Hamwright v. State

SALMON, Judge. Section 3-804(e) of the Courts and Judicial Proceedings article of the Maryland Code (1998 Repl. Vol.) reads, in pertinent part, as follows: Limitations. — The [juvenile] court does not have jurisdiction over: (1) A child at least 14 years old alleged to have done an act which, if committed by an adult, would be a crime punishable by death or life imprisonment, as well as all other charges against the child arising out of the same incident, unless an order removing the proceeding to the [juvenile] court has been filed under Article 27, § 594A of the Code.[ 1 ] (Emphasis added.) In this case, Lamont Hamwright, who was fifteen years old at all times here pertinent, was charged with two crimes that ²² were punishable by life imprisonment'. Those crimes were first-degree sexual offense (Md. Ann. Code art. 27, § 464(b) (1996 Repl.

Vol.)) and attempted first-degree sexual offense. (Art. 27, § 464(F).) In addition, Hamwright was charged with a host of other crimes that were not punishable by either death or life imprisonment. The jurisdictional issue raised in this appeal, which ²³ was not raised below, 2 is whether any of the eleven crimes for which Hamwright was convicted arose “out of the same incident” as did the charges of either first-degree sexual offense or attempted first-degree sexual offense. As appellant correctly argues, the trial court had no jurisdiction over any crime that did not arise “incident to” the sex offenses.

Appellant also raises four non-jurisdictional issues, viz: 1. Did the circuit court err by denying appellant’s motion for separate trials on certain counts in the indictment? 2. Did the circuit court err by denying appellant’s motion to suppress his self-incriminating statements on the ground that the statements were involuntary? 3. Did the circuit court err when it denied appellant’s request for a “reverse waiver” from the circuit court to the juvenile court? 4.

Should appellant’s sentence be vacated? I. PROCEDURAL BACKGROUND Lamont Hamwright, appellant, was convicted in the Circuit Court for Baltimore County of numerous serious felonies. All the felonies of which appellant was convicted occurred within a span of approximately two hours on the evening of November 30, 1999. The counts of the indictment, appellant’s victim(s), and the prison sentences imposed by the trial judge, were as follows: Count 10 — victim (Jenny Scott) — kidnapping, 30 years imprisonment; Count 13 — victim (Jenny Scott) — armed robbery, 20 years imprisonment; Count 15 — victim (Jenny Scott) — use of a handgun in the commission of a crime of violence — 20 years imprisonment; Count 17 — victim (Kelvin Floyd) — carjacking—30 years imprisonment; Count 19— victim (Kelvin Floyd) — armed robbery — 20 years imprisonment; Count 21 — victim (Kelvin Floyd) — use of a handgun in the commission of a crime of violence — 20 years imprisonment; Count 25 — victim (Darryl Watson, a clerk at a Royal ²⁴ Farms store located at Lutherville, Maryland) — armed robbery — 20 years imprisonment; Count 29 — victim (Darryl Watson) — use of a handgun in the commission of a crime of violence — 20 years imprisonment; Count 31 — victim (Violet Maina, a clerk at a Royal Farms store located in Baltimore County near the intersection of Joppa and Thornton Roads) — armed robbery — 20 years imprisonment; Count 37 — victim (Sara Irungu, a co-worker of Violet Maina)— armed robbery — 20 years imprisonment; Count 41 — victims (Ms. Maina and Ms. Irungu) — use of a handgun in the commission of a crime of violence — 20 years imprisonment.

All of the above sentences were to run concurrently with the thirty year sentence imposed in regard to Count 17, except for the sentence imposed as to Count 10 — which was to run consecutively to the sentence imposed in Count 17; the sentence imposed as to Count 10, however, was suspended in favor of five years active probation when appellant completes the executed portion of his sentence. In this appeal, Hamwright does not contend that the evidence was insufficient to convict him of any of the crimes charged, nor does he contend that the lower court committed any error during the trial. He asserts that all the errors arose out of the lower court’s mishandling of various pre-trial motions. Appellant admits that the circuit court had jurisdiction to try him for an attempted first-degree sexual offense as well as a first-degree sexual offense.

