Carroll v. State

GRAEFF, J. A jury sitting in the Circuit Court for Frederick County convicted George J. Carroll, appellant, of four counts of attempted armed robbery, four counts of conspiracy to commit armed robbery, four counts of second degree assault, four counts of reckless endangerment, and four counts of false imprisonment. 1 The court imposed concurrent sentences of 18 years on two of the convictions for attempted armed robbery and 20-year suspended sentences for the other two convictions for attempted armed robbery and for the conspiracy convictions. 2 On appeal, appellant raises several issues for review, which we have rephrased as follows: ⁴⁹⁵ 1. Did the trial court abuse its discretion in declining to instruct the jury that the State had the burden to prove each element of every charged offense beyond a reasonable doubt? 2. Was the evidence sufficient to support appellant’s conviction for conspiracy to commit armed robbery? 3. Did the trial court commit plain error in admitting a recording of Mr. Carroll's interrogation by the police? 4.

Did the trial court err in failing to merge: (1) Mr. Carroll’s convictions for conspiracy to commit armed robbery with his convictions for attempted armed robbery; and (2) appellant’s four convictions for conspiracy? 5. Should appellant’s conviction on Count 24, second degree assault, be vacated? For the reasons set forth below, we shall vacate the conviction on Count 24, vacate three of the four sentences for conspiracy, and otherwise affirm the judgments of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On April 24, 2010, four high school students, Andrew, Josh, Lauren, and Jessica, went to a campsite in Frederick, Maryland.

When they arrived at the campsite, at approximately 11:00 p.m., it was raining. The girls stayed in the car, and Andrew and Josh started setting up the tent. While Andrew and Josh were setting up the tent, three men, appellant, Nicholas Cann, and Zachary Lee, entered their campsite. Andrew testified that he “thought there would be trouble” because the men were holding machetes and a baseball bat.

The encounter remained friendly, however, and the men invited Andrew and Josh to their campsite to drink with them. Andrew and Josh appeared receptive to the offer because the men had machetes, and they did not want to make the men mad. Appellant, Mr. Cann, and Mr. Lee left, and Andrew and Josh finished setting up the tent. Lauren and Jessica then joined them in the tent. ⁴⁹⁶ Approximately fifteen to twenty minutes later, the three men returned to the teenagers’ campsite.

The men put more wood on the fire and began swinging the machetes against the sides of the tent. They told the teenagers to “[g]et the fuck out of the tent and give us everything you have.” Andrew and Josh exited the tent. Jessica and Lauren stayed inside the tent, and Jessica dialed 911. When the boys exited the tent, appellant held a machete to the boys’ ankles.

The other two men were holding a baseball bat and a machete. Mr. Cann reached into the tent, held a machete to Jessica’s throat, and pulled her out of the tent. Mr. Cann ordered Lauren out of the tent. Appellant told the teenagers to put their cell phones in a pile and to give them any money that they had.

Andrew had $100 with him and $100 in the center console of his car. The men took Andrew’s license, and they told the teenagers that, if they involved the police, the men would come find them and kill them. Andrew testified that the men “got rowdy, and started yelling at each other and wanted more” money. Andrew wanted to “get back to civilization [and] out of the woods,” so he suggested that they go to an ATM to get more money.

The three men discussed the idea, and they ultimately agreed that Mr. Cann would go with all of the teenagers to the ATM. Andrew then drove his ear out of the woods, with Mr. Cann in the passenger seat and the three other teenagers in the back seat. Mr. Cann told them that he had a gun, and he kept his hand under his shirt on the waistband. As they were driving, police cars passed them.

Andrew pulled the car to the side of the road and turned it off. As vehicles passed the car, Andrew flashed his high beams repeatedly. An officer approached the car, and Andrew mouthed the word “help.” Andrew got out of the car and ran toward the officer shouting that Mr. Cann had a gun. The other teenagers got out of the car, and the police took Mr. Cann into custody.

As the police were speaking with the teenagers, appellant approached from the woods. The two females screamed, and the officers arrested appellant. Mr. Lee was subsequently ⁴⁹⁷ found kneeling next to a tree. Close to where Mr. Lee had been hiding, officers recovered a driver’s license belonging to Andrew, a machete, a machete holder, a belt, a flashlight and an empty case that could hold a machete.

