Dixon v. State

MOYLAN, Judge. The appellant, Thomas Dalton Dixon, was convicted by a Prince George’s County jury, presided over by Judge G.R. Hovey Johnson, of first-degree assault and the use of a handgun in the commission of a crime of violence. He was sentenced to twenty years imprisonment for the first-degree assault and a consecutive sentence of twenty years for the handgun violation. On this appeal, he claims 1) that Judge Johnson erroneously permitted the victim to testify that he had on a prior occasion purchased drugs from the appellant; 2) that Judge Johnson erroneously admitted evidence showing that the appellant shot and hit a second person; 3) that the twenty-year sentence for first-degree assault was illegal; and 4) that Judge Johnson erroneously allowed the prosecutor to nol pros the charge of attempted voluntary manslaughter and erroneously failed to instruct the jury with respect to that count.

What Do We Look At: The Forest or the Trees? Our discussion of the first two contentions will interweave with our description of the factual background of the case. ³²⁹ Both of those contentions assert that there was a violation of the law prohibiting the admission against a defendant of evidence showing the commission by him of “other crimes.” In holding that no such error was committed, our fundamental rejection of the appellant’s argument stems from the fact that he is looking at a legal principle in microcosm and fails to appreciate the larger view of what that principle is designed to accomplish. The ultimate end to be served by the ban on “other crimes” evidence is that the State should not be permitted to bring in “out of left field” the fact that on some other occasion the defendant committed a crime. The danger being guarded against is that such past behavior will be offered to show and will be used by a jury to conclude that the defendant has a propensity to commit crime.

The fear is that the jury may convict him in the case on trial because of something other than what he did in that case, to wit, because of his criminal propensity. There are also some well recognized exceptions to the evidentiary ban, permitting the evidence of “other crimes” to come in, if it is important to show something other than criminal propensity, such as identity, intent, motive, common scheme, etc. Md. Rule 5-404(b). An extensive body of law has evolved analyzing both the “other crimes” evidentiary prohibition and the various exceptions thereto. Harris v. State, 324 Md. 490 , 597 A.2d 956 (1991); State v. Faulkner, 314 Md. 630 , 552 A.2d 896 (1989); Bussie v. State, 115 Md.App. 324, 330-38 , 693 A.2d 49 (1997); Wieland v. State, 101 Md.App. 1, 8-23 , 643 A.2d 446 (1994); Solomon v. State, 101 Md.App. 331, 337-47 , 646 A.2d 1064 (1994).

At the most fundamental level, however, we conclude that that entire body of law has no bearing on this case. There will be found in the extensive case law, to be sure, isolated phrases and sentences that, when lifted out of context, might seem to support the appellant in his present contentions. We decline to haggle, however, over such minutiae because of our view, in longer perspective, that that body of law is inapplica ³³⁰ ble. Why anguish over whether the appellant is in the right pew when we conclude that he is not even in the right church?

Although the direct evidence of what happens at a crime scene may sometimes show some possible crime in addition to the one literally charged, that coincidental possibility does not necessarily engage the gears of “other crimes” evidence law. What we have in this case is evidence essentially integral to, even if not literally inextricable from, the criminal incident on trial. In earlier decades, it would have been felicitously referred to as part of the res gestae of the crime. The Criminal Incident The crime in this case took place during the early morning hours of.

May 23, 1997. The assault victim was Edward Johnson. Earlier that morning, he and a friend, Paquita Waiters, had together smoked between $40 and $50 of crack cocaine. Exhausting their supply by approximately 2 A.M., the two of them drove to the intersection of Virginia Avenue and Forest Terrace in Prince George’s County to buy some more.

During the State’s case in chief, three witnesses testified as to what happened when Johnson and Waiters arrived at Virginia Avenue and Forest Terrace. Johnson himself testified that he got out of his car, walked up to a group of men including the appellant, and told the appellant that he wanted to buy some crack cocaine. At that point, the appellant “like turned around, and then I thought he was pulling out some drugs, you know, and then he turned around and had a gun.” Johnson went on to state that “at first I was shocked and then after I went and hit him, I ran ... straight down Virginia, right past my car and kept going.” Johnson testified that he heard gunshots and then was struck in his back and buttocks and “it broke my leg in some kind of way.” Johnson denied having had a gun or having pulled a gun on the appellant at any time during the incident. The appellant’s first contention concerns Johnson’s explanation of why he stopped the car and approached the appellant in the first instance and of how he was able to ³³¹ identify the appellant first at the scene and subsequently in court.

