Reeves v. State

²⁸³ ZARNOCH, Judge. Appellant, Alfred Jerome Reeves, a resident of the District of Columbia, was tried by a jury in the Circuit Court for Prince George’s County on charges of armed carjacking and related offenses. The jury found appellant guilty of carjacking, robbery, car theft, theft of goods with a value of over $500, second degree assault, and fleeing and eluding. The court originally sentenced appellant on August 29, 2008.

Appellant filed a Motion to Correct Illegal Sentence, which was granted on May 20, 2009. Subsequently, the court sentenced appellant to 30 years’ incarceration, with all but 10 years suspended, for the carjacking conviction, and to a concurrent 15 years’ incarceration, all but 10 years suspended, for the robbery conviction. All other convictions were merged for the purposes of sentencing. In this timely appeal, appellant presents three questions for our review, which we have slightly modified as follows: 1.

Did the trial court violate appellant’s right to be present at every stage of trial when it took the jury’s verdict in appellant’s absence without first conducting an adequate inquiry to ensure that his absence was voluntary? 2. Was the evidence insufficient to prove that appellant committed a carjacking and a robbery? 3. Was the evidence insufficient to prove that appellant was the person who committed the crimes? For the reasons set forth below, we shall affirm the circuit court’s judgments.

FACTUAL AND PROCEDURAL HISTORY On January 27, 2007, Joseph Durda, a man in his eighties, and his wife returned home from lunch and parked their 2001 Ford Windstar in the driveway of their Fort Washington home. Intending to wash the minivan, Durda briefly went into the house to change his clothes. He went to the garage and prepared the water and hose to complete the chore. ²⁸⁴ Deciding that he wanted to move the minivan to the middle of the driveway, Durda re-entered his home to retrieve his keys. When Durda came back out, a stranger was standing in his garage.

The man said, “I want your wallet and keys.” Durda hesitated and responded, “What?” The man said, “I want your wallet and keys, or I’ll shoot you.” 1 The man then reached out and grabbed the keys from Durda’s hand, quickly patted Durda down, then ran out the garage door and jumped in Durda’s ear. The man backed the car out of the driveway and took off down the road. Durda immediately called 911. Durda testified that the man who accosted him was African-American and wore light blue jeans and a blue jacket.

The man was of average height, about 5 feet 10 inches tall, and muscular. Durda guessed that the man was about 25 years old. Durda testified that the encounter lasted only ten to fifteen seconds. At trial, he identified appellant as the man who stole his vehicle.

Durda also testified that he had seen and recognized appellant in the hallway and men’s room of the courthouse prior to the commencement of the trial. Officer Myron Young of the Prince George’s County Police Department was on patrol when he heard the broadcast about a carjacking of a gray Ford Windstar van. Within five minutes of the call, Officer Young spotted the van and pulled out behind it. The van started “to run” and ran a red light, so Young activated his emergency lights.

Young called in the van’s tags to verify that it was the stolen vehicle. The van continued at a high rate of speed, at some points in excess of 100 miles per hour, and ran at least one more red light. On Interstate 295, Officer Richard Leska joined the pursuit. The van attempted to evade the police by swerving around the police cars and going the wrong way on an exit ramp at high speed.

The officers continued pursuing the van as it entered the District of Columbia. At some point, Young’s police car ²⁸⁵ stalled. Leska, however, continued pursuing the van. When Young was able to restart his car, he continued in the direction that the van and Leska had gone, and soon saw Leska pursuing appellant on foot.

Young joined the foot pursuit, eventually apprehending appellant on the porch of a house. At trial, Young identified appellant as the man he apprehended. Officer Leska testified about his participation in the high-speed pursuit of the van. After a ten or fifteen minute chase, the driver of the van lost control and struck a tree or pole on the side of the road.

Leska observed appellant, dressed in a blue jacket and blue pants, exiting the driver’s side of the van. As he was running, appellant removed and dropped the blue jacket. Appellant ran around the back side of a nearby home, but was blocked by a fence. He then doubled back through the yard and ran three or four houses up the street before crossing the road and running up onto the porch of a house.

Leska exited his car and pursued appellant on foot onto the porch. Appellant was out of breath when Leska caught him. Leska held appellant at gunpoint until Young arrived and placed appellant under arrest. Leska testified that he did not lose sight of appellant at any time during the foot pursuit.

