Garcia-Perlera v. State

MATRICCIANI, J. Appellant, Jose Garcia-Perlera, appeared before the Circuit Court for Montgomery County on one count of felony murder, four counts of first degree burglary, one count of robbery with a dangerous weapon, four counts of false imprisonment, one count of first degree assault, and one count of use of a handgun in the commission of a felony. After a five-day trial ⁵⁴⁰ from May 11 to 15, 2009, a jury acquitted appellant of the use of a handgun in the commission of a felony and convicted him of all remaining charges. On August 13, 2009, the court sentenced appellant to incarceration for life, without parole, for the crime of felony murder, and to three concurrent sentences of life, plus thirty-five years, for the remaining crimes. In his timely appeal, appellant raises four questions for our consideration: I. Did the trial court err in denying appellant’s motion to sever?

II

Did the trial court err in denying appellant’s motion to suppress evidence seized as a result of two search warrants?

III

Did the trial court err in failing to merge the sentences for false imprisonment into the sentences for robbery?

IV

Did the trial court err in failing to merge the sentence for first degree assault into the sentence for robbery? For the reasons set forth below, we affirm the judgments of the circuit court. Facts and Proceedings Appellant’s convictions arise from four burglaries perpetrated in Montgomery County between September, 2007, and September, 2008. Margaret Arnold was ninety-four years old at the time of appellant’s trial and resided alone in Bethesda, Maryland, along the “River Road corridor.” On September 17, 2007, at approximately 10:45 p.m., Mrs. Arnold was accosted in the basement of her home by an unknown assailant.

The assailant was wearing a mask, gloves, and black clothing, was approximately twenty years of age, a little taller than her height of 5' 4/&", and described as male with a Hispanic accent. Using a piece of clothesline taken from her yard, the assailant tied Mrs. Arnold’s wrists to her ankles and then gagged her. The intruder ransacked Mrs. Arnold’s home, stealing her ⁵⁴¹ watch, wedding and engagement rings, and other pieces of jewelry. Mrs. Arnold was discovered later that night by a family member.

Betty Tubbs resided alone in Chevy Chase, Maryland, also along the River Road corridor. On the night of November 27, 2007, the seventy-seven year old Mrs. Tubbs was accosted in the basement of her home by an unknown assailant wearing a baseball cap and a piece of beige cloth across his nose and mouth. Mrs. Tubbs described her assailant as approximately her height of 5' 5 1 //, wearing dark clothing and a hat, and speaking with a Hispanic accent. Using rope, the assailant tied Mrs. Tubbs’ wrists to her ankles, then gagged and blindfolded her.

The intruder ransacked Mrs. Tubbs’ home, stealing money, her laptop computer, and multiple items of costume jewelry. Shortly after the intruder left her home, Mrs. Tubbs managed to loosen the ropes that were binding her and to seek assistance at the home of a neighbor. Ann Wolfe was seventy-nine years old and resided alone, along the River Road corridor of Potomac, Maryland. On the morning of February 27, 2008, Mrs. Wolfe was outside her home retrieving the newspaper when she was accosted by a Hispanic man, approximately twenty-five years of age, between 5'6" and 5'8" tall, wearing a theatrical costume. 1 Mrs. Wolfe’s attacker spoke to her in Spanish.

Her assailant dragged her into the basement of her home, hitting her on the head with a pistol three times. Using rope and duct tape, the intruder tied Mrs. Wolfe’s hands to her feet. He then taped her mouth shut with duct tape and put a sheet over her head, which he tied with rope. Mrs. Wolfe’s home was ransacked and her car stolen, along with cash, bottles of wine, and jewelry from a wall safe in her bedroom.

After her attacker left, Mrs. Wolfe was able to chew through the duct tape so that she could breathe through her mouth. She was found by her daughter, two days later. Mrs. Wolfe was hospitalized for five days and suffered permanent damage to her hands. ⁵⁴² Mary Francis Havenstein was sixty-three years old when she died in her home along the River Road corridor. Mrs. Havenstein was last seen alive by her neighbor on September 2, 2008.

On September 4, 2008, Mrs. Havenstein’s niece arrived to take her to a doctor’s appointment and found her corpse. Mrs. Havenstein was on the floor in her bedroom with her hands tied to her feet. There were numerous abrasions and binding injuries to Mrs. Havenstein’s body, but the fatal wound was an injury to her head consistent with blunt-force trauma. Mrs. Havenstein’s car was missing from her'garage, and jewelry was missing from her home.

