Jeffries v. State

MOYLAN, Judge. With respect to one of the convictions in this case, the appellant has a contention that, on its surface and in a purely technical sense, appears to have significant substance. As presented to us, however, it is a contention riddled with procedural flaws and inadequacies. The stakes on this issue are admittedly high.

The conviction in question is for murder in the first degree. The sentence is one of life imprisonment. It must be remembered, however, that the stakes are correspondingly high for both sides of the trial table. In part because of the procedural inadequacies, the appellant will not be permitted to prevail on this issue.

Although it is unlikely to soothe the appellant’s sense of grievance, it nevertheless behooves a court occasionally to articulate the underlying philosophy that animates appellate review in situations such as this. When due process demands, the law will reverse the conviction of an undisputed and cold-blooded killer even on a technicality because it must. A critical component of that principle, ³²⁶ however, is the qualifying clause “because it must.” It is not with any sense of satisfaction that a court reverses on a technicality. When it does so, it does so reluctantly and with heavy heart, and only because it must.

The philosophical converse is that when the procedural posture of an issue makes a reversal on a technicality a consequence that is not compelled but only gratuitously permitted, a court is frequently not motivated to be thus gratuitous. There is a vast philosophical, as well as legal, distinction between due process and gratuitous process. There are procedural requirements that must be satisfied before process literally becomes due. For a reviewing court to overlook a precondition for review or to interpret loosely a procedural requirement, on the other hand, is an indulgence in favor of a defendant that is purely gratuitous.

Even those who are indisputably factually guilty are entitled to due process. By contrast, only instances of truly outraged innocence call for the act of grace of extending gratuitous process. This appeal is not a case of outraged innocence qualifying for an act of grace. The appellant, Deangelo Karlous Jeffries, was convicted by a jury in the Circuit Court for Montgomery County, Judge DeLawrence Beard presiding, of first-degree felony-murder, attempted first-degree murder, two counts of the use of a handgun in the commission of a felony, armed carjacking, and conspiracy to commit armed carjacking.

He was sentenced to imprisonment for a total of two life terms plus one hundred years. On appeal, he raises the following issues: 1. Was the appellant improperly convicted of felony-murder when the underlying felony, armed carjacking, was not a specifically enumerated felony under section 410 of Article 27 at the time of the offense? 2. Did the trial court err in allowing the appellant’s tee-shirt to be admitted into evidence? 3.

Did the trial court err in permitting testimony about an unrelated gunshot wound of the appellant? ³²⁷ 4. Did the trial court err in allowing the admission of hearsay testimony? 5. Did the trial court err in failing to suppress the appellant’s statement as involuntary? 6. Did the trial court err in rejecting the appellant’s Bat-son challenge?

Factual Background The incident giving rise to this appeal was an unsuccessful carjacking that occurred in the early morning hours of September 9, 1994. At the time of the incident, Corporal Diane McCarthy of the Montgomery County Police Department was on break, having coffee with a friend on the third floor of the Wheaton Metro parking garage. At approximately 12:40 a.m., Corporal McCarthy noticed the appellant and another individual walking away from the Metro station. Although she briefly lost sight of them, minutes later she observed them on the parking lot walking over to a Ford Explorer.

She observed that the individual with the appellant peered into one of the windows of the Explorer. Corporal McCarthy returned to her patrol vehicle in order to retrieve her binoculars. Based on further observations, she believed that the two were preparing to break into the vehicle. 1 She then radioed the police station to inquire as to whether any Special Assignment Team members were working. When she was informed they were not, she continued to observe the pair.

It was at this point that the two ultimate victims, 2 Heather McDonald and Daniel Huston, approached the Explorer. 3 Mr. Huston opened the passenger’s side door of the Explorer 4 so ³²⁸ that Ms. McDonald could enter the vehicle, after which he proceeded to the driver’s side. Just as he was about to enter the vehicle, the appellant and his cohort “stood up and rushed” Mr. Huston. Corporal McCarthy, still observing, radioed the police station that a carjacking was in progress. What transpired next was a series of events that ultimately led to the death of Mr. Huston 5 and to the serious injuries of Ms. McDonald. 6 Immediately after Ms. McDonald entered the Explorer she heard loud voices.

She heard one individual yell at Mr. Huston to get back into the vehicle. Mr. Huston obeyed and was then told to lie down in the back seat, which he did. Ms. McDonald was also ordered into the back seat of the Explorer. She complied.

Mr. Huston apparently attempted to exit the . vehicle, and it was at that point that gunfire erupted. Not knowing what had occurred, Ms. McDonald climbed out of the rear window of the Explorer, 7 dropped to the ground, and began to crawl away. After exiting the vehicle, she noticed that “something wasn’t right,” and she then realized that she had been wounded. 8 Corporal McCarthy in her patrol car was heading toward the Explorer, when she noticed a police cruiser at the comer of a nearby street and she saw Mr. Huston lying face down in the parking lot. Shortly thereafter she saw Ms. McDonald, who was bleeding but alive.

