Ashton v. State

MATRICCIANI, J. After a four-day trial in the Circuit Court for Prince George’s County, a jury convicted appellant, Adrian Devon Ashton, on four counts: felony murder 1 , robbery, robbery with a dangerous weapon, and the use of a handgun in the commission of a felony. He was sentenced on January 20, 2008, to life in prison for the felony murder and twenty years to run consecutively for the use of a handgun in the commission of a felony. The robbery and robbery with a dangerous weapon convictions were merged with the felony murder. Mr. Ashton noted this timely appeal on February 15, 2008. ⁶¹¹ ISSUES PRESENTED Appellant presents four issues for our consideration.

I. The evidence was insufficient to support Mr. Ashton’s conviction for felony murder.

II

The trial court erred by refusing to exclude DNA evidence after the State failed to comply with statutory conditions of admissibility.

III

The erroneous admission of DNA evidence forced Mr. Ashton to obtain a continuance past 180 days thus violating the Hicks rule.

IV

The trial court violated Mr. Ashton’s constitutional right of confrontation when it barred the defense from cross-examining a key prosecution witness on matters related to the witness’ bias and credibility. For the reasons stated below, we shall affirm the judgments of the circuit court. FACTS AND PROCEEDINGS On December 14, 2005, Anthony Brown was shot and killed in his girlfriend’s Oxon Hill apartment. Mr. Williams, a neighbor, testified that on the day of the murder he heard gunshots and then saw two men exit the apartment across the hall from his apartment.

Responding to the neighbor’s 911 call, the police arrived on the scene and found Mr. Brown dead on the floor of the apartment. Meanwhile, two officers pursued a car seen leaving the scene and matching the witness’ description of the car the two men used to leave the scene. After a lengthy pursuit, the car stopped and two men exited the car and started to run. The two officers testified that they stopped and got out of their cars.

They pursued and arrested one of the men, Demetrius Daughtry, but they wore unable to apprehend the other occupant. The next day, following a lead, the police went to an address on Riverdale Road where they believed the other homicide suspect was staying. The suspect turned out to bo Mr. Ashton. His cousin, Mr. Anderson, lived in a duplex at this ⁶¹² address.

While they were canvassing, an officer observed a man matching the description of the suspect jump off a second story balcony connected to Mr. Anderson’s residence. The police chased and arrested Mr. Ashton. He was placed in the police cruiser with his hands cuffed for transport to the police station. During the trip to the station, however, Mr. Ashton freed himself from the car and fled.

He was arrested again the next morning. The police learned that Mr. Ashton had stayed at his cousin’s residence on the night of December 14, 2005. A search of the residence revealed a book bag containing guns and ammunition that Mr. Anderson testified did not belong to anyone living in the duplex. Mr. Ashton was indicted on January 17, 2006.

On April 3, 2006, he filed a demand for bill of particulars, a motion to dismiss, and a demand for discovery and inspection. The State filed an opposition to Mr. Ashton’s motion to dismiss on August 2, 2006. In open court on September 5, 2006, the first scheduled day of trial, Mr. Ashton filed a supplemental motion for discovery requesting that the State produce DNA data in addition to the analysis produced by the State on August 31, 2006. At the hearing on this motion, Mr. Ashton’s counsel stated that the day after the State delivered the DNA evidence he faxed a request to the State for additional DNA information.

The State responded immediately and offered to hand deliver the documents to Mr. Ashton’s counsel. Mr. Ashton’s counsel refused the offer and instead agreed to wait until September 5, 2006, to receive the documentation. Thus, by the time the September 5, 2006 hearing commenced the State had already delivered the additional documents to Mr. Ashton. On September 5, 2006, Mr. Ashton also filed a motion in limine to exclude DNA evidence, a motion to exclude expert testimony, a motion to exclude ballistics testimony, and a motion to strike introduction of evidence pertaining to flight and/or escape.

