Minger v. State

SALMON, J. Alfonso Minger (“Minger”) was convicted in 1996 by a jury in the Circuit Court for Montgomery County of felony murder and conspiracy to commit robbery with a dangerous weapon. ¹⁶⁰ He was acquitted of robbery with a dangerous weapon and use of a handgun in the commission of a crime of violence. After sentencing, Minger appealed to this Court. The judgment of conviction was affirmed in an unreported decision, Minger v. State, No. 1589, September Term 1996 (filed Oct. 15, 1997). In 2002, Minger filed a motion to set aside the judgments of convictions due to “mistake or irregularity.” The motion was denied by the circuit court.

Minger appeals from that denial and raises two questions: 1. Did the trial court’s instruction [in the 1996 trial] regarding felony murder improperly suggest that a finding of guilt regarding a misdemeanor conspiracy count may provide the legal predicate for a conviction for felony murder? 2. If the trial court’s instruction regarding felony murder was defective, was the error a “mistake” or “irregularity” for which relief may be granted? FACTS The State proved at appellant’s 1996 trial that Christopher Westerman died in his Gaithersburg home on January 16, 1995, after having been shot ten times during the course of an armed robbery.

The State also presented evidence, if believed, that appellant participated in the robbery but did not personally kill Westerman. The killing was done by one of appellant’s colleagues who was also participating in the robbery. The judge in appellant’s 1996 trial instructed the jury, inter alia, as follows: The defendant is charged -with a crime of first degree felony murder. In order to convict the defendant of first degree felony murder, the State must prove, first that the defendant or another participating in the crime with the defendant committed a robbery with a dangerous weapon.

Second, that the defendant or another participating in the crime killed the victim. And third, that the act resulting in ¹⁶¹ the death of the victim occurred during the commission of the robbery with a dangerous weapon. It is not necessary for the State to prove that the defendant intended to kill the victim. The foregoing instruction was in exact conformity with Maryland Criminal Pattern Jury Instruction 4:17.7. 1 In his earlier appeal to this Court, Minger made several arguments, one of which was that it was impermissible for the jury to find him guilty of felony murder but not guilty of the underlying felony, i.e., robbery with a dangerous weapon.

A panel of this Court rejected that contention, saying: [T]he question posed by this case is whether the State can convict a defendant of felony murder if it does, in fact, indict him with the underlying felony but does not obtain a conviction on that count. We believe it can. Minger v. State, slip op. at 25. In December 1999, Minger filed a petition for post-conviction relief alleging that his trial counsel was ineffective.

That petition was denied. The motion that has resulted in this appeal was filed on October 7, 2002, and was founded upon Rule 4-331 (b), which, in pertinent part, reads: (b) Revisory power. The court has revisory power and control over the judgment to set aside an unjust or improper verdict and grant a new trial: ¹⁶² (2) in the circuit courts, on motion filed within 90 days after its imposition of sentence. Thereafter, the court has revisory power and control over the judgment in case of fraud, mistake, or irregularity.

(Emphasis added.) Minger claimed in his 4-3Sl(b) motion that he was entitled to a new trial because the portion of the instruction (quoted above) was confusing. According to Minger, that confusion may well have led jurors to believe (mistakenly) that they need not believe him to be guilty of the underlying felony (robbery with a dangerous weapon) in order to convict him of felony murder. Appellant maintained that the “erroneous” jury instruction amounted to “mistake” or “irregularity” as those words are used in Rule 4-331(b). According to appellant, the fact that a mistake or irregularity took place is demonstrated by the case of Bates v. State, 127 Md.App. 678 , 736 A.2d 407 (1999).

In Bates , one of the defendants, Nicholas Beharry, was convicted of felony murder and conspiracy to commit armed robbery but acquitted of the underlying felony (armed robbery). The trial judge in Bates gave an instruction as follows: “In order to convict the defendants of first degree felony murder, the State must prove that the defendant or another participating in the crime with the defendant committed the murder in question, and that, in fact, the defendant, or another participating in the crime with the defendant, killed the victim in question, Clayton Culbreth, and that the act resulting in the death of Clayton Culbreth occurred during the commission or attempted commission of the robbery with which the defendants have been charged. It is not necessary for the State to prove that the defendants intended to kill the victim.” Bates, 127 Md.App. at 696 , 736 A.2d 407 (emphasis added). It is important to note that the first sentence of the felony murder instruction given in Bates deviates from the pattern ¹⁶³ jury instruction.