Another officer, Daryn Robinson of the District of Columbia Police Department, was patrolling nearby when he heard the gunshots. He approached the crime scene. About twenty minutes later, he observed a K-9 ³²⁹ team retrieve three suspects from a nearby wooded area. After the suspects were removed from the scene, a 9 mm Glock pistol, a .38 caliber revolver, and ammunition were recovered from the woods.

Approximately one month later, an indictment was filed charging the appellant with murder, attempted murder, two counts of the use of a handgun in the commission of a crime of violence or felony, armed carjacking and conspiracy to commit armed carjacking. Also indicted were Allen Emmanuel Swanson and Ruben Carl Carson. The cases were consolidated for trial. The trial, which commenced on March 9, 1995 and ended on March 24, resulted in a verdict of guilty on all counts against the appellant. 9 The jury based its murder conviction on the theory of statutory felony-murder.

The appellant was specifically found not guilty of first-degree premeditated murder, of second-degree murder, and of attempted second-degree murder. The appellant received two life sentences plus one hundred years for the offenses. After the Motion to Dismiss made by the appellant was denied, the appellant noted this appeal. The Felony-Murder Conviction The appellant’s first contention stems from his conviction of statutory felony-murder, presumably based on the predicate felony of armed carjacking.

The appellant maintains that he was improperly convicted of felony-murder because, at the time of the commission of the offense, carjacking was not one of the specifically enumerated felonies listed in Md. Ann.Code, art. 27 § 410 (1996), which could give rise to a conviction of first-degree felony-murder. In support of his argument, the appellant points out that the offense was committed on September 9, 1994, and that carjacking did not become one of the offenses listed in section 410 until October 1, 1994, approxi ³³⁰ mately one month after the crime. 10 Thus, the appellant asserts, he was “convicted of a crime that did not exist at the time of the incident[.]” We fully agree with the appellant’s recitation of the legislative history of carjacking as one of the felonies spelled out in § 410 which will raise a murder committed in its perpetration or attempted perpetration to the level of murder in the first degree. The appellant fails to persuade us, however, as to what significance that legislative history has on his' post-verdict Motion to Dismiss. Indeed, before we can even look at the content of the appellant’s motion, we must try to determine what kind of a motion it is.

Frankly, we are at a loss. It is important to keep in clear focus what precise action of Judge Beard, either of commission or of omission, it was that the appellant now claims was reversible error. Significantly, it is Judge Beard’s denial of the appellant’s post-verdict Motion to Dismiss — and nothing else. On this issue, the appellant does not directly attack any judicial action taken or omitted in the course of the trial itself.

To the extent that anything — such as the jury instruction on felony-murder — is mentioned, it is only by way of providing context for Judge Beard’s ruling on the post-verdict Motion to Dismiss. No alleged trial error is even raised as the direct subject of this appeal. To the extent to which any trial action is even alluded to, it is only as a factor arguably bearing on Judge Beard’s denial of the appellant’s post-verdict Motion to Dismiss. In examining the propriety of the appellant’s motion (whatever kind of a motion it turns out to be), the time frame assumes critical importance.

The trial proper was concluded and the jury verdicts were rendered on March 24, 1995. The post-verdict Motion to Dismiss was filed on October 23, seven months after the verdicts were announced. A hearing on the Motion was held and it was denied on November 28, eight ³³¹ months after the adjudicative phase of the trial had been completed. Our first question is, “Why did the appellant file something that he chose to title a Motion to Dismiss?” The redress that he sought by way of this Motion — filed on October 23 and resolved on November 28 — was a form of post-verdict remedy.

A Motion to Dismiss is not inherently, if at all, a post-verdict or post-trial remedy. An appeal, on the other hand, is a post-trial remedy. A request to a circuit court for en banc reconsideration is a posttrial remedy. A post-conviction petition is a post-trial remedy.

A motion to a trial judge to reconsider a sentence is a post-trial remedy. A request to a circuit court for a sentence review panel is a post-trial remedy. A quintessential post-verdict remedy, addressed to the judge who presided at the trial, is a Motion for New Trial as provided by Md. Ann.Code, art. 27 § 594 (1996) and Maryland Rule 4-331. To the natural question of why the appellant did not entitle his request for post-verdict relief in this case a Motion for New Trial, the answer is almost certainly that provided by Love v. State, 95 Md.App. 420, 423 , 621 A.2d 910 (1993): The Motion for New Trial is one of the posttrial remedies.

