Pair v. State

MOYLAN, J. The compelled merger of convictions to avoid multiple punishments for the same offense, or perhaps for the same criminal behavior, is by no means as simple a subject as it ⁶²² might at first appear to be. The hydra has no less than three heads: 1) constitutional double jeopardy; 2) the rule of lenity as an aid to statutory construction; and 3) the essentially tetherless notion of fundamental fairness. These are no mere variations on a common theme. They are the subjects for widely differing inquiries.

Fundamental fairness, especially, remains very much an enigma. All three are now before us. The appellant, Daniel Joseph Pair, filed in the Circuit Court for Baltimore County on July 2, 2010, a Motion to Correct an Illegal Sentence pursuant to Maryland Rule of Procedure 4-345(a). The posited illegality was that three sentences had not been merged.

On July 14, 2010, Judge Dana M. Levitz denied the motion. This appeal followed. The Original Trial The appellant was originally convicted by a Baltimore County jury, presided over by Judge Levitz, of 1) first-degree assault, 2) robbery, 3) false imprisonment, and 4) the unlawful taking of a motor vehicle. The victim of all of the crimes was the appellant’s former fiancé, Allison Gilbert.

Judge Levitz sentenced the appellant to a term of 25 years imprisonment for the first-degree assault, a consecutive term of 10 years for the robbery, a consecutive term of 5 years for the false imprisonment, and a concurrent term of 5 years for the unlawful taking of a motor vehicle. The First Appeal The appellant appealed his convictions to this Court, raising four separate contentions including the sufficiency of the evidence to support the convictions. One of the appellant’s other contentions was that the conviction for the unlawful taking of a motor vehicle should have merged into the conviction for robbery, because the motor vehicle was one of several items of property taken in the course of the robbery. In the case of Pair v. State, No. 2119, September Term, 2006, filed on July 28, 2009, this Court agreed with the appellant as to the merger of the conviction for the unauthorized taking of a motor vehicle.

In all other respects, the 41- ⁶²³ page unpublished opinion by Judge Meredith affirmed the judgments of conviction. Because the issue of merger is again being raised by the appellant, it is important to note precisely why this Court ruled as it did with respect to the merger of the motor vehicle theft charge. The rationale for merging theft into robbery has no bearing on the new merger issues now before us. After noting that “[t]he legislature set forth its intent regarding the merger of motor vehicle theft into theft,” Judge Meredith’s opinion went on to explain why theft generally is deemed to merge into the greater inclusive robbery, which is, by definition, a compound theft.

Appellant is correct that the appellate courts of this State have held that under the rule of lenity, theft and robbery merge. See Spitzinger v. State, 340 Md. 114, 124-25 [ 665 A.2d 685 ] (1995) (“We ... have some doubts, in light of our prior cases and the history of common law robbery and common law larceny, as to whether the legislature intended to authorize successive or cumulative punishment for felony theft and robbery. Those doubts must be resolved in favor of the defendant, so that under the rule of lenity the sentences for robbery and felony theft should merge.”); Bellamy v. State, 119 Md.App. 296, 307 [ 705 A.2d 10 ] (1998) (relying on Spitzinger to conclude that convictions of felony theft and robbery with a deadly weapon arising out of a single event or incident should merge under the rule of lenity). The Motion to Correct an Illegal Sentence In his Rule 4-345(a) motion before Judge Levitz, the appellant pushed for additional mergers.

Having failed before Judge Levitz, the appellant now pushes the same contentions before us: 1. The first-degree assault conviction merges into the robbery conviction; 2. Alternatively, the first-degree assault conviction merges into the false imprisonment conviction; and ⁶²⁴ 3. False imprisonment and robbery merge under the Rule of Lenity and the principle of fundamental fairness.

