Paige v. State

BERGER, J. Following a four-day jury trial in the Circuit Court for Baltimore City concluding on July 31, 2013, Devin Paige, appellant, was convicted by the jury of first-degree rape, third-degree sexual offense, second-degree assault, and third-degree burglary. 1 On December 3, 2013, the circuit court sentenced appellant to serve a life term in prison, all but fifty years suspended, for his rape conviction. The court imposed additional concurrent sentences of ten years for third-degree sexual offense, ten years for second-degree assault, and five years for third-degree burglary. In his timely filed appeal, appellant presents three questions for our review: 1. Did the trial court err in propounding coercive jury instructions? 2.

Did the trial court err in failing to merge appellant’s convictions? 3. Did the trial court err in allowing the State to make improper and prejudicial statements at closing argument? Because we conclude that the circuit court erred by failing to merge the offenses of second-degree assault and first-degree ¹⁹⁵ rape for the purposes of sentencing, we shall vacate the ten-year concurrent sentence imposed by the court for appellant’s assault conviction. Discerning no other legal error or abuse of discretion, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL HISTORY On the night of June 16, 2006, the victim was at home with her sons in their residence at 718 Wharton Court, Baltimore, Maryland. Some time after she went to bed at around 11:00 p.m., the victim was awakened by an unknown intruder who threatened her with a gun, then sexually assaulted and raped her before leaving her residence. The victim was taken to the hospital, where a sexual assault forensic examination was conducted. Several years later, the police developed appellant as a suspect in the rape.

On December 21, 2010, the police obtained and executed a search warrant to collect DNA evidence from appellant. DNA from appellant was compared to DNA that was obtained during the hospital examination of the victim following her assault. Appellant’s DNA was consistent with the DNA of the unknown male who attacked the victim on June 17, 2006. Appellant had previously resided with his mother at 718 Wharton Court, the same address at which the victim was living at the time she was attacked.

DISCUSSION I. Jury Instructions Following the jury instructions and the parties’ closing arguments, the trial court turned the case over to the jury for its deliberations. In the course of informing the jurors regarding the administrative processes and procedures in place during their deliberations, the court stated, in pertinent part: We will at this time collect all of the evidence and bring it into the jury room for you. I note that it’s 20 minutes of four. We will deliberate as long as you would like.

If at some point in time you want to stop for the evening and return in the morning, you need only let us know that. And we ivill give you a note and you cam, tell us what time ¹⁹⁶ you would like us to convict — to resume your deliberations in the morning. But for right now, I am now doing what I said I would do. I’m handing the case over to you.

And that means we are at your disposal; you tell us what to do. 2 After the court concluded its comments, defense counsel requested a bench conference and informed the court of the misstatement made during the court’s comments, indicating that both he and his client had heard the court instruct the jurors to inform the court when they were ready to “convict.” To remedy any confusion, the court immediately provided the following curative instruction to the jury: Ladies and gentlemen, I’m being told that I said the word convict. I said reconvene. Reconvene means you ... 3 ¹⁹⁷ Now, ladies and gentlemen, you are the jury. And you are the determiners of the facts and the evidence.

And I’m giving you the verdict sheet. Reconvene means when you stop for the day and you come back another day and continue your deliberations. The word is reconvene, reconvene. Not convict, but reconvene.

And so you have the right to sit here and deliberate as long as you want. We have to wait for you. If you get hungry or tired, we stop. We take all the evidence, we lock it away.

You tell us what time you’re going to come back. And when all 12 of you are back, you reconvene and continue your deliberations. That’s the process. And as I told you at the beginning of the case, the case is yours now.

You get to tell me when we’re going to continue, when we’re going to stop. And as I told you before in the instructions, the case is yours. If you need anything from us, you need only let me know by writing me a note. If you have any questions, write me a note.

If you have a verdict, you press on that buzzer and knock on the door. It will ring in my office. And we will reconvene everyone. Meaning we’ll get everyone back together and we’ll take your verdict at that time.

Now, that’s the process. If you heai-d me say convict, that’s not my intention and that’s not the word I was using. I was using the word reconvene, meaning to bring back together everyone. Ladies and gentlemen, at this time please go into the jury room, recess there and we await your decision.

The jury subsequently convicted appellant on charges of first-degree rape, third-degree sexual offense, second-degree assault, and third-degree burglary, and acquitted him on charges of first and second-degree sexual offense, first-degree assault, first-degree burglary, and handgun offenses. Immediately after the jury rendered its verdict, defense counsel made a motion for a new trial. In a subsequent memorandum and at a hearing on appellant’s motion prior to appellant’s sentencing on December 3, 2013, defense counsel asserted that the trial court’s misstatement while addressing ¹⁹⁸ the jury materially prejudiced the jury against appellant. After hearing the arguments of the parties and the testimony of an expert witness for the defense, the trial court denied appellant’s motion for a new trial.

