Robinson v. State

GRAEFF, J. A jury sitting in the Circuit Court for Prince George’s County convicted appellant, Michael Robinson, of second-degree assault. The court sentenced appellant to five years, with all but one year suspended, to be served on county home detention. ¹⁸⁰ Appellant presents multiple questions for our review, 1 which we have reorganized and rephrased slightly: 1. Did the circuit court err in denying appellant’s request for a hearing on his motion to dismiss for vindictive prosecution? 2. Did the circuit court err in denying appellant’s motion to dismiss the charges based on the State’s failure to file a bill of particulars? 3.

Was the evidence sufficient to support appellant’s conviction for second degree assault? 4. Did the circuit court err in giving jury instructions on both intentional and reckless conduct? 5. Did the circuit court err in refusing to give appellant’s requested jury instruction on defense of others? For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND On April 22, 2010, appellant visited Club Elite, a night club in Prince George’s County, Maryland, to celebrate the birthday of his friend, Patrick Young. He arrived between 11:00 p.m. and 12:00 a.m. Approximately half an hour later, he noticed security guards removing Mr. Young and Stanley Fields, another one of his friends, from the club. Appellant followed Mr. Young and Mr. Fields outside, and he saw them engaged in a verbal dispute with several other men in the parking lot.

After one of the men threw a punch, the dispute escalated into a fistfight. ¹⁸¹ Deputy Alvin Lide, a member of the Prince George’s County Sheriffs Office, was working as a security guard at Club Elite that evening. Deputy Lide began his career in law enforcement in 1996, and he had worked part-time at Club Elite since approximately 1997. After the fight broke out, he and Deputy E eolia Moore, 2 another member of the Prince George’s County Sheriffs Office who provided security at Club Elite, closed down the club, and attempted to break up the fight. Appellant hit Deputy Lide with his car while Deputy Lide was attempting to break up the fight in the parking lot.

The State initially filed criminal charges against appellant as a result of the incident, but these charges were nol prossed on July 19, 2010. On August 12, 2010, the State again charged appellant with second degree assault, attempted second degree assault of a law enforcement officer, and reckless endangerment. Appellant’s first trial, which ended in a mistrial, began on July 11, 2011. On October 13, 2011, the trial that is the subject of this appeal began.

The State called two witnesses: Deputy Lide and Deputy Moore. Deputy Lide testified that, as people were exiting the club that night, he and Deputy Moore stood outside with their backs to the parking lot. 3 Deputy Lide heard someone behind him yelling “officer, officer, fight.” As he turned around to look, he saw a crowd of people gathered. He walked to where he could see past the crowd, and he saw Mr. Fields lying on the ground with “about four or five people jumping up and down on him, stomping on him.” Deputy Lide and Deputy Moore ran to the middle of the parking lot, at which point all but one of the people attacking Mr. Fields ran away. Deputy Lide struck the remaining assailant with his baton. ¹⁸² The assailant started to run away, and Deputy Lide pursued him.

During the chase, Deputy Lide heard a car coming from behind him. He heard the sound of the car’s engine revving, and “[i]t kept getting louder and louder and it was coming faster.” Deputy Moore, who was standing nearby, testified that she saw the car pass by her and turn toward Deputy Lide and the assailant, “coming really fast” and she saw people around the car “getting out of the way or at least attempting to.” As the car approached, she screamed for the driver to stop. Deputy Lide turned around, at which point the car swerved toward him and struck him, throwing him into the air and knocking his baton, radio, and phone off his person and to the ground. Prior to impact, Deputy Lide saw the driver of the vehicle, who he identified as appellant.

While Deputy Lide was in the air following the impact, Deputy Moore started shooting at the car. Deputy Lide also fired three shots at appellant after he landed back on his feet. As he was firing, he saw appellant duck down, and at that point, he stopped shooting. Appellant then sat up, put the car in reverse, and backed up as far as he could given other cars parked behind him.

