Lee v. State

PER CURIAM. The appellants, David Anthony Lee and Stanley Lee Hall, were jointly tried by a Montgomery County jury, presided over by Judge John J. Mitchell. Both were convicted of 1) attempted second-degree murder, 2) robbery with a dangerous and deadly weapon, 3) the use of a handgun in the commission of a crime of violence, and 4) the unlawful carrying of a handgun. Each appellant filed a separate appeal.

The appellant Lee raised two contentions: 1) That his pretrial motion to suppress physical evidence as the fruit of an unconstitutional search and seizure was erroneously denied; and 2) That the evidence was not legally sufficient to establish his criminal agency. The appellant Hall raised five contentions: 1) That his pretrial motion to suppress physical evidence as the fruit of an unconstitutional search and seizure ³⁰⁵ was erroneously denied (this contention is indistinguishable from the appellant Lee’s contention No. 1); 2) That the suppression hearing judge erroneously denied his motion to suppress the physical evidence seized pursuant to a warrantless arrest made without probable cause; 3) That the evidence was not legally sufficient to establish his criminal agency (this contention is indistinguishable from the appellant Lee’s contention No. 2); 4) That the evidence was not legally sufficient to support his conviction for carrying a handgun; and 5) That Judge Mitchell erroneously failed to state his reasons for imposing a sentence greatly in excess of that recommended by the sentencing guidelines. On February 21, 1986, the appellant Hall’s appeal was argued before a three-judge panel of this Court. On that same day, the appellant Lee’s appeal was submitted on brief to the same three-judge panel.

Because of what this Court believed to be the critical significance of the search and seizure issue raised by both appellants and because of the unsettled state of the law with respect to that issue, we ordered, on May 22,1986, that the two appeals be consolidated, be rebriefed, and be reargued before the entire Court sitting en banc. Believing that in a close or marginal search and seizure situation, the choice of the analytical framework might well be dispositive of the result, we ordered counsel for both sides, upon reargument, to address the following additional issue: “Under prevailing Fourth Amendment law, is the appropriate analytical framework for deciding these cases that generally referred to as ‘the centrality of the warrant requirement, with its limited list of jealously guarded and tightly circumscribed exceptions,’ outlined in such cases as Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967) and Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971), or the approach now referred to as ‘the general reasonableness ³⁰⁶ or balancing test,' outlined in such cases as United States v. Place, 462 U.S. 696 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983); United States v. Villamonte-Marquez, 462 U.S. 579 , 103 S.Ct. 2573 , 77 L.Ed.2d 22 (1983) and New Jersey v. T.L.O., 469 U.S. 325 , 105 S.Ct. 733 , 83 L.Ed.2d 720 (1985).” Reargument was heard by the entire Court on September 3,1986. Our disposition of the additional issue raised upon reargument confirmed our suspicion, going into reargument, that the state of the law was unsettled. The judgments of the Circuit Court for Montgomery County were affirmed by an equally divided Court.

On September 5, 1986, the appellants filed a Motion for Reconsideration and Withdrawal of Mandate. They pointed out, quite properly, that in disposing of the search and seizure issue, we had neglected to state our dispositions of the other appellate contentions raised by them. On October 7, 1986, we granted the Motion for Reconsideration and recalled our mandate. Upon this reconsideration, we reaffirm, by an equally divided.

Court, the decision of the suppression hearing judge not to suppress the physical evidence. With respect to the remaining appellate issues raised by both appellants, this Court is not divided. After having raised the search and seizure issue generally in his first contention, the appellant Hall sought to raise it again, albeit in more specific form, in his second contention. He claimed: “That the trial court erred in denying appellant’s motion to suppress evidence seized pursuant to a warrantless arrest made without probable cause.” He presupposes that the warrantless search in issue must be justified as a search incident to lawful arrest.

From that point of departure, he argues that the undergirding arrest was not lawful because it was made without probable cause. ³⁰⁷ We hold that our disposition of this issue is subsumed within our earlier decision, by an equally divided Court, to affirm the ruling of the suppression hearing judge not to suppress the evidence. The very framing of this sub-issue by the appellant Hall presupposes the framework of analysis generally referred to as “the centrality of the warrant requirement and its list of jealously guarded and tightly circumscribed exceptions,” the exception in question being the search incident to a lawful arrest. Since we cannot agree to adopt that framework of analysis, we cannot indulge in subanalysis within that framework. Although there is no agreement as to the Fourth Amendment merits, we unanimously hold that the procedural effect of the equal division of the Court is that the decision below not to suppress the evidence stands undisturbed.

