McGrier v. State

JAMES S. GETTY, Judge, Ret’d, Specially Assigned. Louis McGrier, appellant herein, was convicted by a jury in the Circuit Court for Baltimore City of two counts of first degree rape, two counts of kidnapping, robbery, and assault and battery. He was sentenced to consecutive terms of life imprisonment for the rapes, concurrent thirty-year terms for the kidnappings, ten years consecutive for the robbery, and ten years consecutive for the assault and battery. In his appeal, appellant raises the following issues: ⁷⁶² 1.

Whether the trial court erred by granting the State’s motion to consolidate, three separate cases for trial; 2. Whether the trial court erred by admitting the photographic array offered by the State; 3. Whether the trial court erred by denying appellant’s motion to suppress his statement to a police officer; 4. Whether the trial court erred by overruling appellant’s objection to final argument by the State; 5.

Whether the evidence was sufficient to establish kidnapping; 6. Whether the trial court erred in failing to merge kidnapping into the convictions for rape. BACKGROUND The offenses occurred on August 8,17, and 23,1996, at 1645 N. Calhoun Street in Baltimore City. The victims were three young women who gave the following accounts of being assaulted.

Kia Thomas, age fifteen, testified that she went to 1645 N. Calhoun Street at 8 a.m. to visit a friend in a first floor apartment. She entered the building, a man put his arm around her neck, dragged her down several steps, forced her against a wall, and had vaginal intercourse with her from behind. He struck her in the back of her head and threatened to cut her with a knife if she did not stop screaming. Seventeen days after the assault, the victim identified appellant from a photographic array shown to her by a police officer.

At trial, she was asked if she could identify her attacker. Pointing to appellant, she said, “I think that’s him right there.” On the day of the assault, the witness described her attacker as a dark skinned black male in his 30’s, wearing a blue shirt and blue jeans, with a bald head and some facial hair. Crystal Harris, age 14, lived at the N. Calhoun Street address. On August 17 at 2 p.m., a man pulled her from the hall into the stairway leading to the cellar.

He pulled her to a ⁷⁶³ landing six or seven steps down the stairway, threatened her, and then removed her shorts and had sexual intercourse with her. Before leaving, her assailant took a necklace and some money from her. The victim described her assailant as being bald, dark skinned, having a mustache, and resembling a bulldog. He was wearing a white Nike T-shirt, blue jeans, and tennis shoes.

Nine days after being assaulted, the witness selected appellant from an array of six photographs. Latisha Nelson, age 19, also resided in the N. Calhoun Street complex. At approximately 2 p.m. on August 23, she entered the building en route to the third floor. A man she later identified as appellant grabbed her from behind and said, “You look good, I want you.” A fight ensued on the steps; the witness escaped to her apartment and appellant fled.

She described him to the police as bald, wearing black sweat pants, a white tank top, and jewelry around his neck. Two days after the assault, the police asked the witness to accompany them to the first floor where she saw and identified appellant as her assailant. Officer Keith Simmons testified that he went to the apartment building on August 25 in response to a complaint about a stranger in the building. He observed appellant in the hallway.

The officer noticed that appellant was wearing a tank top, sweat pants, several necklaces, a bracelet, and a watch. He asked appellant why he was in the building and received three different answers: First appellant said he was visiting a male friend, then he said he was taking a shortcut, and finally he claimed he was visiting a female friend. During the discussion, Officer Simmons was holding the identification cards that appellant had produced. Officer Simmons had requested assistance when he and appellant first saw each other in the building.

When Latisha Nelson arrived at the first floor, she identified appellant as the person who had attacked her and he was placed under arrest. At trial, appellant did not offer any evidence. Additional facts will be supplied as relevant to appellant’s contentions. ⁷⁶⁴ DISCUSSION Consolidation: Appellant alleges that he was prejudiced by the trial court’s consolidation of three similar but separate assaults attributed to him. The joinder, according to appellant, created the probability that the jury would cumulate the evidence and convict appellant, even though the evidence viewed on a case-by-case basis was allegedly insufficient.

Maryland Rule 4-253 governs joinder of separate cases for trial. In pertinent part, the rule allows either party to move for a joint trial and, if it appears that any party will be prejudiced by joinder of counts, charging documents, or defendants, the court on motion of a party, or on its own initiative, may order separate trials, or grant any other relief deemed just. Under applicable case law, the Court of Appeals has established the rule that a severance is required where the evidence as to each offense would not be mutually admissible at separate trials. See McKnight v. State, 280 Md. 604, 612 , 375 A.2d 551 (1977).

The dangers that may arise from joinder include difficulty in presenting separate defenses, cumulation of evidence by the jury bolstering a. weaker case, and the danger that a jury may infer a criminal disposition on the defendant’s part from which he may be found guilty of other crimes charged. Id. at 609-10 , 375 A.2d 551 . Appellant cites McKinney v. State, 82 Md.App. 111 , 570 A.2d 360 (1990), in support of his argument against joinder. In that case, the trial judge joined three sexual offense charges against a camp counselor who allegedly touched three girls inappropriately over a four-day period.

