Oesby v. State

¹⁴⁸ CHARLES E. MOYLAN, Jr., Judge, Retired, Specially Assigned. During the month of February 2001, the appellant, Antonio Donnell Oesby, was convicted in three separate trials by three separate Prince George’s County juries, all presided over by Judge E. Allen Shepherd, of a variety of assaults on women. On February 1, 2001, he was convicted of 1) a third degree sexual offense, 2) second degree assault, and 3) carrying a deadly weapon openly with intent to injure (No. 0445). The victim of those crimes, committed on November 3, 1999, was Teresa Hicks.

On February 5, he was convicted of 1) attempted armed robbery, 2) second degree assault, and 3) carrying a deadly weapon openly with intent to injure (No. 0447). The victim of those crimes, committed on November 4, 1999, was Madinah Rasheed. On February 14, he was convicted of 1) a third degree sexual offense, 2) armed robbery, and 3) carrying a deadly weapon openly with intent to injure (No. 0448). The victim of those crimes, committed on October 27,1999, was Martha Yates.

Two of the appellant’s four contentions challenge pretrial rulings made at a single pretrial hearing that applied to all three trials. The appellant complains: 1. that Judge Shepherd erroneously failed to suppress physical evidence seized pursuant to an allegedly defective search warrant; and 2. that Judge Shepherd, in ruling on a motion in limine, erroneously agreed to admit “other crimes evidence” at each of the three trials. The third contention concerns a proposed jury instruction that was requested and denied in two of the three cases. The appellant complains: 3. that Judge Shepherd erroneously failed to give his requested instruction concerning the specific intent element of the crime of carrying a weapon openly with intent to injure; with respect to the third trial, the appellant claims, pursuant to the notion of “plain error,” that Judge Shepherd ¹⁴⁹ erroneously failed to give the instruction spontaneously even though he was never requested to do so.

The fourth and final contention arose out of the sentencing hearing that was common to all three trials. In that regard, the appellant complains: 4. that Judge Shepherd erroneously failed to merge lesser included second degree assault convictions into other convictions for greater inclusive offenses. Because of the commonality of the issues, it is meet that we consolidate these three appeals into a single appeal. The Search Warrant The first contention concerns the pretrial denial of the appellant’s suppression motion.

Pursuant to a search warrant issued by District of Columbia Superior Court Judge Peter Wolf to Detective Karen Moss, D.C. police searched the appellant’s residence at 625 L Street, Northeast, in the District. Recovered in that search and later received in evidence were 1) a black knit hat and 2) a black leather jacket, both identified by both victims as having been worn by the assailant in the assaults committed on Hicks and Rasheed. The appellant does not challenge the probable cause to believe that he was the assailant. Indeed, all three victims (plus a fourth not directly involved with this appeal) had selected a photograph of him from photographic arrays.

The basis of the appellant’s challenge was that the warrant application failed to establish an adequate nexus between the appellant and 625 L Street, Northeast. The application and its supporting affidavit sought a warrant: FOR THE PREMISES OF 625 “L” STREET, NORTHEAST, WASHINGTON, D.C. THE PREMISES IS A THREE STORY, PINK AND WHITE BRICK ROW-HOUSE .... On October 31,1999, an adult complainant reported to the member of the Prince George’s County Police Department that she had been the victim of a sexual assault. ¹⁵⁰ The complainant explained that she was approached by the defendant while unloading groceries from her vehicle ____The defendant displayed a knife----[After committing forced sexual acts on the complainant], the defendant took one hundred and forty dollars in U.S. Currency and a business card with the complainant’s name printed on it. Members of the Prince George’s County Police Department became aware of an arrest made by the affiant with similar circumstances.

A photograph of the defendant was obtained from the affiant and utilized in a photo array by members of the Prince George’s County Police Department. The defendant was positively identified as the person who sexually assaulted her. All other identifiable information of the defendant was submitted to Prince George’s County Police Department from the affiant. Based on the aforementioned facts, the affiant has probable cause to believe that ANTONIO DONNELL OESBY, did commit the Sexual Assault which occurred in Prince George’s County Maryland and that evidence of this crime may be located inside of 625 “L” Street, Northeast, Washington, D.C. Specifically, a business card, clothing worn and the weapon used during the offense.