Over a defense objection, the direct examination went as follows: Q: Did you know the individual whom you approached: A: I have seen him before. Q: Had you dealt with him before? A: Yes. Q: Had you purchased drugs from that individual before?

A: Yes. Although we could validate that testimony on the theory that it undergirds Edward Johnson’s ability to make a reliable identification of the appellant as the criminal agent, 1 Harris v. State, 324 Md. at 501 , 597 A.2d 956 , State v. Faulkner, 314 Md. at 634 , 552 A.2d 896 , that would be to dignify the contention more than it deserves to be dignified. Fundamentally, this was simply not extrinsic evidence showing the appellant’s criminal propensity. It was direct evidence as to why Johnson stopped the car and approached the appellant in the first instance.

In view of the fact, moreover, that the entire confrontation was one between a would-be purchaser of drugs and an ostensible seller of drugs, the coincidental fact that the two had been involved on an earlier occasion or occasions was inconsequential in terms of prejudicial impact. But for Johnson’s knowledge that the appellant was someone from whom he could purchase “more crack,” his entire narration of the incident that morning would have been unintelligibly bizarre. We see no error. 2 ³³² It was Paquita Waiters who had earlier that evening smoked crack cocaine with Edward Johnson and who accompanied him to the crime scene to buy more crack cocaine. Her version of the corpus delicti essentially paralleled the version given by Edward Johnson.

She testified that when Johnson stopped the car at Virginia Avenue and Forest Terrace, he asked a group of men standing there if any of them had any drugs for sale. He then got out of his car. Although she could not identify the assailant, she described how one of the men approached Johnson and “was trying to get the money from [him] without giving him the purchase.” One of the men then struck Johnson on the head with an object that looked like a gun. Both she and Johnson then ran down Virginia Avenue.

Paquita Waiters heard gunshots and saw Johnson fall to the ground. She hid in the bushes for a few minutes and then ran to a 7-11 store and asked someone there to call the police. The third witness to testify for the State in chief was one of the appellant’s companions that morning. Camell Chase testified that he and the appellant were at the comer of Virginia Avenue and Forest Terrace at about 2:30 A.M. when a car containing a man and a woman pulled up.

The driver, the man, asked “if they had any cocaine.” It was the appellant who responded. He told the driver of the car to wait and the driver got out of the car. The appellant walked over to some bushes, retrieved a .22 caliber revolver, and returned to the car. The appellant then told the driver to “give his money up.” The driver turned his money over to the appellant but then “tried to fight [the appellant] off.” ³³³ As Chase moved closer “to see what was going on,” the driver took a swing at him.

Chase swung back at the driver and hit him. The driver told his female passenger to run, removed his keys from the car’s ignition, and then himself ran up the street. Chase described how the appellant then fired “about 5 or 6” shots at the driver. Chase did not see the driver with a gun at any time.

The appellant’s second contention concerns Chase’s testimony as to what happened as the appellant fired five or six shots at the fleeing driver. His description included the following observation: I seen Mike fall on the ground, and then I seen the male that was driving the car still running, and then after that, he had got hit ... I saw the blood and stuff. (Emphasis supplied). “Mike” was the third individual who was with the appellant and Camell Chase at the time of the incident.

After Camell Chase described seeing “Mike fall on the ground,” the State inquired as to the identity of Mike. Over objection, the following testimony came out: Q: You mentioned Mike. Who was Mike? A: He’s a crack head.

Q: And, do you know what happened to Mike? A: He got shot. Again, we simply do not elevate this to the level of “other crimes” evidence establishing the appellant’s criminal propensity. It is a layman’s description of what happened as the appellant fired five or six shots at the fleeing Edward Johnson.

It is no more significant than if one of those shots had smashed a flower pot or stilled a yelping dog. One witness may observe and describe a crime scene epigrammatically, a la Emily Dickinson. Another may observe and describe the same scene panoramically, a la Walt Whitman. The fact that a stray bullet winged “Mike” was simply part of the unfolding panorama.

