Hubbard v. State

BLOOM, Judge. A jury in the Circuit Court for Montgomery County convicted Richard Allen Hubbard of daytime housebreaking under Md.Code Ann. (1957, 1987 Repl.Yol.) art. 27, § 30b. On the basis of two prior convictions of crimes of violence, Hubbard was sentenced to a term of twenty-five years imprisonment without parole, pursuant to Md.Code Ann. (1957, 1987 Repl.Vol.) art. 27, § 643B. In this appeal from that judgment, Hubbard contends that he received an unfair trial and an illegal sentence.

We disagree with his contentions and, for the reasons which follow, will affirm the verdict and the sentence. Facts On the morning of 5 September 1986 Hubbard broke into and entered the residence of Tina Dove, Larry Schwartz-back, and Nancy Davido in Columbia, Maryland, entering the home through a dining room window after all three residents had left for work. Unfortunately for Hubbard, Tina Dove returned unexpectedly to the house that morning because her employer had no work for her. Ms. Dove observed a man leaving the house with stereo speakers.

Her first thought was that Nancy Davido’s stereo was being repossessed. The man loaded the stereo speakers into a brown, four door car and drove away. ²³² When Ms. Dove entered the house, she found that a dining room window was cracked and its screen removed, that the house had been ransacked, and that all of Ms. Davido’s stereo equipment had been taken. She immediately telephoned Ms. Davido and Mr. Schwartzback; several hours later she telephoned the police. The verbal description Ms. Dove gave the police of the man she had seen leaving the house with the stereo speakers did not exactly match appellant’s description, but she did pick Hubbard’s picture from a photographic array, and in court she identified Hubbard as the man who took the speakers.

The police found Hubbard’s fingerprints on the dining room window screen. Tina Dove had never seen appellant before the day of the break-in, but Ms. Davido and Mr. Schwartzback knew him. Hubbard had formerly worked with Mr. Schwartzback; Ms. Davido had met Hubbard on one or two occasions when Hubbard came to visit Schwartzback. Hubbard was charged with breaking and entering and with theft of goods valued over $300.

At trial, he challenged Ms. Dove’s photographic and in-court identifications, pointing out discrepancies between his appearance on the day of the break-in and the oral description initially given by Ms. Dove to the police of the man she saw with the stereo speakers. Appellant’s counsel vigorously argued (1) that Ms. Davido and Mr. Schwartzback had influenced Tina Dove to accuse Hubbard of the crime, and (2) that the fingerprints found on the outside and inside of the dining room window screen were left by Hubbard during one of his prior visits to the home. The jury convicted Hubbard of breaking and entering but was unable to reach a verdict on the theft charge, and the State then nolle prossed the theft charge. The court imposed the sentence of twenty-five years imprisonment without parole, pursuant to Md.Code Ann. (1957, 1987 Repl.Yol.) art. 27, § 643B, on the basis of evidence that Hubbard ²³³ previously had been convicted in Maryland of burglary and in California of attempted robbery.

Appellant’s Contentions Appellant contends that the trial judge committed prejudicial error during the course of the trial when he refused to permit adequate cross-examination of one of the State’s witnesses. In addition, appellant claims the trial judge erred when he instructed the jury “... that fingerprint evidence, if believed, places the defendant at the scene of the crime on the day in question,” and also when he told the jury that Tina Dove “made an identification of appellant at the time of the crime.” Attacking the legality of the mandatory sentence under Md.Ann.Code art. 27, § 643B, appellant asserts first that the California “conviction” of attempted armed robbery did not amount to a conviction under Maryland law and, second, that attempted armed robbery, under California law, is not a violent crime within the meaning of § 643B. I The Cross-examination During the course of trial, the State called as a witness Officer Joyce, the police officer who responded to Ms. Dove’s call on the day of the break-in. Appellant contends that the court thwarted his counsel’s attempt to elicit testimony, during cross-examination of the officer, which would have indicated that Tina Dove’s identification of Hubbard was influenced by Nancy Davido.

Both Ms. Dove and Ms. Davido had previously denied any discussion between them concerning the identification of the culprit prior to Dove’s identification of Hubbard’s photograph. In addition, Ms. Davido had denied speaking to Officer Joyce concerning the culprit’s identity. Hubbard’s counsel for this appeal, based on his interpretation of the record, asserts that the trial court impermissibly limited this line of questioning. We believe that counsel misinterprets the record. ²³⁴ During defense counsel’s cross-examination of Officer Joyce, the following exchange took place: Q. Did you hear Tina Dove give a description to Nancy Davido?

A. Oh, yes. Q. All right, and it was on the basis of Nancy Davido’s say so that you— [STATE’S ATTORNEY]: Objection to what Nancy Davido might have said. [THE COURT]: I think that is probably right. [APPELLANT'S ATTORNEY]: Well, let me ask this. [BY APPELLANT’S ATTORNEY]: Q. Did you write in your report, “Hubbard was developed as a suspect from the victim, Davido”? [STATE’S ATTORNEY]: Objection, Your Honor. Objection. At a lengthy bench conference which followed that exchange, the prosecuting attorney indicated that she objected to appellant’s question because she believed Nancy Davido had told Officer Joyce that appellant had committed other break-ins, so appellant’s question therefore might “[open] up doors for all that to come in.” She then insisted that “if [appellant] really wants to go into what Nancy Davido said, I just want to let him know that I am going to come back and ask all the other questions.” The judge, indicating that he agreed with the State’s position, suggested that appellant’s question concerning what Nancy Davido told the police might elicit other crimes evidence.