It is therefore respectfully requested that a District of Columbia Superior Court Judge issue a Search Warrant, directing a search of the premises described herein, authorizing the seizure of any evidence connected to the case. (Emphasis supplied). A. Inadequacy of the Nexus We agree with the appellant that the application for the search warrant failed to establish an adequate nexus between the person of the appellant and the Washington, D.C. residence that was searched. Dispositive on this issue is Judge Hollander’s definitive opinion for this Court in Braxton v. State, 123 Md.App. 599, 618-31 , 720 A.2d 27 (1998).

The issue there was indistinguishable from the issue here: ¹⁵¹ Appellant posits that the warrant was not based on probable cause because the supporting affidavit failed to specify that the targeted apartment actually was appellant’s residence. Even if the affidavit implied that the subject premises was appellant’s place of abode, Braxton contends that the affidavit was defective because it lacked any factual foundation to substantiate that assertion. Specifically, Braxton complains that the affidavit was devoid of facts particularizing the basis for the affiant’s belief that the targeted premises was actually appellant’s residence. 123 Md.App. at 618-19 , 720 A.2d 27 (emphasis supplied). The warrant application in that case actually represented more of a predicate than we have here for an inference of the required connection, as it at least linked the name of the suspect with the street address of the place to be searched: Persons/Premises to be Searched: Arnold Braxton, Jr. M/B/10-31-75 BPI# 440-A92, 4310 Seminole Ave.

Apt. A three story brick apartment building with the numbers 4310 affixed. Apt. 203 has a white door the numbers 203 on the same. 123 Md.App. at 611 , 720 A.2d 27 (emphasis supplied). In our case, there is no such juxtaposition of the person and the place.

By way of a further footing for the required inference in Braxton , the warrant application in that case went on to aver that criminals frequently store the fruits of their crimes in their residences: It is common for persons who have committed armed robberies to store the fruits of their crimes in the place of their residence as well as the weapons used to commit these offenses. It is for this reason that Your Affiant prays that a search and seizure warrant be issued for the above named persons and premises. 123 Md.App. at 613 , 720 A.2d 27 (emphasis supplied). We rejected even that significantly stronger predicate for the required inference as still inadequate. Judge Hollander explained, 123 Md.App. at 629-30 , 720 A.2d 27 : ¹⁵² In construing the affidavit here, the issuing judge first had to infer that the targeted premises was appellant’s residence, based on the street address on the face of the affidavit, coupled with the general assertion that criminals typically store fruits and instrumentalities of crime in their residences.

Yet the affidavit contained absolutely no clue as to why the police believed appellant lived at the particular location identified in the affidavit and warrant application; the affidavit failed to provide a factual basis for the claim that the targeted premises was the suspect’s residence. Thus, it did not guard against an unfounded intrusion into one’s sanctuary. As the State candidly conceded at oral argument, we may not uphold a warrant merely because the premises turned out to be the suspect’s home. In other words, the ends cannot justify the means.

(Emphasis supplied). Our holding in Braxton was unmistakably clear: Accordingly, we hold that the mere identification in the affidavit of appellant’s address, without even a single predicate fact showing the basis for the belief that appellant resided at that address, did not establish probable cause to search that location. This is so even if there was otherwise every reason to believe that appellant committed the aimed robbery and harbored the fruits and instrumentalities wherever he may have lived. 123 Md.App. at 630 , 720 A.2d 27 (emphasis supplied). See also United States v. Hove, 848 F.2d 137 (9th Cir.1988).

The requirement placed on the police in this regard is not onerous, but it is something that cannot be ignored. Again, Judge Hollander explained: Given the urgency that is often associated with matters such as this one, we acknowledge that a police officer cannot always prepare the kind of detailed statement that would serve as a textbook example of a model affidavit. But the quantum of facts needed to show the connection between the suspect and the purported place of occupancy is hardly daunting. Typically, an affidavit includes an averment ¹⁵³ tying the suspect to the targeted location on the basis of surveillance, a check of utility records, verification with a landlord, an address from the phone book, or the like. 123 Md.App. at 630 , 720 A.2d 27 (emphasis supplied).