Rule 4-345 and Merger We are chagrined that the appellant, who successfully brought one merger issue before this Court in his first appeal, now raises three additional merger issues for the first time, thus necessitating a second trip to the circuit court and a second trip to this Court when a single trip would fully have served the same purpose. 1 Notwithstanding our chagrin, however, Maryland Rule 4r-345 expressly permits such fragmentation under certain circumstances. A failure to merge a sentence is considered to be an “illegal sentence” -within the contemplation of the rule. Britton v. State, 201 Md.App. 589 , 30 A.3d 236 (2011); Ingram v. State, 179 Md.App. 485, 508-09 , 947 A.2d 74 (2008); Campbell v. State, 65 Md.App. 498, 510-11 , 501 A.2d 111 (1985); Randall Book Corp. v. State, 316 Md. 315, 319-22 , 558 A.2d 715 (1989). The coverage of Rule 4-345, however, is not totally free of ambiguity.

Rule 4-345’s exemption from the normal preservation requirements and the normal filing deadline is based upon the inherent “illegality” of the sentence enjoying open-ended and timeless review. In Britton v. State, supra, Chief Judge Krauser highlighted the significance of actual “illegality:” [W]hen the trial court is required to merge convictions for sentencing purposes but, instead, imposes a separate sentence for each unmerged conviction, it commits reversible error. ... [S]uch an error implicates the illegality of imposing “multiple sentences ... for the same offense.” ... [T]he result is the imposition of a sentence “not permitted by law.” (Emphasis supplied). We are dealing in this case not with one merger issue but with three distinct merger issues. It is conceivable that Rule ⁶²⁵ 4-345(a) might confer its special dispensation upon two of those merger issues but not upon the third.

When a sentencing judge fails to merge multiple convictions for the “same offense” pursuant to the required evidence test of Blockburger v. United States, the unmerged sentence is unconstitutional, as a matter of law. That constitutes an “illegal sentence” within the contemplation of Rule 4-345(a). When a sentencing judge imposes multiple sentences where it is established, as a matter of law, that the Legislature intended that multiple sentences not be imposed, that legislatively prohibited sentence is also an “illegal sentence” within the contemplation of Rule 4-345(a). Both a violation of the Double Jeopardy Clause and a violation of the rule of lenity are matters that are decided as a matter of law.

By contrast, the newest and thus far little explored addition to the ranks of merger issues, to wit merger pursuant to fundamental fairness, may be a phenomenon with a critical difference. Such a merger decision would appear to be something that might frequently be heavily fact-driven and dependent on the particular circumstances of the particular case. This would seem to be the type of thing requiring a judgment call by the trial judge, the umpire on the field, with an immediate sense of the pulse of a trial. By its very nature, this could be a discretionary call and not something that can be reduced to legal algebra and decided as a matter of law.

Could a failure to merge in such a discretionary context be said to be an inherently “illegal sentence?” If not, it would not qualify for Rule 4-345(a)’s procedural dispensations. We are already far enough along in our present discussion, however, to assume, purely arguendo, that Rule 4-345(a) covers the merger arguments presently before us. At least we will make that assumption with respect to the first two merger issues. Whether merger by virtue of fundamental fairness enjoys Rule 4-345(a)’s procedural dispensation is far more problematic.

The Many Faces of Assault Assault is a protean crime. It frequently is a significant and autonomous crime in its own right. In this case, the first- ⁶²⁶ degree assault charge was the flagship count of this entire prosecution. The first-degree assault charge, for instance, carried the greatest maximum penalty of the three crimes for which the appellant was convicted.

It was for the first-degree assault that Judge Levitz imposed the harshest penalty. Assault, on the other hand, can sometimes be simply nothing more than a constituent element in a crime such as robbery. The question of whether a particular crime, such as the first-degree assault in the present case, is the centerpiece of the prosecution or a mere incident of some other crime is intensely fact-specific. There is no automatic or mechanistic answer as a matter of law.

