbery incident. The jury is going to be instructed to — consider the evidence that pertains to the First Degree Felony Murder Charge only. Is there any potential juror who feels you will ⁶³⁵ have difficulty — with the case because of the fact that you know in advance the Defendant has previously been convicted of offenses arising out of the incident? (Emphasis added).

One juror was excused for cause because he stated that he would have difficulty deciding the case knowing of the previous convictions. Subsequently, defense counsel moved for a mistrial, arguing that advising the venire of the prior armed robbery conviction “tainted the entire pool[.]” The trial court denied the motion. Near the end of trial, during a discussion of the trial court’s proposed jury instructions, defense counsel again told the court that it wanted the jury to know about the second-degree murder conviction so the jury would not have “an all or nothing verdict on the felony murder.” As to the armed robbery conviction, defense counsel stated: [DEFENSE COUNSEL] ... Over my objection, the Court did instruct[] [the venire] on robbery as well, which I believe is in error because of the Bowers[ 4 ] case, and we did not want that to happen.

I don’t think we should further complicate the matter over our objection to tell this jury anything more about what happened on appeal. And, I believe the Court had indicated when he was talking to the juror who did have an issue words to the effect of that the law was changed and that’s why it’s back here. And, all of ⁶³⁶ that language, which I think is not necessary for this jury to know and would prejudice my client. THE COURT: Well, my ...

I think it necessary for the jury dealing with the case in this kind of posture to know what robbery is. If it is their task ... to determine whether this homicide occurred in furtherance of a robbery, or whether the State can prove that or not, that’s their role, we need to define a few terms and robbery is one of the terms we have to define. When the court stated that the jury needed to have a definition of armed robbery to decide the ease, defense counsel agreed. Defense counsel disagreed, however, with telling the jury about the prior armed robbery conviction.

When the court insisted that it tell the jury about the previous armed robbery conviction, defense counsel stated: “What they are going to do is exactly what Bowers says, which is just throw up their hands and say RDW before or after, who cares? RDW ... the conviction is in place, who cares? Which denies him the right of a fair trial.” Additionally, defense counsel objected to giving Md.Crim. Pattern Jury-Instruction 4:17.7.1 on felony murder, stating: It goes hand in hand with my thought that this is a little bit different in that when the case came down we’ve had an abundance of conversation on the fact that I believe we actually should have been entitled to go forward with a trial on robbery with a deadly weapon.

The Court disagreed, and I understand that. (Emphasis added). After hearing both parties’ arguments, the trial court instructed the jury: I’m going to tell you also, over at least one party’s objection, the Defendant here stands convicted of the underlying robbery. The only ... and it is ... as I tried to emphasize in that first degree felony murder instruction, someone can be convicted of murder ... somebody can be convicted ... second degree ... can be convicted of rob ⁶³⁷ bery or robbery with a deadly weapon, both charges arising out of the same event, but it would not amount to first degree felony murder if the fatal act occurred before the intent to do the robbery arose.

If, in other words, the robbery, design or plan or decision came as an afterthought following the infliction of the fatal wound, it’s not first degree felony murder. Okay. The question of whether Mr. Allen committed second degree murder is not before you. The question of whether he committed robbery or robbery with a deadly weapon is not before you.

The only question before you is whether the sequence of events and the interrelationship of the events amounted to first degree felony murder as I just described it. (Emphasis added). The State argues on appeal that appellant’s objection below was that the trial court should not have instructed the jury of his prior robbery conviction because the prior conviction was not relevant, whereas on appeal, appellant argues that the trial court should not have instructed the jury about his prior robbery conviction because it removed a critical element of the crime of felony murder from the jury’s consideration. The State argues that because the two arguments are different, appellant’s argument on appeal is not preserved for our review.

See Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]”); see also Klauenberg v. State, 355 Md. 528, 541 , 735 A.2d 1061 (1999) (“It is well-settled that when specific grounds are given at trial for an objection, the party objecting will be held to those grounds and ordinarily waives any grounds not specified that are later raised on appeal.”) (citations omitted). We disagree. Prior to voir dire and prior to the trial court’s jury instructions, appellant objected to the court’s informing the jury about his prior armed robbery conviction. He clearly stated that the prior conviction was not relevant.

