Bates & Beharry v. State

JOHN J. BISHOP, Judge (Retired, Specially Assigned). Appellants William A. Bates and Nicholas S. Beharry challenge their convictions by a jury in the Circuit Court for Baltimore City. The jury convicted Bates of felony murder, use of a handgun in the commission of a crime of violence, attempted armed robbery, and conspiracy to commit armed robbery. It convicted Beharry of felony murder and conspiracy to commit armed robbery.

The jury found both appellants not guilty of first degree premeditated murder, second degree intent to kill murder, and armed robbery. It also found Beharry not guilty of attempted armed robbery and use of a handgun in the commission of a crime of violence. After merging the underlying felony into felony murder, the court sentenced Bates to life imprisonment for felony murder; 15 years, to be served consecutively, for use of a handgun; and 15 years, to be served concurrently with the life sentence, for conspiracy. The court sentenced Beharry to life imprisonment with all but 30 years suspended for felony murder and 15 years, to be served concurrently, for conspiracy. ⁶⁸⁵ ISSUES In this appeal, it is argued that: I. The evidence was insufficient to support (i) Bates’s convictions for felony murder, attempted armed robbery, and conspiracy to commit armed robbery, and (ii) Beharry’s convictions for felony murder and conspiracy to commit armed robbery; II.

Beharry’s felony murder conviction cannot stand since Beharry was found not guilty of armed robbery and attempted armed robbery; III. The trial court committed plain error by failing to include, in its instructions to the jury, a definition of “attempt;” IV. The trial court erred by permitting the prosecutor to engage in improper closing argument; and V. The trial court erred by permitting an expert witness for the State to testify beyond the scope of his expertise. Because we find merit in the second argument, we shall reverse appellant Beharry’s felony murder conviction.

We shall otherwise affirm the judgments of the trial court. FACTS The victim in this case, Clayton “Hank” Culbreth, owned a beauty salon on East 36th Street in Baltimore. He was also a drug dealer who was known in the neighborhood to deal in large quantities. Culbreth lived in an apartment upstairs from his salon.

At about 10:00 PM on December 27, 1997, Culbreth was shot to death just outside the salon’s front door. A witness for the State, who was sitting in a car parked just across the street from the salon when the shooting occurred, testified that she heard a loud bang, then saw the front door to the salon swing open. Culbreth appeared to fall backwards out the door and down the steps. Another man, whom the witness identified as Bates, stepped out the door after Culbreth and shot Culbreth several times as he lay on the ground.

Bates then stepped over Culbreth’s body and walked away. ⁶⁸⁶ Moments later a second man, whom the witness identified as Beharry, came out of the salon. Beharry also stepped over the victim’s body, then walked up the street and caught up with Bates. The two left the scene together. Beharry’s nephew, Andre Davis, who occasionally stayed at Beharry’s house, testified that Beharry sometimes bought drugs from Culbreth.

One night before the shooting, Davis overheard a conversation at Beharry’s house between Beharry and two men whom Davis knew as Damien and Shawn. The men left, but returned the next night around 10:00 with a third man, appellant Bates. At that time, Davis’s girlfriend was visiting him at Beharry’s house. Davis testified that, because he had overheard the conversation the night before, and because he was on parole, he did not want to be present with Bates, Shawn, Damien, and Beharry.

He explained: “I’m not part of that anymore. I’ve been to prison. I did my time and I’m trying to better myself.” Davis therefore left the room with his girlfriend. Davis testified that a few minutes later, when his girlfriend decided to go home, he walked her to the door.

At that time, Bates, Beharry, Shawn, and Damien were leaving the house as well. Beharry returned 10 to 15 minutes later. According to Davis, Beharry was “real frantic and panicky.” Beharry was “crying, sweating, and real jittery.” Within five minutes, Bates returned to Beharry’s house. Bates, however, was “nonchalant.” Davis testified that Bates pulled out a black, semi-automatic handgun and tried to put a magazine of ammunition in it.

Cynthia Horton, the girlfriend of the victim, Culbreth, testified that at 9:00 PM on December 27, 1997, about one hour before the shooting, Culbreth had stopped by the store where she worked. The two had made plans to go out that evening when she got off work, and Culbreth had given her $100.00. When Culbreth gave Horton the money, she saw that he had two rolls of cash on his person. Horton testified that one of the rolls consisted of $1.00 bills, and the other roll consisted of $100.00, $20.00, and $10.00 bills.

She estimated that Culbreth ⁶⁸⁷ had about $1,200.00 in that roll. Horton called Culbreth at his home at 9:30 PM, then again at 10:00 to tell him she was on her way over. When she arrived, however, the police were on the scene and Culbreth was dead. A medical examiner testified that Culbreth had been shot once in the left shoulder and once in the upper right area of his chest.