The answer, rather, depends upon the particular facts and circumstances of each individual case and can readily go in either direction. Lamb v. State, 93 Md.App. 422 , 613 A.2d 402 (1992) is illustrative. The issue in Lamb was whether the conviction for assault should have merged into the conviction for false imprisonment. Assault, of course, is one of the elements of false imprisonment.

An assault that serves that instrumental function and nothing more is, therefore, a lesser included offense within the greater inclusive offense of false imprisonment. The two are the “same offense.” In the Lamb case, however, the assault did not serve that merely ancillary function and do nothing more. It did a great deal more. It was, indeed, the flagship or centerpiece of the entire prosecution, as it is in the case now before us.

This Court explained the various characteristics that may give a particular crime on a particular occasion such celebrity status: Every aspect of this trial—the evidence, the jury arguments, the judge’s instructions, the presentence arguments, the judge’s explanation of the sentences, the sentences themselves—combine to make it indisputably clear that the major crime for which the appellant was convicted was his deliberate placing of Sharon Herz in fear of losing her life. The jury instructions focused upon and highlighted the assault charge---- ⁶²⁷ The assault received the ten-year sentence, beside which the breaking and entering, the actual battery and the false imprisonment all paled into relative insignificance, as was apparent throughout the trial. The assault under the fifth count was obviously no mere instrumentality in bringing about an unlawful confinement. It was rather the case that the false imprisonment was a mere incident of it. 93 Md.App. at 473-74 , 613 A.2d 402 (emphasis supplied).

Under certain circumstances, a particular assault might be nothing more than a lesser included offense with the greater inclusive offense of kidnapping. In Hunt v. State, 12 Md.App. 286, 310 , 278 A.2d 637 (1971), however, Judge Orth explained how the assault in that case enjoyed an autonomous and non-merging status of its own: But here there was evidence from which the jury could have found that Hunt assaulted Barbara independent of any assault incident to the kidnapping itself. Barbara testified that while in Hunt’s apartment he was importuning her to have sexual relations with him. “I told him to leave me alone, to get away from me and I was pushing him and he was pushing me and he struck me.” He grabbed her arm and pulled her in the bedroom and threw her down on the bed. These acts of assault and battery were not an element of the kidnapping but a separate and distinct offense.

We hold that there was no merger of the [assault] into the convictions under the [kidnapping] counts. (Emphasis supplied). In Britton v. State, 201 Md.App. 589 , 30 A.3d 236 (2011), the appellant argued that, for sentencing purposes, his assault conviction should have merged into his conviction for resisting arrest. Chief Judge Krauser, albeit recognizing that sometimes an assault is simply an element of resisting arrest, explained why the more significant assault in that case enjoyed a non-merging vitality of its own: fAfppellant assaulted Officer Moreau with his car in an act that was completely separate from his a,cts of assaulting the officers with his fists and feet in the brawl that ensued ⁶²⁸ several minutes later.

Moreover, it appears that the ramming of Officer Moreau’s car was a gratuitous act and not part of appellant’s resisting arrest, as the officer was not in active pursuit of appellant when that act occurred. Thus, the offense of assaulting Officer Moreau and the offense of resisting arrest were based on distinct acts, separated by time and geography, and merger of the convictions is not required. (Emphasis supplied). Whether the assault in this case is the star performer of our drama or a mere supporting actor is a fact-driven inquiry.

That is why all the lurid circumstances of this case are so vitally important. Judge Meredith’s opinion sets them out meticulously. The Prior Relationship For merger purposes, it is critical that we determine whether the assault was a mere incident of robbery or whether it had a life and an energizing purpose of its own. It is necessary, therefore, that we understand the turbulent relationship between the assailant and the assault victim.

In that regard, Judge Meredith’s opinion explained: Allison Gilbert testified that appellant had been her fiancé and that she had met him during the summer of 2004 at The Harem, an entertainment club located on The Block in Baltimore City. Gilbert stated that she “[djanced” at the club under the stage name of S’more, and appellant was “a doorman/floorman.” She stated that their relationship began as a friendship, but that two or three weeks later, they began a romantic relationship and stopped seeing others. During that time, Gilbert was renting an apartment in Essex, which she leased in her name. Gilbert recalled that about six to eight months into their relationship, appellant asked her to marry him, and they became engaged.