It is by no means, however, a never-failing panacea, available whenever and however outraged justice may beckon. It is designed to correct some, but not all, flaws that may have marred a trial. It is limited, moreover, by rigid filing deadlines and other formal constraints. (Emphasis supplied).

If framed as a Motion for a New Trial, apparently based on non-preserved chagrin at a jury instruction and even that only by way of long-delayed afterthought, the appellant’s complaint would have failed to meet the ten-day filing deadline of Rule 4-331(a) by over six-and-a-half months. What the appellant seeks to do, therefore, is to conceal the functional equivalent of a Motion for a New Trial inside the Trojan Horse of a Motion to Dismiss and thereby to insinuate into the citadel of post-verdict review an argument that, undisguised and on its own, ³³² could never have made it past the first sentry post of the filing deadline. We must look to the propriety of such a stratagem. 1. Was This Really A Motion to Dismiss Under Rule 4~ 252(d)?

A Motion to Dismiss (or to do anything else to) a conviction for a non-existent crime is, by definition, a post-verdict motion. Until there is first a verdict, there self-evidently can be no conviction to dismiss. The post-verdict relief provided by Maryland law, for the legal insufficiency of the evidence produced at trial or for some other trial error (such as an erroneous jury instruction, perhaps), is a Motion for New Trial. Its contours are spelled out by Rule 4-331.

The appellant, however, openly pursuing that proper form of relief, would have had no way around the foreclosing effect of Rule 4-331(a): On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial. (Emphasis supplied). Except for the special case of newly discovered evidence, the ten-day filing deadline is an absolute. As Love v. State, 95 Md.App. 420, 427-28 , 621 A.2d 910 (1993) pointed out: [Ajwarding a new trial is tightly circumscribed by the timeliness requirement that the Motion be filed “within ten days after a verdict.” ...

Trial judges, moreover, are not empowered to overlook the filing deadline. State v. Tull, 240 Md. 49, 52 , 212 A.2d 729 (1965); Giles v. State, 231 Md. 387, 388 , 190 A.2d 627 (1963); Ware v. State, 3 Md.App. 62, 65-66 , 237 A.2d 526 (1968). The. appellant’s attempted solution was to transmute his request for post-verdict relief, essentially based on an allegedly erroneous jury instruction to which he had not objected, into some other procedural entity that would not be time-barred. Could he turn ¿ Motion for New Trial into something else by calling it something else?

He came tantalizingly close to doing so. He got the trial judge, for instance, to consider the ³³³ merits of a question that should not even have been entertained. By emphasizing the words “Motion to Dismiss” and whispering, sotto voce, their predicate, “a conviction,” the appellant almost succeeded in concocting not a post-verdict motion at all, governed by Rule 4-331, but a very different kind of motion, governed by Rule 4-252 and immune to filing deadlines. Almost all motions, other than post-verdict and post-trial motions, must be filed well before the commencement of a trial.

Rule 4-252(b). An exemption from that mandatory filing deadline is provided by subsection (d), which provides, in pertinent part: A motion asserting failure of the charging document ... to charge an offense may be raised and determined at any time. In his memorandum in support of his ostensible “Motion to Dismiss,” it is Rule 4-252(d) that the appellant invokes as his exemption from a filing deadline. Can, however, the appellant’s motion qualify under Rule 4-252(d)?

No, but he gets an “A” for effort. The appellant’s language in arguing this contention resonates, albeit distantly and unclearly, with echoes that sound beguilingly like an attack on the adequacy of the charge. As the appellant puts it in his brief, he was “convicted of a crime that did not exist.” At another point in his brief, the appellant asserts that he “was convicted of a crime that did not exist at the time of the incident in the present case.” That sounds deceptively like an attack on a charge. It is not, however.

Even if what the appellant alleges were true (it is not, as we shall explain infra), it would not be a case of the “failure of the charging document ... to charge an offense.” To be convicted of a non-existent offense, grievous though such a fate might be, is not the same thing as to be charged with a non-existent offense. A Motion to Dismiss an indictment or a particular count of an indictment for the failure to charge an offense is an attack on the adequacy of the prosecution’s pleading. The merits of such a Motion, moreover, may ³³⁴ be determined by examining the four corners of the charging document and require no reference to the trial. The issue concerns only the adequacy of the pleading and not the sufficiency of the evidence or the propriety of the trial.

The appellant, however, was not convicted of, let alone charged with, a non-existent crime. He has badly misidentified the crime in issue. He was neither charged with nor convicted of some crime known as carjacking-murder. There is no such crime.

