Kamara v. State

JAMES A. KENNEY, III, J., (Retired, Specially Assigned). A jury sitting in the Circuit Court for Prince George’s County convicted appellant, Mohammed Ansu Kamara, of solicitation to commit murder. Following a disposition hearing, he was sentenced to ten years’ imprisonment, with all but seven years suspended, and five years’ probation. This appeal presents three questions for our review, which we have consolidated and reworded as follows: 1 ⁶⁴ I. Was the evidence sufficient to sustain appellant’s conviction for solicitation to commit murder?

II

Did the circuit court err in imposing appellant’s sentence? For the following reasons, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL HISTORY At the trial, Margaret Kanu (“Kanu”) testified that she met appellant in November 2000, and that they became romantically involved in April 2001. According to Kanu, their relationship, from the beginning, was one of “violence, fighting all the time, lying, [and] cheating.” When she ended the relationship on December 13, 2005, appellant began showing up uninvited at her home and workplace.

When she would return home from work late at night, appellant would be waiting in the parking lot. On one occasion, he poured sugar into the gas tank of her car. Despite her requests that he leave her alone, appellant continued to contact her, which made her nervous and scared. Maurice Proctor (“Proctor”) testified that he and appellant had worked together at Lamar and Wallace Mill Work (“L & W”) “between 2004 and 2005.” In their conversations, appellant expressed his “frustrations” because Kanu would not talk to him or return his calls.

Sometime before Proctor left L & W in November 2005, appellant asked him to “beat [Kanu] up.” Appellant also “mentioned [that] he wanted [Proctor] to ⁶⁵ kill her[.]” According to Proctor, the conversations related to killing Kanu were initiated by appellant, and he did not attempt to persuade appellant to kill Kanu. Proctor testified that after leaving L & W, he and appellant maintained contact. When appellant again asked him to kill Kanu, he responded that “if [appellant] gave [him] some money, [he would] probably take care of it for him” because “[he] was in need for some money at the time.” Proctor testified that he did not intend to kill Kanu and that his “main objective was to get [appellant’s] money.” According to Proctor, appellant “said [that] he was going to give [Proctor] five hundred dollars before he left [for Africa] and give [Proctor] fifteen [hundred dollars] when he got back.” At first, Proctor did not believe appellant seriously desired to have Kanu killed, but later he did. Proctor was arrested on March 23, 2006, for an unrelated drug charge. 2 In an effort to “get off on the drug charge,” he informed the police about his conversations with appellant.

This led to telephone and personal conversations between Proctor and appellant that were monitored by the police. During these conversations, appellant instructed Proctor to kill Kanu “around where she worked at” before he left for Africa. Detective Bernard Nelson testified that, on March 23, 2006, he was contacted by Proctor, who “indicatefd] that someone was trying to hire him to kill his girlfriend.” He met with Proctor, and, later that night, “[he] asked [Proctor] if he [could] place a phone call ... to [appellant], just to verify ... that [appellant] actually did want to have his girlfriend killed.” The phone call was recorded. Four additional phone calls were recorded, one on April 4, 2006, and three on April 8, 2006.

Proctor and appellant met twice, on April 6 and April 8, 2006. The meetings were recorded and videotaped. Detective Nelson had Proctor notify the police when appellant ⁶⁶ wanted to meet with him. On April 6, 2006, Proctor informed the police that he would be meeting with appellant that same day.

During the April 6, 2006 meeting, Proctor and appellant drove to Kanu’s workplace. As they drove, the two discussed appellant’s relationship with Kanu, as well as the plan to kill her. When they arrived at Kanu’s workplace, appellant identified her vehicle. Appellant wrote down the vehicle’s license plate number on a piece of paper and gave it to Proctor, who gave it to the police.

Appellant stated to Proctor, “From this point now it’s up to you.” When appellant stepped out of the car for a moment, Detective Nelson called Proctor and asked him to inquire specifically as to how appellant wanted Kanu killed. Appellant instructed Proctor to shoot Kanu at her workplace, stating, “Just shoot her and keep going____Just pull to the side, boom, boom, boom, boom, boom, boom, and keep going.” He stated, “Yeah, put a bullet in her ass. Don’t stab her, it’s nighttime, understand. She ain’t gonna stop.