Could it have been excised? Of course! Does it make any difference that it was not? Of course not! ³³⁴ We might, of course, expatiate on “same transaction” relevance and cite Bussie v. State, 115 Md.App. at 333-38 , 693 A.2d 49 , Solomon v. State, 101 Md.App. at 354, 646 A.2d 1064 , Tichnell v. State, 287 Md. 695, 712 , 415 A.2d 830 (1980), and Ross v. State, 276 Md. 664, 670 , 350 A.2d 680 (1976).

It is pointless, however, to haul out heavy analytic equipment when instinct tells us clearly that the contention does not even break the horizon of possible significance. 3 North Carolina v. Pearce And Vindictive Resentencing On a more serious note, the appellant invokes North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969). In that case, the Supreme Court held that if 1) a judge imposes a sentence on a defendant for a particular crime, 2) the defendant successfully appeals and the case is remanded for a retrial, and 3) the defendant is again convicted of the same crime by the same judge, that judge may not impose a greater sentence on the second occasion unless he can give valid reasons for doing so. The Supreme Court was guarding against the risk of judicial vindictiveness, the punishing of a defendant for appealing a judge’s decision. It sought to avoid the “chilling effect” that the fear of vindictiveness at a resentencing might have on a defendant’s right to appeal his initial conviction. ³³⁵ The appellant simultaneously invokes Md.Code (1998 Repl.

Vol.) Cts. & Jud. Proc. Art., § 12-702(b), which provides: (b) Remand for sentence or new trial; limitations on increases in sentences.—If an appellate court remands a criminal case to a lower court in order that the lower court may pronounce the proper judgment or sentence, or conduct a new trial, and if there is a conviction following this new trial, the lower court may impose any sentence authorized by law to be imposed as punishment for the offense. However, it may not impose a sentence wore severe than the sentence previously imposed for the offense unless: (1) The reasons for the increased sentence affirmatively appear; (2) The reasons are based upon additional objective information concerning identifiable conduct on the part of the defendant; and (3) The factual data upon which the increased sentence is based appears as part of the record.

(Emphasis supplied). With respect to that section, Davis v. State, 312 Md. 172, 177 , 539 A.2d 218 (1988), pointed out that “the Legislature intended to codify the ... holding of North Carolina v. Pearce ... that due process requires not only that vindictiveness play no part in the re-sentencing, but also that a defendant must be free of apprehension of such a retaliatory motivation.” For this criminal incident, the appellant was initially sentenced on December 12, 1997. He had been convicted on three counts, those charging 1) attempted voluntary manslaughter, 2) first-degree assault, and 3) the use of a handgun in the commission of a crime of violence. He was sentenced by Judge Thomas A. Rymer to twenty years imprisonment for the first-degree assault, to ten years of concurrent imprisonment for the attempted voluntary manslaughter, and to twenty years of consecutive imprisonment for the use of a handgun.

Those convictions were appealed to this Court. In an unreported opinion filed on October 30, 1998, we reversed all three convictions because the trial judge had erroneously ³³⁶ failed to make an adequate inquiry into a reported violation of the trial court’s sequestration order. That was our only holding. The appellant had, however, raised four other contentions.

By way of dicta, we did go on to “address each question presented for the Court’s guidance on remand.” One of those other contentions was that the trial court erred “by imposing separate sentences upon the convictions for first-degree assault and attempted manslaughter.” In our gratuitous discussion of that contention “for the Court’s guidance on remand,” we pointed out that from “our scrutiny of the record” in that case and from the jury instructions actually given in that case, we could not determine which prong of first-degree assault that jury had relied on to reach its verdict of guilty on that charge. Our discussion concluded by saying: We are faced with ambiguity regarding not only the jury’s verdict and the trial court’s instructions, but also with the legislature’s intent. Under Snowden, we would be constrained to give appellant the benefit of the doubt and merge his sentence for first degree assault into the greater sentence of attempted voluntary manslaughter. As we have stated previously, “[t]he fundamental principle of fairness in meting out punishment,” Snowden [v. State], 321 Md. [612,] at 619, [ 583 A.2d 1056 (1991)], would require such a conclusion.