B. The “Good Faith” Exception On the ultimate issue of suppression, however, the appellant wins the battle but loses the war. In foretelling this contrapuntal swing of the pendulum, Braxton v. State is again the soothsayer. Although the drawing of the inference in this case, as we have been discussing, may not have been legally sustainable, the failure to spell out a more detailed nexus was by no means so egregious a flaw that the officers could be held to have acted in “bad faith” in submitting the warrant application and in relying on the warrant. As one of the detectives testified at the suppression hearing, the police believed that the appellant was living with his aunt, Kim Powell, at the Washington address recited in the warrant application.

The police inadvertently neglected to set forth some easily ascertainable facts and then to connect the dots. It was a fault, but hardly a grievous one. Although more than a hypertechnicality, to be sure, the establishment of the nexus is understandably a peripheral aspect of the police focus as attention concentrates on the core issue of underlying criminality. The officers were fully entitled to the “good faith” exception to the Exclusionary Rule established by Massachusetts v. Sheppard, 468 U.S. 981 , 104 S.Ct. 3424 , 82 L.Ed.2d 737 (1984) and United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984).

At the outset, our entitlement to consider the applicability of the “good faith” exception for the first time on appeal, notwithstanding that the issue was not addressed by Judge Shepherd, is not to be doubted. McDonald v. State, 347 Md. 452 , 470 n. 10, 701 A.2d 675 (1997); Connelly v. State, 322 Md. 719, 735 , 589 A.2d 958 (1991) (“As the application of the good faith exception to the allegations of the affidavit presents an objectively ascertainable question, it is for the appellate court ¹⁵⁴ to decide whether the affidavit was sufficient to support the requisite belief that the warrant was valid.”); Braxton v. State, 123 Md.App. at 631-32 , 720 A.2d 27 . In applying the “good faith” exception to a gap in the required nexus between the person of the defendant and the place of his residence, one of the cases relied on by us in Braxton was State v. Varnado, 675 So.2d 268 (La.1996). That case is indistinguishable from the one now before us.

Judge Hollander, 123 Md.App. at 641 , 720 A.2d 27 , characterized, with approval, its holding: The Vamado court recognized that the police had probable cause to search the defendant’s residence. But, sounding a now familiar chord, the court found “a critical omission in the warrant application,” because it failed “to identify the targeted premises as the defendant’s residence. ” Id. at 270. Nonetheless, because the exclusionary rule is intended to deter police misconduct, not to punish the mistakes of judges, the court concluded that, “under the particular circumstances of this case, application of the exclusionary rule would serve no remedial purpose.” Id. The court reasoned that “[t]he officer had no apparent purpose for omitting the information linking the defendant to the residence ....” Id. at 271.

Indeed, the court believed that another officer in the same position “would not have noticed the defect____” Id. (Emphasis supplied) See also United States v. Procopio, 88 F.3d 21 (1st Cir.1996); United States v. Brown, 832 F.2d 991 (7th Cir.1987). Our closing observation in Braxton, 123 Md.App. at 643 , 720 A.2d 27 , is pertinent here: In our good faith analysis, we also consider it significant that the affidavit set forth ample probable cause linking appellant to the armed robbery. Further, by inference, the affidavit identified the targeted address as appellant’s residence and, as appellant concedes, there was probable cause to search appellant’s residence, wherever it may have been.

The gap essentially concerned an intermediate premise; ¹⁵⁵ the affidavit failed to include any fact supporting the affi-ant’s assertion that appellant resided at the targeted address. Yet we cannot overlook that appellant’s arrest record provided the detective with a valid basis to believe that appellant resided at the premises in question. Thus, the officer’s error was one of omission; there was no suggestion that the detective purposefully failed to disclose the information or otherwise acted in bad faith. (Emphasis supplied).