He also identified the blue jacket appellant had dropped during the pursuit, as well as a pair of gloves retrieved from just outside the front driver’s side of the minivan. Late that night, Detective Richardson met with the victim. Durda chose appellant’s photo from an array and identified him as the perpetrator. Durda signed and dated the photo he recognized.

On the back, Durda wrote in the comments section, “He resembles him.” Durda testified that the intent of his written comment was that the man in the photo looked like the man who accosted him. Appellant was arrested on January 27, 2007. He posted bond on July 26, 2007, and was released until trial. Appellant’s trial began on November 5, 2007.

Appellant and his attorney were present during that entire day. The case went to the jury at 5:40 p.m. At 5:54 p.m., the court ²⁸⁶ dismissed the jury for the day, instructing them to return to continue deliberations at 9:00 a.m. the next morning. The judge also told the jurors that they would assemble in a different court room the next day.

After the jury exited, the prosecutor asked, “Reassemble at 9:00?” The judge answered, “We’ll just record what time they start their deliberations. It will take at least two hours or so at a minimum probably, so just make certain we know where you’re at.” When the case was called the following day, November 6, 2007, at 11:20 a.m., appellant’s absence was noted in the record. The following discussion then occurred: THE COURT: It’s 11:20, we have the attorneys present. [Prosecutor]? You can have a seat. [Defense Counsel]. [DEFENSE COUNSEL]: All I can represent is he’s on his way.

I don’t know if the Court wants— THE COURT: Have you had communication at all? I know yesterday he got here about ten o’clock or so. [DEFENSE COUNSEL]: Right. I talked to his family members, and I actually finally got to him. He said he’s on his way.

THE COURT: We’re going to take the verdict in his absence. It’s now 11:20. He was here yesterday when we told everyone that the jury would return at 9:00 today. Bring the jury in, please.

The jury was called, and it rendered the guilty verdicts. Appellant’s attorney requested that the jury be polled. All of the jurors confirmed that they agreed with the verdict. The judge discharged the jury at 11:24 a.m.

The judge then issued a bench warrant for appellant’s arrest. Appellant turned himself in on December 3, 2007. He was held without bail, and sentenced on August 29, 2008. At the sentencing hearing, appellant admitted that he was on the run from November 5, 2007, the day the verdict was rendered, until he turned himself in on December 3, 2007, at which time “[he] got sick and tired of running, and [he] had to surrender.” ²⁸⁷ The prosecutor filed a Notice of Mandatory Sentence before the sentencing hearing, stating that appellant had previously been convicted of a crime of violence and requesting that appellant be sentenced to 30 years and not less than a mandatory 10-year sentence.

At the sentencing hearing on August 29, 2008, the prosecutor said that appellant had previously been convicted of four robberies in Montgomery County and assault, but the prosecutor was unsure whether it was a felony or misdemeanor assault. Appellant and his counsel both mentioned appellant’s history of bipolar disorder and drug abuse and said that he was in a program that was helping him with those problems. As noted, the court sentenced appellant to 30 years’ incarceration, with all but 10 years suspended, for the carjacking conviction, and to a concurrent 15 years, all but 10 years suspended, for the robbery conviction. Although appellant filed post-trial motions, none raised the issues pressed here.

Additional facts will be provided as necessary. ANALYSIS I. Appellant’s Absence Appellant contends that the trial judge erred when he failed to conduct a reasonable inquiry to determine whether appellant’s absence from court when the verdict was read was voluntary. Appellant further asserts that the court failed to make a necessary finding on the record that his absence was voluntary, and that the trial judge abused his discretion when he took the verdict in appellant’s absence. He argues that his constitutional right to be present at every stage of trial was violated, and therefore his convictions must be reversed.

The State responds that appellant’s claim should be rejected because he was represented by counsel, and both he and his attorney were present for the entire evidentiary part of the trial and jury instructions. The State further contends that appellant failed to adequately inform the trial court of his whereabouts when his trial resumed on November 6, 2007, in contravention of the judge’s orders the previous evening. ²⁸⁸ Therefore, the State argues, the trial court properly exercised its discretion when it determined that appellant’s absence was voluntary and allowed the jury to render its verdict. It is well established in Maryland that a criminal “defendant is entitled, as a constitutional right, under Maryland common law, and under Maryland Rule 4-231, to be present at trial.” 2 Collins v. State, 376 Md. 359, 375 , 829 A.2d 992 (2003) (citing Pinkney v. State, 350 Md. 201, 208-09 , 711 A.2d 205 (1998)). As the Court of Appeals explained in Brown v. State, 272 Md. 450, 458 , 325 A.2d 557 (1974) (citations omitted) (emphasis in original): Long before adoption of Maryland Rule [4-231][ 3 ] it was recognized that the accused has a right to be present at every material stage in the trial — the swearing of the witnesses, the presentation of the evidence, the charge to the jury, special instruction to the jury during its deliberation, and the rendition of verdict — else there could be no valid judgment against him.