Instead of saying, as the pattern jury instruction does, that the State must prove “that the defendant or another participating in the crime with the defendant committed an armed robbery,” the judge in Bates told the jury that in order to convict of felony murder the State must prove “that the defendant or another participating in the crime committed the murder in question.” We said in Bates : [T]he court never instructed the jury that in order to find Beharry guilty of felony murder, it had to find him guilty of armed robbery or attempted armed robbeiy. The court’s instruction on felony murder suggested that Beharry could be found guilty if the victim was killed during an attempted robbeiy by Bates, so long as Beharry participated with Bates in the commission of some unspecified crime. On this instruction, the jury could have found Beharry guilty of felony murder even if it believed that he did not participate in the attempted armed robbery.... In light of the inconsistent verdicts, we have no doubt that the jury was affirmatively misled by the court’s instructions.

Id. at 696-97 , 736 A.2d 407 . A hearing was held on January 31, 2003, on appellant’s motion for new trial. The motions judge denied the Rule 4-331(b) motion after pointing out, as we have done, that the jury in Bates was not told that, in order to be guilty of felony murder, the defendant, or another participating in the crime with him, committed armed robbery, but in the case at hand, the jury was told this specifically. ANALYSIS A. Did Minger’s Rule 4-331(b) motion allege facts demonstrating either “mistake” or “irregularity” within the meaning of Maryland Rule 4 331?

Assuming, purely for the sake of argument, that the instruction in the subject case was erroneous, we hold that a mere error in instructions, even one that prejudices the defen ¹⁶⁴ dant, does not constitute either “mistake” or “irregularity” within the meaning of Rule 4-331 (b). In support of his contention that an erroneous jury instruction constituted either a “mistake” or an “irregularity” within the meaning of Rule 4—831(b), appellant relies on Merritt v. State, 367 Md. 17 , 785 A.2d 756 (2001), and Cutchin v. State, 143 Md-App. 81, 792 A.2d 359 (2002). In Merritt , the Court of Appeals held that the trial judge erred in denying a motion for new trial after it was discovered that documents never admitted at trial were sent to the jury room. 367 Md. at 34-36 , 785 A.2d 756 . The holding in Cutchin, supra, was very similar to that in Merritt, supra.

In Cutchin , the trial judge redacted certain documents prior to admitting them into evidence; nevertheless, the unredacted version of those documents was sent to the jury room. 143 Md. at 95-96, 121 A. 911 . We held in Cutchin that the trial court abused its discretion in denying the defendant’s new trial motion based on the fact that the unredacted documents were sent to the jury. Id. at 97, 792 A.2d 359 . Neither Cutchin nor Merritt even mention the “fraud, mistake, or irregularity” standard.

There is a simple explanation for this. In both of those cases the new trial motion was filed within ten days of trial. 2 New trial motions filed within ten days after a verdict are governed by Rule 4-331(a), which reads: (a) Within ten days of verdict. On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial. In Love v. State, 95 Md.App. 420, 427 , 621 A.2d 910 (1993), we said: The list of possible grounds for the granting of a new trial by the trial judge within ten days of the verdict is virtually open-ended.

In State v. Devers, 260 Md. 360, 374 , 272 A.2d ¹⁶⁵ 794 (1971), the Court of Appeals quoted from Hochheimer, The Law of Crimes and Criminal Procedure § 184 at 209-210 (2d ed.1904), in setting out an illustrative list of possible grounds: “The principal grounds for granting a new trial are, that the verdict was contrary to the evidence; newly discovered evidence; accident and surprise; misconduct of jurors or the officer having them in charge; bias and disqualification of jurors (disqualification not entitling to a new trial, however, if there was opportunity to challenge); misconduct or error of the judge; fraud or misconduct of the prosecution, e.g., abuse of argument.” Since that decision in 1971, the grounds for a new trial under this subsection have, indeed, been further expanded. It was the holding of State v. Devers that a new trial could be granted on grounds of evidentiary insufficiency only in the case where the evidence was so legally insufficient, as a matter of law, that it could not, even if believed totally and given maximum weight, support the verdict. Since that time, the decision in the case of In re Petition for Writ of Prohibition, 312 Md. 280 , 539 A.2d 664 (1988), has overruled that limiting provision of State v. Devers and empowered the trial judge to grant a new trial not simply when the evidence is legally insufficient as a matter of law but also when the verdict, in the judgment of the trial judge, is so against the weight of the evidence as to constitute a miscarriage of justice. In re Petition for Writ of Prohibition, 312 Md. at 326 , 539 A.2d 664 .

This broader latitude is in keeping with the provision of subsection (a) that a judge may order a new trial “in the interest of justice.” This broad base for awarding a new trial is tightly circumscribed by the timeliness requirement that the Motion be filed “within ten days after a verdict.” As will be seen, the “virtually open-ended” grounds for a new trial under section (a) of Rule 4-331 stands in sharp contrast to those new trial motions that must meet the “fraud, mistake, or irregularity” standard under section (b) of 4-331. ¹⁶⁶ Appellant claims that the breadth of the terms “mistake” and “irregularity” as used in Rule 4-331(b) is “suggested by the treatment this [c]ourt gave” to an error in instructions in the Bates case, even though “no party preserved the error in the trial court.” 3 In the Bates case, counsel for Beharry orally moved to set aside Beharry’s felony murder conviction pursuant to Maryland Rule 4-331(b). Beharry argued in his new trial motion that the finding of guilt as to felony murder was inconsistent with his acquittal of both armed robbery and attempted armed robbery, which were the only possible underlying felonies. Bates, 127 Md.App. at 692 , 736 A.2d 407 . Beharry’s counsel pointed out in his motion for new trial that conspiracy to commit armed robbery (a misdemeanor), of which he was convicted, was an inadequate predicate for a felony murder conviction.