From the springboard of that dicta, the appellant now essays an extraordinary leap of logic. Although he raises thereby a subject our dicta never directly addressed, he argues that the merger of first-degree assault into attempted voluntary manslaughter alluded to by our opinion should compel a sentencing “cap” of ten years, the maximum penalty for attempted manslaughter, at the retrial where an attempted manslaughter count was never submitted to the jury. In an H.G. Wells-like reversal of tenses, moreover, the appellant ignores the fact that the dicta was aimed at guiding a sentencing judge in the future 1) if there were a retrial and 2) if there were reconvictions on the same counts. In a ³³⁷ reversal of direction on the time line, the appellant rewrites history as he projects the arguable penalty “cap” into the past and somehow reforms Judge Rymer’s December 12, 1997, sentences of twenty years for first-degree assault and ten years for attempted voluntary manslaughter into a single sentence of ten years for the two offenses combined.

Among many other problems, he conveniently ignores that there were no past.sentences still in need of being reformed because their underlying convictions had already been reversed. To implicate North Carolina v. Pearce and § 12-702(b), the appellant’s Orwellian revision of history produced the major premise on which he builds his syllogism: For purposes of § 12-702(b), therefore, the sentence that was imposed for “the offense” of attempted voluntary man- ■ slaughter/first degree assault was ten years. (Emphasis supplied). That premise, of course, is not true.

Ten years was not the sentence Judge Rymer imposed. Section 12-702(b) speaks of “the sentence previously imposed for the offense.” North Carolina v. Pearce constantly refers to the sentence “originally imposed.” For purposes of both the Maryland Rule and the federal Due Process Clause, it is beyond dispute that the standard against which we measure any subsequent sentence is the original sentence that actually WAS, not the sentence that arguably SHOULD HAVE BEEN. The “sentence previously imposed” is the sentence that first came from the mouth of the sentencing judge—right or wrong, lawful or unlawful, constitutional or unconstitutional— and not the subsequent fate of that sentence, as it may have been cut or trimmed or shaped or in any way reformed by ex post facto appellate analysis. When Judge Rymer pronounced his sentences on December 12, 1997, that sentencing event was, for purposes of North Carolina v. Pearce and Md. Rule 12-702(b), locked immutably into history.

No dicta of ours can change what Judge Rymer did. We may alter the effect of what he did, but we cannot change the fact that he did it. Neither may a leap of logic by the appellant. “The moving finger writes and, having writ, moves on ...” ³³⁸ The twenty-year consecutive sentences, imposed both then and now, for the unlawful use of a handgun do not concern us. The ten-year sentence originally imposed for attempted manslaughter does not concern us, for there was no attempted manslaughter conviction at the retrial now under review.

Our only concern is with the twenty-year sentence imposed by Judge Johnson for first-degree assault. The original sentence imposed by Judge Rymer for first-degree assault was precisely the same, twenty years. There has been, therefore, no increase in sentence within the contemplation of North Carolina v. Pearce or § 12-702(b). An Alternative Theory For a Sentencing “Cap” In a separate subcontention, the appellant poses a completely distinct theory as to why the twenty-year sentence for first-degree assault was arguably improper.

He invokes Simms v. State, 288 Md. 712 , 421 A.2d 957 (1980), Gerald v. State, 299 Md. 138 , 472 A.2d 977 (1984), and Johnson v. State, 310 Md. 681 , 531 A.2d 675 (1987), for the proposition that, notwithstanding the eleventh-hour nol pros, the erstwhile presence in the trial of the attempted manslaughter count, after jeopardy had attached, effectively established a ten-year sentencing “cap” that precluded any greater sentence being imposed for the first-degree assault charge. Whereas the earlier subcontention, involving the risk of vindictive resentencing, can only be triggered by the sequence of 1) an original conviction and sentence, 2) an appellate reversal followed by a retrial, and 3) a reconviction and resentencing, this second subcontention is unconcerned with any trial sequence. The appellant’s argument would be precisely the same if there had never been an earlier trial. Even in the limited, present-tense context of a single trial, however, the appellant’s argument does rely on the dicta from our opinion reviewing the first trial.