The right of a criminal defendant to be present at all material stages of trial is embodied in Maryland Rule 4-231, which provides, in pertinent part: (a) When presence required. A defendant shall be present at all times when required by the court.... (b) Right to be present — Exceptions. A defendant is entitled to be present at a preliminary hearing and ²⁸⁹ every stage of the trial, except (1) at a conference or argument on a question of law; (2) when a nolle prosequi or stet is entered pursuant to Rules 4-247 and 4-248; or (3) at a reduction of sentence pursuant to Rules 4-344 and 4-345.

Although the current rule does not explicitly state that a defendant is entitled to be present at the rendering of a verdict, it provides that the right extends to “every stage of the trial.” Former Rule 775 specifically provided that “[t]he accused shall be present ... at every stage of the trial including the ... return of the verdict.” Indeed, in Brown the Court of Appeals said that the rendition of a verdict is a material stage of the trial at which the defendant is entitled to be present. 4 272 Md. at 458 , 325 A.2d 557 . The right to be present at trial is not absolute, however, and may be waived, as provided for in Maryland Rule 4-231(c): Waiver of right to be present. The right to be present under section (b) of this Rule is waived by a defendant: (1) who is voluntarily absent after the proceeding has commenced, whether or not informed by the court of the right to remain; or (2) who engages in conduct that justifies exclusion from the courtroom; or (3) who, personally or through counsel, agrees to or acquiesces in being absent. In Pinkney , a case where the defendant was absent for the entire trial, the Court of Appeals discussed at length the right of a defendant to be present at trial and the trial court’s obligation to determine whether a defendant’s absence is ²⁹⁰ voluntary. 350 Md. at 213-24 , 711 A.2d 205 .

The Court said that the determination that a defendant’s absence is voluntary must be clearly established and will not be presumed. Id. at 214, 711 A.2d 205 ; see also Haley v. State, 40 Md.App. 349, 361 , 392 A.2d 551 , cert. denied, 284 Md. 744 (1978). As the Court stated in Pinkney, 350 Md. at 217 , 711 A.2d 205 : If the trial court presumes waiver from a virtually silent record, and thus consciously proceeds in ignorance, then a lack of alternative explanations as to the defendant’s presence at the time of trial cannot support the finding of a knowing and voluntary waiver of the right to be present. Although the Court declined to “set forth a litany which the trial court must slavishly follow in order to establish that a defendant’s absence is knowing and voluntary,” it stated that “the record must reflect that adequate inquiry has been made to ensure that a defendant’s absence is not in fact involuntary.” Id.

The Court then described the inquiry a trial court must make to determine whether a defendant’s absence is voluntary: [Bjefore a court may find an agreement or an acquiescence to trial in absentia, the court must generally be satisfied of two primary facts: that the defendant was aware of the time and place of trial, and that the non-appearance was both knowing and sufficiently deliberate to constitute an agreement or acquiescence to the trial court proceeding in his or her absence. Usually, as in this case, the defendant’s awareness of the time and place of trial will be easily established. Evidence, in the form of a summons or other document, will appear in the record to substantiate the State’s burden of showing that the defendant was notified of the time and place of trial. In most cases, the more difficult question presented will be why the defendant is not in court.

In determining whether a defendant’s absence is truly voluntary, many trial courts have prudently taken investigatory measures before finding a waiver of the right to be present at trial. That ²⁹¹ information could come in the form of a direct or indirect statement from the defendant; it could come from a statement by another person, or such information could come from other evidence that the defendant has, in fact, absconded. For instance, in Barnett [v. State, 307 Md. 194, 199-200 , 512 A.2d 1071 (1986)], we noted with approval the trial court’s efforts to locate the defendant by delaying the proceedings one day, questioning defense counsel as to the whereabouts of the defendant, and contacting area hospitals. A telephone call to the defendant’s place of employment, if that information is available, would also be a prudent investigatory measure.