She ain’t stupid. She’s smart.” At the request of the police, Proctor initiated the April 8, 2006 meeting. During this meeting, appellant reiterated his intent to have Proctor kill Kanu, but asked him to wait several months because it was then too “hot” and too many people were aware of his problems with Kanu, which would make him the primary suspect even if he was in Africa. Appellant told Proctor to delay the murder until December 2006, while he was away in England.

He gave Proctor $100, in the form of five $20 bills, and promised to “give [him] some more[.]” Proctor gave the money to Detective Nelson after the meeting. During the trial, Detective Nelson explained the purpose of the meetings: We were hoping that [Proctor] would get [appellant] to talk about the money and also how he wanted his girlfriend killed. And we were only able to get him to accomplish one part of that, and that was about how he wanted his girlfriend killed. It was him that went ahead and continue ⁶⁷ about the money after he gave [ ] Proctor the hundred dollars, how he was going to pay him later.

On April 11, 2006, Detective Nelson went to appellant’s workplace and asked to speak with him. Appellant agreed to speak with him, and they went to Detective Nelson’s office. Prior to the interview, appellant was advised of his rights. At the beginning of the interview, Detective Nelson told appellant that Proctor had been arrested for killing Kanu.

He explained that he employed this “shock technique” to “try to elicit him to tell ... the truth, that he did ask [Proctor] to murder [Kanu].” Appellant initially denied knowing Proctor, but later he admitted that he “used to work with [ ] Proctor and he used to tell [] Proctor about his problems with [Kanu].” Detective Nelson testified that, eventually, appellant “admitted that he did express that he wanted [ ] Proctor to kill [Kanu], but he told ... him not to at the end[.]” When Detective Nelson asked appellant about the $100 he gave to Proctor, appellant responded that it was for Proctor “to buy some gas.” Appellant made a written statement, which was admitted into evidence. Ansu Kamara (“Ansu”), appellant’s father, testified that Kanu was appellant’s girlfriend. Ansu stated that appellant and Kanu dated for approximately six years, and that Kanu had lived with him and appellant for approximately six months. Ansu stated that he never observed any violence between them.

Billy Williams (“Williams”) testified that he worked with appellant at L & W and had observed appellant and Kanu together approximately six to eight times. He did not believe that appellant was a violent person. William Lamar (“Lamar”) testified that he had worked with appellant at L & W for approximately eight years and that Proctor had also worked there for approximately eighteen months. Lamar described appellant as a model employee who never demonstrated any violence. ⁶⁸ Samuel Crouch, another L & W employee, testified that he worked with appellant and appellant did not exhibit violent tendencies.

Appellant testified that he started dating Kanu in 2001, and that they did not argue often during their relationship. He confirmed that he and Proctor discussed- his relationship with Kanu. Appellant testified that Proctor left L & W in November 2005, and that he had no contact with him until Proctor called him in March 2006. He did not initiate any calls, conversations, or meetings in reference to having Proctor kill Kanu, and he only showed Proctor where Kanu worked because Proctor asked him to-do so.

When asked why he gave Proctor $100, appellant stated, “I gave him the hundred dollars for me wasting his time for his troubles being that he had been talking to me and he asked me that he was broke [and] needed money.” He did not intend on giving Proctor additional money when he returned from Africa. Appellant blamed his angry behavior on his drinking problem. At the close of the State’s case, counsel for appellant made a motion for judgment of acquittal, stating: Number two, I think there was entrapment by the police in dealing with this matter. I think there was entrapment by the police in reference to having [appellant] allege to make certain statements.

They used an individual who has — who was arrested and was not charged, but promised leniency to deal with attempting to get a solicitation charge on [appellant]. I think the State has not shown that there was — the State has not shown enough evidence to convict [appellant] of solicitation when it was initiated by the police and by the individual who was arrested. I don’t think that there’s enough evidence so that he can be found guilty by this jury of solicitation for murder. I don’t think that the State has proven that there was solicitation in this particular case. ⁶⁹ The motion was denied.