We affirm the ruling of Judge Shepherd that the physical evidence should not have been suppressed. The “Other Crimes” Evidence Within a nine-day period, four lone women, living in close proximity to each other in Prince George’s County, were approached in the common areas of their garden style apartment complexes in an ostensibly friendly and unthreatening manner and, when their guards were then relaxed, were attacked. The crimes against three of the women are the subject of this consolidated appeal. The crimes against the fourth woman also constitutes part of the “other crimes” evidence.

The multitudinous similarities in the crimes were carefully detailed by Judge Shepherd. We cannot improve on his careful compilation and analysis of the ultimately overflowing accumulation of common features. “We heard the testimony of four witnesses, Martha Yates, who was assaulted on October 27th, 1999; Amy Hixen-baugh, who was assaulted and raped on October 31st, 1999; Teresa Hicks, who was assaulted on November 3rd, 1999; and Madinah Rasheed, who was assaulted on November 4th, 1999. The question before the court is whether to allow other crimes evidence in three of these assaults in the trial of the defendant for the remaining assault. In three of four situations, the assailant would begin talking to each woman as she entered or approached the common area of her garden style apartment house. ¹⁵⁶ He would pretend to need assistance of some sort or need direction of some sort, and would engage each woman in nonthreatening conversation as she moved toward her apartment.

In the fourth situation, which was Yates, the victim did not feel threatened and turned her back on the assailant who attacked her immediately. In three instances, Hicks, Yates, and Rasheed, the woman would turn her back to the assailant believing that there was no danger, and the assailant would immediately assault the woman by clasping his right hand over her mouth and holding a knife to her neck. With Hixenbaugh, the last victim, she made several trips from her car to the front of her apartment carrying groceries. Finally thinking that the assailant posed no threat to her, she turned her back and opened her door, carried some groceries into her apartment and retrieved some tissue that the assailant had requested of her.

When she turned to go out to the common area to give the tissue to the assailant and to get the remaining groceries she came face to face with her assailant, who at that point was armed with a knife and was now inside her apartment. He thereupon ordered her upon threat of death into her bedroom where he forced her to perform fellatio and raped her two times. Before he left he told her that he would kill her if she reported it. All three other victims, Yates, Hicks, and Rasheed, gave similar descriptions of their assailants.

All three positively identified Oesby as the assailant from the photo spread [from which] Hixenbaugh had identified Oesby. Hicks, Yates, and Rasheed gave similar descriptions of the clothing worn by the assailant. All four described the weapon used as a knife, a silver blade and a brown handle, approximately eight to ten inches long totally. With Hicks and Hixenbaugh there was no resistance by the victim and the assailant told each of them if they told anyone he would come back and kill them.

The modus ¹⁵⁷ operandi ivas the same in each case, the engaging in conversation on a pretext of one thing or another in a manner to take each woman off her guard, and then to strike at the moment that each of the intended victims ivas, in fact, offguard. All four of these crimes occurred within nine days of each other. All four of these crimes occurred within or near a common area of garden style apartments, and all four of these crimes were pursued for sexual reasons, even though with Rasheed, the last victim, she began resisting before the assailant got to the point of taking her clothes off. Robbery was a secondary motive of each of these crimes.

Citing from Moore versus State, 73 Maryland Appeals 36 at 41 [, 533 A.2d 1 ], “Thus, it may be said that the inference of identity arises when the marks common to the offense, considered singly or in combination, logically operate to set the offenses apart from other crimes of a same general variety, and in so doing tend to suggest that the perpetrator of the crimes [is] the perpetrator of the offense [as] charged,” meaning the one that’s being tried. “The court is persuaded that due to the unique circumstances of this case, the evidence of other crimes has special or heightened relevance, and due to the special or heightened relevance of the evidence, it is more probative than unfairly prejudicial to the defendant, and the defendant’s involvement in the other crimes evidence has been established by clear and convincing evidence, and beyond that, the identification of a person as the person who committed the crime if believed beyond a reasonable doubt is enough for a conviction,” so it’s more than clear and convincing. Accordingly, the court will permit the introduction of other crimes evidence in the state’s case in chief on the issue of identification. I would note that with reference to Rasheed the time was 8:30 p.m. With Hicks the time was 12:40 p.m.

