Quinones v. State

BAIR, J. Appellant, Willie Quinones, and his original co-defendant, Quentin Milner, were charged in the Circuit Court for Prince George’s County with armed robbery and related offenses, and were jointly tried by a jury. Just as that trial was coming ⁴ to a close (after the jury was instructed, but before closing arguments), however, the State abruptly decided to enter a nolle prosequi on all charges relating to co-defendant Milner. This unusual development led to supplemental jury instructions and to a protracted discussion concerning the propriety of Appellant’s closing arguments in light of the fact that Milner was no longer in the picture. Ultimately, the trial court declared a mistrial over defense objection during closing arguments.

The defense subsequently moved to dismiss the charges on double jeopardy grounds. The motion was denied after a hearing. This interlocutory appeal followed. Unsurprisingly, Appellant presents a single question for our review, which we have rephrased: Did the trial court abuse its discretion in finding manifest necessity to declare a mistrial and, as a result, err in denying Appellant’s motion to dismiss the charges?

For the reasons that follow, we shall affirm the circuit court’s judgment. Facts and Procedural History On August 3, 2011, in the 900 block of Arbor Park Place in Prince George’s County, three men in a black Cadillac SUV robbed and assaulted Deondre Stephens, Edward Williams, Christopher Bosompen, and Phillip Smith. Specifically, two male suspects jumped out of the Cadillac and demanded the victims’ property. At least one of the suspects had a gun and used it to strike victims Smith and Williams while robbing them of their cell phones, wallets, and cash.

The suspects then jumped back into the Cadillac and fled. The victim Stephens remembered that the last four digits on the Cadillac’s Maryland license tag were “9045.” Initially, Stephens reported that the suspects were unknown to him, but later told police that one of the suspects who exited the Cadillac was someone he thought he knew as ‘Willie.” A trace of the black Cadillac SUV and partial Maryland license tag number of “9045” led to the registered owner, Quentin Milner, a known associate of Appellant, Willie Quinones. ⁵ The victims positively identified Milner and Quinones in a photo array. Williams identified Milner as one of the two suspects who exited the vehicle armed with a handgun and demanded the victims’ property. Stephens, Bosompen, and Smith positively identified Quinones as the second suspect.

On September 13, 2011, Quinones and Milner were indicted in the Circuit Court for Prince George’s County on charges of armed robbery and related offenses. A joint jury trial was held on March 19 and 20, 2012. In its opening statement, the State provided the jury the following summary of its theory of the case: [TJhis case is about team work.... Now, a team has a uniform goal.

Now, to achieve that uniform goal there’s a unity of effort by each person whose [sic] a part of that team.... In the case before you the team consisted of Quentin Milner, Willie Quinones and an unknown person. And on August 3, 2011, Phillip Smith, Edward Williams, Deondre Stephens, and Christopher B[o]sompen were walking down the street in Bowie, Prince George’s County, Maryland. As they were walking down the street, they saw a black Cadillac pull down the street.

Down to the end of the cul-de-sac, turn around and park. Two people jumped out of that car. One of them was Willie Quinones. He had a handgun, and he took that gun and he struck two people.

He first struck Phillip Smith in the head, cutting his face. At the same time they were saying “give that shit up.” They then moved to Edward Williams and said, “give that shit up.” Edward Williams froze. They struck Edward Williams in the head with the gun. At that time Christopher Bosompen and Deondre Stephens complied and gave what they had.

Willie Quinones and Quentin Milner then jumped back into a black SUV and fled the area. But little known to them Deondre Stephens recognized Willie Quinones. He has known him for years. At that point he looked, he got a partial tag. 9-0-4-5 of that black SUV.

They immediately ran to a neighbor who happened to be sitting in his driveway when the robbery occurred who called 911. And in telling the neighbor, as ⁶ well as on the 911 call, “it’s Willie. It’s Willie. It’s Willie.” He recognized him.

At that point when the police department arrived, they gave the police department the partial tag of 9-0-4-5, and when they ran it, a black SUV popped up as one of the possible hits. And it came back to Quentin Milner, a known associate of Willie Quinones. They were — both defendants were placed in photo arrays, and identified by — Willie Quinones was obviously identified by Deondre Stephens. He was identified by Christopher Bosompen.

And Quentin Milner was identified by Edward Williams. The first witness called by the State was one of the victims, Deondre Stephens. Stephens testified that one of the suspects was waving a gun and used the gun to assault Williams and Smith. In court, Stephens identified Quinones as the gun-wielding robber who assaulted Williams and Smith.