After the close of all of the evidence, appellant’s counsel again moved for judgment of acquittal, asserting: I would renew my [Mjotion for Judgment of Acquittal. Again, I suggest to the Court that there was entrapment by the State in processing this matter.... I suggest, Your Honor, that the State has not made out a case beyond a reasonable doubt, and inasmuch as we’re looking at — we’re in a different posture now, it’s not, the Court has to look at facts most favorable to the State, it’s now a matter of beyond a reasonable doubt, and I don’t think that they have met their burden to deal with finding [appellant] guilty beyond a reasonable doubt. And based on that, Your Honor, I would ask the Court to issue a Judgment of Acquittal.

The circuit court denied the motion and, after a short recess, the jury instructions were given, including the following instruction: You have heard evidence that [appellant] was entrapped. When a person is not predisposed to commit the crime, prior to the time that the law enforcement officers make initial contact, and is induced or persuaded by law enforcement officers or someone acting for the officers to commit the crime, that person is entrapped and is not guilty of the crime. The State has the burden of proving, beyond a reasonable doubt, either that there was no inducement or that [appellant’s] conduct was due to a predisposition to commit the crime. Even if the law enforcement officers provided a favorable opportunity to commit the crime, there is no entrapment prior to the time that a law enforcement officers makes initial contact.

Likewise, there is no entrapment if the law enforcement officer merely provide[s] a favorable opportunity to commit this crime to a person who was already predisposed to do the act prior to the initial contact. Predisposition or willingness to commit a crime may be shown by evidence, direct or circumstantial, that [appellant] was ⁷⁰ ready and willing to commit the crime charged prior to the time that the law enforcement officer made initial contact. In determining whether [appellant] was predisposed to commit the crime, you should consider that evidence, along with all of the evidence, in the case. Neither the State nor the defense objected to the instructions.

The jury convicted appellant of solicitation to commit murder. Appellant was sentenced on January 26, 2007. At the conclusion of the sentencing hearing, the court advised appellant that he had “30 days to note [his] appeal, 90 days to ask for a reconsideration, [and] 30 days to ask for a Three-Judge [En] Banc Panel who [could] either raise or lower [appellant’s] sentence as they deem[ed] appropriate.” When the court asked the defense counsel if there were any other issues, counsel responded, “No, Your Honor.” Appellant appealed on February 6, 2007. 3 DISCUSSION I. Solicitation to Commit Murder Appellant asserts that there was insufficient evidence to convict him of solicitation to commit murder because “the State failed, as a matter of law, to prove that [he] solicited Proctor [to kill Kanu] beyond a reasonable doubt[,]” and the State failed to prove that he was not “entrapped as a matter of law.” The State contends that “the arguments asserted on appeal are unpreserved because the record confirms that they were not presented by [appellant] in his motion for judgment of acquittal at the close of evidence.” Appellant argues that, “[t]aken together, as they must be, these detailed motions for acquittal are sufficient to preserve the issues for appellate review.” ⁷¹ A. Consideration of Both Motions for Judgment of Acquittal When appellant offered evidence in his own defense, he withdrew his first motion for judgment of acquittal by operation of law. See Maryland Code Annotated (2001), § 6-104(a)(3) of the Criminal Procedure Article (“CP”) (“If the defendant offers evidence after making a motion for judgment of acquittal, the motion is deemed withdrawn.”); Maryland Rule 4-324(c) (“A defendant who moves for judgment of acquittal at the close of evidence offered by the State may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.

In so doing, the defendant withdraws the motion.”) In Warfield v. State, 315 Md. 474, 487 , 554 A.2d 1238 (1989), the Court of Appeals stated: We are not of a mind ... that the second motion for judgment of acquittal must stand alone.... The general purpose of the statute and the rule is patent. It is to implement, by means of a motion for judgment of acquittal, the constitutional authority given an appellate court to pass on the sufficiency of the evidence. The specific purpose of the mandate of the rule to particularize the reasons for the motion is to enable the trial judge to be aware of the precise basis for the defendant’s belief that the evidence is insufficient.