Deputy Moore fired another shot at appellant as he was backing up the car. Deputy Lide suffered from a torn rotator cuff as a result of appellant’s car hitting him. Because he had discharged his gun, he was subjected to an internal investigation. At the conclusion of the investigation, Deputy Lide remained in his position.

After Deputy Lide and Deputy Moore testified, the State rested its case. Appellant moved for judgment of acquittal. He argued that “the State has failed to produce a prima facie case .... all that the State has shown is that [appellant] was shot after a case of automobile negligence.” The Court denied the motion, stating “[t]he case is a prima facie case.” Appellant then presented his defense. In addition to his own testimony, described below, appellant presented four witnesses.

Two of appellant’s friends, William Cunningham and Mr. Young, testified that they saw Deputy Lide and ¹⁸³ Deputy Moore shooting at appellant as he drove his car in reverse. Kevin Eaton, another friend who witnessed the events outside of Club Elite, testified that, prior to the shooting, he saw appellant’s car “bobbing and weaving” through the crowd as people were running. Finally, Mr. Fields testified that, before he was attacked, appellant attempted to diffuse the situation and break up the fight. Appellant testified that he attempted to break up the fight in the parking lot.

Believing it was over, he went back in the club to check on a friend who was still inside. He found his friend and then returned outside to go to his car. On his way, he saw Mr. Young’s car, with its doors open and engine running. He got out of his car, turned off his friend’s vehicle, and saw the group of men attacking Mr. Fields in the parking lot.

Appellant went to aid Mr. Fields and was trying to get him to get up off of the ground “because some of the guys had started running off because they said the police [were] coming.” Appellant tried to get Mr. Fields’s attention, but he was unable to. He ran back to his vehicle. He planned to get Mr. Fields in the car “because [Mr. Fields] was unable to walk or even comprehend at the time.” When appellant pulled out of the parking space, he saw a young woman attempting to avoid his car. He “turned to avoid striking her[.]” As appellant pulled up to Mr. Fields, but before he reached him, he saw someone in front of his car.

He slammed on the brakes and “put the car in reverse just to back up.” At the time, he thought “wow, I almost hit this guy.” As he was backing up, shots were fired. Appellant testified that he did not intentionally swerve towards Deputy Lide, but he may have turned toward him as he sought to avoid hitting the young woman. He testified that his car did not actually hit Deputy Lide, but rather, it stopped “maybe three, four, five steps” from the officer. Appellant saw Deputy Lide attempt to get out of the way of the car by putting his hand out.

Appellant was shot seven times in the legs and torso, and he suffered permanent nerve damage from one of the wounds to ¹⁸⁴ his legs. After his car came to a stop, Deputy Moore pulled him from the car and stood over him with her knee on his back. Deputy Moore released appellant when other officers arrived. Appellant was then taken to the hospital in an ambulance.

After the defense rested, appellant renewed his motion for judgment of acquittal. He stated that “no rational trier of fact could find [him] guilty beyond a reasonable doubt,” and again argued that “all that the State has proved here today is that, for a simple act, perhaps of negligence,” appellant was “shot repeatedly.” He argued that “[t]hat does not qualify as an assault.” The court again denied his motion. The case was submitted to the jury, and the jury found appellant guilty of second degree assault. On October 18, 2011, appellant filed a Motion for New Trial And/Or Motion to Dismiss And/Or Motion for Appropriate Relief.

After the motion was denied, appellant was sentenced, and this timely appeal followed. DISCUSSION I. Vindictive Prosecution In the circuit court, appellant filed a motion to dismiss for retaliatory prosecution, and he requested a hearing. Appellant argued that the charges against him initially had been nol prosed, and then he was recharged after he “filed a notice of intent to file suit against the police[.]” Counsel alleged that the new charges were based on a desire to retaliate for the civil suit, and he asked to call the two officers to testify to the sequence of events. The court stated that appellant could raise the argument with the jury, and it denied the motion to dismiss without an evidentiary hearing.

