Miles v. State

HARRELL, Judge. Leonard Miles and Michael Jackson, the two co-appellants in this appeal, were tried together by a jury in the Circuit Court for Montgomery County on a variety of charges arising from a housebreaking. Both appellants were convicted of two counts of first-degree rape, one count of first-degree sexual offense, one count of assault with intent to rob, one count of battery, and one count of daytime housebreaking. The two appellants received identical sentences: three concurrent life sentences for the sex offenses; ten years concurrent for the assault with intent to rob conviction; twenty years concurrent for the battery conviction; and ten years consecutive for the housebreaking conviction.

At the conclusion of the sentencing, the trial judge added a probation to the sentence by saying: If there does come a time when you are out on probation, I place you on probation for a period of 10 years the first five years of which will be supervised. I will leave it up to the sometime future probation officer to make any determination as to whether or not you have any — there is any necessity for you to be looked at and any analysis made of whether or not you have any drug problem at that time. That is so far down in the future that I don’t know when it might possibly be. ²⁵² The appellants now raise the following assertions of error: 1. The trial judge refused to allow the defense to ask the victim whether she had ever made any illegal drug sales; 2.

The trial judge admitted an exhibit which was not disclosed to the defense prior to trial; 3. The evidence was insufficient to prove the conviction for assault with intent to rob; 4. The evidence was insufficient to prove any of the charges because the State’s identification evidence was inadequate; 5. The battery conviction should have been merged into the assault with intent to rob conviction; 6.

The twenty-year sentence for the battery conviction should be reduced to ten years; 7. The probation ordered as part of the sentence is illegal; and 8. The second first-degree rape conviction should have been dismissed because both convictions arose from the same act. We shall begin by setting forth a brief overview of the facts which we shall augment as we consider individually these eight assertions of error.

The State’s evidence showed that the victim was in her apartment, sleeping, on the morning of 23 September 1989. Around 8:30 a.m., the two appellants, whom she recognized in the course of the events that unfolded, broke into her townhouse. They seized her seven-year-old son and held the boy at knife point. They then robbed her of around $200.00, each appellant raped her, and appellant Jackson forcibly had oral sex with her. 1.

Restriction of Cross-Examination. The State’s first witness was the victim. She explained how the two appellants entered her apartment and attacked her. After she completed her direct testimony, ²⁵³ counsel for appellant Miles cross-examined her.

When he finished his questioning, a bench conference was held. At the conference, the attorney for appellant Jackson told the trial judge that he wanted to question the witness about “specific instances of past sexual relations with my client.” Counsel went on to explain that it was his contention that the victim was a drug dealer and that Jackson sold drugs for her while concurrently having a sexual relationship with her. In the time before the assault, counsel stated, Jackson had become a heavy user of drugs and, instead of selling the drugs provided to him by the victim, had consumed the drugs himself. This left him without the money to pay the victim.

Counsel went on to explain that he was asserting that this situation led the victim to make up the charges against Jackson as a means for getting back at him. The trial judge decided that the proposed questioning brought the rape shield statute into play (Md.Ann.Code, art. 27, § 461A). In compliance with the requirements of that law, he conducted an in camera hearing. At the hearing, the victim denied that she had ever bought drugs from Jackson, sold drugs to Jackson, or had had prior sexual relations with Jackson.

The trial judge, upon hearing this testimony, ruled that he would not allow counsel to ask the victim whether she had been a drug dealer or had sexual relations with Jackson prior to 23 September 1989. He explained that he was making the ruling because the proposed questioning would be unfairly inflammatory towards the victim. The appellants 1 argue that it was error for the trial judge to have refused to let them ask the victim about her sale of drugs to Jackson. They reason that this ruling was error because it deprived them of the opportunity to develop their “defense that [the victim] was prejudiced against them.” ²⁵⁴ We discern no error in the trial judge’s ruling.

The victim testified at the hearing that she had never had any prior sexual relations or drug dealings with appellant Jackson. If defense counsel had been permitted to repeat the questions before the jury, he would have received the same negative answers. The trial judge’s ruling did not prevent the defense from introducing evidence that the victim was prejudiced against them. The evidence appellants now complain was denied them was not denied them because of the trial judge’s ruling, but was denied them because the witnesses they hoped would provide the evidence did not testify as they had hoped. 2.

Admissibility of Expert’s Chart. Appellants argue that the trial judge erred by admitting into evidence a chart that was prepared by the State’s shoe print identification expert. The facts regarding this matter are as follows. The victim testified that the appellants entered her home by breaking through her kitchen door.

Photographs were admitted into evidence that showed footprints on the exteri- or of the kitchen door. The police testified that around noon on the day of the break-in, they seized tennis shoes from the two appellants that the appellants were then wearing. An expert in shoe print examination, Alexander Mankevich, compared the prints found on the kitchen door with the appellants’ shoes. He identified specific footprints on the door and opined that the prints could have been made by the shoes seized from the appellants.