A second machete was recovered at the teenagers’ campsite, and a baseball bat was recovered from the men’s campsite. After appellant’s arrest, he was interviewed by police. At trial, the State introduced into evidence a recording of the interview. Appellant initially told police that he did not have any knowledge of what happened, and he denied going to any campsite other than his own.

Eventually, after the police told him that the victims had described him, including a tattoo on his arm, he admitted that he did go to the teenagers’ campsite. He maintained, however, that he did not do anything wrong. Appellant suggested that the other two men may have had a plan, stating that they were winking at each other and looking at each other “a little funny,” in a way that his “gut [told him] was bad.” He denied, however, that he was in on any plan. Ultimately, appellant admitted that he was there when Mr. Cann dragged a “stick” along the side of the tent and that he discussed whether to go to the bank to get money.

He said that he told the other men that it was not a good idea to get in the car and go to the bank. Appellant indicated, however, that Mr. Cann was “the mouth,” the ringleader. As indicated, the jury found appellant guilty of four counts of attempted armed robbery, four counts of conspiracy to commit armed robbery, four counts of second degree assault, four counts of reckless endangerment, and four counts of false imprisonment. This timely appeal followed.

DISCUSSION I. Jury Instruction Appellant’s first contention involves the court’s instructions regarding the State’s burden to prove his guilt beyond a ⁴⁹⁸ reasonable doubt. He argues that the court erred “by refusing to instruct the jury that the State had the burden of proving each element of every charged offense beyond a reasonable doubt.” The State asserts that the court’s instructions were proper. A. Proceedings Below The Maryland Criminal Pattern Jury Instruction (“MPJICR”) 2:02, addressing the presumption of innocence and reasonable doubt, provides, in part, as follows: The defendant is presumed to be innocent of the charges. This presumption remains with the defendant throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty.

The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The defendant is not required to prove [his] [her] innocence. Appellant requested that the court modify the pattern instruction to add that the State had the burden to prove each element of a charge beyond a reasonable doubt.

Additionally, he asked that the pattern instructions for each substantive offense be modified to add, after the listing of elements, the following: “In order for the person to be convicted, the State must prove beyond a reasonable doubt each of these [number of] elements.” The State objected to the modifications, arguing that “it’s not in the Pattern anywhere and its sufficiently covered” by the instructions as a whole. The prosecutor asserted that it would be “an unfair focus to put on each of the charge[s], the beyond the reasonable doubt standard,” and that if the court did so, then “to be fair Your Honor should include the whole reasonable doubt instruction ... where it’s mentioned.” The court responded: ⁴⁹⁹ The reasonable doubt, in some of the Patterns, although not in any of the ones here, they add each element beyond a reasonable doubt as the nature of the instruction. But there is a separate instruction and quite frankly I instructed the jury at the ... initiation of this case as to ... presumption of innocence and reasonable doubt and I don’t think that it’s necessary that that be repeated for each ... offense. Ultimately, the court instructed the jury pursuant to MPJICR 2:02, modifying the instruction by adding that the jury must be convinced beyond a reasonable doubt that appellant was guilty “of each charge.” The trial court instructed the jury as follows: Mr. Carroll is presumed to be innocent of the charges.

This presumption remains on Mr. Carroll throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the Defendant is guilty of each charge. The State has the burden of proving the guilt of the Defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The Defendant is not required to prove his innocence.

However the State is not required to prove guilt beyond all possible doubt or to a mathematical certainty. Nor is the State required to negate every conceivable circumstance of innocence. A reasonable doubt is a doubt founded upon reason. Proof beyond a reasonable doubt requires such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own business or personal affairs.

However if you are not satisfied of the Defendant’s guilt to that extent than [sic] reasonable doubts exists [sic] and your verdict must be not guilty. (Emphasis added). The court then instructed the jury as to each of the charged offenses. In doing so, the court stated, for each charge, with the exception of conspiracy, as follows: “In order to convict ⁵⁰⁰ the Defendant of [name of offense] the State must prove.... ” The court then listed each element of the offense.

For example, when instructing the jury on robbery, the court stated: Robbery is the taking and carrying away the property from someone by force or threat of force with the intent to deprive the victim of the property. In order to convict the Defendant of robbery the State must prove that the Defendant took the property from [the victim] and from his presence and control, that he took the property by force or threat of force, and that he intended to deprive the victim of that property. With respect to conspiracy, the court did not give the pattern instruction. 3 It instructed the jury as follows: [A] conspiracy is an agreement between two or more persons to commit a crime. And a conspiracy is in itself a separate crime.