This Court held that evidence of the three separate assaults was not mutually admissible because the evidence did not fit any of the exceptions to the general rule of exclusion of other crimes. The exceptions include motive, intent, common scheme or plan, identity, opportunity, preparation, knowledge, and absence of mistake or accident. ⁷⁶⁵ McKinney does not help appellant. Concededly, other crimes evidence is not admissible if it has no relevance other than to show criminal propensities. We recognized in McKinney that other crimes evidence is admissible if it is relevant to any other material fact in issue.

In the case sub judice, unlike McKinney where the alleged perpetrator was known, the identity of the rapist was the primary issue at trial. The similarities in each of the three assaults were relevant to the identification of appellant as the perpetrator. All three incidents occurred in the same building within a fifteen day period, appellant returned for what proved to be a fourth time, all three assaults occurred in the daytime, all of the victims were attacked from behind, all three were teenage girls, all three gave similar descriptions, including a bald head and necklaces, although only one remembered him as resembling a bulldog. This case is akin to State v. Faulkner, 314 Md. 630 , 552 A.2d 896 (1989).

In Faulkner , the defendant was convicted of robbing a grocery store on Friday, November 15, 1985. The State introduced evidence that the store had been robbed on Friday, April 19, 1985, and again on Friday, January 10, 1986. On each occasion, the robber wore a mask, gloves, and carried a bag and a .22 caliber handgun while standing on a checkout stand demanding money. The court of Appeals held that these details established a distinctive modus operandi that could be considered by the jury to prove identity.

Admittedly, Faulkner , involved uncharged offenses rather than joinder, but it is apposite with respect to the mutual admissibility prong of the joinder test. The court concluded that the State had shown a pattern or signature in these cases creating a reasonable inference that the assaults were carried out by the same person. We do not contend that no prejudice resulted from the joinder. Obviously, one charged with three crimes has a greater exposure if convicted than a defendant facing a single charge.

That degree of prejudice, however, does not preclude the State from offering credible evidence that the three offenses ⁷⁶⁶ were committed by the same person. The court did not abuse its discretion by permitting a single trial. Photographic Array: Appellant alleges that the photographic array shown the victims was impermissibly suggestive and should have been suppressed. Of the six photographs in the array, five were developed from negatives while appellant’s was a computer-generated digital photograph taken earlier on the day appellant was arrested.

Detective Johnnie Young testified that he was unable to obtain a prior arrest photograph of appellant from the Baltimore City arrest files. Appellant’s photograph was smaller and had a different texture than the other five. Kia Thomas selected appellant’s photograph, and Crystal Harris also identified appellant as her assailant. Appellant does not suggest that the six men depicted did not have similar features, which is the critical identification factor.

The court did not find the difference in size and texture of the photographs sufficient to warrant suppression of the computerized photograph. Factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the accused, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972); accord, Jones v. State, 310 Md. 569, 577 , 530 A.2d 743 (1987), vacated on other grounds, 486 U.S. 1050 , 108 S.Ct. 2815 , 100 L.Ed.2d 916 (1988). . Applying the facts herein to the factors set forth above, we conclude under the totality of the circumstances that the trial court did not err in refusing to suppress the photographs.

All of the victims had the opportunity to view appellant in close proximity during daylight. All gave the same general description of his physical features and approximate age, and the length of time from the assaults to the ⁷⁶⁷ viewing of a photographic array was approximately seventeen days. Incriminating Statements: Appellant asserted that his responses to Officer Simmons should have been suppressed because he had not received Miranda warnings before being questioned about his presence in the apartment building. Officer Simmons had responded to a call concerning a suspicious person being in the building.

When he observed appellant in the apartment building, the officer asked him for identification and inquired why he was in the building. According to Officer Simmons, he did not give appellant any Miranda warnings because he was not under arrest and he could have left the area if he had decided to leave prior to the time that Latisha Nelson came downstairs and identified him. Appellant was clearly a suspect in the assaults because he fit the description of the rapist given by the victims. The questioning, however, related to the reason for his presence in the building, which was a legitimate inquiry based upon the complaint Officer Simmons received.

At that stage, the inquiry was informational, not custodial. Once appellant was identified as a rapist by one of his victims, he undoubtedly was not free to leave, but the preliminary questioning did not require Miranda warnings. See Cummings v. State, 27 Md.App. 361 , 341 A.2d 294 , cert. denied, 275 Md. 747 (1975), which is a scholarly and thorough analysis of Miranda authored for this Court by Judge Charles E. Moylan, Jr. In Cummings , questioning of the driver of a motor vehicle involved in a fatal accident was held not to