Defense counsel replied that he did not want to reveal what Nancy Davido told the police, and the following exchange took place: [APPELLANT’S COUNSEL]: But just so we are clear, I would like to get unobjected answers to the question, “Do [sic] you write in your report that the subject was developed as a suspect by the victim?” [THE COURT]: All right, and he can say yes or no and if he says, “Yes”— [APPELLANT’S COUNSEL]: That is the end of it. ²³⁵ [THE COURT]: That is the end of it. Before ending the bench conference the trial judge once more indicated that if appellant’s counsel brought out what Nancy Davido told Officer Joyce, the State would be allowed to ask “what else did Nancy Davido say.” After the bench conference concluded, appellant’s trial counsel abandoned his question about what the officer wrote in his report about the subject being developed as a suspect by the victim and pursued a new line of questioning. We reject appellant’s contention that the trial judge erred in sustaining the State’s objection to the above-quoted question because it is very clear from the record that the trial judge overruled the State’s objection. It is obvious that appellant’s trial counsel either chose not to ask the question in order to avoid a possibly incriminating response or simply misunderstood the court’s ruling.

In any event, the trial judge did not commit the error asserted by appellant. II The Jury Instructions A. The fingerprint evidence At the close of all evidence, the trial judge, prefacing his jury instructions with “a very brief summary of what brings us here today,” specifically told the jury, “What I say about the evidence doesn’t make any difference anyway.” During the course of his summation, the judge stated: [Fingerprint evidence was received which if believed places the defendant at the scene on the day in question. Appellant claims, and the State concedes, that the above- quoted statement was wrong. 1 The State claims, and appel ²³⁶ lant concedes, that the trial judge later gave a correct instruction as follows: In order to prove that the defendant committed the offenses with which he is tried you are instructed that the fingerprint evidence found at the scene of the crime must be coupled with evidence of other circumstances tending reasonably to show that the fingerprints were left there at the time of the crime. The State and appellant disagree on whether the trial judge’s initial erroneous summary of the evidence amounted to prejudicial error.

Appellant claims that the correct and incorrect instructions rendered “the instructions taken as a whole ambiguous and confusing.” The State claims that the error was harmless because it was merely part of a brief summary of the evidence and because the trial judge thereafter not only gave a correct instruction as to the law but also told the jury that his comment concerning the evidence “doesn’t make any difference anyway.” We agree with the State that the subsequent remarks corrected the error and rendered it harmless. It is clearly the law that “when objection is raised to a court’s instruction, attention should not be focused on a particular portion lifted out of context, but rather its adequacy is determined by viewing it as a whole.” State v. Foster, 263 Md. 388, 397 , 283 A.2d 411 (1971), cert. denied, 406 U.S. 908 , 92 S.Ct. 1616 , 31 L.Ed.2d 818 (1972) (citations omitted). Viewing the instructions in the case sub judice as a whole, we cannot conclude that the court’s unguarded comment about the fingerprint evidence constituted prejudicial error. Read in the context of the trial judge’s brief comments concerning the evidence, the remark concerning the fingerprint evidence loses much of its sting.

The trial judge said: ²³⁷ Ms. Dove identified the person as the defendant both as an eyewitness at the time and by photographic ID later during the day. In addition, fingerprint evidence was received which if believed places the defendant at the scene on the day in question. In context, the trial judge’s remark that the evidence “if believed places the defendant at the scene on the day in question” might be taken as referring to the combined effect of Ms. Dove’s identification and the fingerprint evidence. So interpreted, his statement would be a logical, accurate summary; the fingerprint supports the identification of appellant as the person who was there that day.

See, McNeil v. State, 227 Md. at 300, 176 A.2d 338 . But even if we were to interpret the comment as referring only to the fingerprint evidence (and therefore as a clearly erroneous factual statement) we are persuaded that the error was harmless beyond a reasonable doubt, because the trial judge correctly instructed the jury on the law and specifically told the jury: [Y]ou are to draw no conclusion whatever from any comments that I have made during the course of this trial either in relation to my views in this case or as to my views as to any particular witness or any particular piece of evidence. This is not a situation where the jury instructions were misleading. See, Pitts v. State, 36 Md.App. 594 , 374 A.2d 632 (1977) (reversible error for trial judge to instruct jury that there is no presumption of innocence in favor of a criminal defendant, and to instruct the jury that the State must provide guilt beyond a reasonable doubt).

Neither is this a case where the trial judge gave utterly conflicting instructions on the law. See Haney v. Marshall, 9 Md. 194 (1856). At most, the judge, in gratuitously summarizing the evidence, misstated the facts or gave an erroneous conclusion drawn from the facts, but later gave a correct instruction as to the law which clearly negated the plain error. We assume the correct instruction was followed.