Additionally, while appellant did not specially use the term ⁶³⁸ “collateral estoppel” or “directed verdict” during his argument in support of his objections, appellant adequately conveyed to the trial court that he wanted the State to prove each element of felony murder, including the underlying felony. Although appellant made additional arguments which were contrary to that argument, ie., that the only issue to be decided by the jury was when the armed robbery occurred, not whether it occurred, we see that as no more than offering alternative theories to support a targeted outcome, an acquittal. Although a closer call than in some cases, we are satisfied that appellant has preserved his argument for our review. B. Can the State Use Collateral Estoppel Offensively Against a Criminal Defendant to Stop Him from Challenging an Element of the Crime Charged?

Appellant argues that the trial court erred when it instructed the jury that it need not determine whether the State had proven the armed robbery, the underlying felony, to convict him of first-degree felony murder. Appellant argues that the ruling collaterally estopped him from challenging an element of a crime of felony murder and deprived him of his right to a fair trial. We agree. Collateral estoppel is an admittedly “awkward” phrase but “stands for an extremely important principle in our adversary system of justice.” Ashe v. Swenson, 397 U.S. 436, 443 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970). “Collateral estoppel” means “simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id.

The rule is a constitutional guarantee derived from the Fifth Amendment Double Jeopardy Clause which forbids any person from being “twice put in jeopardy of life or limb[.]” Id. at 446 , 90 S.Ct. 1189 . The prohibition against making a defendant twice accountable for the same offense is applicable to the States through the Fourteenth Amendment. State v. Long, 405 Md. 527, 535-36 , 954 A.2d 1083 (2008) (citing Benton v. Maryland, 395 U.S. 784, 794 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969)). “Despite the fact that the ⁶³⁹ Maryland Constitution lacks an explicit double jeopardy clause, Maryland common law provides well-established protections for individuals against being twice put in jeopardy.” Id. The doctrine of collateral estoppel was originally developed for use in civil litigation.

Ashe, 397 U.S. at 443 , 90 S.Ct. 1189 . The doctrine has two sub-types. These are known by the terms defensive collateral estoppel and offensive collateral estoppel. The Supreme Court in Ashe held that a defendant in a criminal case may assert defensive collateral estoppel by relying on an acquittal in a first prosecution to bar litigation of those facts in a later prosecution for a different offense.

Id. In reaching that holding, the Ashe Court cautioned that the “rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.” Id. at 444 , 90 S.Ct. 1189 . Thus, collateral estoppel in the criminal context is not to be applied inflexibly but with an eye toward balancing the goal of avoiding repetitious litigation with the right to a fair adversary proceeding in which a party may fully present his case. Accord Partmar Corp. v. Paramount Pictures Theatres Corp., 347 U.S. 89, 91 , 74 S.Ct. 414 , 98 L.Ed. 532 (1954) (one of the policy considerations of collateral estoppel is to “avoid[ ] repetitious litigation.”).

Although the Ashe Court held that the defensive use of collateral estoppel by a defendant may be appropriate in certain circumstances, the Supreme Court has not ruled whether the offensive use of collateral estoppel by the prosecution in a criminal case is appropriate. It has suggested, however, that it is not. See United States v. Dixon, 509 U.S. 688 , 710 n. 15, 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993) (J. Scalia, writing the majority opinion for four justices, stated in dicta that “[u]nder Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970), an acquittal in the first prosecution might well bar litigation of certain facts essential to the second one — though a conviction in the first prosecution would not excuse the Government from proving the same facts the ⁶⁴⁰ second time.”) (some citations omitted); Simpson v. Florida, 403 U.S. 384, 386 , 91 S.Ct. 1801 , 29 L.Ed.2d 549 (1971) (per curiam) (noting that where the State had obtained a robbery-conviction for one person, it could not have demanded in a trial for robbery of a second person that arose out of the same transaction that “the trial judge [ ] instruct! ] the jury that, as a matter of law, petitioner was one of the armed robbers in the store that night.”). Although the Supreme Court has not ruled on the offensive use of collateral estoppel by the prosecution, several federal and state courts have, most ruling that the offensive use of collateral estoppel in the criminal context is not appropriate.

