Gerald v. State

SONNER, Judge. A jury in Baltimore City found Ronald Gerald, appellant, guilty of robbery with a deadly weapon, first degree assault, use of a handgun in the commission of a felony or crime of violence, possession of a firearm by a convicted felon, and lesser included offenses. The jury acquitted him of attempted murder in the first degree and of attempted murder in the second degree. The court then sentenced him to twenty-five years’ incarceration for the first degree assault; twenty years’ incarceration for the armed robbery, to run consecutively to the first degree assault sentence; twenty years’ incarceration for the use of a handgun, to run consecutively to the first degree assault sentence, but concurrently with the armed robbery sentence; and five years’ incarceration for possessing a handgun as a convicted felon, to be served consecutively to all the other sentences.

Gerald appealed and presents four questions for our review: ²⁹⁹ I. Did the trial judge err in permitting appellant’s accomplice to testify that documents imploring and threatening the accomplice to exculpate appellant were written by appellant?

II

Did the trial judge err by admitting an unidentified prisoner’s extra-judicial statements concerning appellant’s criminal past and criminal character?

III

Was the evidence legally sufficient to convict appellant of use of a handgun in the commission of a felony or crime of violence and possession of a handgun by a convicted felon?

IV

Must the conviction and sentence for first degree assault be merged into the conviction and sentence for robbery with a dangerous or deadly weapon? We conclude that the first degree assault merged into the robbery, although the mandatory twenty-five-year sentence that the court attached to the assault stands, as it must reattach to the surviving robbery conviction. Otherwise, we affirm the judgments. Background At approximately 4:00 a.m. on July 17, 1999, Baltimore City Police Officer John Ross met with Paul Cornish at Johns Hopkins Hospital.

Cornish told Officer Ross that he was approached by a group of people, pushed off his bicycle, hit in the head with a shotgun, forced to his hands and knees, robbed of forty dollars from his pants pockets, and shot in the buttocks as he tried to stand up and run away. The hospital treated Cornish for a wound to the forehead and buttocks. Officer Ross then took Cornish to a police substation, where he was questioned about the attack. During the interview, Cornish looked out the window and exclaimed, “There goes one of them.” Officer Ross went outside and spoke with the passerby, Anthony Everhart.

Although, initially, Everhart denied any knowledge of the attack, he eventually admitted that he “was there,” but was not the person who actually shot Cornish. ³⁰⁰ Officer Ross placed Everhart under arrest and transported him to the Baltimore City Police Department Homicide Unit. Once there, he provided a statement, in which he explained that, in the early morning hours of July 17, 1999, he, Gerald, and three other people, were walking home from a night club when they came upon Cornish riding a bicycle. Gerald confronted Cornish, and they exchanged harsh words. Everhart began to walk away from the scene, towards his home, when he saw Gerald walk over to a black “school bag,” pull out a sawed-off shotgun, and point it towards Cornish.

Cornish began to run and Gerald chased him with the gun across the street. At that point, Everhart left the scene. As he approached his home, however, he heard a loud gunshot blast. Everhart was charged with the armed robbery of Cornish.

Pursuant to a plea agreement, he testified on behalf of the State at Gerald’s trial. The agreement provided that, in exchange for his testimony, he would plead guilty to armed robbery and receive a suspended ten-year sentence and a three-year term of probation. Without the agreement, Ever-hart could have received a sentence of twenty years. At trial, the State offered the testimony of Officer Ross, Everhart, and Cornish.

It also presented Detective Ray Laslitt, who testified that Cornish picked Gerald out of a photographic array, and Tammy Williams, Gerald’s former girlfriend, who testified that Gerald asked her to give false alibi testimony on his behalf. Additional facts will be provided below. Discussion I. Gerald’s first point of error concerns the authentication of two letters offered by the State and admitted into evidence. Gerald purportedly wrote the letters to Everhart while they were both in prison, awaiting trial.

To introduce the first letter, the prosecutor asked Everhart if he recognized it, which he did, and then asked how he knew that Gerald wrote it. Everhart responded that the handwriting matched that of ³⁰¹ a prior letter he had received from Gerald. 1 Over objection, Everhart then read the letter to the jury, in which Gerald declared, “We go to court in a week and a half and these people are trying to mash me because of you. You are not going to get any time at all because I talked to my lawyer and she told me so.” He urged Everhart not to sign a Hicks waiver and to stop seeking protective custody. He also warned: We are alright son.