Appellant contends that the circuit court erred in failing to grant him a hearing on his motion to dismiss due to “vindictive, selective, and/or retaliatory prosecution.” He argues that the charges against him were improper because they ¹⁸⁵ were motivated by his act of filing a civil suit against Prince George’s County for acts of brutality, i.e., shooting him as he was backing away. The State contends that the trial court “properly determined that [appellant’s] allegations of selective prosecution failed to warrant an evidentiary hearing.” It asserts that appellant’s “mere allegation of bad faith, unsupported by objective evidence, was insufficient to warrant a hearing.” The United States Supreme Court has made clear that it is improper for the State to retaliate against a person for exercising a legal right. Bordenkircher, Penitentiary, Superintendent v. Hayes, 434 U.S. 357, 363 , 98 S.Ct. 663 , 54 L.Ed.2d 604 , r’hng denied, 435 U.S. 918 , 98 S.Ct. 1477 , 55 L.Ed.2d 511 (1978). In Bordenkircher, the Court explained: To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce [ 395 U.S. 711, 738 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969) ] (opinion of Black, J.), and for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is “patently unconstitutional.” Id.

(quoting Chaffin v. Stynchcombe, 412 U.S. 17 , 32-33 n. 20, 93 S.Ct. 1977 , 36 L.Ed.2d 714 (1973)). “A selective-prosecution [or vindictive prosecution] claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.” United States v. Armstrong, 517 U.S. 456, 463 , 116 S.Ct. 1480 , 134 L.Ed.2d 687 (1996). 4 ¹⁸⁶ In State v. Adams, 293 Md. 665, 666 , 447 A.2d 833 (1982), the Court of Appeals addressed a claim of prosecutorial vindictiveness when the State filed three separate criminal charges against Adams after he successfully moved to dismiss an earlier charge, involving a single count. The Court rejected this claim, stating that Adams had presented “no evidence of actual vindictiveness” supporting his allegation that the prosecutor retaliated against him based on his exercise of his right to challenge the legality of the charging document. Id. at 667 , 447 A.2d 833 . The only evidence Adams pointed to was that, after he had successfully moved to dismiss the charges against him based on a defective charging document, a new charging document was filed that increased the charges against him.

Id. at 667 , 447 A.2d 833 . Noting that there was no presumption of vindictiveness in the pretrial setting, id. at 672 , 447 A.2d 833 , the Court stated that “Adams’ subjective fears, standing alone,” were “hardly sufficient” to require a finding of vindictiveness. Id. at 674 , 447 A.2d 833 . The Court noted that “a prosecutor’s charging decision is presumptively lawful,” and “a prosecutor should have the freedom, at least in the pretrial stage, to exercise the broad discretion of his office to ascertain society’s continuing interest in prosecution, i.e., ‘an initial decision should not freeze future conduct.’ ” Id. at 672 , 447 A.2d 833 (quoting United States v. Goodwin, 457 U.S. 368, 382 , 384 n. 19, 102 S.Ct. 2485 , 73 L.Ed.2d 74 (1982)).

Accord McNeil v. State, 112 Md.App. 434, 463 , 685 A.2d 839 (1996) (“The State enjoys wide discretion in its decision to prosecute ... and the judiciary is ordinarily reluctant to inquire into the executive’s charging decisions.”). In United States v. Miller, 948 F.2d 631, 632-33 (10th Cir.1991), cert. denied, 503 U.S. 912 , 112 S.Ct. 1278 , 117 L.Ed.2d 504 (1992), the United States Court of Appeals for the Tenth Circuit was presented, as we are here, with a claim of vindictive prosecution based on the timing of the charges. In that case, Miller’s criminal prosecution for filing false income tax refunds followed his filing of a civil lawsuit against the Treasury Department, his former employer, and the court addressed the issue whether the timing alone created a pre ¹⁸⁷ sumption of vindictiveness on the part of the prosecution. In rejecting that claim, the court noted that, generally, there is no such presumption in the context of pretrial prosecutorial decisions.