With Yates it was in the evening, 9:00 to 9:30 p.m., with Hixenbaugh 7:00 p.m. Each area in each of those cases was a garden style apartment, the approach to the apartment and the common ¹⁵⁸ area. With regard to Rasheed, there were at least six separate questions that were asked by the assailant beginning with, “Do you know Tyrone King.” With regard to Hicks, there were at least five questions asked of Hicks beginning with, “Do you have a key to the laundry room,” and ending, I think, with, “Can I use your cell phone.” [With] Yates, there was no conversation because as indicated earlier she saw the assailant and then turned her back on him without any conversation. At that moment he did the same thing as he did with the other victims.

He used that as an opportunity to attack. Hixenbaugh, three questions, plus an offer to help with bags, attempts to be charming and helpful, and a request, the request that took her off the guard, the asking for tissue, whereupon she turned and put herself in the position of extreme peril. In each and every instance, the attack was accomplished by the getting the victim to turn [her] back on the assailant. In the Rasheed, Hicks, and Yates cases there were descriptions of clothing and hats that were very similar to one another.

In the Rasheed, Hicks, and Yates cases, there was a description of the assailant as being clean shaven. A knife, as I mentioned earlier, were all similarly described. There were no parting words to Rasheed because as she wrestled him to the ground, the knife came loose and he ran away. There were none with Yates because he ran off taking her pocketbook when he believed that someone was coming.

With Hicks and Hixenbaugh he told each of those persons, “If you tell anyone about this, I will come back and kill you.” So the court will permit the other crimes evidence. (Emphasis supplied). A. Stage One of the Analysis: The “Right or Wrong” Standard of Appellate Review Before evidence of “other crimes” may be admitted against a defendant, a three-step analysis must be undertaken ¹⁵⁹ by the trial judge. The first determination is an exclusively legal one, with respect to which the trial' judge will be found to have been either right or wrong.

In State v. Faulkner, 314 Md. 630, 634-35 , 552 A.2d 896 (1989), Judge Adkins described that first step: When a trial court is faced with the need to decide whether to admit evidence of another crime — that is, evidence that relates to an offense separate from that for which the defendant is presently on trial — it first determines whether the evidence fits within one or more of the Ross [v. State, 276 Md. 664 , 350 A.2d 680 (1976) ] exceptions. This is a legal determination and does not involve any exercise of discretion. (Emphasis supplied). In Moore v. State, 73 Md.App. 36, 44-45 , 533 A.2d 1 (1987), Judge Wilner further explained this first step of the analysis: For the evidence even to qualify for admission, it must fall within one of the exceptions that the court has recognized or would be willing to recognize as having an independent relevance and, although, because this is largely a factual question, it will ultimately depend on how the last appellate court to review the case happens to view the matter, it is not a discretionary ruling.

The element of discretion arises only when the evidence does fall within a permissible exception and is thus prima facie admissible. It is then that the court must balance the independent relevance against the danger of undue prejudice and decide whether to exclude the evidence notwithstanding its facial admissibility. That is the discretionary decision — to ex elude otherwise admissible evidence, not to in elude otherwise inadmissible evidence. (Emphasis supplied).

B. The Expanding List of Exceptions Before we embark on that analysis of whether the evidence of “other crimes” fits within one of the exceptions, it will help to have handy a list of accepted categories of exceptions. In ¹⁶⁰ 1976, Ross v. State, 276 Md. at 669-70 , 350 A.2d 680 , listed the classic five exceptions that this Court later described in Solomon v. State, 101 Md.App. 331, 353-54 , 646 A.2d 1064 (1994): On any list of the representative or illustrative types of issues that have regularly been found to possess substantial relevance, the first rank invariably consists of the quintet brought to the front of the mind by the mnemonic aid MIMIC: 1. MOTIVE 2. INTENT 3.