They got nothing. But, if you do get some time, I’ll take care of you and you know I’ve got money. There is no use for both of us going down. Especially me ...

Just don’t testify against me and tell your lawyer, I’m not the one you were talking about, and I was not there ... Do not tell people. It’s a code we should go by. Telling on people can get a lot of people killed ...

Tear this letter up after you read it. Don’t give it to the State’s Attorney. This first letter was not signed. It came in an envelope addressed to Everhart at prison, but with an incorrect identification number.

The return address contained the name “Ronald Gerald” and his address at prison, including his correct identification number. When asked, “Do you know what the Defendant was talking about when he wrote you this [letter],” Everhart replied, “Yes.” In the second letter, which, over defense objection, Ever-hart also read to the jury, Gerald asked him to sign, notarize, and return an enclosed affidavit by the end of the week. By signing the affidavit, Everhart essentially would have retract ³⁰² ed his earlier statement identifying Gerald as the shooter. The second letter was signed “Ronald” and was addressed to Everhart with his proper identification number.

The court denied defense counsel’s request to voir dire Everhart regarding the letters, although, on cross-examination, Everhart conceded that he had never seen Gerald's handwriting or signature outside of the three letters. Defense counsel then inquired: “In fact, those letters or those envelopes could have been written by anybody, couldn’t they have?” Everhart answered, “Yes.” Defense counsel then moved for a mistrial, arguing that the letters were not authenticated and lacked trustworthiness. The court denied the motion, stating: The letters are admissible. The totality of the evidence is sufficient to attribute authorship to this Defendant.

It is for the jury to weigh that evidence and determine whether or not from the evidence ... this Defendant is, in fact, the author of those letters. Gerald argues on appeal that the trial court abused its discretion in admitting the letters in the first instance, or by not declaring a mistrial once Everhart admitted that he had never seen Gerald’s writing outside of the letters. He claims Everhart identified the penmanship on the letters by comparing them to another writing that was not itself authenticated, in contravention of § 10-906 of the Courts Article. Md.Code (1998 Repl.Vol.) Cts. & Jud.

Proc., § 10-906. The State responds that the court properly admitted the letters, pursuant to Maryland Rule 5—901(b)(4) (2000). We consider each provision in turn. Section 10-906 states in part: (a) In general.—... evidence is admissible in any proceeding to prove the execution of a written instrument attested by one or more subscribing witnesses in the same manner as the instrument might be proved had it not been attested.

Evidence of a disputed writing is admissible and may be submitted to the trier of facts for its determination as to genuineness. ³⁰³ (Emphasis added.) Gerald directs us to the italicized portion of the statute, which evolved as an exception to the common law. Historically, judges and juries were not considered competent to compare handwriting samples to determine genuineness. DiPietro v. State, 31 Md.App. 392, 395 , 356 A.2d 599 (1976) (quoting 80 A.L.R.2d 274 ). Courts across the country adopted an exception to this common law rule that allowed comparison “when a proved or admitted standard used for comparison with the disputed writing was already in evidence for other purposes.” Id.; see also Williams v. Drexel, 14 Md. 566, 572 (1860).

In Maryland, the exception was first codified in 1825. 1825 Md. Laws, ch. 120. It evolved to read: Comparison of a disputed writing with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury, or the court, as the case may be, as evidence of the genuineness or otherwise of the writing in dispute. Md.Code (1957) Art. 35, § 12; see also Parker v. State, 12 Md.App. 611 , 280 A.2d 29 (1971)(applying the statute). In 1973, the General Assembly changed the exception to its current form. 1973 Md. Laws, Spec.

Sess., ch. 2, § 1. Although the alterations were extensive, “the intended change was in style, not in substance.” DiPietro, 31 Md.App. at 398 , 356 A.2d 599 . Thus, although § 10-906 speaks to the genuineness of writings, primarily, it renounces the common law rule that prohibited judges and juries from comparing handwriting samples. Regardless of the history and purpose of § 10-906, the State contends the court did not admit the letters based on a comparison with other writings or on Everhart’s opinion as to Gerald’s handwriting.

In its view, the court found the documents to be authenticated pursuant to Maryland Rule 5-901(b)(4), circumstantial evidence. Maryland Rule 5-901 provides in part: ³⁰⁴ (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations.