Id. at 633 . indeed, the court recognized that, as a policy matter, “a presumption of vindictiveness based on timing alone” would be “unsound as it could easily be abused.” Id. at 634 . The court stated: Adopting such a presumption would give sophisticated criminal suspects an opportunity to file civil charges against the government prior to an impending indictment, thus creating a presumption that the eventual charges were brought vindictively. Without more evidence to support an allegation of vindictiveness, almost every suspect in any legitimate prosecution could threaten to use such a judicially-created presumption. Id.

The court recognized that, even absent a presumption of vindictiveness, a defendant might prove objectively that a prosecutor’s charging decision was improperly motivated as punishment for exercising a legal right. Id. at 634 . In that case, however, there was “no evidence other than the temporal sequence of events to support the bald assertion of prosecutorial vindictiveness.” Accordingly, the court upheld the trial court’s ruling denying Miller’s motion to dismiss for vindictive prosecution. Id.

Here, the question is whether the circuit court erred in denying the motion to dismiss without an evidentiary hearing on appellant’s claim of vindictive prosecution. In McNeil, this Court addressed a similar issue. In that case, the question was whether McNeil was entitled to a hearing on his claim for prosecutorial misconduct due to the State’s alleged failure to act in good faith in pursuing an interlocutory appeal of the circuit court’s ruling granting his motion to suppress his confession. 5 112 Md.App. at 441, 462 , 685 A.2d 839 . ¹⁸⁸ We explained when a hearing is required for a claim of prosecutorial misconduct as follows: [A] defendant is entitled to a hearing, if timely requested, to prove or dispel his claim of misconduct if he proffers verifiable facts amounting to “some evidence tending to show the existence of’ the State’s bad faith. A mere general allegation of prosecutorial misconduct is not sufficient to warrant the granting of an evidentiary hearing, however.

We also caution that such an evidentiary hearing is not a discovery device. Indeed, we share the concern of the Seventh Circuit that “the prospect of government prosecutors being called to the stand by every criminal defendant for cross-examination as to their motives ... is to be avoided.” Id. at 465 , 685 A.2d 839 (quoting United States v. Falk, 479 F.2d 616, 620 (7th Cir.1973)). 6 Courts in other jurisdictions similarly have held that a conclusory allegation of improper motive on the part of the State is insufficient to entitle a defendant to an evidentiary ¹⁸⁹ hearing. See United Slates v. Falcon, 347 F.3d 1000, 1004 (7th Cir.2003) (to obtain an evidentiary hearing on a vindictive prosecution claim, the defendant must “ ‘affirmatively show through objective evidence that the prosecutorial conduct at issue was motivated by some form of prosecutorial animus’ ”) (quoting United States v. Bullis, 77 F.3d 1553, 1559 (7th Cir.1996)); United States v. Dean, 119 F.Supp.2d 81, 84 (D.Conn.2000) (defendant’s “ ‘showing’ of vindictive prosecution [did] not rise above the level of mere allegations and conjecture drawn from the sequence of events leading to [the] indictment,” and absent some evidence of actual animus, the defendant was not entitled to an evidentiary hearing); People v. Peterson, 397 Ill.App.3d 1048 , 338 Ill.Dec. 30 , 923 N.E.2d 890, 896 (a defendant is entitled to a hearing on a selective or vindictive prosecution claim only if he offers “ ‘sufficient evidence to raise a reasonable doubt that the government acted properly in seeking [to prosecute].’ ”), appeal denied, 236 Ill.2d 568 , 342 Ill.Dec. 574 , 932 N.E.2d 1035 (2010). In McNeil, we held that McNeil was entitled to a hearing where “at least some of the allegations were readily verifiable by review of the court file.” 112 Md.App. at 466 , 685 A.2d 839 .