Gilbert stated that eventually, their relationship began to change ⁶²⁹ with appellant becoming “more irritable”; they fought more, and began “arguing about stupid stuff.” On August 22, 2005, Gilbert found out that she was three months pregnant with twins. Also on August 22, appellant took Gilbert’s Dodge Neon 2000, but returned to the apartment sometime during the night. When Gilbert got up that morning, however, appellant was not in the apartment. Gilbert testified that she called appellant, and he told her “to take a cab to work to pick up [her] car.” Appellant had twice before taken the car without her knowledge.

(Emphasis supplied). The Relationship Deteriorated The opinion went on to describe the early evening of August 22, 2005, and how the ill-feeling between the appellant and Allison Gilbert reached critical mass as Ms. Gilbert arrived home. By this date, Gilbert and appellant had begun working at another “club” owned by the owners of The Harem. This club was called The Golden Nugget.

Gilbert took a cab to the club that evening and “found some girl’s stuffed animal and panties in the back of the car” so she told appellant that their relationship was over. She also told appellant that she was returning to the apartment and would pack up appellant’s belongings. Gilbert informed appellant that she “was putting his stuff outside.” Gilbert recalled that appellant became “mad” and that they had a physical altercation at the club. They were in the locker room and two girls ran out to get Steve, the club’s owner, who came into the locker room and “pulled [appellant] off and held him[.]” Gilbert believed that Steve was taking appellant to the office, and she asked Steve to delay appellant so that she “could put his stuff out before he got to the house.” Gilbert stated that she went to her car and drove home.

On the way, she called her father and told him what had happened. She called the police “so that they could be there in case he [appellant] was there already.” She also called maintenance to change the locks to her apartment. ⁶³⁰ It took her approximately half an hour to drive to her apartment. She arrived there at about 9:00 p.m., and she began packing appellant’s belongings. The maintenance workers soon showed up to change the locks.

The police were also there, but about ten minutes after Gilbert began packing, the police informed her that unless she knew that she was “in grave danger” they could not remain, and they left. After the locks were changed, Gilbert started to clean her apartment and moved her car to a different part of the parking lot. She then noticed that there was something wrong with the door to her apartment and again called maintenance. She was told that the maintenance worker could be paged and come out to her apartment again that evening.

Shortly thereafter, Gilbert heard a knock on her door. By this point, Gilbert was done cleaning and she “had turned out all the lights so nobody would think [she] was home.” (Emphasis supplied). The Attack Began The arrival of the appellant at Ms. Gilbert’s apartment and the triggering of the assault occurred in the neighborhood of ten P.M. Our opinion continued: Gilbert testified that the person at the door identified himself as “maintenance” so she opened the door. Appellant was there, and although Gilbert tried to brace her foot against the door, appellant pushed the door open.

Appellant broke Gilbert’s cell phone when he walked in the door. Gilbert stated that appellant looked through the apartment. Gilbert testified that she told him that he did not need to look through the apartment because all his possessions were “right there[]” and “all packed up in bags[,]” that is, in luggage and garbage bags. The items were located right inside the door to the apartment.

After appellant looked through the apartment, he began hitting Gilbert with his fists. Gilbert stated that appellant hit her in her “[fjace and everywhere[,]” but that he struck ⁶³¹ her “[mjostly” on her head. Gilbert attempted to fight back and ended up on the floor. She recalled that appellant then had his arm around, her neck.

She heard knocking on her door, and appellant lifted her up, went toward the door, opened the door, and “this girl” that Gilbert knew from work was there. (Courtney Jones later testified, pursuant to a plea bargain, that she was the girl who joined appellant at Gilbert’s apartment.). Gilbert testified that, as soon as the door was opened, the person at the door punched her. The girl entered the apartment, and she and appellant took turns holding and beating Gilbert Appellant and the girl were also verbally abusive.