Furthermore, Stephens testified that he had known Quinones for more than five years, that Quinones was a friend of his brother, and that he knew him from the neighborhood. On cross-examination, Stephens testified that he told the police about “Willie” verbally, but conceded that his handwritten statement at the police station did not mention him. Stephens also testified on cross-examination that his handwritten statement indicated that one of the suspects, not Quinones, was wearing an L.A. Kings hat. Finally, Stephens testified that he was unable to identify anyone other than Quinones in the photo array at the police station and was similarly unable to identify the second suspect in court.

The second witness called by the State was another victim, Christopher Bosompen. Bosompen testified that both suspects who exited the Cadillac had guns, that the two suspects looked very different from each other, and that only one of the suspects had tattoos on his arms. According to Bosompen’s testimony, Quinones was the man who got out of the passenger side door of the Cadillac, weighed about 220 pounds, was wearing an L.A. Kings hat, and was the only suspect who struck the victims. ⁷ The State’s next witness was a third victim, Edward Williams. Williams testified that only the passenger had a gun, and that it was the passenger who struck him in the head with the gun.

Williams testified that he saw tattoos on the passenger’s arms. In court, Williams was unable to positively identify Quinones as his assailant. On cross-examination, Williams conceded that his written statement to the police said that the only suspect with a gun was the driver. Williams testified that he had been tired at the time and wrote driver instead of passenger.

On the second day of trial, Quinones and Milner were ordered to display their arms to the jury. The parties agreed that both of the defendants had tattoos on their arms. Thereafter, subsequent to the jury instructions and immediately before closing arguments, the State made the following statement, in the absence of the jury, concerning the case against co-defendant Milner: Your Honor, in this case the State will enter this case nolle prosequi for the following reasons. After the jury instructions were read and the defendants were being taken out of the courtroom, the victims immediately approached me and said they need to speak with me urgently.

They said based on the height of the defendant, Quentin Milner, they believe that he was not the second defendant at the crime scene. They said the second person was at least anywhere from six feet to six foot one. Almost as tall as one of the victims, Christopher Bosompen whose [sic] approximately 6'3". During the lunch break, I spoke with them extensively.

They were adamant. Based on the height they kept — then-story did not change as to the height. They also stated that although they could not identify that second defendant by face, they could identify him — well, they could give a description of him. And the description that they gave me is inconsistent with the present height of Defendant Milner so, therefore, based on that, the State has no choice, but to enter that case nolle prosequi because ethically we do not have enough evidence to move forward based on those statements against Quentin Milner. ⁸ The trial court accepted this disposition and co-defendant Milner was taken out of the courtroom.

At a subsequent bench conference, trial counsel for Appellant informed the Court that he had advised Appellant of his right to request a mistrial and that Appellant desired to go forward with the trial. The court acknowledged Appellant’s decision and noted: Now, it’s a strange situation because I would have granted you the mistrial, because of the way the whole trial went. But you’re saying that your client doesn’t want a mistrial. So now we have to find a way to remedy that if he wants to go forward and have this jury deliberate on his charges.

That’s the only option I have at this point with that decision. After further discussion, the following colloquy ensued with regard to supplemental jury instructions: [DEFENSE]: I’m just trying to think if there’s any other curative instructions that I might ask for. THE COURT: You’re going to have to — I know. I’m going to give you time.

You need some curative instructions. You can go over them. [DEFENSE]: My thing is this. I mean, he’s dropping the case against the guy because they said, oh, no, the guy came in he was 6'1". He definitely wasn’t.

But one of the guys, Chris testimony was that the big guy was supposed to be— THE COURT: What is it you want me to do? [DEFENSE]: I don’t know the answer to that yet. THE COURT: 'There is no answer to that except go forward or a mistrial. Those are the only two options here. They are not dropping this case.

That’s the only two options. [DEFENSE]: Okay. I’m trying to think if there’s an instruction that I can request about— THE COURT: Yeah, you should ask. I mean, it could be— I don’t know. Do you will notice that we now only have Mr. Quinones for your consideration.

You are not to make any inference whatsoever as to the absence of Mr. Milner in terms of your deliberations. That’s the only thing I can think of. I mean, I can’t really tell them why. I can’t tell ⁹ them anything except that he’s not here and they should not consider his not being here, or one of the persons on his behalf to make a decision.

I have to tell them that. I don’t know anything else I can do besides that. [DEFENSE]: Okay. Let me go over Mr. Quinones’s options with him. After further discussing matters with his attorney, Appellant reiterated his desire to go forward with the trial.