On appeal, appellant asserts that the trial court erred by accidentally using the word “convict” instead of the word “reconvene” in the course of informing the jury regarding procedural matters relevant to their deliberations. Appellant suggests that this “coercive” instruction, “indicated to the jury that [the court] had determined [a]ppellant to be guilty and that conviction was the only proper outcome for it to reach.” Appellant further asserts that following the misstatement, the court abused its discretion by providing an inadequate curative instruction “that served to further exacerbate” the prejudice that had accrued to appellant. Finally, appellant contends that the circuit court abused its discretion by denying appellant’s motion for a new trial. The State disagrees, asserting that the trial court properly exercised its discretion in addressing the perceived misstatement, crafting an appropriate curative instruction, and denying appellant’s subsequent motion for a new trial.

We have recently reiterated the following principles that guide our review of a trial court’s ruling on a motion for a new trial: It is a movant who holds the burden of persuading the court that a new trial should be granted. Whether to grant a new trial lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent an abuse of discretion. The abuse of discretion standard requires trial judges to use their discretion soundly, and we do not consider that discretion to be abused unless the judge exercises it in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law. A trial court’s discretion to grant or deny a new trial expands and contracts, depending upon the nature of the factors being considered, and its exercise depends upon the opportunity the trial judge had to feel the pulse of the trial, and to rely ¹⁹⁹ on his or her own impressions in determining questions of fairness and justice.

Brewer v. State, 220 Md.App. 89, 111 , 102 A.8d 850 (2014) (internal citations and quotation marks omitted). As the Court of Appeals has long recognized, “[ajlmost anyone can make a slip of the tongue, and judges are not immune from such errors.” Reed v. State, 225 Md. 566, 570 , 171 A.2d 464 (1961). All parties in the instant case agree that the trial court’s misstatement, using the word “convict” instead of the word “convene” or “reconvene,” was an unintentional error. As noted above, defense counsel noted a timely objection to the court’s use of the word “convict,” bringing the court’s misstatement to its attention and affording the court an opportunity to cure any prejudice accruing to appellant as a result of the perceived mistake.

At the time defense counsel articulated his concern to the court in a bench conference, he did not request that the court use any specific language or order any particular relief. Immediately after defense counsel informed the trial court about the perceived error, the court provided a supplemental instruction to the jury intended to correct any misunderstanding amongst the jurors regarding their responsibility to carefully review the evidence presented and independently determine appellant’s guilt or innocense for each of the charged offenses. Thus, in effect, the trial court sustained defense counsel’s objection to the court’s use of the word “convict” and attempted to address counsel’s concerns through the use of a supplemental jury instruction. Defense counsel raised no further objections.

It was not until the next day, after the jury had rendered its verdict, that defense counsel indicated that he had any concerns regarding the supplemental jury instruction that had been provided by the trial court. At that time, defense counsel summarily requested that the trial court grant appellant a new trial. In a subsequently filed motion and supporting memorandum of law, defense counsel asserted, inter alia, that because of the position of authority held by a judge in the ²⁰⁰ courtroom, the court’s use of the word “convict” in place of the word “reconvene” at appellant’s trial may have biased the jury against appellant, thereby depriving him of his constitutional right to trial by a fair and impartial jury. Defense counsel further asserted that once the jury heard that the judge expected them to convict appellant, it was impossible for them to disregard it, and therefore, the trial court’s subsequent supplemental instruction was not only inadequate to cure the prejudice that resulted from the court’s misstatement, but by repeatedly reinforcing the word “convict,” may have actually exacerbated the problem.

The circuit court ruled on appellant’s motion for a new trial following a hearing on December 8, 2013. Appellant timely filed the instant appeal preserving his objection to the trial court’s ruling on his motion. Preliminarily, we note that after the trial court provided its curative instruction, defense counsel did not raise any additional objections or request any additional relief to cure the prejudice that had purportedly accrued to appellant as a result of the trial court’s misstatement. Furthermore, defense counsel at no point moved for a mistrial due to the trial court’s misstatement.

In the absence of any additional objection or request for relief, the trial court was not obligated to do anything further to correct its inadvertent use of the word “convict.” See Lamb v. State, 141 Md.App. 610, 644-45 , 786 A.2d 783 (2001) (holding that where an objection is sustained, a curative instruction given, and no further relief is requested, there is nothing for the appellate court to review). Because defense counsel did not object to the supplemental jury instruction that was provided by the trial court at the time it was given, any question regarding the content of the supplemental instruction was not properly preserved for appellate review. See Md. Rule 2-517(c) (requiring a party, “at the time the ruling or order is made or sought,” to “make[ ] known to the court the action that the party desires the court to take or the objection to the action of the court”); Md. Rule 4-325(e) (stating that “No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating ²⁰¹ distinctly the matter to which the party objects and the grounds of the objection”); Md. Rule 8 — 131(a) (providing that “Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court”). The only issue properly before this Court on appeal, therefore, is whether the trial court abused its discretion by denying appellant’s motion for a new trial.