In United States v. Pelullo, 14 F.3d 881 (3d Cir.1994), a jury convicted Pelullo of 49 counts of wire fraud and one count of racketeering under the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1961-1968 (RICO). On appeal, the Third Circuit affirmed one of the wire fraud counts, Count 54, which constituted one of the RICO predicate acts. The Third Circuit, however, reversed all the other convictions based largely on the erroneous admission of certain bank records. On re-trial, the court admitted into evidence the prior wire fraud conviction, Count 54.

Additionally, the trial court instructed the jury that “as a matter of law” the defendant had committed the wire fraud offense so the jury did not “have to consider whether the government had proved this offense” in determining whether he had committed the RICO offense. Pelullo, 14 F.3d at 888 . A jury convicted Pelullo on the remaining 48 counts of wire fraud and the one RICO count. Pelullo appealed, arguing that the trial court had erred when it had admitted into evidence the prior conviction, Count 54, and when, in its jury instructions, it applied the prior conviction against him as a matter of law as an element of the RICO offense.

Id. at 888-89 . The Third Circuit agreed and reversed. In reaching its holding, the Pelullo Court analyzed the language in both the Sixth and Seventh amendment. The Sixth Amendment provides: ⁶⁴¹ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Court found the “all criminal prosecutions” language to be significant, stating that it “serves to guarantee a right that is absolute in the sense that it applies to all criminal prosecutions or, put differently, to the prosecution of every crime.” Id. at 895 . The Court also held that “[t]he language of the Sixth Amendment does not admit of any indication that the absolute right to a jury trial in criminal cases can be modified by reasons of efficiency or public policy arguments.” Id. The Pelullo Court explained that its reading of the Sixth Amendment comports with and is supported by the uniformly accepted notion that in criminal cases there is no mechanism available to the government comparable to making a motion for directed verdict or summary judgment in civil cases. Indeed, no matter how strong and even overwhelming the evidence is, and although a judge can grant a judgment of acquittal in favor of the defendant before or even after the jury renders its verdict, see Fed.R.Crim.P. 29, a criminal defendant in federal courts can be convicted only by the verdict of the jury.

Id. The Court then contrasted the language in the Sixth Amendment with the language in the Seventh Amendment, which provides: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. ⁶⁴² The Court noted that the Seventh Amendment maintains that the right to trial in the civil context is only “preserved” to the extent it existed when the Amendment was ratified in 1791. Id. at 895 . The Court noted that while the use of collateral estoppel was sanctioned in civil cases when the amendments were adopted, it did not exist in the context of criminal cases.

Id. at 896 . The Pelullo Court also found support in the well-reasoned state court decision of State v. Ingenito, 87 N.J. 204 , 432 A.2d 912 (1981). In that case, the defendant was charged with possession of a firearm by a convicted felon. At trial, the State sought to admit into evidence Ingenito’s prior conviction for illegal transfer of weapons, which was based on conduct that arose out of the same transaction as the felon-in-possession charge.

Ingénito objected, arguing that evidence of the prior conviction worked an estoppel on the possession issue. The court admitted evidence of the prior conviction and Ingénito appealed, raising the argument that he raised below. The New Jersey Supreme Court agreed with Ingénito that use of the prior conviction constituted collateral estoppel against him, infringed upon his constitutional right to a jury trial and violated his right to be presumed innocent. Ingenito, 432 A.2d at 915 .

In reaching that holding, the Ingenito Court focused on a jury’s duty in a criminal case, noting: The application of collateral estoppel against a defendant constitutes an invasion of the fact finding and ultimate decisional functions of the jury. If an essential element of a case is presented as concluded or settled, effectively withholding from the jury crucial underlying facts, the jury’s capacity to discharge fully its paramount deliberative and decisional responsibilities is irretrievably compromised. It follows in such circumstances that the defendant’s jury right will have been, commensurately, abridged. Id. at 916.

The court added: [Cjollateral estoppel, applied affirmatively against a defendant in a criminal prosecution, violates the right to trial by jury in that not only does it seriously hobble the jury in its ⁶⁴³ quest for truth by