It exists when two or more persons enter into an agreement to accomplish a criminal or unlawful purpose. In order for a person to be guilty of this offense the State must prove beyond a reasonable doubt that the Defendant or one or more other persons entered into an agreement, that the object of the agreement was criminal or unlawful, and that there was a joint intent to enter into this agreement. B. Explicit Instruction on Burden to Prove Every Element Beyond a Reasonable Doubt Appellant contends that the court’s instructions, apart from ⁵⁰¹ the instructions on the conspiracy charges, were erroneous. 4 He argues that, although the court instructed the jury that the State had the burden to prove his guilt beyond a reasonable doubt, and it instructed pursuant to MPJI-CR 2:02, as required by Ruffin v. State, 394 Md. 355, 357, 373 , 906 A.2d 360 (2006), “the Constitution and Maryland law require more,” specifically an instruction that each element of every charged offense must be proven beyond a reasonable doubt. Appellant asserts that Due Process requires such an instruction.

The State contends that the court did not “err when it instructed the jury pursuant to the pattern instruction on reasonable doubt rather than adopting the non-pattern instruction proposed by [appellant].” It argues that “[t]he reasonable doubt instruction, considered in conjunction with the instructions given to the jury as to each criminal offense, sufficiently instructed the jury that they must find each element of the crime beyond a reasonable doubt.” The State asserts that the court was not required to give appellant’s requested instruction because the matter was fairly covered by the instructions given. Maryland Rule 4-325(c) provides that, at the request of any party, the court “shall” instruct the jury regarding the applicable law. Pursuant to this rule, however, “[t]he court need not grant a requested instruction if the matter is fairly covered by instructions actually given.” Id. In reviewing a trial court’s refusal to give a requested instruction, an appellate court looks to three factors.

We must determine whether the requested instruction: (1) constitutes a correct statement of the law; (2) is applicable under the facts of the case; and (3) has been fairly covered by the instructions given. Cost v. State, 417 Md. 360, 368-69 , 10 A.3d 184 (2010); Evans v. State, 174 Md.App. 549, 567 , 922 A.2d 620 , cert. denied, 400 Md. 648 , 929 A.2d 890 (2007). Although ⁵⁰² we review a trial court’s decision not to give a proposed jury instruction under an abuse of discretion standard, the court’s decision will be reversed if the defendant’s rights were not adequately protected. Cost, 417 Md. at 369 , 10 A.3d 184 .

Both parties agree that the requested instruction was a correct statement of the law. It is well established that the State must prove beyond a reasonable doubt each element of a charged offense. See Sullivan v. Louisiana, 508 U.S. 275, 277-78 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) (“The prosecution bears the burden of proving all elements of the offense charged, and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements.”) (citations omitted); Savoy v. State, 420 Md. 232, 246 , 22 A.3d 845 (2011) (“The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the State to prove every element of an offense charged beyond a reasonable doubt.”). Similarly, there is no dispute that the beyond a reasonable doubt standard was applicable here, as it is in every criminal trial.

As the Court of Appeals noted in Ruffin, 394 Md. at 372 , 906 A.2d 360 , “the presumption of innocence and the reasonable doubt principles do not change from case to case. The identical principles are applicable in every criminal jury trial, regardless of the issues in that particular trial.” The Supreme Court has made clear, however, that no “particular form of words” must be used in advising the jury regarding the State’s burden of proof beyond a reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 5 , 114 S.Ct. 1239 , 127 L.Ed.2d 583 (1994). The issue in this case, therefore, is whether appellant’s requested instruction was fairly covered by the instructions given.

The court’s instruction on the presumption of innocence and reasonable doubt stated, inter alia, that “[t]he State has the burden of proving the guilt of the Defendant beyond a reasonable doubt.” The instruction on the specific charges then stated: “In order to convict the defendant of_, the ⁵⁰³ State must prove ...,” followed by a list of the elements of each offense. Read together, the instructions advised the jury that the State must prove each element of the offense beyond a reasonable doubt. Other courts similarly have upheld instructions that did not contain the explicit advice requested here. See People v. Orchard, 17 Cal.App.3d 568 , 95 Cal.Rptr. 66, 71 (1971) (instruction regarding State’s burden to prove each element beyond a reasonable doubt was not required where the court instructed on the State’s burden of proof beyond a reasonable doubt and then defined the essential elements of the crime charged); City of Billings v. Briner, 228 Mont. 518 , 744 P.2d 877, 878 (1987) (where the court instructed that the government had the burden to prove defendant’s guilt beyond a reasonable doubt and then instructed as to the elements of the crime, no error in failing to specifically instruct that the prosecutor must prove each and every element of the offense beyond a reasonable doubt).