Id. On appeal, appellant reiterated that argument and asserted, apparently for the first time, that the trial court “never instructed the jury that it could only convict [him] of felony murder if it found him guilty of armed robbery or attempted armed robbery.” Id. at 693 , 736 A.2d 407 . In Bates , we recognized plain error in the court’s instructions and reversed Beharry’s felony murder conviction. Id. at 694-700 , 736 A.2d 407 .

Appellant’s argument that the Bates case demonstrates the expansive nature of the terms “mistake” and “irregularity” as used in 4-331(b) is without merit. The Bates Court never mentioned the “fraud, mistake, or irregularity” standard. Again, there was a sound reason for that omission. In Bates , the new trial motion was filed prior to sentencing.

Id. at 692 , 736 A.2d 407 . Although we held in Bates that the court erred in denying a new trial motion, we did so because there was “plain error” in the court’s jury instruction. Id. at 699-700 , 736 A.2d 407 . In cases where a new trial motion is filed within ninety days of sentencing, a court may set aside a verdict upon a showing that the verdict was “unjust” or ¹⁶⁷ “improper.” A plain-text reading of Rule 4-331(b) shows that the “unjust” or “improper” standard is not synonymous with the “fraud, mistake, or irregularity” standard.

This leads us to the task of determining the meaning of the words “mistake or irregularity” as used in Rule 4—331(b). Our research has uncovered no cases where the “fraud, mistake, or irregularity” standard has been defined in the context of a Rule 4—331(b) new trial motion. And counsel for the parties have directed us to no case on point. The phrase “fraud, mistake, or irregularity” first appeared in the Maryland Rules in 1956 when Rule 625 was adopted.

Rule 625 applied to civil cases and is the predecessor to Rule 2-535, 4 which is now in effect. Rule 625 read: Revisory Power of Court over Final Judgment For a period of thirty days after the entry of judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity. ¹⁶⁸ (G.R.P.P. Pt. Two, VI, Rule 1.) (Emphasis added.) The phrase first appeared in the context of a rule governing criminal procedures in 1961, when the Court of Appeals adopted Rule 764, viz: Revisory Power of Court. a.

Illegal Sentence The court may correct an illegal sentence at any time. (Rule 744 a.) b. Modification or Reduction—Time for. For a period of ninety (90) days after the imposition of a sentence, or within ninety (90) days after receipt by the court of a mandate issued by the Court of Appeals upon affirmance of the judgment or dismissal of appeal, or thereafter, pursuant to motion filed within such period, the court shall have revisory power and control over the judgment or other judicial act forming a part of the proceedings.

The court may, pursuant to this section, modify or reduce, but shall not increase the length of a sentence. After the expiration of such period, the court shall have such revisory power and control only in case of fraud, mistake, or irregularity. (Cf. Rule 744 c.) c.

Bastardy, Desertion and Non-Support Cases. Notwithstanding the provisions of section b of this Rule, the court in a case involving bastardy, desertion, and nonsupport of wife, children or destitute parents, may at any time before expiration of sentence, reduce, change or modify or suspend the sentence or place the accused upon probation upon such conditions and terms as the court may impose. (Rule 744b; G.R.P.P. Pt. Four, I, Rule 10.) (Emphasis added.) There are no minutes from the Rules Committee discussions concerning the formation of either Rule 625 or Rule 764.

The substance of former Rule 764 is now found in Rule 4-345(b), which reads: ¹⁶⁹ Modification or reduction—Time for. The court has revisory power and control over a sentence upon a motion filed within 90 days after its imposition (1) in the District Court, if an appeal has not been perfected, and (2) in a circuit court, whether or not an appeal has been filed. Thereafter, the court has revisory power and control over the sentence in case of fraud, mistake, or irregularity, or as provided in section (e)[ 5 ] of this Rule. The court may not increase a sentence after the sentence has been imposed, except that it may correct an evident mistake in the announcement of a sentence if the correction is made on the record before the defendant leaves the courtroom following the sentencing proceeding.

(Emphasis added.) In Gantt v. State, 99 Md.App. 100 , 635 A.2d 97 (1994), the appellant sought to modify his sentence more than ninety days after it was imposed based on an alleged “irregularity,” id. at 101 , 635 A.2d 97 , and the Court was called upon to define the term “irregularity,” as used in