The appellant was charged with and convicted of the crime of murder. Murder, of course, was not only in existence as a crime on September 9, 1994, the day on which the appellant murdered Daniel Huston; it has been in existence as long as the Anglo-American common law itself. The charging document, Count One of the indictment, adequately charged the appellant with murder: The Grand Jurors of the State of Maryland, for the body of Montgomery County, upon their oaths and affirmations, present that DEANGELO KARLOUS JEFFRIES, on or about September 9, 1994, in Montgomery County, Maryland, unlawfully, willfully and of deliberately premeditated malice aforethought, did kill and murder Daniel Huston, in violation of the Common Law and against the peace, government and dignity of the State. That is the charging document in question and there is no mention of “carjacking” therein.

Murder was “the crime” with which the appellant wás charged and of which he was convicted. The very wording of the indictment used in this case has received the blessing of the Maryland Legislature. Art. 27 § 616. It has, moreover, received the imprimatur of the Court of Appeals.

Neusbaum v. State, 156 Md. 149 , 143 A. 872 (1928); Kelley v. State, 181 Md. 642 , 31 A.2d 614 (1943). There is no way that the appellant can maintain that the wording of a murder indictment that has received the continuing approval of both the General Assembly and the Court of Appeals fails to charge the offense of murder. Even so basic a division of murder as that which split it into two degrees for punishment purposes, ch. 138 of the Acts of ³³⁵ 1809, did not turn murder into two separate crimes. The crime, regardless of degree, remained simply murder.

Weighorst v. State, 7 Md. 442, 451 (1855); Hanon v. State, 63 Md. 123, 126 (1885); Abbott v. State, 188 Md. 310, 312 , 52 A.2d 489 (1947) ; Chisley v. State, 202 Md. 87, 96 , 95 A.2d 577 (1953); Stansbury v. State, 218 Md. 255 , 146 A.2d 17 (1958); Gladden v. State, 273 Md. 383 , 330 A.2d 176 (1974). A fortiori, even lesser distinctions among the various theories, rationales, or mentes reae that may support a conviction for either second-degree or first-degree murder do not create separate crimes. The crime is still murder whether based, for instance, on a finding of an • intent to commit grievous bodily harm or on a finding of a depraved heart. Sections 407, 408, 409, and 410, setting out various mentes reae and circumstantial modalities that will qualify murder as murder in the first degree, do not represent separate crimes but only establish alternative ways of finding the requisite aggravation.

Wood v. State, 191 Md. 658, 666-67 , 62 A.2d 576 (1948) . Within the more particularized realm of statutory felony-murder, the even more parochial distinctions among fifteen separate felonies and fifteen respective attempts (Art. 27, §§ 408, 409, 410) do not create thirty separate crimes. They represent nothing more than thirty different factual possibilities or modalities for committing felony-murder in the first degree. A unanimous verdict of guilty of first-degree felony-murder would not be overturned even if it could be conclusively determined that six of the jurors stopped their analysis after concluding that the murder in question occurred in the course of an in-house robbery, five others analyzed it only in terms of a murder in the course of a burglary, and one lone juror (not sure that the victim had any money) reached the conclusion that the murder occurred in the course of an attempted robbery.

The unanimous verdict would have been guilty of the single crime of felony-murder, and not three fragmented decisions with respect to three separate crimes of ³³⁶ robbery-murder, burglary-murder, and attempted-robbery-murder. Even allowing for the fine tuning as to 1) degree and 2) murderous mens rea, the appellant here was charged with and convicted of generic first-degree felony-murder, not carjacking murder. First-degree felony-murder existed as a crime on September 9, 1994. There was no basis to dismiss the charging document.

If, on the other hand, the motion was something other than a Motion to Dismiss on the ground that the charging document failed to charge an offense, it was not timely filed. Had the appellant succeeded with his subtle procedural alchemy, it must be pointed out, he might well have reaped a reward grossly inordinate to anything he could have hoped for under a timely filed and meritorious Motion for New Trial. On a Motion for New Trial, the most a defendant can achieve is a new trial. In the appellant’s “Motion to Dismiss,” by contrast, he began modestly enough by requesting that the trial judge “dismiss the verdict of guilty to Count One, Murder,” (emphasis supplied) but he arguably raised the stakes with his final prayer for relief: WHEREFORE, the Defendant requests that this Honorable Court dismiss Count One of the indictment.

Such a dismissal, if granted, might well have entitled the appellant to go “scot-free” for the murder of Daniel Huston. It is not unlikely that the appellant would have argued for just such a result if his Motion had been granted and had the State then sought to retry him. He would then have argued that the “dismissed” count embraced far more than carjacking-murder. In any event, the appellant’s Motion (whatever it was) was denied, and we affirm that denial. 2.

Was the Motion, in Effect, a Motion for New Trial? As a motion that, in its exclusive thrust, challenged a trial verdict as being the allegedly flawed result of an alleged trial error, it was, in full effect and notwithstanding its deceptive label, a Motion for New