All of this testimony was admitted without objection. After this testimony was received, the prosecutor asked Mr. Mankevich whether he had made enlarged photographs of appellant Miles’s shoes. Mr. Mankevich answered that he had, whereupon he produced a chart that showed an enlarged photograph of the shoe print of appellant Miles’s shoe. A bench conference was then held to decide whether the chart should be admitted into evidence.

Defense counsel averred that the chart was “like a report’’ and should be ²⁵⁵ excluded because it was not provided to the defense during the pretrial discovery process. Md.Rule 4-263(b)(4). The prosecutor responded by explaining that the chart was “just a demonstrative diagram” that was being offered to show how Mr. Mankevich had reached his conclusion. The chart did not, he said, contain any new information.

The trial judge then inquired why the chart had not been disclosed to the defense. In the course of a discussion between the trial judge and counsel, it developed that about a month before the trial, the State informed the defense that Mr. Mankevich would testify as an expert in shoe print identification. At that time the chart had not been prepared and therefore its existence was not mentioned. 2 After being told about Mr. Mankevich and reviewing his earlier narrative report, defense counsel decided there was no need to speak with Mr. Mankevich, so they never contacted him. The trial judge ruled that the chart would be admitted as an exhibit because the defense had not contacted Mr. Mankevich prior to trial and because the defense had made no showing that the chart prejudiced them, since it only served to underscore what Mr. Mankevich had previously said in his earlier report and testimony, i.e., the appellants’ shoes could have made the prints on the victim’s door.

After the trial judge ruled that the chart was admissible, the prosecutor asked Mr. Mankevich to use the chart to explain how he made the shoe print comparison. Mr. Mankevich gave a brief answer and then defense counsel made a further objection. Counsel explained that the chart ²⁵⁶ contained a scale 3 and complained that the enlarged photographs with the scale should not be allowed because they were not evidence. The trial judge overruled the objection and explained that he was doing so because prior to trial, the defense had made no effort to contact Mr. Mankevich.

In this appeal, the appellants renewed the two objections they made at trial. For purposes of this opinion, we shall consider the chart to be a report that was subject to discovery under Md.Rule 4-263. The trial judge, in effect, concluded that the failure to disclose did not harm the defense, so he decided to exercise his discretion by allowing the chart to be admitted into evidence. In Rose v. State, 78 Md.App. 275, 287 (1989), we considered a situation in which the State had failed to disclose some evidence, but the failure to disclose had caused no prejudice to the defense.

Nevertheless, the defendant asked that his convictions be reversed on account of the State’s failure to disclose. We declined to order the reversal and explained: The appellant did not seek a continuance for further preparation for the obvious reason that he did not need one. The “question of whether any sanction is to be imposed for a discovery violation, and if so what sanction, is in the first instance committed to the discretion of the trial judge, and that the exercise of that discretion includes evaluating whether the violation prejudiced the defendant.” Evans v. State, 304 Md. 487, 500 , 499 A.2d 1261 (1985). We see no abuse of that discretion here.

The same reasoning applies here. On cross-examination, Mr. Mankevich acknowledged that he was unable to make a positive identification of the appellants’ shoes as the ones that made the prints on the victim’s door. We discern no ²⁵⁷ abuse of discretion by the trial judge and hence, no reversible error. Since we fail to perceive how the scale’s presence on the chart caused the appellants any prejudice, we hold that the presence of the scale did not create a reason for excluding the chart from the evidence. 3.

Sufficiency of Evidence to Prove Assault With Intent to Rob. Both appellants were convicted of assaulting with intent to rob the victim’s seven-year-old son. The evidence presented at trial showed that, when the victim heard the appellants breaking into her house, she told her son to hide. The victim herself hid in her closet.

Her son testified that he tried to hide behind a pillow. He heard the two men mount the stairs; one went into his mother’s room and the other came into his room. The man who came into his room, whom he identified as appellant Jackson, was armed with a knife. Jackson found him, picked him up, and held the knife under his throat.

In the process, the boy’s throat was cut. Meanwhile, Miles found the victim and pulled her out of her closet. Jackson then took the young boy to his mother’s room. The victim explained that, when she was pulled from her hiding place in the closet, both men struck her.

Jackson continued to hold her son in a headlock, while Miles demanded money from her. First, he took some jewelry and about $100.00 cash from a night stand. He then found her purse and took $60.00 to $70.00 from it. After Miles took the money, the two men alternately raped the mother.

In his testimony, the son did not mention witnessing the theft. Furthermore, no evidence was presented to show that he owned any of the stolen property, had a special interest in it, or had any authority over it. At the trial, it was virtually conceded that neither appellant had any intent to rob the son. The defense took the position that the crime required that the assault victim also ²⁵⁸ had to be the person whom the accused intended to rob.

The State countered by arguing that it was immaterial whom the accused intended to rob, as long as there was an intent to rob someone. The trial judge pondered over the matter and, in doing so, acknowledged that the law was