Gilbert testified: “They started hitting me more and then he [appellant] pulled out a knife and started chopping off all my hair, calling me a bald, dumb bitch.” The girl continued to hold Gilbert. Appellant also tried to cut Gilbert’s face and throat, but the knife was too dull. Gilbert stated that appellant gave the knife to the girl. (Emphasis supplied).

The Attack Escalated At a certain point, the two assailants tied a cord around Ms. Gilbert’s neck. The tying-up of the victim may have engaged the gears of the false imprisonment charge, but it is transparently clear that the continuing assault was no mere incident of false imprisonment. It was a perverse, deliberate, and vengeful infliction of humiliation and degradation. Judge Meredith recounted this aspect of the unrelenting punishment, in its multiple manifestations: The girl cut the cord to the vacuum cleaner and they then used that cord to tie Gilbert up.

Gilbert stated that they used the cord to “hogtie” her “with a noose around [her] neck.” She stated that they looped the cord around her neck three times and that if she moved her head too much, she would choke herself because the cord would tighten. Gilbert tried to free herself, but was unable to do so. In addition, she “was having a panic attack and couldn’t ⁶³² breathe the whole time.” They also put a dirty sock in her mouth. Gilbert stated that after she was tied up, appellant and the girl discussed having sex on top of Gilbert before jumping on her stomach to kill the baby.

At some point, they jumped on Gilbert’s stomach and appellant “was asking me why wouldn’t I die yet.” Gilbert stated that the girl gave appellant oral sex and then “spit it in my face.” Gilbert was still on the couch. She testified: “Then they started having sex on top of me. ” While they had intercourse, the cord pulled on Gilbert’s neck. (Emphasis supplied). We note now for later reference that the tying-up of the victim occurred long before the last minute thought of a robbery popped into anyone’s head.

Gilbert testified to what occurred after appellant and the accomplice got off her: He [appellant] went into the kitchen and started pouring all the juice and water and everything that was cold on me, then poured Tide in my eyes and took the dirty cat litter box, put that on me, started throwing random objects, like vases and stuff that was on, around the living room on me. Then they were talking about either killing me or leaving without killing me. (Emphasis supplied). Robbery As An Afterthought As the fury of the assault wound down and the assailants prepared to call it a night, the “11th hour” robbery was little more than an opportunistic afterthought.

Our opinion went on: Gilbert told appellant where her rent money was and the keys to her car, and he took Gilbert’s laptop computer. Gilbert did not give appellant permission to take these items. She only told him where certain items were because they had been beating her, and she was tied up. After ⁶³³ appellant and the girl took Gilbert’s possessions, they looked through her purse then left.

(Emphasis supplied). As the totality of the evidence made very apparent, the assault was the dog wagging the tail of robbery and not vice-versa. An Assaultive Marathon Our opinion described how Ms. Gilbert freed herself and also recounted her testimony about the duration of the assault. After appellant and the girl left, Gilbert was able to free one foot from the cord, which she estimated took her twenty minutes to accomplish.

She was then able to get to the door, open the door, then screamed and knocked on doors until one of her neighbor’s heard her and called the police. The neighbor then looked for scissors to free her from the cord. Gilbert, estimated that the entire incident with appellant and the girl lasted “two or three hours.” (Emphasis supplied). A three-hour assault was self-evidently no mere incident of a ten-minute robbery.

The Impact on the Victim Both a neighbor and a responding police officer described the state of the victim in the immediate aftermath of her ordeal. Travis Williams testified that he lived in the same apartment building as Gilbert. He was asleep in his apartment during the early morning hours of August 23, 2005, when his girlfriend woke him after she had heard a knock on the door. Williams then heard “a small knock at the door[,]” got up, looked through the peephole, and saw what he thought “was an old lady crying[.]” Upon opening the door, Williams found “a girl, tied up in an extension cord or cable, cable rope, face was bruised and hair was cut off[.]” Williams had his girlfriend call the police and he cut the cord from around the girl’s neck and wrists.

