Carroll v. State

BARBERA, J. Petitioner, George Carroll, was tried before a jury in the Circuit Court for Frederick County and convicted of four counts of attempted armed robbery, four counts of conspiracy to commit those offenses, and related crimes. In his appeal to the Court of Special Appeals, Petitioner argued, among other claims of error, that the reasonable doubt instructions were constitutionally deficient and in violation of Maryland Rule 4-325(c), because the instructions did not include the advisement that, in order to convict Petitioner of any of the charged crimes, the jury must be convinced beyond a reasonable doubt that the State proved every element of the crime. Petitioner also contended that the law does not permit separate convictions and sentences for what is but a single conspiracy, and that principles of fundamental fairness dictate that the conspiracy conviction should merge with the convictions of attempted armed robbery. The Court of Special Appeals agreed with Petitioner that the four conspiracy convictions should merge, leaving but one such conviction.

Carroll v. State, 202 Md.App. 487, 518-19 , 32 A.3d 1090, 1107-08 (2011). The Court rejected Petitioner’s remaining contentions, holding that the instructions satisfied the constitutional requirement that the jury be advised of the State’s burden to prove beyond a reasonable doubt each element of the charged crimes, and that fundamental fairness does not require merger of conspiracy to commit armed ⁶⁸⁴ robbery and attempted armed robbery. Id. at 503-04, 518 , 32 A.3d at 1098-99, 1107 . Petitioner sought, and we granted, review of the latter two holdings of the Court of Special Appeals.

Carroll v. State, 425 Md. 227 , 40 A.3d 39 (2012). For reasons we shall explain, we affirm the judgment of the Court of Special Appeals. I. On the night of April 24, 2010, four teenagers, Andrew Caroglanian, Joshua Phillips, Jessica Goldzwig, and Lauren Jacobsen, went camping in Frederick County, Maryland. As Andrew and Joshua were setting up their tent, they were approached by Petitioner and two other men, Nicholas Cann and Zachary Lee.

Petitioner and Cann each carried a machete, and Lee carried a baseball bat. The encounter was not hostile, although Andrew testified that he “thought there would be trouble” because the men were carrying weapons. After a brief conversation, Petitioner, Cann, and Lee invited the teenagers to visit the men’s campsite, which was situated nearby. Andrew and Joshua responded that they would consider the offer and perhaps visit later.

Fifteen to twenty minutes later, the four teens were inside their tent when they saw people adding wood to the campfire. They also heard and saw shadows of something striking the outside of the tent. Petitioner, Cann, and Lee told the teens to “get the fuck out of the tent and give us everything you have.” Lauren was able to call 911 from a cell phone to alert the police of the situation before she was forced from the tent. Petitioner, Cann, and Lee wielded machetes and a baseball bat while repeatedly demanding money and valuables from the teenagers.

Andrew gave them $100 from his wallet and Lauren gave them another $100 from Andrew’s vehicle. Petitioner also instructed the teenagers to put all of their cell phones into a pile. Lee told them to hand over any personal identification cards, warning that he would kill them if they ever notified the police. Petitioner and the other two men began shouting at each other while demanding more money from the teenagers.

Wanting to get out of the woods and into ⁶⁸⁵ a more populated area, Andrew offered to drive to the ATM to retrieve more money. Petitioner and his confederates eventually agreed to that offer. After some argument about who would go in the vehicle to the ATM, it was decided that Cann would ride in the front passenger’s seat while Andrew drove. Joshua, Jessica, and Lauren were allowed to sit in the backseat.

Cann told those inside the vehicle that he had a gun, and he gripped his waistband area. In an attempt to alert oncoming cars to their situation, Andrew flashed his vehicle’s high beams while driving. When a police officer approached their vehicle, Andrew mouthed the word “help” and then got out of the vehicle. He told the police that Cann had a gun.

Police arrested Cann at the vehicle and later apprehended Petitioner and Lee near the campsite. In an interview with police, Petitioner initially denied going to the campsite but later admitted he was present. Petitioner attempted to minimize his involvement in the incident by telling the police that he was not part of any plan and did not threaten anyone. The State secured a 27-count indictment against Petitioner charging him with one count of armed robbery; one count of kidnapping; one count of theft less than $1000; and four counts each of conspiracy to commit armed robbery, attempted armed robbery, assault in the second-degree, reckless endangerment, false imprisonment, and carrying a deadly weapon with intent to injure.