The verifiable facts that supported his position that the State had taken its appeal in bad faith in order to gather evidence against him and delay his trial included: (1) the State never paid the filing fee for the appeal; (2) only days after filing the appeal, the State had issued trial subpoenas; (3) when the State took its appeal based on the motion to suppress, it certified that the suppressed evidence was substantial proof of a material fact, but it later decided to proceed to trial without the evidence; and (4) the State did not notify McNeil of its intent to dismiss the appeal, even though the State obviously intended to go forward with the trial, as it had witnesses ready. Id. Based on these specific, verifiable factual allegations, we held that McNeil had provided “some evidence tending to show the existence” of prosecutorial misconduct, and we remanded the case for a hearing. Id. at 464-67 , 685 A.2d 839 . ¹⁹⁰ Here, appellant did not meet this standard.

He provided the circuit court with no evidence of actual vindictiveness, nor did he provide verifiable facts supporting his claim of vindictive prosecution. Rather, appellant’s allegation is based solely on the fact that charges against him were refiled after he filed a civil suit against the officers. A claim of vindictive prosecution based solely on the timing of the filing of the charges, without some evidence of actual bad faith, does not rise beyond the level of mere conjecture. Appellant’s assertion was insufficient to entitle him to a hearing, and the circuit court properly denied appellant’s motion to dismiss, without a hearing.

II

Bill of Particulars Appellant’s second contention is that the circuit court erred in failing to dismiss the charges against him because the State did not provide him with a bill of particulars. He asserts that, because he was charged with the statutory short form indictment, he was entitled to a bill of particulars, and the State’s failure to provide it requires the reversal of his conviction and “a remand to the trial court, with instructions to enter an order dismissing the instant charges.” The State contends that it “responded to the request for particulars by pointing out that it had provided the information requested in discovery.” Accordingly, it argues, the circuit court properly exercised its discretion in finding that the State had adequately responded to appellant’s request for a bill of particulars. A. Proceedings Below On August 12, 2010, a Statement of Charges was filed against appellant. With respect to the charge of second degree assault, the Statement of Charges set forth the location and date where the alleged second degree assault oc ¹⁹¹ curred.

The Application for Statement of Charges detailed the events supporting the charges, and, in pertinent part, stated: ... This investigator responded to the 3200 block of Brinkley Road Temple Hills, Prince George’s County, Maryland for a shooting. Upon arrival it was discovered that at approximately 0109 hrs. [appellant] was driving his vehicle at an unreasonable speed through a crowded parking lot, directly towards Prince George’s County Sheriff’s Deputy First Class A. Lide # 394. Deputy Lide [ ] then fired his departmentally issued firearm at the vehicle striking [appellant] in the legs.

A witness on the scene, Lorenzo Moore, stated that he saw Deputy Lide [ ] and Deputy E. Moore # 252, both of whom were wearing their Prince George’s County Sheriffs Department Uniform, breaking up a fight between numerous people in the parking lot of the Club Elite (3200 block of Brinkley Road Temple Hills, Maryland). While the deputies were attempting to stop the assault[,] a 2006 blue Cadillac STS bearing a DC tag (BZ9389) driven by [appellant] traveled towards the direction of Deputy Lide [ ]. The witness further stated that the Cadillac veered towards Deputy Lide [ ]. Deputy Lide [ ] attempted to move out of its way, but it looked as if the vehicle was trying to strike him.

Deputy Lide [ ] and Deputy Moore [ ] then drew their firearms and fired at the blue Cadillac. [Appellant] then attempted to flee the scene by backing up at a high rate of speed. [Appellant] then surrendered a few hundred feet away. The witness, Lorenzo Moore also stated that there were approximately 150 people in the parking lot of the Club Elite two of whom [appellant] struck with the Cadillac while driving towards Deputy Lide [ ]. The witness further stated that [appellant’s] vehicle was the only vehicle moving through the parking lot .... On May 9, 2011, appellant filed a Demand for Bill of Particulars, pursuant to Maryland Rule 4-241(a).

