Hammersla v. State

WOODWARD, J. Jack Lewis Hammersla, Jr. 1 , appellant, was charged with murder, robbery, theft, assault, burglary, and malicious destruction. A jury trial was held in the Circuit Court for Washington County from October 3-6, 2006. Appellant was found guilty of felony murder, second degree murder, burglary, theft, and malicious destruction of property. He was sentenced to incarceration for life without the possibility of parole on the felony murder charge and to a concurrent term of 30 years on the second degree murder charge.

The trial judge merged the burglary charge into the felony murder ²⁹⁸ charge and did not impose separate sentences on the theft and malicious destruction charges. Appellant presents two questions for our review: I. Did the trial court err in instructing the jury that witnesses had identified [ajppellant as the person who committed the crime?

II

Did the trial court err in sentencing appellant to life without parole? We answer “no” to the first question and “yes” to the second. FACTUAL BACKGROUND On the morning of November 12, 2003, Edwyn Finfrock of Smithsburg, Washington County, awoke between 5:00 a.m. and 5:30 a.m. to get ready for work. Finfrock’s wife, Shirley, got up with him to make his breakfast as she always did.

When Mr. Finfrock left for work around 6:30 a.m., Mrs. Finfrock went back to bed. Mr. Finfrock arrived home from work at 11:25 that morning and called out his wife; after a couple of moments, he went to their bedroom to look for her. He found his wife lying on the floor of their bedroom with blood all over her. He immediately called 911 and told the dispatcher that he thought his wife might have killed herself.

The dispatcher advised Mr. Finfrock to begin CPR on his wife. Upon attempting CPR, Mr. Finfrock noticed that his wife’s “head was busted open.” There was also blood spattered throughout the bedroom. Mrs. Finfrock was later pronounced dead by emergency medical services employees. According to the autopsy, Mrs. Finfrock died of multiple blunt force injuries to the head between 7:00 a.m. and 8:30 a.m., the victim of a homicide. 2 Upon surveilling his house, Mr. Finfrock noticed some things out of place, as well as a board lying on a divider between the kitchen and the dining room.

He believed the board had previously been on his wood pile outside. He later ²⁹⁹ determined that several items, including his wife’s purse, were missing from the home. Trooper Brian Smith of the Maryland State Police lived down the street from the Finfrock residence and was the first police officer on the scene. When he arrived, Trooper Smith pointed out to Mr. Finfrock that the window in a back door was broken.

Mr. Finfrock stated that the window had not been broken when he left for work that morning. Trooper Smith also examined the board found by Mr. Finfrock and believed it to be covered in blood. The medical examiner testified that the board “certainly could have been” the instrument that caused Mrs. Finfrock’s injuries. Trooper Smith also located several rocks on the bedroom floor where Mrs Finfrock was found, which were the same type of rocks that he had seen around the railroad track that ran behind the Finfrocks’ house.

As part of the investigation, Sergeant Eric Fogle of the Maryland State Police’s canine unit arrived at the scene of the homicide with a bloodhound in an attempt to track the suspect from the Finfrocks’ home. Sergeant Fogle’s team found a heel print and beaten down grass leading away from the house and toward the railroad tracks. The bloodhound found a fresh scent leading west on the railroad tracks. Following the scent led Sergeant Fogle’s team to discover fresh footprints, probably from a sneaker, as well as dislodged rocks.

During a subsequent search of the area on November 18, 2003, the police located, on the edge of a cornfield one fifth of a mile west of the Finfrocks’ home, Mrs. Finfrock’s purse, her wallet, an orangish-red knit cap, and a pile of five rocks consistent with rocks from the railroad bed. On the morning of the incident, November 12, 2003, Christie Phillips (then named Williams) left her house to go to work at 8:50 a.m. As she exited her house, she saw a man stumbling near the railroad tracks; the man caught her eye because she did not recognize him from her small town. She was uneasy with his presence because her home had been burglarized two months prior to that day, and the burglar had not been found. ³⁰⁰ She watched the man for a few moments as he walked past her while looking over his shoulder several times.

When the man was about 50 feet away from her, Phillips got into her car and wrote down everything she could remember about him: brownish/gray hair, semi-curled, shoulder length; wrinkles; high cheekbones; blue, tan, black, and white flannel jacket; blue tee shirt; baggy blue jeans; black sneakers; dark sunken eyes; and slightly bald on the back of his head. At trial, Phillips identified the flannel jacket, which was taken from appellant at the time of his arrest, as the jacket worn by the man she had seen the morning of November 12. She also identified the jeans and sneakers as clothes that the man had been wearing. Finally, Phillips identified appellant as the man she hhd seen that morning.

Later on November 12, Investigator Greg Alton of the Washington County Sheriffs Department was called to the scene of the homicide and conducted a walk-through of the Finfrocks’ home. After he finished, Investigator Alton returned to the Sheriff’s Department where he received a phone call from Phillips. Upon hearing her description of the man she had seen, Investigator Alton realized that he had seen a person matching that description when he had responded to the scene. The man, who garnered the investigator’s attention, had shoulder length brown hair and was wearing a multicolored flannel shirt or jacket.