Williams ⁶³⁴ added that the girl was “bruised and battered.... She was in bad shape.” The police soon arrived. (Emphasis supplied). Police Officer Andrew Callahan testified that he responded to the scene at 3:14 a.m., and found the victim lying in the upper foyer area with her hands still tied around her back.

The electric cord which she was tied with was still around her ankles and her wrist. She appeared to be severely beaten, face was severely swelled. She also had like chunks of her hair coming out, very, very upset, very hysterical. (Emphasis supplied).

The false imprisonment and the robbery were the least of Allison Gilbert’s woes. She did not lose the baby. The Flagship Offense of First-Degree Assault The dominant criminal offense perpetrated on Allison Gilbert by the appellant and his accomplice was a vicious and sadistic assault (actually, a continuing series of varied assaults) over a period of almost three hours. It was an assault, moreover, aggravated for sentencing purposes up to the first degree.

In one of his contentions, the appellant argues that the sentence for first-degree assault should have merged into the sentence for robbery. In a second contention, the appellant argues that, alternatively, the sentence for first-degree assault should have merged into that for false imprisonment. Because first-degree assault is at the core of the appellant’s arguments, it behooves us to look closely at its elements and its dimensions. The legislative recognition of an aggravated variety of common law assault, thereafter labeled as first-degree assault, was first made by Section 3 of Ch. 632 of the Acts of 1996.

It is now codified in Maryland Code, Criminal Law Article, § 3-202 and it reads as follows: (a) Prohibited.—... (1) A person may not intentionally cause or attempt to cause serious physical injury to another. ⁶³⁵ (2) A person may not commit an assault with a firearm, including: (i) a handgun, antique firearm, rifle, shotgun, short-barreled shotgun, or short-barreled rifle, as those terms are defined in § 4-201 of this article; (ii) an assault pistol, as defined in § 4-301 of this article; (iii) a machine gun, as defined in § 4-401 of this article; and (iv) a regulated firearm, as defined in § 5-101 of the Public Safety Article. (b) Penalty.—A person who violates this section is guilty of the felony of assault in the first degree and on conviction is subject to imprisonment not exceeding 25 years. In Manigault v. State, 61 Md.App. 271 , 284 n. 2, 486 A.2d 240 (1985), when dealing with the at-times troubled relationship between the misdemeanor of common law assault and what was then the statutory felony of assault with intent to murder, rape, or rob (then codified as Art. 27, § 12), this Court actually anticipated the 1996 splitting of assault into degrees: It might facilitate our ability to conceptualize the relationship if we thought of common law assault as “assault in the second degree” and of the various aggravated assaults as forms of “assault in the first degree.” As is readily apparent, there are two alternative modalities for aggravating an ordinary second-degree assault upward to the first degree.

The first is when the assailant “intentionally cause[s] or attempt[s] to cause serious physical injury to another.” It is a specific-intent crime. The second aggravating modality is concerned exclusively with the actus reus of the assault having been committed “with a firearm.” Simply to clear away some of the clutter, we are dealing in this case only with the first variety of aggravation and not with the second. No firearm was involved. We are concerned only with the aggravating element of intentionally inflicting “serious physical injury” on the victim.

What Judge William ⁶³⁶ Adkins said in Nightingale v. State, 312 Md. 699, 705 , 542 A.2d 373 (1988), with respect to a multi-purpose criminal statute is equally apposite to a criminal statute that sets out alternative modalities of aggravating a crime upward to a higher degree of blameworthiness: When a multi-purpose criminal statute is involved, we refine it by looking at the alternative elements relevant to the case at hand. Double Jeopardy and Merger One of the twin evils traditionally guarded against by the prohibition against double jeopardy, pursuant to