For purposes of the discussion that follows, we may conveniently put to one side the fact that the appellant was charged ³³⁹ with and convicted of the use of a handgun in the commission of a crime of violence. There is no challenge being made with respect to that. What is here pertinent is that the appellant was charged with 1) attempted voluntary manslaughter, a crime carrying a maximum penalty of ten years, and 2) first-degree assault, a crime carrying a maximum penalty of twenty-five years. The State, over the appellant’s objection, nol prossed the attempted manslaughter charge at the close of all of the evidence.

The appellant was convicted of first-degree assault and sentenced to twenty years imprisonment for it. The unusual twist that gave rise to the Simms, Gerald, and Johnson cases, of course, was that the common law misdemeanor of simple assault, prior to a codification of assault law in 1996, had no statutorily prescribed penalty. The choice of a common law penalty was in the unfettered discretion of the trial judge, provided only that it not be cruel or unusual within the contemplation of that constitutional prohibition. Walker v. State, 53 Md.App. 171, 193-99 , 452 A.2d 1234 (1982).

It was, therefore, the ironic case that the penalty for simple assault could be far greater than the maximum penalty for a variety of aggravated and felonious assaults. As the Maryland case law evolved, Simms, Gerald, and Johnson imposed a necessary sentencing “cap” on simple assault under certain clearly defined and compelling circumstances. Simms, Gerald, and Johnson all dealt with the bizarre circumstance 1) where a greater inclusive offense actually carried a lower maximum penalty provision than did" a lesser included offense and 2) where both were charged and tried. Those cases did not establish any “cap” in the abstract on simple assault specifically or on a lesser included offense generally.

Turner v. State, 45 Md.App. 168, 172-73 , 411 A.2d 1094 (1980). Their constraints came into play only when 1) the greater inclusive offense was charged and 2) jeopardy attached with respect to that greater inclusive offense. In Simms , for example, the first count (the “flagship” count) was for the then statutory felony of assault with intent to rob with a maximum penalty of ten years. The jury acquitted Simms of that charge and found him guilty, under the second count, ³⁴⁰ only of the misdemeanor of simple assault.

His sentence of twelve years for the lesser crime is what prompted the examination of the ironic sentencing incongruity. Under those circumstances, the State is deemed to have made a binding tactical decision that the greater inclusive offense will serve as the “flagship” count and that the maximum sentence for that flagship count will thereby serve as the sentencing “cap” for any lesser included offenses, even if those lesser included offenses have no “cap” of their own. If there is a conviction for the greater inclusive offense, all lesser included offenses merge into it and there is no problem. If, on the other hand, there is an acquittal, a hung jury, or a nol pros (after jeopardy) of the greater inclusive offense, the “cap” established by its earlier presence in the ease nonetheless remains in force.

Walker v. State, 53 Md.App. 171, 189-92 , 452 A.2d 1234 (1982). The principle established by the Simms, Gerald, and Johnson line of cases has nothing to do with the mere merger of penalties. Spitzinger v. State, 340 Md. 114, 125-30 , 665 A.2d 685 (1995), articulates that principle, one whereby multiple convictions for different offenses do not formally merge but where multiple punishment is nonetheless sometimes prohibited. That phenomenon is not a constitutional one grounded in the Double Jeopardy Clause at all, but only involves a determination of legislative intent with respect to the permitted punishment of different offenses arising out of a single criminal incident. 4 Walker v. State, 53 Md.App. 171, 200-01 , 452 A.2d 1234 (1982).

In a case of merging penalties, moreover, it is the greater punishment, not the lesser, that prevails to establish the upper end of the permissible sentencing range. It is not, as it might be under Simms , a case of a lesser penalty imposing a “cap” on a potentially greater one. ³⁴¹ The sine qua non for the applicability of the Simms, Gerald, and Johnson principle is that the two crimes and respective maximum penalties involved in that sentencing symbiosis must be in the relationship to each other of a greater inclusive offense and a lesser included offense. In double jeopardy language, they must be “the same offense.” The mere fact that they both arise out of the same criminal incident is immaterial; that factual common denominator only implicates the very different rule of Spitzinger v. State, 340 Md. 114 , 665 A.2d 685 (1995). With respect to the symbiotic relationship necessary for the actual merger of convictions, Simms v. State, 288 Md. at 724 , 421 A.2d 957 , was clear: [W]e hold that when a defendant is charged with the greater offense and a lesser included offense based on the same conduct, with jeopardy attaching to both charges at trial, and when the defendant is convieted only of the lesser included charge, he may not receive a sentence for that conviction which exceeds the maximum sentence which could have been imposed had he been convicted of the greater charge.