Investigator Alton testified that the jacket taken from appellant upon his arrest was similar in style and color to that of the man he had seen that day. At trial, Investigator Alton identified the man he had seen as appellant. Four witnesses, Brenda Coleman, Ann Riker, Patricia Biancolli, and Pamela Smith, testified that sometime between 6:30 a.m. and 8:20 a.m., each had seen a man walking on the railroad tracks that ran behind the Finfrocks’ house. The women noticed the man because it was unusual to see anyone walking on the railroad tracks.

Each woman testified that the man she had seen was wearing a plaid flannel jacket, and each identified the jacket taken from appellant at the time of his ³⁰¹ arrest as that jacket. Biancolli further stated that the man was wearing an orange-red knit cap. Coleman and Riker identified appellant as the man they had seen that morning. At about 1:45 p.m. on November 12, Jennifer Silver noticed a man behind her place of employment when she went to take trash out to the dumpster.

He surprised her because she did not expect anyone to be there at that time. She returned inside and asked a male employee, Tony Ralls, to go outside and find out why the man was there. Ralls spoke to the man, who advised him he was “just hanging out, hiding from people.” At trial, Silver identified the person she had seen as appellant and stated that he was wearing a blue plaid jacket at that time. Ralls also identified the blue plaid jacket as the one worn by appellant.

Jack Hammersla, Sr., appellant’s father, testified that appellant had spent the night at his house on November 11, 2003, and that on the morning of November 12, they had had a disagreement. Hammersla remembered his son wearing blue jeans and a plaid shirt that morning. He identified the plaid shirt as a shirt that he had given to his son. He further identified the orange-red cap found near Mrs. Finfrock’s belongings as one owned by his son.

After the murder, he searched his house for the hat and was unable to find it. On November 15, 2003, Renee Brown saw appellant across the street from the diner in which she worked. She noticed him because she had seen a sketch in the newspaper that looked just like him. Once she saw him, she called police.

She testified that he had been wearing jeans, a ball cap, and a flannel coat. Officer Korey Hinkle, then of the Hagerstown Police Department, was dispatched to the diner. Upon arriving at the diner, he saw a man matching the description of the sketch from the newspaper walking down the street. Officer Hinkle stopped the man to question him.

The man was wearing two flannel shirts over a buttoned collar shirt and a white tee shirt. He was also wearing black tennis shoes, stained blue jeans, ³⁰² and a hat. At trial, Officer Hinkle identified appellant as the person he questioned. Thereafter, Corporal Roy Harsh arrived at the scene, and after asking appellant to consent to a search, placed appellant in his police cruiser.

Corporal Harsh transported appellant back to the Sheriffs Department where appellant was advised that he was’a person of interest in the Finfrock murder and was questioned by the police. Appellant stated that, until about a week earlier, he had been staying at his father’s house, which was right along the CSX railroad tracks. When asked of his whereabouts on the date of the homicide, appellant stated he had “been jumping around from place to place, in Hagerstown.” He denied involvement in the murder. During the interview, however, Corporal Harsh noticed what appeared to droplets of blood on appellant’s pants and collected appellant’s clothes pursuant to a consent to search and seizure form signed by appellant.

Susan Blankenship, a forensic scientist with the Maryland Regional Crime Laboratory, was called to the Sheriffs Department to conduct preliminary tests on the clothes. She also observed noticeable splinters on appellant’s hands, which she later removed. Appellant was advised of his Miranda 3 rights at 1:20 p.m. on November 15, 2003. After being confronted with the preliminary finding of blood on his clothes, splinters in his hands, and an identification of his photo by Phillips, appellant still denied involvement in Mrs. Finfrock’s death.

He said that he had found the clothes in a laundromat, that there were numerous ways he could have gotten splinters in his hands, and that he had not been in the area at the time of the murder. According to Amy Kelly, a forensic scientist with the Maryland State Police, the DNA profile obtained from a stain on appellant’s shirt matched that of the victim, Mrs. Finfrock, with the probability of the DNA belonging to an unrelated ³⁰³ Caucasian individual being one in one hundred sixty quadrillion. Mrs. Finfrock’s DNA was also found on the board believed to be the murder weapon. Appellant was arrested and taken to the Washington County Detention Center.

In late 2003 and early 2004, Rodney Wolfe was also incarcerated at the Washington County Detention Center. For a period of time, he and appellant shared a cell block — a series of 18 cells housing 36 inmates. Wolfe learned that appellant was a suspect in the murder of Mrs. Finfrock, and during a conversation about the case, Wolfe asked appellant if the police would find anything on his clothes, to which appellant responded that the police might find blood, “maybe on my pants or sneakers.” When Wolfe asked appellant directly if he was involved in Mrs. Finfrock’s death, appellant nodded. Wolfe testified that he was not given anything in exchange for his testimony; he just “thought it was the right thing to do.” LEGAL ANALYSIS I. Jury Instruction on Identification of Appellant As his first assignment of error, appellant contends that the trial judge erred in giving the pattern jury instruction on witness identification.