Appellant was arrested in connection with multiple crimes on October 15, 2008. When police arrived at appellant’s home to execute a search warrant, appellant said, “You’re here for me.” Items recovered from appellant’s home were identified as having been stolen from the homes of each of the four victims. DNA specimens recovered from the Tubbs, Wolfe, and Havenstein crime scenes were consistent with appellant’s DNA. Additional facts will be provided as necessary to support our analysis of the issues.

Discussion I. Motion to Sever A. Background Prior to trial, appellant moved for separate trials, contending that the counts related to each of the four incidents should be tried separately from the others to avoid prejudice. The State opposed, and after hearing arguments, the trial court ruled: Before the Court is the defendant’s motion to sever the counts in the indictment; from 1 and 4; from 6 through 8; from 9 through 11; from 12 through 17; and by agreement 18 and 19 have been and will be severed, but are to be tried each with the other. ⁵⁴³ As to the remaining counts, the Rules implicated are 4-253(c), which says that the offenses may be charged together if they are of the same or similar character. The State maintains, in this instance, they are. That notwithstanding, under Rule 4-253 the counts should be severed if they are unfairly prejudicial.

Clearly, based upon the evidence presented to the Court, as in a number of the cases as cited by counsel, the identity of the assailant is the primary issue in this indictment, and in the counts referred to. The Court further finds, based upon the proffer of facts, that the facts of each case in this particular matter are so distinctive that they do constitute what is occasionally referred to as a “signature crime,” and that without trying to be exhaustive of the facts, the Court notes that each involves a home invasion; it is represented that each is within close proximity to the other. At one point there was reference to being almost within walking distance; each occurred on days, Monday—between Monday and Wednesday; but most significant for the Court each involved a victim being hog-tied, which is described as hands together, feet together, and feet to hands; each was tied up using ropes with knots that had been described as complex, but not identical; in each instance, the victim was gagged; and in each instance, the victim was—I don’t know if “elderly” is appropriate given my own advanced years, but they were middle-aged victims, let me say but of similar age; and that each—if I didn’t already mention it, obviously each was a woman. Based upon those facts, the Court finds there is, at the very least, a reasonable inference that the same person committed the four remaining offenses, which would make them relevant to the issues of identity and admissible in the other cases.

With respect to the issue of prejudice, as discussed already, all probative evidence is, to some degree, prejudicial, and the question is whether it is unfairly so. As I have mentioned, each—in each of these four cases, standing alone, there is some evidence that tends to suggest that the defendant might have been involved; but, in each instance, ⁵⁴⁴ the State is relying upon circumstantial evidence as to the issue of identity. And in the final case, the fourth case, which is Ms. Arnold’s case, property stolen from her residence is recovered from the defendant’s apartment, but it’s recovered approximately 13 years—sorry—13 months after the theft took place. Now, no one would question that if in fact, for instance, in Ms. Wolfe’s case, in addition to the evidence of the DNA on the gag, that there was a stick recovered from her bedroom that had the defendant’s DNA on it; that there was a hat recovered from another room, even if it was in a bag presumably that she would say was not hers; and that the hat and the bag had the DNA, the defendant’s DNA on it; and that assume in Ms. Wolfe’s case, the property stolen from her was recovered from the defendant’s apartment 13 months later, no one would question that all of that evidence would be probative—would be admissible and probative of the issue of identity.

In this case, because the Court finds it’s reasonable to infer that the same person committed all four of these, then that evidence has the same probative value. However, if instead you looked at each of these cases in isolation, the evidence would not nearly be as probative. So, while the Court cannot dispute the fact that joining them is prejudicial to the defendant, the Court does not find that it is unfairly prejudicial. And mindful that this requires the Court to exercise a good deal of discretion, and to be conscious and aware of the defendant’s right to a fair trial, and the impact of prejudice, I have given some thought to severing Ms. Havenstein’s case, where she died, from the other cases, because that case involves an allegation of murder, and the other three do not.

Clearly, the other three would be admissible on the issue of identity if Haven-stein’s case was tried alone. So we are really talking about is it unduly prejudicial to allow them, that is, the State, to use Ms. Havenstein’s case when they are trying the other ⁵⁴⁵ three, in light of the evidence available to them, by the consolidation of those three cases. And I have given that a great deal of thought, but I have considered—if memory serves me correct, my understanding of the theory of murder in Ms. Havenstein’s case is that she, like the other victims, was of, you know, elder years— or, not elder years, but was older; that she was hog-tied and gagged; and that it is not that the assailant intended her murder, as a murder in the first degree that was premeditated and deliberated; but rather, that this is a circumstance where the person who burglarized the home tied her up, as he had tied up other victims, and in this case, very unfortunately, she expired because she was not discovered for some period of time; that, assuming that is a correct analysis of those facts, then the case really is very similar to the other cases, but in that one there was a very unfortunate outcome, which frankly could have happened at any one of the others. So I don’t think the prejudice from that, because although it doesn’t affect the culpability of the person who did it, in terms of whether it is liable to inflame the jury or cause them to be unduly prejudiced against the defendant, I think that the chances of that are significantly lessened by the fact that it is not an intentional murder; it is rather a felony murder.