See also Sorrell v. State, 315 Md. 224 , 229 n. 2, 554 A.2d 352 (1989) (suggesting that it may be helpful for the trial court to contact the defendant’s family). Id. at 215-16, 711 A.2d 205 (some citations omitted). The Court went on to note, id. at 216-17, 711 A.2d 205 : If, through such an investigation, the trial court discovers that the defendant could have appeared, but simply made a decision not to do so, the court may, of course, find a waiver of the right to be present from that affirmative information. More frequently, however, the court will not have an affirmative confirmation that the defendant’s absence is voluntary, but will instead only possess information suggesting the non-existence of alternative explanations.

If reasonable inquiry does not suggest that the defendant’s absence was involuntary, and if the information before the court implicitly suggests no other reasonable likelihood of involuntary absence, the court may, as in Walker [v. State, 338 Md. 253 , 658 A.2d 239 , cert. denied, 516 U.S. 898 , 116 S.Ct. 254 , 133 L.Ed.2d 179 (1995)], draw the initial inference that the defendant’s absence was a knowing one and was sufficiently deliberate so as to constitute an acquiescence to being tried in absentia. The Court also stated that a criminal defendant who was found to have voluntarily waived his right to be present at trial must be afforded the opportunity to explain his absence at a subsequent hearing or sentencing. Id. at 217-18, 711 ²⁹² A.2d 205. Even if a trial court finds that a defendant waived his right to be present by voluntarily absenting himself, the court must inquire further before proceeding in his absence.

Id. at 218, 711 A.2d 205 . The Pinkney Court also noted: The discretion of the trial court to try an absent defendant should be exercised after a review of all the appropriate concerns and with the recognition that the public interest and confidence in judicial proceedings is best served by the presence of the defendant at trial. Other countervailing interests limiting the exercise of a trial court’s discretion in such circumstances include the State’s interests both in an accurate determination of guilt and in public confidence in the judiciary as an instrument of justice. Moreover, the defendant’s presence “assures that the trial court is ‘keenly alive to a sense of [its] responsibility and to the importance of [its] functions.’ ” Id. at 218-19 , 711 A.2d 205 (citations omitted).

According to the Court, the timing of the defendant’s absence is a relevant factor: [W]e believe that the commencement of trial vel non is a significant factor which properly informs the trial court as to whether to exercise its discretion to proceed with the trial of a criminal defendant after the court has found a voluntary relinquishment of the right to be present. Yet, we do not believe that the point at which the trial commences is a sacrosanct line of demarcation. Forbidding the trial of a defendant who absented him or herself prior to the commencement of trial, while allowing the trial of that same defendant to proceed if the absence had occurred one minute after the trial commenced, would impermissibly cede control of judicial administration to the criminal defendant, as well as encourage a defendant to abscond prior to trial if the defendant believes a guilty verdict is likely. Recognition of the significance of the commencement of trial reflects the common sense notion that a defendant who is present on the day of trial would generally be aware of ²⁹³ the obligation to be present, and thus more culpable in his or her absence.

In addition, once the trial has commenced, the State’s interest in a timely conclusion to that trial significantly increases due to the expenditure of judicial and other resources. Id. at 221-22, 711 A.2d 205 (citations omitted). In this case, appellant contends that the court abused its discretion when it failed to conduct a proper inquiry as to the reason for appellant’s absence before accepting the verdict. We first note that this argument may not be preserved.

Before the court accepted the verdict, appellant’s counsel apparently expressed concern that appellant’s absence might affect the verdict and began requesting, “could the Court just minimize it and say he’s — .” In response, the judge responded that if the jury seemed to be affected by appellant’s absence, he might send the jurors back to deliberate further. Counsel, however, never expressly objected to the court’s acceptance of a verdict not influenced by the appellant’s absence. Moreover, appellant failed to raise this issue in a post-trial motion or even mention it at the sentencing hearing. We have not found a Maryland case directly on point, but there is authority from other jurisdictions that a defendant waives the right to argue this issue on appeal if it was not raised in a post-trial motion as grounds for a new trial.