Detective Homer Pennington, the primary investigator in the case, testified that $4.75 and a small amount of suspected crack cocaine was recovered from Culbreth’s person. Police went through Culbreth’s beauty salon and apartment and found nothing in disarray. They did not recover the cash that Horton saw in Culbreth’s possession. Pennington acknowledged, however, that the officers did not go through drawers and closets in the salon and apartment, nor did they look in the salon’s cash register.

According to Pennington, the officers were simply looking for “anything that would jump out at us.” DISCUSSION I Sufficiency of the Evidence Appellant Bates challenges the sufficiency of the evidence to support his convictions for felony murder, attempted armed robbery, and conspiracy to commit armed robbery. He does not specifically challenge his conviction for use of a handgun. Appellant Beharry challenges the sufficiency of the evidence to support his convictions for felony murder and conspiracy to commit armed robbery. Neither appellant has preserved his sufficiency challenge for this Court’s review.

Appellants posit that their felony murder convictions were based on attempted armed robbery, of which Bates but not Beharry was convicted. For purposes of this argument only, Beharry tacitly concedes that, under ordinary circumstances, he could be found guilty of felony murder so long as the evidence was legally sufficient to establish each element of that crime, even though the jury returned an inconsistent not ⁶⁸⁸ guilty verdict on the underlying felony that constituted one essential element of felony murder. See our discussion in Part II, infra, regarding inconsistent verdicts. Each appellant argues that the evidence was legally insufficient to establish that he committed attempted armed robbery.

They conclude that the felony murder convictions, as well as Bates’s conviction for attempted armed robbery, cannot stand. Appellants further argue that the evidence did not establish that they conspired to commit armed robbery. Armed robbery “requires the taking of property of any value, by force, with a dangerous or deadly weapon.” Bellamy v. State, 119 Md.App. 296, 306 , 705 A.2d 10 , cert. denied, 349 Md. 494 , 709 A.2d 139 (1998). “‘The crime, however, is not committed unless there is an intention to deprive the owner permanently of his property or the property of another lawfully in his possession.’ ” State v. Gover, 267 Md. 602, 606 , 298 A.2d 378 (1973) (citation omitted). See generally Md.Code (1951, 1996 Repl.Vol.), § 488 of Article 27.

A defendant is guilty of an attempted armed robbery if, “with intent to commit [armed robbery], he engages in conduct which constitutes a substantial step toward the commission of that crime whether or not his intention is accomplished.” Young v. State, 303 Md. 298, 311 , 493 A.2d 352 (1985) (adopting substantial step test for attempts in general). A defendant is guilty of conspiring to commit armed robbery if he combines with one or more other persons to accomplish an armed robbery. See generally Monoker v. State, 321 Md. 214, 221 , 582 A.2d 525 (1990) (defining conspiracy). The gist of conspiracy is the unlawful agreement, which need not be spoken or formal so long as there is a meeting of the minds reflecting a unity of purpose and design.

The crime is complete when the unlawful agreement is made; no overt act in furtherance of the agreement is necessary. Id. The following transpired during a bench conference at the close of the State’s case in the trial below: THE COURT: The State has concluded its case. ⁶⁸⁹ [COUNSEL FOR BATES]: On behalf of Mr. Bates, Judge, I will make a motion as to all of the charges, all the counts and all the charging documents. THE COURT: Do you want to be heard on it[?] [COUNSEL FOR BATES]: No, I’ll submit.

THE COURT: Mr. Crawley? [COUNSEL FOR BEHARRY]: Your Honor, I make the same motion on behalf of Mr. Beharry. The court then permitted the jury to recess for lunch. During the recess, the court questioned the prosecutor regarding the charges she intended to submit to the jury. It specifically asked the prosecutor, inter alia, what evidence supported the charges of armed robbery and conspiracy to commit armed robbery.

Although defense counsel were present, they did not participate in the discussion in any way. The court then concluded: ... [I]n ruling on a motion for judgment of acquittal at the conclusion of the State’s case, all facts and inferences must be viewed in a light most favorable to the non-moving party. Viewed in that light, and only viewed in that light, I believe that one, or the jury, can come to the conclusion that the crimes with which the defendants have been charged have been proven by the State and only because the standard governing a motion for judgment of acquittal calls for a ruling upon the motion based on a view of the facts and inferences in the light most favorable to the State, that I am denying the motions. Now, when I say that, I have no problems, with, for example, I think the evidence with respect to the murder charge as to Bates was rather clear, but with respect to the robbery as to both of them and conspiracy to commit robbery, I think it’s very circumstantial and inferential, and only viewing it in a certain perspective can one come to the conclusion that these crimes have been committed, and therefore, as I said, I’m denying the motions for those reasons. ⁶⁹⁰ Defense counsel then advised each defendant, on the record, as to his right to testify, and each defendant chose not to take the stand.