Defense counsel then requested and was granted a brief recess to review his closing statement to make sure it still made sense in light of Milner’s removal. After the recess, the jury returned to the courtroom and the court gave the following instruction with the consent of the parties: Ladies and gentlemen, you will notice that Mr. Quentin Milner is no longer present. Therefore, prior instructions on separate consideration of multiple counts as to multiple defendants and conspiracy are no longer applicable to this case. You are not to make any inferences or have any discussions as to this fact during your deliberations.

Thank you. During the State’s closing argument, the prosecutor reiterated that the case was “about a team effort,” and referred to the participants as “the defendant’s team.” The circumstances that led the trial court ultimately to declare a mistrial occurred during Appellant’s closing argument, which we must excerpt at some length. [DEFENSE]: [Y]esterday morning [the State] did talk [to] you a lot about team work. He said the whole case was about team work. He wouldn’t stop talking about team work.

Now, we’ve heard all the evidence. We sorted through all of the inconsistencies and all of the contradictions that I told you were going to be there. The total lack of investigation. And after listening to his evidence, his evidence, we now know that the team he was talking about yesterday can’t possibly be the two guys that were in here when this trial started. [STATE]: Objection. ¹⁰ THE COURT: Sustained.

Don’t do that, [Defense Counsel]. [DEFENSE]: May I approach, Your Honor? THE COURT: [Defense Counsel], I said no inferences. Thank you. [Defense Counsel], move on. [DEFENSE]: The reason why it can’t possibly be that team is because of the little things you’re able to sort out through the inconsistencies and the contradictions. The team that [the State] was talking about, according to his witnesses, were to have one man with tattoos on his aims and one man with no tattoos on his arms.

This morning, the team that he offered you yesterday gets up here— [STATE]: Objection. THE COURT: Sustained again, [Defense Counsel]. [DEFENSE]: Your Honor, can I please approach? THE COURT: No, [Defense Counsel]. [DEFENSE]: I have to make a record of this, Your Honor. THE COURT: I’m not going to interrupt your closing, if you want to that’s fine.

Go ahead. If you want to make a record that’s fine. (Thereupon, counsel approached the bench and conferred with the Court, as follows:) THE COURT: [Defense Counsel], you are not to refer to him in this case. I gave that instruction for a reason. [DEFENSE]: But I’m not talking about— THE COURT: Yes, you are. [DEFENSE]: I’m not talking about an inference.

I’m talking about evidence— THE COURT: [Defense Counsel]. [DEFENSE]: Listen to me, Your Honor. I need to be able to put this on the record to proffer— THE COURT: Okay. [DEFENSE]: What I’m getting at is this. There are two people, both 5'7", supposedly driving around in a car that belongs to Quentin Milner. THE COURT: Uh-huh. ¹¹ [DEFENSE]: And the evidence shows that what started out with him saying one was Willie and one was Milner clearly shows that that was all the same guy.

THE COURT: If you— [DEFENSE]: I think it was Milner. THE COURT: If you continue down this road, I can declare a mistrial, and I will. Manifest necessity. We have made it clear earlier that everybody will not say why.

There will be no inferences, and they are not to consider it. But if you keep bringing it up, I will declare a mistrial. [DEFENSE]: But Your Honor— THE COURT: Out of manifest necessity because it all has to be fair on both sides. [DEFENSE]: But Your Honor, this is evidence that he put on that the— THE COURT: I’m telling you, [Defense Counsel], if you continue down that road, I will declare a mistrial. [DEFENSE]: I have to show that who they are saying is Willie is actually Mr. Milner. And that’s exactly what happened in this case. THE COURT: Excuse me.

No. They have not evidence. It’s not the other client, have they? I don’t understand how you jump to that conclusion. [DEFENSE]: Your Honor, my argument is this. They’re saying — [the State] started this trial saying that— THE COURT: All right.

I’m going to have to. If you want to continue on this, the only thing I think is fair to both sides. And I will do it. I don’t see any way around it now.

I really don’t. [DEFENSE]: Well, Your Honor, I have to be able to argue the evidence that’s presented against— THE COURT: If you believe that you have to be [sic] argue it in this case in the manner that you want to, and I believe that this should be a fair trial for both the State and the defense, if I declare the manifest necessity for a mistrial, I will declare a mistrial. ¹² [DEFENSE]: Your Honor— THE COURT: You are going to keep putting this in your argument, then I will have to do that. I’m just saying that. [DEFENSE]: Well, Your Honor, I have to be able to argue— THE COURT: No, you are going further than that. [DEFENSE]: No, I’m arguing things that were presented in court from the witness stand. THE COURT: I’m telling you. If you — you made your record.