And clearly the evidence in that case is as probative of the issue of identity, as is the evidence in any of the other three cases. So, in trying to exercise my discretion as wisely and as fairly as I can, I find that it is not unduly or unfairly prejudicial in this case to allow the consolidation of the four cases, or to allow the four cases to be tried together; and accordingly, I deny the motion to sever those four cases into separate trials, and will direct that Counts 1 through 17 be tried together. B. Analysis Appellant asserts that the court incorrectly concluded that evidence from the separate incidents was mutually admissible to prove their assailant’s identity, in both senses of that ⁵⁴⁶ word: first, that they were all perpetrated by an identical assailant; and second, that the assailant’s identity is appellant. Appellant argues that the crimes were not sufficiently unique or so distinctive as to establish a modus operandi of a single perpetrator.

Alternatively, appellant contends that the judicial economy gained by consolidating all of the charges against him into a single trial was outweighed by the unfair prejudice he suffered as a result of the joinder. He concludes that his motion to sever should have been granted and that reversal is required. The State responds that the court properly denied appellant’s motion to sever. Specifically, it counters that the court properly found that the crimes alleged were sufficiently distinctive to establish a modus operandi and, therefore, were mutually admissible as “other crimes evidence” of identity.

The State concludes that having properly applied the mutual admissibility test, the court then appropriately weighed the competing interests of judicial economy and prejudice to appellant in making its final determination regarding joinder. Maryland Rule 4-253(c) addresses the prospect of prejudicial joinder and provides, as follows: If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires. The seminal Maryland case on joinder—and its complement, severance—is McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977). The McKnight Court examined Rule 745, the predecessor to Rule 4-253(c), in determining when joinder of offenses is so prejudicial to a criminal defendant that severance is required.

Id. at 607-09 , 375 A.2d 551 . The Court noted that the justification for joinder is judicial economy. Id. at 608-09 , 375 A.2d 551 . It observed, however, that where the evidence is not mutually admissible, the value of resources saved by consolidating the cases for trial is questionable.

Id. at ⁵⁴⁷ 609, 375 A.2d 551 . The Court then explained three ways in which such joinder may prejudice a criminal defendant: First, he may become embarrassed, or confounded in presenting separate defenses. Secondly, the jury may cumu-late the evidence of the various crimes charged and find guilt when, if the offenses were considered separately, it would not do so. At the very least, the joinder of multiple charges may produce a latent hostility, which by itself may cause prejudice to the defendant’s case.

Thirdly, the jury may use the evidence of one of the crimes charged, or a connected group of them, to infer a criminal disposition on the part of the defendant from which he may also be found guilty of other crimes charged. Id. (internal citations omitted). After examining how other jurisdictions reconcile the competing considerations of prejudice to the defendant and judicial economy, the McKnight Court held that “a defendant charged with similar but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials.” Id. at 612 , 375 A.2d 551 .

This Court addressed joinder and severance in Solomon v. State, 101 Md.App. 331 , 646 A.2d 1064 (1994). We observed that prejudice of the type envisaged by Rule 4-253 is not “the legitimate damage to a defendant’s cause that is incurred when admissible evidence is received against him.” Id. at 348 , 646 A.2d 1064 (emphasis in original). We also recognized a “substantive overlap” between the mutual admissibility test and the evidentiary law of “other crimes” evidence. Id. at 340, 350 , 646 A.2d 1064 .

Consequently, we noted that “other crimes” may be joined if they fall within the recognized exceptions set forth in Rule 5-404, which include motive, intent, absence of mistake, identity, common scheme, and modus operandi, as well as “several offenses [ ] so connected in point of time or circumstances that one cannot be fully shown without proving the other.” Id. at 350-54 , 646 A.2d ⁵⁴⁸ 1064 (citing Tichnell v. State, 287 Md. 695, 712 , 415 A.2d 830 (1980); Ross v. State, 276 Md. 664, 670 , 350 A.2d 680 (1976)). In light of this precedent, the court undertakes a two-step process when severance is framed as a question of mutual admissibility, and we review the process for abuse of discretion. See Conyers v. State, 345 Md. 525, 554-56 , 693 A.2d 781 (1997). First, the court must determine whether the evidence from the “other crimes” would be admissible if the trials occurred separately, taking into account the danger of unfair prejudice and other concerns under the usual evidentiary inquiry of Rule 5-403.