The court denied the motion to exclude DNA evidence and the motion to strike introduction of evidence pertaining to flight or escape. It chose to reserve its decision on the remaining motions. The court also considered Mr. ⁶¹³ Ashton’s request for a continuance related to the DNA discovery. The court granted the continuance and noted Mr. Ash-ton’s waiver of Hicks. 2 On May 1, 2007, Mr. Ashton’s trial began and it concluded on May 4, 2007, when the jury convicted him of robbery, robbery with a deadly weapon, felony murder, and use of a handgun in the commission of a felony.

On May 10, 2007, Mr. Ashton moved for a new trial. On October 15, 2007, Mr. Ashton entered a plea of not criminally responsible and not competent for the purposes of sentencing. The circuit court denied both of these motions on January 25, 2008. On the same day, the circuit court sentenced Mr. Ashton.

He noted this appeal on February 15, 2008. DISCUSSION I. Mr. Ashton contends that the State did not produce evidence sufficient to support his conviction for felony murder. The standard of review for appellate review of evidentiary sufficiency is whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. We view the evidence in the light most favorable to the prosecution.

We give due regard to the fact finder’s finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses. Dukes v. State, 178 Md.App. 38, 42 , 940 A.2d 211 (2008) (citations and internal quotations omitted). Md.Code (2002), § 2-201(a)(4)(ix) of the Criminal Law Article (CL) defines felony murder as: “A murder is in the first degree if it is committed in the perpetration of or an attempt to perpetrate robbery under § 3M02 or § 3-403[ 3 ] of ⁶¹⁴ this article[.]” Robbery is not defined by the criminal code, but rather is defined by common law as “the felonious taking and carrying away of the personal property of another, from his person by the use of violence or by putting in fear.” Metheny v. State, 359 Md. 576, 605 , 755 A.2d 1088 (2000) (citations omitted). Further, there must be a larcenous intent, which requires “the fraudulent taking and carrying away of a thing without claim of right with the intention of converting it to a use other than that of the owner without his consent.” Id.

(emphasis removed). Thus, to sustain the conviction for felony murder, the State must prove beyond a reasonable doubt that Mr. Ashton committed a robbery or attempted to commit a robbery, and that he committed a murder in the perpetration of the robbery or in the attempt to commit it. Further, as the Court of Appeals held in State v. Allen, 387 Md. 389, 396 , 875 A.2d 724 (2005), the State must prove that Mr. Ashton’s intent to commit the robbery arose “prior to, or concurrent with, the conduct resulting in death.” In determining whether these elements were sufficiently proved at trial, we look to the appellate standard of review stated above and note that the ultimate determination of the defendant’s intent is for the jury to decide. See id. at 405 , 875 A.2d 724 .

Mr. Ashton contends that no evidence was adduced concerning the formation of his intent to commit the robbery before or during the commission of the murder and thus, he cannot be found guilty of felonious murder. We disagree. During the trial in this case, evidence was presented that could support a conviction for felony murder. First, Mr. Williams testified that on the day of the murder, he was in his apartment which ⁶¹⁵ was located across the hall from where the victim was shot.

He said that he heard what sounded like two men coming up the stairs and then he saw them enter the apartment across the hall. He further testified that he heard a scuffle ensue in the apartment and then a series of gunshots. After hearing the gunshots, he saw two men wearing ski masks (that covered their faces) exit the apartment carrying a grocery bag. The witness also testified that he saw something fall out of the bag, and later testimony revealed that the dropped package contained marijuana.

Evidence was also presented that the officers found drugs in the apartment where the victim was killed. Next, an officer testified that a back pack containing four firearms, a .45 automatic cartridge, a power adapter, a t-shirt, marijuana, a dictionary, and a thesaurus was taken into evidence at the location where Mr. Ashton was initially apprehended. Mr. Anderson testified that the bag belonged to Mr. Ashton. Finally, the victim’s girlfriend testified that the back pack taken into evidence contained items that belonged to the victim.