Wilson v. State, 261 Md. 551, 570 , 276 A.2d 214 (1971); ²³⁸ Cardin v. State, 73 Md.App. 200, 233 , 533 A.2d 928 (1987), cert. denied, 312 Md. 126 , 538 A.2d 777 (1988). B. The identification Appellant also claims that the trial judge erred when he instructed the jury “that the eyewitness made an identification of appellant at the time of the crime.” Again, we find no error. During the instructions to the jury, the trial judge said: There have been at least three identifications of the defendant in this case. One was by photograph.

One was by fingerprint evidence, and further the identification in court by the witnesses of the defendant. There may be even a fourth possible eyewitness identification at the time of the event. Appellant’s counsel objected to “a suggestion that the observation of Tina Dove at the time of the alleged offense constitutes a fourth identification.” Appellant’s counsel argued below and asserts on appeal that Tina Dove’s view of appellant at the scene of the crime did not constitute an identification because, although she recalled his appearance sufficiently to make both a photographic and in-court identification, she was not aware of his identity when she initially saw him. At trial, the State agreed with appellant’s counsel; however, both the State and the trial judge concurred with appellant’s counsel’s remark concerning the “fourth identification”: “I think it is semantics.” In any event, the trial judge overruled appellant’s objection to the above-quoted instructions, and appellant now claims that the failure to give a curative instruction constitutes reversible error.

We disagree. We believe appellant’s counsel was correct the first time, when he characterized the dispute as a matter of semantics. In his brief, appellant cites the following definition of “identification”: The proving that a person, subject, or article before the court is the very same that he or it is alleged, charged, or ²³⁹ reputed to be. Identification is almost always a matter of opinion or belief. 42 C.J.S. Identification at 374-75 (1944).

It is true, of course, that Tina Dove did not identify the man she saw on the morning of the crime by name; however, she identified the physical characteristics of the man she saw. We agree with the State’s contention that “[t]he court was using the word [eyewitness] identification to convey the notion that [Ms. Dove] had seen at the time of the crime the person that she later picked out of the photo array and later still identified in court.” Howard v. State, 19 Md.App. 673 , 313 A.2d 567 (1974), on which appellant relies, is entirely inapposite. In Howard , during closing argument the prosecution revealed for the first time the existence of a photographic identification which had not been entered into evidence. This Court held that such a disclosure prejudiced the defendant and warranted a new trial, despite the giving of curative instructions.

In the case sub judice, the trial judge made no inappropriate disclosure; at all times he referred to evidence properly before the jury. The error, therefore, even if it consisted of anything other than semantics, was harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976). Ill The Sentence Section 643B of Maryland Code Ann. art. 27 (1957, 1987 Repl.Vol.) provides, in pertinent part, as follows: (c) Third conviction of a crime of violence.~Any person who (1) has been convicted on two separate occasions of a crime of violence where the convictions do not arise from a single incident, and (2) has served at least one term of confinement in a correctional institution as a result of a conviction of a crime of violence, shall be sentenced, on being convicted a third time of a crime of violence, to ²⁴⁰ imprisonment for the term allowed by law, but, in any event, not less than 25 years.

The term “crime of violence” includes daytime housebreaking under art. 27, § 30(b), burglary, and attempted robbery. Art. 27, § 643B(a). The State bears the burden of proving the validity of prior convictions if the defendant raises that issue. Middleton v. State, 67 Md. App. 159, 178 , 506 A.2d 1191 , cert. denied, 308 Md. 146 , 517 A.2d 771 (1986).

Invalid convictions, of course, do not satisfy the requirements of § 643B. Raiford v. State, 296 Md. 289, 295 , 462 A.2d 1192 (1983). Neither do out-of-state convictions of crimes which would not be crimes of violence under Maryland law. Temoney v. State, 290 Md. 251, 262-64 , 429 A.2d 1018 (1981).

In 1984, appellant was convicted in the Circuit Court for Montgomery County of burglary, and a period of incarceration was imposed. In 1979 appellant pleaded either guilty or nolo contendere to a charge of attempted robbery in California. 2 A period of incarceration was imposed. It was on the basis of those two prior convictions and corresponding periods of incarceration that the sentence of twenty-five years imprisonment without parole was imposed. Appellant challenges the legality of his sentence on two grounds.

First, he contends that the disposition of the California attempted robbery case was not a conviction for purposes of Maryland Code Ann. art. 27, § 643B. Second, appellant argues that attempted robbery, under California law, is not a crime of violence for purposes of § 643B. We disagree with both contentions. A. The nolo contendere plea Under Maryland law, a plea of nolo contendere, or no contest, does not result in a criminal conviction.

The ²⁴¹ accused merely asserts that he cannot contest the State’s charges and evidence against him and submits himself to punishment. McCall v. State, 9 Md.App. 191, 192-94 , 263 A.2d 19 (1970). Upon acceptance of the plea, the court proceeds to disposition “as on a plea of guilty, but without finding a verdict of guilty.” Md.Rule 4-242(d). Therefore, had appellant’s nolo contendere plea occurred