See id. at 553-54 , 693 A.2d 781 . Second, if the evidence is deemed mutually admissible, then “any judicial economy that may be had will usually suffice to permit joinder unless other non-evidentiary factors weigh against joinder.” Id. at 554-56 , 693 A.2d 781 . Appellant argues that the crimes in this case vary so much that they cannot establish any common elements. Specifically, appellant argues that “burglaries are not uncommon,” the knots used to hog-tie the victims were different, the ages of the victims spanned twenty-nine years, and the crimes occurred over a period of one year.

While there are slight differences between the crimes in this case, the record evidence also reveals overwhelming similarities among them. Each incident involved the confrontational home invasion of an elderly woman living alone, accosted by a man the three surviving victims consistently described as Hispanic. The victims all resided along the River Road corridor in houses that were within walking distance of each other. All of the home invasions occurred on a weekday between Monday and Wednesday.

All of the victims were “hog-tied” with their hands and feet bound together, and gagged. Three of the victims were detained in their basements. Police found items stolen from each victim during a search of appellant’s apartment, and in three of the incidents recovered DNA consistent with appellant’s DNA. Considering the totality of the circumstances, the numerous similarities between the cases are more than sufficient to ⁵⁴⁹ establish a distinctive modus operandi, and the common facts could prove the alleged identity.

See State v. Faulkner, 314 Md. 630, 640 , 552 A.2d 896 (1989) (“other crimes” evidence admissible where a right-handed robber wore a mask and gloves, carried a bag and a .22 caliber handgun, and stood on the Safeway checkout stands demanding money around the same time on multiple Friday nights); McGrier v. State, 125 Md.App. 759, 765 , 726 A.2d 894 (1999) (“other crimes” evidence admissible where three female teenage victims were assaulted in the same building during the daytime and provided similar descriptions of their assailants). Appellant argues that even if the “other crimes” evidence is relevant, it is outweighed by the danger that Mrs. Havenstein’s murder would taint the jury’s consideration of the other crimes. While we cannot refute that this possibility exists, we also cannot say that the trial court abused its discretion in holding that the danger of that occurrence is outweighed by the relevance and probative value of mutual admission, particularly in light of the aforementioned precedent set by State v. Faulkner and McGrier v. State. Appellant’s only other argument is that in light of “the overwhelming evidence the State had in its arsenal against appellant, including DNA evidence from three of the four crime scenes, it was hardly necessary to add three additional crimes to each individual one in order to establish identity and obtain a conviction.” In other words, appellant argues that each charge should not only be separated by incident but by the charges themselves.

Appellant’s argument is not without merit, because it could be that multiple charges would lead to some confusion even if the incidents were tried separately, and that this confusion is made worse by the fact that they were all joined. But even if we accept appellant’s argument, appellant’s suggestion that it was “hardly necessary” to add the additional charges would not leave a viable alternative to resolve said charges. There can be little argument that a separate trial for each count would be impractical. Regardless of these procedural considerations, we are not of the ⁵⁵⁰ opinion that the trial court erred in its opinion that a jury could discriminate the combined facts and charges of this case.

It is clear from the trial court’s extensive comments in the record that the court carefully analyzed the competing interests of proof and prejudice and did not abuse its discretion when it concluded that the evidence of each incident was mutually admissible. That being the case, and because appellant has not disputed that there was at least some judicial economy in proceeding with the charges jointly, we cannot say that the court erred when it denied appellant’s motion to sever.

II

Motion to Suppress Evidence The police utilized two warrants to search appellant’s apartment, in which he lived alone. The first warrant was issued upon probable cause to believe appellant had stolen personal property during a series of car break-ins. Among other things, the first warrant authorized the seizure of: -Women’s jewelry to include a gold watch, a gold ring, a second gold ring with yellow stones, and a yellow/white ring with six (6) small diamonds. When the police executed the first warrant, they discovered that appellant had a large collection of “old-fashioned” women’s jewelry in his apartment.

During the search, one of the officer’s found a bronze medallion commemorating the NASA Mercury astronauts on appellant’s coffee table. The