This admission, however, cost him nothing because the jury acquitted him of the first-degree sexual offense charge, and at the end of the State’s case, the attempted first-degree sexual offense charge was nol-prossed. 3 ²⁵ To decide which, if any, of the eleven crimes of which appellant was convicted “arose out of the same incident” as either the first-degree sexual offense charge or the attempted first-degree sexual offense charge, it is necessary to outline the evidence presented by the State as to when, where, and under what circumstances each crime was committed. To resolve the closely related question of whether the trial judge erred in failing to sever the case into several parts, it is important to also understand what evidence was utilized by the State to prove that appellant was the criminal agent who committed each of the eleven crimes.

II

APPELLANT’S CRIME SPREE A. Facts Kelvin Floyd (“Floyd”) was chatting with his girlfriend, Jenny Scott, at 9:30 p.m. on November 30, 1999. The two were parked in Floyd’s 1992 Honda Accord in front of Ms. Scott’s Baltimore City apartment. Their conversation was interrupted when three youths, later identified by Floyd and Ms. Scott as appellant, Valentine Miller (“Miller”), and Medan Harold (“Harold”), approached the Honda. Miller pointed a gun at Floyd’s head, whereupon Floyd and Ms. Scott got out of the vehicle.

Ms. Scott was then shoved back into the Honda by one of the youths, and Floyd was ordered to run. He did so. Immediately thereafter, Floyd used his cell phone to call the police. Meanwhile, one of the three youths got behind the wheel of the Honda, and the other two jumped into the vehicle, which then sped off with Ms. Scott as an unwilling passenger.

The wheelman of the commandeered vehicle, taking a circuitous route, drove to the grounds of Spring Grove Hospital located in Baltimore County. While on route to the hospital, ²⁶ the three kidnappers threatened to kill Ms. Scott. They then robbed her of her checkbook and some jewelry. Upon arrival at Spring Grove Hospital, the driver parked the Honda in a dark, secluded part of the hospital property.

Everyone got out of the car, and two of the kidnappers attempted to rape Ms. Scott while a third (appellant) held a gun on her. Ms. Scott avoided being raped, however, by telling her abductors that it would not be in their best interest to rape her because she was ill. Ms. Scott was then forced, at gunpoint, to perform fellatio upon Harold and Miller — but not Hamwright. The three kidnappers next abandoned Ms. Scott, got into the Honda, and fled.

After their departure, Ms. Scott noticed that one of the youths had left behind a black glove. She kept the glove and later gave it to the police. Appellant, Miller, and Harold used Floyd’s Honda as transportation to a Royal Farms store located in Lutherville, Baltimore County, Maryland. The trio robbed the store.

The victim of that robbery was Darryl Watson (“Watson”), a store clerk. The activities of the robbers at the store were captured on the store’s videotape. As shown by the videotape, two of the robbers wore distinctive red and black jackets. Later, when Floyd and Ms. Scott were asked to describe the clothing of the three youths who carjacked the Honda, their descriptions matched the jackets worn by two of the armed robbers shown in the videotape.

Besides being captured on videotape, some of the robbers’ activities at the store were witnessed by Thomas Champion, who saw “three men” pull up in a “dark Honda” as he was exiting the store. Mr. Champion could tell by their furtive behavior that a robbery was about to occur. Because of the trio’s actions, he watched the store from a position across the street. Afterwards, he saw the robbers run from the store and drive away in the “dark Honda.” Mr. Champion copied down the numbers “474,” which were the last three digits on the Honda’s Maryland license plate.

He then called the police on his cell phone. Thereafter, he tailed the Honda as it made ²⁷ its way toward another Royal Farms store. The second store was located near the intersection of Joppa and Thornton Roads in Baltimore County. Mr. Champion observed part of the robbery of that store.