At the hearing on appellant’s motion for a new trial, defense counsel presented the testimony of an expert witness who opined regarding the potential detrimental effects of the trial court’s misstatement upon the jurors at appellant’s trial. The expert witness testified that her opinion was based solely on her review of a written transcript of the trial court’s comments to the jury after the conclusion of the parties’ closing arguments, defense counsel’s subsequent objection, and the trial court’s curative instruction. The expert did not review the preliminary jury instructions that were provided to the jury before the trial commenced, any of the evidence presented during the three-day trial, the extensive jury instructions regarding the law relevant to the case that were provided at the close of all the evidence, the parties’ closing arguments, or the audio recording of the proceedings that corresponded to the transcript that she was provided of the court’s comments to the jury. In the course of the hearing on appellant’s motion, the circuit court also clarified that its comments to the jury after closing arguments were not part of the jury instructions that were recorded and then provided for the jury to reference during their deliberations.

In rendering its determination, the circuit court clearly explained why it was not persuaded by the testimony of the expert witness, whose opinions were based only on her interpretation of a very limited portion of the trial transcript, uninformed by any broader understanding of the evidence, the extensive jury instructions that were provided, or the background and demeanor of the jurors during appellant’s three-day trial. The court recalled the extensive jury instructions it ²⁰² had provided, which “repeatedly emphasized that the trier of the facts and the law is the jury.” The court also recounted the “proper, appropriate, timely curative instruction” it provided after defense counsel brought the court’s use of the word “convict” to its attention. Ultimately, the circuit court was not persuaded that the jury was misled by the court’s innocent slip of the tongue regarding their responsibility to consider all of the evidence and draw their own conclusions about appellant’s culpability. Accordingly, the circuit court denied appellant’s motion for a new trial.

Based on our independent review of the record, we discern no basis upon which we could reasonably conclude that the trial court acted arbitrarily or capriciously in denying appellant’s motion for a new trial. In this case, the trial court’s isolated slip of the tongue, which was immediately explained and corrected, was not a flagrant or extraordinary error. It is clear from the trial transcript that the court repeatedly emphasized that it was the jury’s duty to carefully consider the evidence and to independently determine whether appellant was guilty of the charged offenses. The court specifically instructed the jury not to draw any inferences based on the questions asked or comments made by the court during the trial.

The court also very carefully reviewed every item on the verdict sheet with the jury, and explained that the jury had the option of finding appellant guilty or not guilty for each of the charged offenses. Ultimately, the jury concluded that appellant was guilty of some of the charged offenses and not guilty of others, indicating that the trial court’s inadvertent misstatement did not unduly influence the jurors or mislead them into believing that conviction was the only proper outcome of appellant’s trial. Under all these circumstances, we decline to overturn the circuit court’s ruling on appellant’s motion for a new trial.

II

Merger of Offenses for the Purposes of Sentencing The jury returned verdicts of guilty on the counts alleging first-degree rape, second-degree assault, third-degree sexual offense, and third-degree burglary. The circuit court sen ²⁰³ tenced appellant to serve a period of incarceration of life in prison, all but fifty years suspended, for his conviction of first-degree rape. The court also sentenced appellant to serve two concurrent ten-year sentences for his convictions of second-degree assault and third-degree sexual offense, and a concurrent five-year sentence for third-degree burglary. Appellant asserts that the trial court erred by failing to merge his convictions for second-degree assault and third-degree sexual offense into his conviction for first-degree rape for the purposes of sentencing.

Appellant contends that neither the charging document nor the court specified the assaul-tive conduct underlying each charge. As such, the jury could have based all three convictions on the same conduct. Appellant concludes, therefore, that his ten-year sentences for second-degree assault and third-degree sexual offense must be vacated. The State concedes that the circuit court erred by imposing separate sentences for appellant’s convictions for second-degree assault and first-degree rape, because those offenses merge for the purposes of sentencing.

The State maintains, however, that the offense of third-degree sexual offense does not merge with the offense of first-degree rape, and therefore, the circuit court’s imposition of a separate sentence for that offense was proper. At appellant’s trial, in accordance with the relevant statute and the pattern jury instruction, the circuit court instructed the jury as follows regarding the offense of rape: Rape is vaginal intercourse with a female by force or threat of force and without her consent. In order to convict the defendant of second-degree rape, the State must prove beyond