The defense rested without calling any witnesses. Counsel for Bates then renewed his motion for judgment of acquittal and argued: ... I would submit on all the charges, in particular the robbery counts, that there’s — and I will adopt the Court’s argument. Because of the amount of time between the time that the State’s witness who testified that the victim had money, because the amount of time between that moment and the moment when the shooting was alleged to have occurred, and because of the lack of a thorough search on the part of the police in this case, the money could have been anywhere inside of the shop.

So I’ll submit on those comments. Referring to an earlier motion in limine, in which he sought to exclude as improper “habit” evidence the testimony of Cynthia Horton that Culbreth usually carried a large amount of money on his person, counsel for Beharry added: Your honor, actually, I would go back to renew a portion of my motion in limine and join in with counsel’s argument to the extent that counsel seeks to establish a condition, and argue that the same condition now exists. And I objected when this evidence was offered, and now exists at some later time, as if this condition would go unchanged. But the sheer nature of money is to be placed or put somewhere else.

I don’t believe that — what we have basically is an opinion by a witness who’s not a resident of the home, who’s not there, making an opinion that which now we’re supposed to assume, based on that opinion, that that money was actually present, without any type of thorough search or any investigation whatsoever, other than that opinion. Again, the court denied the motions. The court commented: “[I]f the jurors view all of the evidence in the same way, by way of inferences, then I think that there is enough, though it ⁶⁹¹ may be by a hairline, but enough for them to reach a conclusion of guilt, so the motions are denied.” Maryland Rule 4-324(a) provides, in pertinent part: A defendant may move for judgment of acquittal on one or more counts, or on one or more degrees of an offense which by law is divided into degrees, at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence. The defendant shall state with particularity all reasons why the motion should be granted.

(Emphasis added.) The Court of Appeals has made clear that “[t]he language of the rule is mandatory.” State v. Lyles, 308 Md. 129, 135, 517 A.2d 761 (1986). A defendant may not argue in the trial court that the evidence was insufficient for one reason, then urge a different reason for the insufficiency on appeal in challenging the denial of a motion for judgment of acquittal. See, e.g., Graves v. State, 94 Md.App. 649, 684 , 619 A.2d 123 (1993) (appellant could not appeal assault conviction on basis that identification evidence was insufficient where defense counsel did not mention identification evidence in moving for judgment of acquittal), rev’d on other grounds, 334 Md. 30 , 637 A.2d 1197 (1994). That is, the challenge made on appeal to the sufficiency of the evidence must be the same as that made below.

Cf. Garrison v. State, 88 Md.App. 475, 478 , 594 A.2d 1264 (1991) (defendant who moves for judgment of acquittal based on the sufficiency of the evidence but then “submits” without articulating particularized reasons for the motion waives any challenge to the sufficiency of the evidence on appeal), cert. denied,, 325 Md. 249 , 600 A.2d 418 (1992); Brooks v. State, 68 Md.App. 604, 611 , 515 A.2d 225 (1986) (“a motion which merely asserts that the evidence is insufficient to support a conviction, without specifying the deficiency, does not comply with the Rule and thus does not preserve the issue of sufficiency for appellate review”), cert. denied, 308 Md. 382 , 519 A.2d 1283 (1987). In moving for judgment of acquittal at the close of the State’s case, neither counsel for Bates nor counsel for Beharry asserted that the evidence was insufficient or particularized ⁶⁹² any basis for such an argument. In renewing their motions at the close of all evidence, both counsel argued only that the evidence was insufficient to establish armed robbery in that it failed to show that any money was actually taken from Culbreth.

Neither counsel suggested that the State had failed to show that Bates and Beharry intended to commit an armed robbery of Culbreth. Nor did counsel suggest that the evidence failed to establish that Bates and Beharry took a substantial step — albeit possibly an unconsummated one— toward doing so. Apart from the challenge to the evidence regarding the alleged underlying felony of armed robbery, which did not address attempted armed robbery, counsel made no argument as to felony murder. Likewise, counsel failed to argue specifically that the evidence was insufficient to establish conspiracy to commit armed robbery.

In short, counsel failed to articulate below the arguments now urged on appeal regarding the sufficiency of the evidence. The arguments under Issue I have been waived. II Inconsistent Verdicts At the start of the sentencing hearing, the trial court indicated that, after trial, counsel for Beharry had moved to set aside Beharry’s felony murder conviction. See generally Md. Rule 4-331(b).