Two clerks were robbed at gunpoint by the same three youths. The victims were Violet Maina and Sara Irungu. The second robbery was also videotaped, and like the first, it showed the robbers wearing bandanna masks, which covered the robbers’ faces below the eyes, and also showed two of the robbers wearing the aforementioned distinctive jackets. After the second robbery, Mr. Champion shadowed the Honda for a time as it headed back to Baltimore City.

He was close enough at one point to discern the first and last letters on the Honda’s rear tag. He was unsure of the middle letter. Mr. Champion called the police again and gave them an update as to the Honda’s tag number and its whereabouts. At trial, he positively identified Floyd’s Honda as the one used in the two store robberies.

On the day following the robbery, in the early afternoon, Floyd’s Honda was discovered by the Baltimore City police in an alley in Baltimore City. The police also found appellant, Harold, and Miller loitering nearby. One of the officers noticed that Harold was wearing only one black glove. A police officer inquired if any of the three had been in the Honda.

Appellant replied that all three of them had been in the car looking for “loose change.” The three were then arrested. Later that day, appellant’s home and that of a co-defendant were searched, and jackets similar to ones shown in the aforementioned videotapes were seized. On December 2,1999, at 12:55 a.m., appellant gave a written statement to the police in which he admitted that he had participated in the carjacking of Floyd’s vehicle and the robbery of the two Royal Farms stores. He also admitted being present when Ms. Scott was forced to perform fellatio on Harold and Miller.

DNA tests and semen stains found on Jenny Scott’s sweatshirt identified Miller as the source of some of the semen. ²⁸ Harold could not be included or excluded as the source; appellant was excluded as the source by the DNA testing. B. The Jurisdictional Issue In People v. Beyer, 768 P.2d 746 (Colo.Ct.App.1988), the court was called upon to interpret a statute that required the imposition of consecutive sentences for persons convicted of “two separate crimes of violence arising out of the same incident....” Id. at 747 . David Beyer was convicted of attempted first-degree murder, two counts of second-degree kidnapping, and a second-degree assault. Id. at 746 .

The question presented was whether each of the convictions arose out of the same incident. The Beyer court summarized the pertinent evidence as follows: The charges against defendant arose from a series of events that began in an automotive repair shop in Colorado Springs. Ronald Aylesworth, accompanied by his friend Martin Newville, drove to the shop to settle a dispute over recent repairs made on Aylesworth’s truck with Bradley Mitchell, the shop operator and codefendant here. Upon their arrival, Aylesworth and Newville were taken to the back of the shop where they found themselves surrounded by four armed men, including defendant and Mitchell.

The victims were instructed to lie down on the floor, and when Aylesworth failed to comply defendant shot him. Both victims were then bound and placed in the back seat of Aylesworth’s truck. Defendant drove the truck to a remote mountainous area while Mitchell sat in the front passenger seat holding a gun. The victims were then ordered out of the truck, at which time Aylesworth collapsed as a result of his injuries.

With the assistance of Newville, defendant began carrying Ayles-worth down the mountain slope into a ravine while Mitchell held his own gun and defendant’s gun. At some point the codefendants alternated and Mitchell carried Aylesworth while defendant held the guns. Newville was tied to a tree ²⁹ at the bottom of the ravine and both victims were abandoned. Id. at 747 .

After a bench trial, the trial judge concluded that Beyer used or possessed and threatened the use of a gun in committing the attempted murder of Aylesworth (by abandoning Aylesworth while he was in a weakened condition) and three other offenses (two counts of kidnapping and one count charging second-degree assault). Id. The trial court ruled that, because all the crimes arose out of the same incident, Beyer was subject to mandatory consecutive sentences. Id.