At trial, Petitioner asked the court to modify Maryland Criminal Pattern Jury Instruction (MPJI-Cr) 2:02, which addresses the presumption of innocence and reasonable doubt. That instruction states in relevant part: 1 ⁶⁸⁶ The defendant is presumed to be innocent of the charges. This presumption remains 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. Petitioner asked the court to add to the above language of the pattern instruction that “[t]he State has the burden to prove each element of a charge beyond a reasonable doubt.” After some discussion among the court, defense counsel, and the prosecutor (who objected to Petitioner’s request), the court gave MPJI-Cr 2:02 with the words “of each charge” tacked onto the second sentence quoted above, so that it read: “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.” Petitioner also requested that the MPJI-Cr instruction for each of the charged offenses be amended to add, after the list of the elements for each crime, the following words: “In order for the person to be convicted, the State must prove beyond a reasonable doubt each of these ... elements.” The court declined that request and, for all but the conspiracy charge, instructed the jury in accordance with the pertinent pattern ⁶⁸⁷ instruction for each crime charged. On the conspiracy charge, the court gave, instead of the MPJI-Cr instruction, the following instruction based generally on the conspiracy instruction found in David E. Aaronson, Maryland Criminal Jury Instructions and Commentary, vol. 1 § 4.21 (3d ed. 2009): [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 this agreement. The jury found Petitioner guilty of four counts each of attempted armed robbery, conspiracy to commit armed robbery, second-degree assault, reckless endangerment, and false imprisonment.

At sentencing, the court merged the false imprisonment, reckless endangerment, and second-degree assault convictions, and sentenced Petitioner to serve a total of 18 years’ incarceration, with a consecutive 20 years suspended, followed by five years of probation. Petitioner filed a timely appeal to the Court of Special Appeals, which, as mentioned, issued a reported opinion affirming in part and vacating in part the judgments of conviction. Carroll, 202 Md.App. at 519-20 , 32 A.3d at 1108 . We issued a writ of certiorari to answer the following questions presented by Petitioner: 1.

Is a defendant entitled, upon request, to an instruction expressly informing the jury that the State has the burden of proving each element of every charged offense beyond a reasonable doubt? 2. Should convictions for the inchoate crime of conspiracy to commit armed robbery be merged with convictions for the inchoate crime of attempted armed robbery as a matter of fundamental fairness? ⁶⁸⁸ II. The Reasonable Doubt Instructions Petitioner contends that the jury instructions, other than the instruction on the charge of conspiracy, do not satisfy the requirements of the Due Process Clause of the Fourteenth Amendment and its counterpart provision in Maryland, Article 24 of the Maryland Declaration of Rights. 2 Petitioner argues that, because the jury was not expressly advised that the reasonable doubt standard must be applied to each element of each offense, there was a “reasonable likelihood” that the jury convicted him based on less than what is mandated by In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970). Winship holds that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 397 U.S. at 364 , 90 S.Ct. 1068 ; accord Savoy v. State, 420 Md. 232, 246 , 22 A.3d 845, 853-54 (2011) (“The Due Process Clause ... requires the State to prove every element of an offense charged beyond a reasonable doubt.”).

Petitioner further asserts that the court’s refusal to include defense counsel’s proposed language in the jury instructions violated Maryland Rule 4-325(c), which provides in pertinent part that “[t]he court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.” In response, the State directs us to Victor v. Nebraska, 511 U.S. 1 , 114 S.Ct. 1239 , 127 L.Ed.2d 583 (1994). In Victor , the Supreme Court, while recognizing the rule established in Winship , held that no “particular form of words” need be used in advising the jury of the burden of proof required for conviction. Id. at 6, 114 S.Ct. 1239 . The State argues that ⁶⁸⁹ MPJI-Cr 2:02 and the pattern instructions for each charged offense, read together, adequately conveyed to the jury that it was required to find Petitioner guilty, beyond a reasonable doubt, of each element that comprised the offenses.

The State asserts that the jury was not reasonably likely to have interpreted the court’s instructions in the way Petitioner suggests. Therefore, according to the State, the language proposed by Petitioner is not constitutionally required and, consequently, there is no violation of Maryland Rule 4-325. The standard by which we assess the propriety of a trial court’s refusal to give a requested instruction is well known. “A trial court must give a requested jury instruction where ‘(1) the instruction is a correct statement of law; (2) the instruction is applicable to the facts of the case; and (3) the content of the instruction was not fairly covered elsewhere in instructions actually given.’ ” Cost v. State, 417 Md. 360, 368-69 , 10 A.3d 184, 189 (2010) (quoting Dickey v. State, 404 Md. 187, 197-98 , 946 A.2d 444, 450 (2008)). The “instructions are reviewed in their entirety” and “[r] ever sal is not required where the jury instructions, taken as a whole, sufficiently protect the defendant’s rights and adequately covered the theory of the defense.” Fleming v. State, 373 Md. 426, 433 , 818 A.2d 1117, 1121 (2003).

We apply an abuse of discretion standard to the court’s decision not to give a requested instruction, yet we will not hesitate to reverse a conviction if we conclude that “the defendant’s rights were not adequately protected.” Cost, 417 Md. at 369 , 10 A.3d at 189 . The parties agree, and there can be no serious dispute, that the first prong of what we here shall refer to as the Cost test is satisfied in that the instructions Petitioner sought accurately state the law. Indeed, the federal and Maryland constitutions require that in order to convict a defendant in a criminal case the jury must be convinced that the State has proven each element of a charged offense beyond a reasonable doubt. The parties also agree that the second prong of the Cost test is met in that the requested instructions are applicable to the facts of the case.