The filing of that motion is not noted in the docket entriés, and no written motion is included in the court file. In any event, counsel for Beharry contended at the sentencing hearing that, because Beharry was found not guilty of armed robbery and attempted armed robbery — the only possible underlying felonies — , his conviction for felony murder was improper. Counsel pointed out that conspiracy to commit armed robbery, of which Beharry was convicted, is a misdemeanor and therefore is not an adequate predicate for felony murder. See generally Code (1951, 1996 Repl.Vol., 1998 Cum.Supp.), § 410 of Art. 27 (setting forth the felonies and attempted felonies that may serve as the predicate for a felony murder conviction). ⁶⁹³ Beharry reiterates this argument on appeal.

He adds that the trial court never instructed the jury that it could only convict Beharry of felony murder if it found him guilty of armed robbery or attempted armed robbery. See Mack v. State, 300 Md. 583, 597 , 479 A.2d 1344 (1984) (explaining that “an instruction directing the jury to render consistent verdicts is beneficial because it minimizes the possibility of inconsistent verdicts that result in a conviction contrary to law”). Beharry concedes that his counsel never requested such an instruction, but asserts that “[t]he jury’s verdict as it stands raises a serious question as to whether the jury was in fact convinced beyond a reasonable doubt of all of the material elements of felony-murder.” In Maryland, to secure a conviction for first degree murder under the felony murder doctrine, the State is required to prove the underlying felony and the death occurring in the perpetration of the felony. The felony is an essential ingredient of the murder conviction.

The only additional fact necessary to secure the first degree murder conviction, which is not necessary to secure a conviction for the underlying felony, is proof of the death. The evidence required to secure a first degree murder conviction is, absent the proof of death, the same evidence required to establish the underlying felony. Newton v. State, 280 Md. 260, 269 , 373 A.2d 262 (1977) (emphasis added). “[T]here must be direct causal connection between the homicide and the felony.” Mumford v. State, 19 Md.App. 640, 644 , 313 A.2d 563 (1974). At the same time, the Court of Appeals has made clear that inconsistent verdicts by juries in criminal cases are tolerated in Maryland, provided there is no “proof of actual irregularity,” Ford v. State, 274 Md. 546, 553 , 337 A.2d 81 (1975) (affirming conviction for use of handgun in commission of felony where jury acquitted defendant of underlying felony), and provided there is sufficient evidence to support the conviction the jury has returned.

See Mack v. State, 300 Md. at 597 , 479 A.2d 1344 (also affirming use of handgun conviction where jury acquitted ⁶⁹⁴ defendant of underlying felony). See generally United States v. Powell, 469 U.S. 57 , 105 S.Ct. 471 , 88 L.Ed.2d 461 (1984) (affirming conviction for violating federal statute by using telephone to facilitate certain felonies where jury acquitted defendant of underlying felonies); Dunn v. United States, 284 U.S. 390 , 52 S.Ct. 189 , 76 L.Ed. 356 (1932) (affirming conviction for maintaining common nuisance by keeping intoxicating liquor for sale where jury acquitted defendant of possession of liquor and sale of liquor). We interpret Ford, supra, 274 Md. at 553 , 337 A.2d 81 , as permitting inconsistent jury verdicts in a criminal case if a reviewing court would have to speculate as to the reason for the inconsistency. The rationale for tolerating inconsistent verdicts under such circumstances is “[t]he general view ... that inconsistencies may be the product of lenity, mistake, or a compromise to reach unanimity, and the continual correction of such matters would undermine the historic role of the jury as arbiter of questions put to it.” Shell v. State, 307 Md. 46, 54 , 512 A.2d 358 (1986) (making clear that inconsistent verdicts will not be tolerated in court trials). “[T]here is a ‘reluctance to interfere with the results of unknown jury interplay,’ at least without proof of ‘actual irregularity.’ ” Id.

(quoting Ford, 274 Md. at 553 , 337 A.2d 81 ). As the Supreme Court explained in Powell, 469 U.S. at 65 , 105 S.Ct. 471 : Inconsistent verdicts ... present a situation where “error,” in the sense that the jury has not followed the court’s instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact that the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course. It follows that when it is apparent from the record that the jury was misled by the court’s instructions, and the inconsistent verdicts clearly are not the product of lenity, mistake, or compromise on the part of the jury, the inconsistency should not be tolerated. ⁶⁹⁵ It is well established in Maryland that a jury may render inconsistent verdicts when a defendant is charged with a felony or crime of violence and use of a handgun in the commission of that felony or crime of violence.

Thus, the jury may find the defendant guilty of the handgun violation but not guilty of the underlying felony or crime of violence. See Ford, 274 Md. 546 , 337 A.2d 81 ; Mack, 300 Md. 583 , 479 A.2d 1344 . Whether inconsistent verdicts can be tolerated in a felony murder case, such that a defendant may be found guilty of felony murder but not guilty