Moreover, we note that appellant is asking us to hold that MPJI-CR 2:02 does not meet constitutional requirements. In Ruffin , however, the Court of Appeals not only approved of this pattern instruction, it held that, “in every criminal jury trial, the trial court is required to instruct the jury on the presumption of innocence and the reasonable doubt standard of proof which closely adheres to MPJI-CR 2:02. Deviations in substance will not be tolerated.” 394 Md. at 373 , 906 A.2d 360 . Accord Merzbacher v. State, 346 Md. 391, 404 , 697 A.2d 432 (1997) (“[W]e strongly recommend that trial courts closely adhere to the reasonable doubt instruction ... articulated in [MPJIJ-CR 2:02.”).

In light of the Court of Appeals’ admonition to trial courts to instruct on reasonable doubt in accordance with MPJI-CR 2:02, and because the instructions as a whole made clear that the State had the burden of proving each element of each offense beyond a reasonable doubt, we find no abuse of discretion by the trial court in declining to give appellant’s requested instruction. We hold that the failure to instruct the ⁵⁰⁴ jury explicitly that the State’s burden of proof applies to each element of each offense is not error, as long as this burden of proof is clear from the instructions as a whole. Appellant is not entitled to a new trial on this ground. 5 II. Sufficiency of the Evidence Appellant next contends that the evidence was insufficient to support his four convictions for conspiracy to commit armed robbery.

He argues that “the State presented absolutely no direct evidence that could support a finding that he entered into an agreement to commit an armed robbery,” and that the circumstantial evidence presented by the State “belies any suggestion that the three had a pre-existing agreement to commit armed robbery.” The State contends that there was sufficient evidence to support appellant’s convictions. It argues that appellant and the other men “acted in concert,” and a conspiracy to rob can be implied from their actions. In reviewing a claim regarding the sufficiency of the evidence, an appellate court must determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” ⁵⁰⁵ Smith v. State, 415 Md. 174, 184 , 999 A.2d 986 (2010) (quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)). In reviewing the evidence, “ ‘[i]t is not our role to retry the case.’ ” State v. Mayers, 417 Md. 449, 466 , 10 A.3d 782 (2010) (quoting Smith, 415 Md. at 185 , 999 A.2d 986 ).

Accord State v. Albrecht, 336 Md. 475, 478 , 649 A.2d 336 (1994) (“[I]t is not the function or duty of the appellate court to undertake a review of the record that would amount to, in essence, a retrial of the case.”). Rather, “ ‘[bjecause the fact-finder possesses the unique opportunity to view the evidence and to observe first-hand the demeanor and to assess the credibility of witnesses during their live testimony, we do not re-weigh the credibility of witnesses or attempt to resolve any conflicts in the evidence.’ ” Mayers, 417 Md. at 466 , 10 A.3d 782 (quoting Smith, 415 Md. at 185 , 999 A.2d 986 ). “We defer to any possible reasonable inferences the jury could have drawn from the admitted evidence and need not decide whether the jury could have drawn other inferences from the evidence, refused to draw inferences, or whether we would have drawn different inferences from the evidence.” Id. The Court of Appeals has summarized the elements of a conspiracy as follows: A criminal conspiracy consists of the combination of two or more persons to accomplish some unlawful purpose, or to accomplish a lawful purpose by unlawful means. The essence of a criminal conspiracy is an unlawful agreement.