We concur. Indeed, the same can be ⁶⁹⁰ said of any accurate instruction on the burden of proof, whether proposed in a civil or criminal case. The parties’ dispute focuses on the third prong of the Cost test. The parties disagree about whether the instructions given fairly covered the requirement that the jury be advised of the State’s burden to prove beyond a reasonable doubt each element of every offense charged.

For the reasons that follow, we conclude that the instructions, read as a whole, satisfy constitutional requirements. The constitutional sufficiency of an instruction depends, not on whether the jury could have applied the instructions in an unconstitutional manner, but on “whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.” Victor, 511 U.S. at 6 , 114 S.Ct. 1239 (emphasis added). And as the State points out, under Victor , no “particular form of words” is required by the Constitution when instructing the jury on the State’s burden of proof. See id. at 5 , 114 S.Ct. 1239 .

The court instructed the jury with a near verbatim recitation of MPJI-Cr 2:02. The detailed description of the concept of proof beyond a reasonable doubt set forth in that pattern instruction conveyed to the jurors that they must evaluate guilt based on that standard of proof. Then, in each of the separate instructions on the offenses charged, the court referred to the burden of proof when introducing the elements of each charged offense with the words “the State must prove” those elements. Read together, the reasonable doubt instruction (emphasizing the meaning and importance of that standard of proof) and the repeated message in every instruction that the State “must prove” the elements of each charged offense adequately imparted to the jury the mandate that the State must prove each element beyond a reasonable doubt.

Other courts are in accord. See People v. Orchard, 17 Cal.App.3d 568, 576-77 , 95 Cal.Rptr. 66, 71 (1971) (holding that an instruction on the State’s burden to prove each element of the charged offense beyond a reasonable doubt was ⁶⁹¹ not required when the court instructed on the State’s burden of proof beyond a reasonable doubt, and then defined the essential elements of the charged offense); City of Billings v. Briner, 228 Mont. 518 , 744 P.2d 877, 878 (1987) (holding that there was no error in the court’s failing to instruct specifically that the State must prove each and every element of the offense beyond a reasonable doubt, because the court had instructed the jury that the government had the burden to prove the defendant’s guilt beyond a reasonable doubt and then instructed the jury on the elements of the charged offense). Petitioner counters "with two cases on the other side of the ledger, Commonwealth v. Bishop, 472 Pa. 485 , 372 A.2d 794 (1977) and People v. Newman, 46 N.Y.2d 126 , 412 N.Y.S.2d 860 , 385 N.E.2d 598 (1978). In both cases, the courts found reversible error where a trial court did not provide a satisfactory explanation of the State’s burden of proof in the jury instructions.

In Bishop , the court held that “[t]he defense had an absolute right to have the jury instructed not only as to the quantum of proof required to establish guilt but also that the requirement extended to each of the material elements of the offense.” 372 A.2d at 796 . The holding in Newman is narrower: “We hold that ... it was reversible error for the trial court to have refused a request to charge that the People had the burden of proving every element of the crimes charged beyond a reasonable doubt when the ground for that refusal was that the court had already advised the jury in a preliminary address at the outset of trial.” 3 385 N.E.2d at 599 . ⁶⁹² Although Bishop and Newman are informative from a “best practices” perspective, we are, in the end, not persuaded that an otherwise-correct reasonable doubt instruction is rendered constitutionally deficient by the omission of language that each element of the offense charged must be proven beyond a reasonable doubt. We adhere to Victor , which declares that the constitutional “inquiry is not whether the instruction ‘could have’ been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it.” 511 U.S. at 6 , 114 S.Ct. 1239 (citing Estelle v. McGuire, 502 U.S. 62 , 72 & n. 4, 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991)); accord Savoy, 420 Md. at 246-47 , 22 A.3d at 854 . See also Aaronson, Maryland Criminal Jury Instructions and Commentary, Comment to § 1.05, at 1-50 (commenting that the reasonable likelihood standard “requires a court to evaluate not what a reasonable juror could or might find but rather ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence’ ”) (quoting Boyde v. California, 494 U.S. 370, 381 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 (1990)).

We therefore hold, as did our colleagues on the Court of Special Appeals, Carroll, 202 Md.App. at 503-04 , 32 A.3d at 1098-99 , that in the present case the instructions, read as a whole, satisfy the constitutional mandate that the jury be informed that it is the State’s burden to prove beyond a reasonable doubt each element of the crime(s) charged. It follows that there likewise is no violation of Maryland Rule 4-325(c). We do not overlook this Court’s endorsement of MPJI-Cr 2:02 in Ruffin v. State, 394 Md. 355 , 906 A.2d 360 (2006). In that case we 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.” Id. at 373 , 906 A.2d at 371 . As Petitioner notes, we were not confronted in Ruffin , or to our knowledge in any other case, with the constitutional challenge to MPJICr 2:02 presented here. Yet the strong message we sent in ⁶⁹³ Ruffin and in other cases before it approving the language of the pattern instruction, see Wills v. State, 329 Md. 370, 383-84 , 620 A.2d 295, 301-02 (1993); Merzbacher v. State, 346 Md. 391, 404 , 697 A.2d 432,