Specifically, appellant avers that the instruction erroneously informed the jury that appellant had been identified as the person who committed the crime, when no witness had seen appellant commit any crime. The State counters that the argument was not preserved for appeal, and that, even if preserved, appellant invited any possible error by requesting the instruction with which he now takes issue. Further, the State argues that appellant misconstrued the wording of the instruction and that the instruction was proper under the facts of the case. We agree with the State on all counts.

At trial, the judge instructed the jury as follows: You have heard evidence regarding the identification of the Defendant as the person who committed the crime. In this connection, you should consider the witness’s opportuni ³⁰⁴ ty to observe the criminal act and the person committing it, including the length of time the witness had to observe the person committing the crime, the witness’s state of mind, and any other circumstances surrounding the event. You should also consider the witness’s certainty or lack of certainty, the accuracy of any prior description, and the witness’s credibility or lack of credibility, as well as any other factors surrounding the identification. It is for you to determine the reliability of any identification and give it the weight you believe it deserves. [ 4 ] An identification instruction is not mandatory, but may be appropriate and necessary in certain circumstances.

Gunning v. State, 347 Md. 332, 348 , 701 A.2d 374 (1997). The purpose of the identification or any other instruction is to “ ‘aid the jury in clearly understanding the case, to provide guidance for the jury’s deliberations, and to help the jury arrive at a correct verdict.’ ” Janey v. State, 166 Md.App. 645, 655 , 891 A.2d 355 (2006), cert. denied, 392 Md. 725 , 898 A.2d 1005 (2006) (quoting Chambers v. State, 337 Md. 44, 48 , 650 A.2d 727 (1994)). The matter of instructing the jury on identification is left to the sound discretion of the trial judge. Gunning, 347 Md. at 348 , 701 A.2d 374 .

In this case, the trial judge considered the propriety of all the jury instructions on several occasions, and counsel also weighed in on the topic. On October 4, 2006, the judge noted that he would review the requested jury instructions that evening, and discuss them with counsel the next day: THE COURT: Okay. Doesn’t seem to be much dispute about the jury instructions that I could see from what was submitted. However, let’s just make sure that — why don’t, why don’t you check in with me at 9:15.

Presumably, that meeting occurred in chambers and off the record on the morning of October 5, 2006. Then, prior to the ³⁰⁵ resumption of the trial and on the record, defense counsel brought up the issue of jury instructions, stating: [DEFENSE COUNSEL]: Your Honor, if I may just, on jury instructions. Just to clarify. I had put down impeachment by prior conviction — Jerry Morsel and Vincent Mahoney.

That would just be Rodney Wolfe instead. I wanted to make that correction. THE COURT: I saw that last night when I was reviewing it and I did — I’m pretty sure I changed that. Let’s see here. * * * THE COURT: That’s, that’s what I have. [DEFENSE COUNSEL]: Thank you, Your Honor.

THE COURT: Okay. We’re ready for the jury then? Bring them in. There was another lengthy conversation between the judge and counsel regarding jury instructions after the close of all the evidence.

Defense counsel did not refer to any issue that he had with any jury instruction other than that already mentioned above. After giving the jury instructions, the trial judge specifically asked both sides if there were any exceptions to the instructions as given, and both parties said there were not. Appellant concedes that he did not object to the allegedly erroneous jury instruction, as is required for appellate review, but he asks that we exercise our discretion to review the matter under the plain error doctrine. Maryland Rule 4-325(e) states: No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.

Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in ³⁰⁶ the instructions, material to the rights of the defendant, despite a failure to object. Rule 4-325(e) makes it clear that a failure to object to a jury instruction at trial ordinarily constitutes a waiver of a claim that the instruction was erroneous. Morris v. State, 153 Md.App. 480, 509 , 837 A.2d 248 (2003), cert. denied, 380 Md. 618 , 846 A.2d 402 (2004).

However, Rule 4-325(e) also grants us “ ‘plenary discretion to notice plain error material to the rights of a defendant, even if the matter was not raised in the trial court.’ ” Brown v. State, 169 Md.App. 442, 457 , 901 A.2d 846 , cert. denied, 395 Md. 56 , 909 A.2d 259 (2006) (quoting Danna v. State, 91 Md.App. 443, 450 , 605 A.2d 150 (1992)). Plain error is error that vitally affects a defendant’s right to a fair and impartial trial. Id. (citing State v. Daughton, 321 Md. 206, 211 , 582 A.2d 521 (1990)).

We have said that we should exercise this discretion in favor of review when the unobjected to error is “ ‘compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.’ ” Smith v. State, 64 Md.App. 625, 632 , 498 A.2d 284 (1985) (quoting State v. Hutchinson, 287 Md. 198, 203 , 411 A.2d 1035 (1980)). Consequently, appellate review under the plain error doctrine “1) always has been, 2) still is, and 3) will continue to be a rare, rare phenomenon.” Morris, 153 Md.App. at 507 , 837 A.2d 248 . Additionally, the plain error hurdle, “ ‘high in all events, nowhere looms larger than in the context of