(Emphasis supplied). Simms further explained that the existence of such a relationship is determined by applying the “required evidence” test of Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932): This Court, along with most other courts, has consistently held that the only feasible test for determining what is a “greater” and what is a “lesser included” offense is the so-called “required evidence” test of Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), which focuses upon the elements of the crimes____While usually the “greater offense” under this test will represent the more heinous or aggravated crime, this is not always true. 288 Md. at 726 , 421 A.2d 957 (emphasis supplied). Gerald v. State, 299 Md. at 141 , 472 A.2d 977 , restated the special relationship between the two offenses with which Simms was concerned: ³⁴² Simms involved two offenses, a greater offense, assault with intent to rob, of which the defendant was acquitted, and one lesser included offense, simple assault, of which he was convicted. (Italicized emphasis in original; other emphasis supplied).

In applying the rule of Simms , the analysis in Gerald repeatedly made reference to the “greater inclusive” and the “lesser included” offense: Simple assault is a lesser included offense of both robbery and armed robbery. Like a little fish being eaten by a bigger fish which in turn is eaten by a yet bigger fish, simple assault is swallowed by robbery which then is swallowed by armed robbery. Therefore, had Gerald been convicted of armed robbery, the offenses of robbery and assault would have merged into the armed robbery, and he could have been sentenced only on the armed robbery conviction. Had he been acquitted on the armed robbery offense but convicted on the robbery offense, he could have been sentenced only on the robbery conviction.

That is, upon conviction of a greater offense, a separate sentence may not be imposed on any lesser included offense. 299 Md. at 140-41 , 472 A.2d 977 (italicized emphasis in original; other emphasis supplied). The appellant is, of course, correct that IF the two charges now under our scrutiny were, indeed, in the symbiotic relationship to each other of a greater inclusive offense and a lesser included offense, the fact that the State nol prossed the greater charge before it was submitted to the jury would not compromise the appellant’s argument for a penalty “cap.” In rejecting the State’s attempt to rely on such a nol pros to extricate itself from the rule of Simms , Judge Eldridge, in Johnson v. State, explained, 310 Md. at 694 , 531 A.2d 675 : A nolle prosequi during the presentation of evidence or after the close of evidence might be generated by the defendant’s success in undermining the prosecution’s case or in presenting a defense. The same defense success which leads to an acquittal might lead to a nolle prosequi on a greater charge before the case is submitted to the jury. ³⁴³ The anomaly pointed to in the Simms opinion, therefore, may arise when the greater charge is nol prossed. And see Walker v. State, 53 Md.App. 171, 199-200 , 452 A.2d 1234 (1982).

If the first-degree assault in this case should turn out to have been a lesser included offense within the greater inclusive charge of attempted manslaughter, the ten-year penalty “cap” should, indeed, have been applied. If, on the other hand, the first-degree assault in this case was not a lesser included offense, then there never was a penalty “cap” and the twenty-year sentence for the assault was properly imposed. What remains for us to consider, therefore, is the senior/junior relationship between those two offenses under the circumstances of this case. Attempted Manslaughter and First-Degree Assault: The “Same Offense” or Different Offenses?

The dicta in our earlier consideration of this case dealt with the question of whether two convictions—one for attempted manslaughter and the other for first-degree assault—should have merged. From the pleadings, the evidence, the jury instructions, the argument of counsel, and the verdict at that trial we could not tell, and our dicta suggested that where there is such ambiguity, the defendant should be given the benefit of the doubt under the “rule of lenity.” Merger, however, is no longer an issue before us on this appeal because we are dealing only with a single pertinent conviction. There is nothing to merge. Ours is the very different question of whether to apply a penalty “cap” under the rule of Simms .

Notwithstanding the difference between the