On appeal, Beyer argued: [Tjhe word “incident” as used in this statutory scheme is a term of limitation intended by the General Assembly to mean a single occurrence rather than a broader range of events.... [Bjecause the shooting of Aylesworth, the transporting of the victims to the mountains, and the abandonment were separate incidents as opposed to a single incident, the statute is inapplicable to the facts of this case. Id. The Beyer court disagreed and explained: Contrary to defendant’s contention, the word “incident” is not limited in meaning to a separate unit of experience, but is defined also as “an occurrence .... taking place as part of a larger continuum” or “a happening or related group of happenings” subordinate to a main plot. Webster’s Third New International Dictionary 1142.

Hence, an incident may logically include a series of acts committed in close proximity or a, chain of events forming a part of a schematic whole. We therefore conclude the meaning of the term “incident” as used in the statute is sufficiently broad to encompass the related crimes committed here as a single incident for sentencing purposes. Id. at 747-48 (emphasis added). In the case at hand, reading section 3-804(e)(1) in context, we believe that the General Assembly intended the ³⁰ word “incident” to have the same definition as that utilized in Beyer and set forth in Webster’s Third New International Dictionary, 4 which, when applied in the context of the language set forth in section 3-804(e), means, “A series of acts committed in close proximity or a chain of events forming a part of a schematic whole.” 5 Beyer, 768 P.2d at 748 .

Using that definition, we shall first analyze, as a unit, the crimes where Ms. Scott was the victim, i.e., kidnapping (Count 10), armed robbery (Count 13), and use of a handgun in the commission of a crime of violence (Count 15). As to those crimes, appellant argues: [T]he kidnapping, armed robbery, and use of a handgun against Jenny Scott was a separate incident from the sexual offense incident. Jenny Scott was kidnapped at the time of the carjacking incident. The assailants forced her into Kelvin Floyd’s car and abducted her. .During the thirty or forty minutes that they drove her around, they threatened her and robbed her.

After the assailants and Ms. Scott reached Spring Grove Hospital, they took her out of the car. The sexual offense incident then took place near a building on the grounds. Thus, it was a separate incident. We disagree.

The kidnapping of Ms. Scott was a continuing offense. Beatty v. State, 56 Md.App. 627, 635 , 468 A.2d 663 (1983). It started in Baltimore City when she was forced into the Honda and lasted until she was abandoned in Baltimore County on the grounds of Spring Grove State Hospital. Because Ms. Scott was being kidnapped at the very point when the sexual offenses occurred, there can be no doubt that the kidnapping arose out of the same incident as the sexual offenses. ³¹ In regard to the armed robbery of Ms. Scott, it is trae that the sexual offenses did not take place simultaneously with the armed robbery.

Nevertheless, using the definition of “incident” as set forth supra, the sexual offenses and the armed robbery constituted “a series of acts committed in close proximity” to one another. Additionally, the crimes, like the sexual offenses, were acts in “a chain of events forming a part of a schematic whole.” As for the handgun offense (Count 15), the handgun was used in the commission of all of the crimes involving Ms. Scott that we have just determined to have arisen out of the same incident as the sexual offenses. Therefore, the offense charged in Count 15 arose out of the same incident as the sexual offense. We next turn to the question of whether the crimes of which Floyd was the victim arose out of the same incident as the first-degree sexual offenses committed against Ms. Scott.

Appellant does not provide us with a definition of “incident” that he advocates, but he appears to contend that the sexual offenses were too removed in time from the carjacking for the two crimes to be considered “in close proximity” with one another. Appellant claims that thirty to forty minutes elapsed between the point where Floyd’s car was carjacked and the point where Ms. Scott was forced to perform fellatio. Appellant was convicted of three crimes where Floyd was the victim: carjacking (Count 17), armed robbery (Count 19), and use of a handgun in the commission of a crime of violence (Count 21). But the armed robbery was actually a lesser-included crime with the carjacking because the only item taken from Floyd by force was the Honda.