The very nature of the affirmance, by an equally divided Court, of the generalized suppression issue logically precludes our rendering holdings with respect to specific sub-issues that may or may not be included within the more general issue. The inability to say why the evidence shall not be suppressed does not prevent us from holding that the evidence shall not be suppressed. Aside from the suppression issue, the only other contention raised by the appellant Lee is that the evidence was not legally sufficient to establish his criminal agency. One of the three remaining contentions raised by the appellant Hall is that the evidence was not legally sufficient to establish his criminal agency.

The evidence against both appellants was so intertwined that we can profitably consider the two contentions together. Even the appellants acknowledge the largely conditional nature of their arguments in this regard. The appellant Hall qualifies his argument on legal sufficiency in the following terms, “If this Court finds that the extrajudicial ³⁰⁸ identification of Appellant should be suppressed, 1 the evidence would thus be insufficient to prove criminal agency.” The appellant Lee’s argument on legal sufficiency largely acknowledges its contingent nature when he refers to “the only substantial link between Appellant and the offenses with which he is charged was the testimony connecting the bullet from Roland Ray to the gun seized prior to Appellant’s arrest.” There is not much left to a conditional argument when the condition precedent does not come to pass. At approximately midnight on the night of August 12-13, 1984, Roland Ray was preparing to close his Corner Beer, Wine and Cheese Store in Gaithersburg, Maryland.

Two young black males entered and began shopping, first for some California Cooler and then for some cigarette rolling papers. Shortly thereafter, both men moved menacingly up to Mr. Ray and demanded that he open the cash register. Each was wielding a handgun. As Mr. Ray began to press the necessary key to open the cash register, the man to his right suddenly exclaimed, “He is hitting an alarm.” With that, the other assailant, standing directly in front of Mr. Ray, shot him at point blank range.

As Mr. Ray fell to the floor behind the counter, he could see the two men pushing the keys to open the cash register, grabbing the money therefrom, and running out of the store. Mr. Ray was in critical condition at the Suburban Hospital for approximately one month. A bullet was surgically removed from Mr. Ray’s body on August 28. Mr. Ray was not physically able to attend a lineup at the Montgomery County Detention Center until October 24.

From a group of ten individuals, Mr. Ray tentatively picked out the appellant Hall, along with another misidentified individual. In the words of one of the witnessing officers, Mr. Ray stated that the two “looked as if he had seen them ³⁰⁹ before, but he couldn’t say that they were the ones that had robbed him.” The appellant Lee was not picked out, even tentatively. (The appellant Lee, however, had grown a beard in the intervening two-and-one-half months.) As was established, however, at both the suppression hearing and the trial upon the merits, both appellants did meet the descriptions of his assailants given by Mr. Ray. Testifying for the State, pursuant to a negotiated agreement, was one Kevin Anderson.

Kevin Anderson placed both appellants in close proximity to the robbery scene at approximately the time of the robbery. He testified that on August 12, he had driven the appellant Lee to Frederick. While there, he was introduced by Lee to the appellant Hall. He agreed to give both appellants a ride back to the Washington area.

On the trip back, Kevin Anderson decided to stop at a 7-11 Store in Gaithersburg, located very close to the Comer Beer, Wine, and Cheese Store. When he returned to his car from the 7-11 Store, he discovered that neither appellant was in the vehicle. He waited for “a good minute” for the two appellants to return. When they did so, they were bickering over who was to sit in the front seat.

Kevin Anderson then drove both appellants on to downtown Washington. Another State’s witness was Allen Bufton, the manager of a sporting goods store in Georgetown. At some time between 10:30 and 11:30 a.m. the very next morning, August 13, three young black males entered his sporting goods store. One purchased a pair of basketball shoes, two pairs of socks, a Nike/Georgetown tee-shirt, a warm-up suit, and a pair of shorts.

That individual paid $175 in cash for his purchases. A second of the three men purchased a very similar assortment of sports clothing and also paid cash. When the appellants were arrested, while playing basketball, on the afternoon of August 13, the appellant Hall had on his person $164 in cash and a receipt from Mr. Button's sporting goods store for purchases totalling $174.22. ³¹⁰ Immediately prior to their arrests, both appellants had been observed handling a gym bag. In the gym bag was a .44 caliber handgun.

A ballistics examination showed that the bullet surgically removed from Roland Ray’s body had been fired from the handgun recovered from the gym bag. Under all of the circumstances, it cannot be said that the evidence was not legally sufficient to permit the case against each appellant to go to the jury. Williams v. State, 5 Md.App. 450, 459 , 247 A.2d 731 (1968); Metz v. State, 9 Md.App. 15, 23 , 262 A.2d 331 (1970). This disposes of all contentions raised by the appellant Lee.

The appellant Hall raises an additional and more narrowly focused contention with respect to the legal sufficiency of the evidence. He claims that the evidence was not legally sufficient to support his conviction for carrying a handgun. He argues that even if the evidence shows that the gym bag containing the handgun was briefly in his possession as he and Lee moved around