The agreement need not be formal or spoken, provided there is a meeting of the minds reflecting a unity of purpose and design. In Maryland, the crime is complete when the unlawful agreement is reached, and no overt act in furtherance of the agreement need be shown. Khalifa v. State, 382 Md. 400, 436 , 855 A.2d 1175 (2004) (quoting Townes v. State, 314 Md. 71, 75 , 548 A.2d 832 (1988)). “ ‘[I]t is sufficient if the parties tacitly come to an understanding regarding the unlawful purpose.... [T]he State [is] only required to present facts that would allow the jury to infer that the parties entered into an unlawful agreement.’ ” Arm- ⁵⁰⁶ stead v. State, 195 Md.App. 599, 646, 7 A.3d 169 (2010) (quoting Acquah v. State, 113 Md.App. 29, 50 , 686 A.2d 690 (1996)), cert. denied, 418 Md. 191 , 13 A.3d 798 (2011). A conspiracy may be shown by “ ‘circumstantial evidence from which an inference of common design may be drawn.’ ” Id.

(quoting McMillian v. State, 325 Md. 272, 292 , 600 A.2d 430 (1992)). Here, there was sufficient evidence to support the jury’s finding that appellant engaged in a conspiracy to rob the victims. Appellant went to the victims’ campsite, carrying a machete, with the other two men who were carrying a machete and a bat. The victims interpreted the visit as indicating that “there would be trouble.” The men left and then returned to the campsite, together, approximately 15 to 20 minutes later, still brandishing the weapons.

The men immediately told the teenagers to “get the fuck out of the tent and give us everything you have.” Appellant then held his machete to the ankles of the two boys as they exited the tent, which was interpreted by the boys as a way to stop them from running. These actions show that the men were acting in concert. Indeed, during the encounter, appellant, Mr. Cann, and Mr. Lee discussed together whether to take the victims to the ATM, illustrating that the men were acting in agreement and pursuant to a collective decision. Moreover, the victims testified that appellant appeared to be the man in charge of the group.

This evidence was sufficient for the jury to reject appellant’s statement to the police that he was a passive bystander and to imply from appellant’s actions a conspiracy with the other men to rob. There was sufficient evidence to support appellant’s convictions for conspiracy to commit armed robbery.

III

Post-Arrest Statements Appellant next argues that the court erred in admitting a recording of his interview with the police after he was arrested. He contends that his post-arrest interrogation violated ⁵⁰⁷ Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), because the police continued to question him after he “unambiguously invoked his Fifth Amendment right to remain silent.” The State contends that this issue is not properly before this Court for review. It argues that, “not only did [appellant] fail to preserve his Miranda challenge, but he affirmatively waived that challenge.” Pursuant to Maryland Rule 8-131(a), an appellate court ordinarily will not decide an issue “unless it plainly appears by the record to have been raised in or decided by the trial court.” This rule “serves to prevent the unfairness that could arise when a party raises an issue for the first time on appeal, thus depriving the opposing party from admitting evidence relating to that issue at trial.” Wilkerson v. State, 420 Md. 573, 597 , 24 A.3d 703 (2011). Accord Robinson v. State, 410 Md. 91, 103 , 976 A.2d 1072 (2009) (“Fairness and the orderly administration of justice is advanced ‘by “requiring counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct[,] any errors in the proceedings.” ’ ”) (quoting State v. Bell, 334 Md. 178, 189 , 638 A.2d 107 (1994)).

Here, counsel for appellant initially filed a motion to suppress his statements to the police. At the beginning of trial, however, appellant’s counsel withdrew the motion. In this regard, the following occurred: [DEFENSE COUNSEL]: ... I will note that there is a statement given, an extensive statement that was given, however I have viewed that statement ... it was videotaped and recorded so I viewed that, and other than a headlamp, um, that fits on the head, uh, I don’t know that there was anything else taken from my client.

And based on my view of the videotape, Your Honor, there’s certainly, he gave the statement, there’s certainly nothing there that I think in, in my opinion was improper, uh, worthy of a motion. So I would withdraw. ⁵⁰⁸ THE COURT: Formally note the motion to suppress is withdrawn. At trial, defense counsel objected to the admission of the first part of the statement on the ground that it was not relevant. He argued that the only purpose in introducing that part of the statement, in which appellant denied that he was present at the victims’ campsite, was to show that appellant was a liar, which counsel asserted was not appropriate because appellant was not going to testify.

In response, the court stated: Defendant’s statement surrounding the accusations at issue is relevant and is admissible so long as it is not involuntary under the Fifth Amendment or is taken in violation of the Defendant’s rights under Miranda____What has been pre- sented to me is the Defendant made a statement that evening surrounding the accusations and that that statement in its entirety, including changes in his story, would be relevant on numerous issues and that