In regard to the carjacking, the State proved that appellant and his two cohorts used a handgun to force Floyd to relinquish possession of his Honda Accord. If we look at the crimes against Floyd from Ms. Scott’s perspective, those crimes arose out of the same incident as the sexual offenses. Ms. Scott was kidnapped, robbed, and forced to perform sexual acts by the same persons who victimized Floyd; all the crimes committed against Ms. Scott involved at ³² least one of the same handguns used against Floyd; the car stolen from Floyd was used to take Ms. Scott to the place where the sexual offenses occurred. The sexual offenses and the carjacking were a “related group of happenings.” Webster’s, supra, at 1142.

And, the carjacking and the sexual offenses occurred reasonably close in time (about forty minutes) to one another. From Ms. Scott’s perspective, it is also fair to say that each of the crimes (against either her or Floyd) constituted a “chain of events forming a part of a schematic whole.” From the perspective of the criminal actors, all the crimes against Floyd and Scott took place during an “unbroken series of acts occurring in close proximity to one another” — thus fitting the definition of “incident” set forth in Beyer . For the foregoing reasons, we hold that the lower court had jurisdiction to try appellant for carjacking (Count 17), armed robbery (Count 19), and use of a handgun in the commission of a crime of violence (Count 21), because all of those crimes arose out of the same incident as the sexual offenses. We now segue to the issue of whether the various charges that were filed as a result of the armed robberies of the two Royal Farms stores arose out of the same incident as the two sexual offenses alleged to have been committed against Ms. Scott.

The State contends that the robberies of the two stores (and related handgun offenses) did arise out of the same incident, because, purportedly, the store robberies “were part and parcel of an ongoing criminal enterprise, which began with the carjacking of Floyd’s vehicle.” All the crimes with which appellant was charged had at least three things in common: the persons charged with the crimes were the same, the guns used were the same, and Floyd’s Honda Accord was utilized to transport the criminal actors away from the crime scene. And, we agree with the State that the armed robberies of the two stores were an important part of appellant’s November 30, 1999, crime spree. In that sense, the store robberies might be fairly described as ³³ “part and parcel” of an “ongoing criminal enterprise.” But whether a crime is part of an ongoing criminal enterprise is not the test. If it were, it would probably be satisfied if appellant and his cohorts used Floyd’s Honda to rob the Royal Farms store two days after the sexual offenses — which would not satisfy the requirement that the crimes occur in “a chain of events in close proximity” to one another.

From the viewpoint of the victim of the sexual offenses, it is impossible to see how the store robberies can be said to have arisen out of the “same incident” as those sexual offenses. At the time the store robberies were committed, Ms. Scott had been released by the kidnappers. She had no personal knowledge as to what occurred at the Royal Farms stores and was in no way affected by those crimes. The crime spree lasted a total of two hours and five minutes (125 minutes).

The sexual offenses apparently took place in the first thirty to forty minutes. But neither the exact time nor the approximate time that elapsed between the sexual offenses and the armed robberies of either the first or second store was established. If we utilize the definition set forth in Beyer and apply it from the perspective of the victim, the offenses cannot be said to be part of “a chain of events forming a part of a schematic whole.” Likewise, from the perspective of appellant and his cohorts, it cannot be said that the sexual offenses and the store robberies “were part of a schematic whole.” Once the kidnappers abandoned Ms. Scott, the chain of acts between the sexual offenses and store robberies was broken. Because of the problem of “proximity” and the fact that Ms. Scott was neither a witness to nor a victim of the store robberies, we hold that the two store robberies did not arise out of the same incident as the first-degree sexual offenses.

Therefore, the circuit court did not have jurisdiction to try appellant for Counts 25, 29, 31, 37, and 41.

III

Appellant next argues that the trial court erred in denying his counsel’s request for a severance. Appellant relies on ³⁴ McKnight v. State, 280 Md. 604, 612 , 375 A.2d 551 (1977), where the Court said that “a defendant charged with