Myers v. State

Thompson, J., delivered the opinion of the Court. Larry Jesse Myers a/k/a Larry Jesse Myers-Bey, the appellant, was convicted in the Circuit Court for Montgomery County of armed robbery and related charges. Appellant was sentenced to a total of twenty-five years on the various convictions. On appeal the appellant contests the imposition of the mandatory sentence under Maryland’s enhanced punishment statute, Md. Ann. Code Art. 27, § 643B, the admissibility of certain evidence, and the sufficiency of the evidence.

FACTS The testimony in this case dealt with two separate incidents that occurred on September 20, 1979. At approximately 10:15 on the morning of September 20, 1979 two men, one with a gun, entered the First National Bank of Maryland on Georgia Avenue in Wheaton, Maryland and in the presence of three bank tellers, Nellie Norris, John Wilson and Stacy Stirman, and a bank manager, Dennis J. Kleppick, took some money and ran out to their automobile ⁴²² in the parking lot. Later that day, two men, one of whom was identified as the appellant, attempted to force a Mr. Borokini and a Mr. Imoke to drive them to a hospital. A struggle ensued and the two men ran off.

SENTENCING Appellant alleges that his enhanced sentence under Art. 27, § 643B (c) was improper for a number of reasons. We agree because of one of the reasons argued and therefore it is unnecessary to discuss the others. The appellant’s sentence was enhanced based upon two convictions for robberies in the District of Columbia. In Butler v. State, 46 Md. App. 317, 322-23 , 416 A.2d 773 (1980), we held that an enhanced sentence imposed on the basis of a conviction for robbery in the District of Columbia was improper, saying: "With regard to the District of Columbia robbery conviction, we are unable to determine from the record whether it is a proper predicate to support a § 643B (c) sentencing.

Nothing before us indicates whether the robbery was indeed a crime of violence. In the District of Columbia, robbery is defined by statute as: 'Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery.’ "D.C. Code, Sec. 22-2901 (1973). Thus, as the State concedes, it appears that robbery in the District of Columbia may not be a crime of violence. The facts surrounding that conviction would have to be examined before this determination can be made.” We further held in that case that it would be improper to remand for a new hearing and sentencing under § 643B, citing Burks v. United States, 437 U.S. 1 , 98 S. Ct. 2141 , 57 L. Ed. 2d 1 (1978), which held that where an accused succeeds in obtaining a reversal of his criminal conviction ⁴²³ because of insufficiency of the evidence he may not be retried because to do so would be in violation of his protection against double jeopardy.

In the instant case, the State also concedes that the record fails to show that the robberies committed by the appellant in the District of Columbia were crimes of violence but argues we