Despite the lack of direct evidence, a jury could still conclude that Mr. Ashton had the requisite intent based on the circumstantial evidence presented. See Handy v. State, 175 Md.App. 538, 562 , 930 A.2d 1111 (2007) (stating that “[cjircumstantial evidence alone is sufficient to support a conviction, provided the circumstances support rational inferences from which the trier of fact could be convinced beyond a reasonable doubt of the guilt of the accused.” (citations and internal quotations omitted)). Further, we have held that “[ijntent to steal is subjective; it need not be directly and objectively demonstrated, but may be inferred from a totality of the circumstances.” Wiggins v. State, 8 Md.App. 598, 609 , 261 A.2d 503 (1970) (citations omitted). Given the circumstantial evidence cited above, which suggests a motive to rob as well as the actual perpetration of a robbery, we conclude that the circuit court did not err in finding Mr. Ashton guilty of felony murder. ⁶¹⁶ II.

Mr. Ashton next contends that the trial court erred by refusing to exclude DNA evidence after the State failed to comply with statutory conditions of admissibility. The State counters that the trial court correctly exercised its discretion when it denied Mr. Ashton’s motion to exclude DNA evidence because he had not complied with express statutory provisions. Md.Code (1973, 2006 Repl.Vol.), § 10-915 of the Courts and Judicial Proceedings Article (CJP) reads, in pertinent part: (c) Purposes.—In any criminal proceeding, the evidence of a DNA profile is admissible to prove or disprove the identity of any person, if the party seeking to introduce the evidence of a DNA profile: (1) Notifies in writing the other party or parties by mail at least 45 days before any criminal proceeding; and (2) Provides, if applicable and requested in writing, the other party or parties at least 30 days before any criminal proceeding with: (i) First generation film copy or suitable reproductions of autoradiographs, dot blots, slot blots, silver stained gels, test strips, control strips, and any other results generated in the course of the analysis; (ii) Copies of laboratory notes generated in connection with the analysis, including chain of custody documents, sizing and hybridization information, statistical calculations, and worksheets; (iii) Laboratory protocols and procedures utilized in the analysis; (iv) The identification of each genetic locus analyzed; and (v) A statement setting forth the genotype data and the profile frequencies for the databases utilized. (d) Prerequisites.—If a party is unable to provide the information required under subsection (c) of this section at least 30 days prior to the criminal proceedings, the court may grant a continuance to permit such timely disclosures. ⁶¹⁷ In this case, there is no dispute that the State informed Mr. Ashton of its intent to use DNA evidence more than 45 days in advance of the criminal proceedings against him.

The State notified Mr. Ashton on July 17, 2006, that it intended to introduce DNA evidence at trial. At that time the trial was scheduled to begin on September 5, 2006. The trial actually began on May 1, 2007. Mr. Ashton contends, however, that the State violated the statute by not satisfying the 30 day pretrial production required by CJP § 10—915(c)(2).

The record indicates that Mr. Ashton made an omnibus demand for discovery and inspection on April 3, 2006. 4 At this point, however, the State had not informed him of its intent to use DNA evidence at trial. On appeal, the State takes the position that the defendant’s request preceding the State’s notice does not constitute compliance with CJP § 10—915(c)(2). We note that the statute is silent with respect to the order in which each notice must be provided. A common sense reading of the statute, however, suggests that the request for production follow the notice of intent to use the DNA evidence.

Following the State’s disclosure to Mr. Ashton that it intended to use DNA evidence, Mr. Ashton made no additional written requests for the DNA evidence. Shortly before trial, the State delivered copies of the DNA evidence and reports to Mr. Ashton’s counsel. While the DNA evidence was not delivered in accordance with the 30 day pre-trial delivery requirement of CJP § 10-915, the record reflects that once Mr. Ashton received notice from the State of its intent to use DNA evidence, he took no ⁶¹⁸ further action to inquire about production of the DNA evidence or to ensure that the requested evidence was produced in a timely fashion. Instead, Mr. Ashton waited for the State to make the required request for a continuance under CJP § 10—915(d) and strenuously and successfully opposed the State’s request.

He then filed a motion to exclude the DNA evidence, expecting that he had by his silence placed the court in a position that would compel it to grant his motion. But, the State opposed and the trial judge denied the motion, now placing him in a position which required him to request a continuance. Because appellant took no action beyond the lone paragraph in his omnibus