Keep going. If it reaches the point where I think it’s going ... I’m just telling you that’s what I’m going to have to do. I won’t have a choice.

I’m really not going to have a choice. [DEFENSE]: Your Honor will do what Your Honor thinks is appropriate, but I have to argue the evidence that was presented in court. THE COURT: All right. Okay. No problem.

Keep going. [STATE]: There was no evidence presented of mistaken identity. There was no evidence that the witnesses were confused. [DEFENSE]: I’m getting to it. I’m going to tell you why I think that. [STATE]: There was no evidence as to— THE COURT: I can see right now there’s going to be a problem based on your closing. [STATE]: There’s no evidence that there was mistaken identity, it’s no evidence that the witnesses were confused. [DEFENSE]: What am I supposed to do? That’s absolutely ridiculous based on— THE COURT: You think it’s evidence and really, your hands are tied and there’s no way to proceed then I think that the best thing is to declare a mistrial. [DEFENSE]: I think I should be able to fairly argue the evidence that was presented to the jury.

THE COURT: I didn’t say you can’t argue. ¹³ [DEFENSE]: Well, Your Honor, the evidence was that two people with tattoos. One person had a tattoo, one person didn’t. THE COURT: Okay. Then you want to say, and you saw earlier. [DEFENSE]: Right.

Right. THE COURT: Your client had tattoos. [STATE]: Inside of his arms. [DEFENSE]: I have an absolute, absolute right to say that the State’s theory that they started this case with is absolutely wrong based on the evidence that was presented in court. THE COURT: What theory was wrong? About your client or about Mr. Milner? [DEFENSE]: He — he— THE COURT: They are serious about Mr. Milner is going, but now — are you going to argue that their theory against your client is wrong or against Mr. Milner? [DEFENSE]: I’m going to argue that you have two sets of identifications.

One with Mr. Milner, one of [Appellant] against somebody whose [sic] clearly the same guy. And that’s inherent reasonable doubt. THE COURT: Excuse me? You’re going to have one that what? [DEFENSE]: Somebody — he—[the State] started this case saying Mr. Milner did something and [Appellant] did something.

When the evidence came out, it’s clear that was only one guy. THE COURT: Only one guy what? [DEFENSE]: That some people said it was [Appellant] and some people said it was Milner. We’ve got Milner— THE COURT: No one ever said it was Milner. [DEFENSE]: No, it was by inference. THE COURT: Okay. [DEFENSE]: No, that it was Milner.

Because somebody-he was identified in a photo spread. ¹⁴ THE COURT: No. I can see this is going to be hard, because of where you are going in your closing. Then I’m telling you I might have to. I don’t see any way around it, [Defense Counsel]. We’ll have to have a clean trial from the very beginning.

I don’t know, but to use it at this juncture of what happened. I don’t think is fair to either side to allow you to do it. He didn’t try and do it in his closing. If you’re going to keep harping on it, we’ll see.

Step back. Keep going. Step back, keep going, [Defense Counsel]. (Thereupon, the proceedings had at the bench were concluded, and the trial resumed, as follows:) [DEFENSE]: The State presented you with a very specific team work yesterday.

Today, we know that the theory that he presented you is wrong. We know that because according to his own witnesses, he should have two people before you. [STATE]: Objection. THE COURT: Sustained. [DEFENSE]: We know, according to [the State’s] evidence. The State’s evidence that the people that did this on August 3rd, 2011 consisted of one person who was very big, 220, very tall.

And one person who was a lot smaller. Yesterday he told you that it was a team. Today, no team. [STATE]: Objection. THE COURT: No theme, you said? [DEFENSE]: Your Honor, can we approach again?

THE COURT: No. No. Keep going, [Defense Counsel]. [DEFENSE]: Okay. [The State] told you yesterday that the two guys sitting at that table were a team. [STATE]: Objection. Objection. THE COURT: It’s not what [the State] said. It’s not evidence so I have to sustain it.

Go ahead, keep going, [Defense Counsel]. At the request of defense counsel, a bench conference was held, where the following colloquy ensued: THE COURT: [Defense counsel] said. ¹⁵ [DEFENSE]: I’m absolutely allowed to refer to what he said in opening. He promised them things— THE COURT: You just want— [DEFENSE]: He promised them to prove