See Annot., Absence of Accused, at Return of Verdict in Felony Case, 23 A.L.R.2d 456 , § 9 (1952, 2008) and cases cited therein. Nevertheless, since the State did not argue non-preservation and we have found no Maryland case directly addressing preservation in a situation like this, we shall address appellant’s argument on its merits. Although the trial judge did not conduct an extensive inquiry on the record into appellant’s whereabouts and any reason for his absence, we believe the circumstances provided the judge a sufficient basis to conclude that appellant voluntarily failed to appear that day. Appellant was present during the entire one-day evidentiary, argument, and instruction portions of the trial.

That evening, the judge instructed the jurors that they were excused until 9 a.m. the following morning, at which ²⁹⁴ time they would resume deliberations. The judge then indicated to counsel and appellant that they were not required to reassemble at 9 a.m., but said that deliberations would take at least two hours, “so just make certain we know where you’re at.” The next morning, at 11:20 a.m., two hours and twenty minutes after the jury was told to return, appellant was not in court. The judge asked defense counsel where appellant was, to which counsel answered, “All I can represent is he’s on his way,” and that he talked to appellant’s family members and appellant, who said that he’s on his way. The judge responded, “We’re going to take the verdict in his absence.

It’s now 11:20. He was here yesterday when we told everyone that the jury would return at 9:00 today.” In Pinkney , the Court indicated that the presence of the defendant at one portion of trial, but his absence at another, would be a significant factor in the Court’s determination of voluntariness. 350 Md. at 222 , 711 A.2d 205 . Other courts have found that a defendant’s presence in court when informed of the date and time to return was sufficient evidence of voluntary absence. See, e.g., People v. Davis, 69 Ill.App.3d 548 , 26 Ill.Dec. 543 , 388 N.E.2d 167 (1979).

Despite counsel’s assertion that appellant said he was “on his way,” appellant’s absence two hours and twenty minutes after the jury was told to return, after having been instructed the previous evening to “make certain we know where you’re at,” was evidence from which the trial judge could conclude that appellant voluntarily failed to appear. Other significant indicia pointed to a conclusion that appellant voluntarily failed to appear for the verdict. Appellant, a District of Columbia resident, was out on bail before and during the trial. He was charged with serious crimes, including carjacking and armed robbery, for which he faced stiff sentences if convicted.

During the one-day trial, the carjacking victim described the ordeal and identified appellant as the perpetrator. Two police officers then testified about their pursuit and apprehension of appellant just a short time after the vehicle was stolen. Corporal Leska testified that Reeves exited and fled from the stolen minivan after crashing it, that ²⁹⁵ he never lost sight of Reeves during the chase, and that Reeves was out of breath when finally apprehended. Appellant did not present any evidence in his defense.

Had appellant appeared for the rendering of the verdict, he was likely to be incarcerated immediately after having been convicted. After the guilty verdicts were rendered, the judge issued a bench warrant for appellant’s arrest, an action expressing a clear belief that appellant — after having witnessed the strength of the State’s case for guilt and facing likely incarceration — had fled. Therefore, although the trial judge did not conduct an elaborate inquiry on the record about appellant’s whereabouts, the circumstances provided the judge a sufficient basis to conclude that appellant voluntarily failed to appear. 5 Moreover, and quite significantly, appellant and his counsel expressly stated on the record at the sentencing hearing that appellant fled and was voluntarily absent from the rendering of the verdict. We have not found a Maryland case addressing the question of whether after-acquired knowledge by this Court or a trial court that a defendant’s absence was voluntary can justify an earlier and perhaps questionable decision to proceed without the defendant.

However courts in other jurisdictions have held that appellate courts may consider information that only became known in hindsight when reviewing a trial court’s determination of voluntary absence of a defendant and decision to proceed with trial. In People v. Connolly, 36 Cal.App.3d 379 , 111 Cal.Rptr. 409, 411 (1973), at the close of the first day of Connolly’s trial, at which he was present, he was ordered to appear the next day. Upon his failure to appear the next morning, the court con ²⁹⁶ ducted a hearing to determine whether his absence was voluntary. Id.

Connolly’s wife and a neighbor testified that they were unable to find him, and neither the prosecutor nor defense counsel received a phone call from Connolly. Id. The trial court found that the defendant was voluntarily absent, and the trial proceeded. Id.

On appeal, Connolly contended that there were insufficient facts before the trial court to establish that his absence was voluntary. Id. at 412 . The Court of Appeal of California said: Unquestionably [the California statute allowing a trial to proceed when the defendant is voluntarily