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this Rule: (1) Testimony of witness with knowledge. Testimony of a witness with knowledge that the offered evidence is what it is claimed to be. (2) Non-expert opinion on handwriting. Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

(3) Comparison with authenticated specimens. Comparison by the court or an expert witness with specimens that have been authenticated. (4) Circumstantial evidence. Circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.

Section (a) establishes that to admit a writing as authenticated, a judge must conclude that a reasonable jury could find the evidence to be what its proponent claims it to be. See Lynn McLain, Maryland Rules of Evidence, Rule 5-901 (1994) (noting that the standard of proof for authentication is the same standard as found in Maryland Rule 5-104(b)). As McCormick explains: [T]he authenticity of a writing or statement is not a question of the application of a technical rule of evidence. It goes to genuineness and conditional relevance, as the jury can readily understand.

Thus, if a prima facie showing is made, the writing or statement comes in, and the ultimate question of authenticity is left to the jury. 2 McCormick on Evidence § 227 (John W. Strong ed.1999). A trial judge’s decision to admit or exclude evidence will not be set aside absent an abuse of discretion. CSX Transp. v. ³⁰⁵ Continental Ins. Co., 343 Md. 216, 251-52 , 680 A.2d 1082 (1996) (citations omitted); Barnes v. Rosenthal Toyota, Inc., 126 Md.App. 97, 108 , 727 A.2d 431 (1999).

We agree with the State that the circuit court admitted the letters pursuant to Rule 5-901(b)(4) and that it did not abuse its discretion in doing so. The court admitted the letters based on the “totality of the evidence,” which means the totality of circumstances—or circumstantial evidence. It followed Rule 5-901(a) by admitting the letters after finding “sufficient” evidence “to attribute authorship to [Gerald],” but then allowing the jury to weigh that evidence to determine the ultimate question of authenticity. Moreover, even if the trial court improperly admitted the evidence under § 10-906, we would affirm the judgment because the court properly could have admitted the evidence under Rule 5-901(b)(4).

An appellate court will generally affirm when the trial court reaches the right result for the wrong reason. Robeson v. State, 285 Md. 498, 502 , 403 A.2d 1221 (1979), cert. denied, 444 U.S. 1021 , 100 S.Ct. 680 , 62 L.Ed.2d 654 (1980); Hurt v. Chavis, 128 Md.App. 626, 640 , 739 A.2d 924 (1999); Pope v. Board of Sch. Comm’rs, 106 Md.App. 578, 591 , 665 A.2d 713 (1995). As the State explains in its brief, the facts before the court were that: [t]he author of the first letter referred to ‘our case,’ knew about Everhart and Gerald’s court date ‘in a week and a half,’ knew that Everhart had agreed to testify for the State, knew that Everhart’s ‘Hicks’ date was coming up, and knew that Everhart was seeking protective custody ...

The affidavit accompanying the second letter referred to Ever-hart’s and Gerald’s court date ‘on the 24th of this month’ and the date of Everhart’s taped statement to police. The affidavit also evidenced knowledge that, in his statement, Everhart had referred to the shooter as ‘Reds’ . .. Finally, Gerald was the only person who would have benefitted had Everhart succumbed to the threats and retracted his statement. ³⁰⁶ Gerald retorts in his reply brief that “[t]he facts alleged, the names of persons involved, possible legal strategies, and approaching court dates are surely frequent topics of conversation” in pretrial detention facilities. Thus, he argues, any inmate familiar with Gerald and Everhart could have written the letters.

He even implies that Everhart himself forged the letters because, once he agreed to testify for the State, he and Gerald became antagonists. Gerald quotes with approval 5 Weinstein’s Evidence § 901.06[2] at 901-28 (1999): A writing can be shown to have emanated from a particular person or business by the fact that it would be unlikely for anyone other than the purported writer to be familiar with its subject matter and content. For this principle to operate, the writing must deal with a matter sufficiently obscure or particularly within the knowledge of the asserted author so that the contents of the writing were not a matter of common knowledge. In Gerald’s view, the facts in the letters were “common knowledge” within the prison population and not “sufficiently obscure” to warrant the letters’ admission.

Given the standard of proof required under Rule 5-901 and our deferential standard of review, we disagree. The letters contained specific