Then the judge in determining the motion may fully appreciate the position of the defendant. All in all the command to particularize the reasons operates to the benefit of the defendant and also acts as an aid to the trial judge. When a defendant offers evidence on his own behalf after his motion for acquittal is denied, the motion is withdrawn and not subject to review. But the reasons given for the motion are still within the ambit of the trial; they are not erased.

To strike them from the record so as to preclude their consideration with respect to the second motion is against sound reason, common sense, and the legislative ⁷² intent. We do not see the “great burden” ... this view would impose on the trial judge. When a party makes anew a motion for judgment at the conclusion of all the evidence and states that the motion is based upon the same reasons given at the time the original motion was made, or when a party “renews” a motion for judgment and thereby implicitly incorporates by reference the reasons previously given, the reasons supporting the motion are before the trial judge. If, for any reason, the judge desires that the reasons be restated, the judge may simply say so, and the moving party must then state the reasons with particularity.

If the judge does not wish the reasons restated, he or she may proceed to decide the motion on the grounds previously advanced. Obviously, when the moving party wishes to advance new or different reasons at the time the second motion is made, that party may do so, but should be careful to state whether the reasons being advanced are in lieu of or in addition to the reasons previously given. We caution, however, that it would be far better for the defendant to place on the record that his reasons are the same as previously stated, and set out such further reasons he may have, but we do not think the intent of the rule is that he must be denied a review of the evidence for failure to do so. (Citations omitted; emphasis added.) Therefore, where, as here, the subsequent motion for judgment of acquittal renews the first motion, the arguments made in both motions may be considered.

See Laubach v. Franklin Square Hospital, 79 Md.App. 203 , 208 n. 3, 556 A.2d 682 (1989)(“[T]he Court of Appeals has made clear that the particularity requirement of [Maryland Rule 4-324(a) ] is satisfied if, at the end of all the evidence, the party “states that the motion is based upon the same reasons given at the time the original motion was made, or ... ‘renews’ a motion for judgment ... thereby implicitly incorporating] by reference the reasons previously given.”). ⁷³ B. Particularity Requirement Rule 4-324(a) provides that, in a motion for judgment of acquittal, “[a] defendant shall state with particularity all reasons why the motion should be granted.” “When ruling on a motion for judgment of acquittal, the trial court is not required to imagine all reasonable offshoots of the argument actually presented.” Starr v. State, 405 Md. 293, 304 , 951 A.2d 87 (2008). Moreover, a defendant “is not entitled to appellate review of reasons stated for the first time on appeal,]” id. at 302-303 , 951 A.2d 87 , and “[a] defendant may not argue in the trial court that the evidence was insufficient for one reason, then urge a different reason for the insufficiency on appeal in challenging the denial of a motion for judgment of acquittal.” Bates v. State, 127 Md.App. 678, 691 , 736 A.2d 407 (1999), overruled on other grounds by Tate v. State, 176 Md.App. 365 , 933 A.2d 447 (2007). In Fraidin v. State, 85 Md.App. 231, 244-245 , 583 A.2d 1065 (1991), cert. denied, 322 Md. 614 , 589 A.2d 57 , this Court explained: In a jury trial, the only way to raise and to preserve for appellate review the issue of the legal sufficiency of the evidence is to move for a judgment of acquittal on that ground. Under Md. Rule 1-321(0,), a defendant is further required to argue precisely the ways in which the evidence should be found wanting and the particular elements of the crime as to which the evidence is deficient.... “Moving for judgment of acquittal on the grounds of insufficiency of the evidence, without argument, does not preserve the issue for appellate review.” (Citations omitted; emphasis added.)(Quoting Parker v. State, 72 Md.App. 610, 615 , 531 A.2d 1313 (1987).) C. Solicitation to Commit Murder On appeal, appellant argues that there was insufficient evidence to support his conviction for solicitation to commit murder because the State failed to establish that he tried to persuade Proctor to kill Kanu.

Appellant states that “[c]ommon law solicitation requires proof beyond a reasonable doubt that the defendant acted to