In his demand, he requested that the State provide additional information about the charge, including “the date and approximate ¹⁹² time” of the acts allegedly committed, the exact location where each act occurred, whether the victim consented to the acts alleged, as well as all facts relating to each element of the charge, including all facts showing appellant’s intent to act. On July 8, 2011, the State responded to appellant’s demand, stating that: (1) the indictment was sufficient on its face to appraise appellant of the nature of charges against him; (2) the information requested was provided through discovery; (3) Rule 4-241 “does not require the State to particularize all the evidence it may offer” or inform appellant of the legal theories under which it intends to proceed; and (4) “because the State has already provided the applicable information ... no further particulars are warranted.” On July 11, 2011, appellant moved to dismiss the charges against him. He argued that he was entitled to a bill of particulars, and his failure to receive it was structural error. Appellant contended that, “because the State has refused to file a bill of particulars to which [appellant] is statutorily entitled,” dismissal of the second degree assault charges was required.

The State asserted that it had filed a response to appellant’s bill of particulars. It explained to the court that it had declined to comply with appellant’s demand because “[a]ll that [appellant] asked for in the bill of particulars was the statement of facts,” and it argued that, because it had already provided appellant with over sixty pages of discovery and the charging document was sufficient to appraise appellant of the charges against him, further response was not necessary. The court denied the motion to dismiss, stating that the prosecutor had “provided enough information ... to comply with the rule.” B. Analysis “The purpose of a bill of particulars is to guard against the taking of an accused by surprise by limiting the ¹⁹³ scope of the proof.” McMorris v. State, 277 Md. 62 , 70 n. 4, 355 A.2d 438 (1976). Rule 4-241 states that “the defendant may file a demand in circuit court for a bill of particulars,” and “[wjithin ten days after service of the demand, the State shall file a bill of particulars that furnishes the particulars sought or it shall state the reason for its refusal to comply with the demand.” Where the State refuses to comply with a defendant’s request for a bill of particulars, the defendant may except to the State’s refusal within ten days, pursuant to Md. Rule 4-241(c). 7 Rule 4-241, however, does not set forth sanctions for the State’s refusal to comply with the defendant’s request, and accordingly, whether to compel a response to the defendant’s request is left to the discretion of the trial judge.

See Patrick v. State, 90 Md.App. 475 , 503 n. 20, 601 A.2d 1133 (Rule 4-241 “has no provision for sanctions,” and therefore, “[t]he situation is left to the discretion of the trial judge.”), remanded on other grounds, 329 Md. 24 , 617 A.2d 215 (1992). In addition to Rule 4-241(b), Md.Code (2010 Supp.) § 3-206(b) of the Criminal Law Article (“CL”) specifically provides that, where the general statutory form of charging document is used to charge the crime of assault in the second degree, “the defendant, on timely demand, is entitled to a bill of particulars.” 8 Statutory language to this effect has been construed as creating a statutory right. See State v. Mulkey, 316 Md. 475, 489 , 560 A.2d 24 (1989) (statutory language stating that “the defendant is entitled to a bill of particulars” ¹⁹⁴ is an indication of “a mandatory, unqualified intent” on the part of the legislature); Patrick, 90 Md.App. at 500-01 , 601 A.2d 1133 (statutory language that “the defendant is entitled to a bill of particulars specifically setting forth the allegations against him” created a statutory right). Here, the Statement of Charges filed against appellant used the statutory short form for second-degree assault.

Accordingly, based on the plain language of CL § 3-206(b), appellant “was entitled to a bill of particulars.” In response to appellant’s motion, the State indicated that it had filed a response to the request for a bill of particulars, asserting that “everything [appellant] seeks is in discovery.” The court found that the prosecutor “provided enough information ... to comply with the rule,” and it denied the motion to dismiss. The Court of Appeals has indicated that, although open file discovery reduces the need for a bill of particulars, where such a bill is requested, the court ordinarily should grant the request. Jones v. State, 303 Md. 323, 340-41 , 493 A.2d 1062 (1985) (where a bill of particulars was requested, “even though open file discovery is permitted and completed, the trial judge ... should grant the request.”). Nevertheless, where open file discovery is provided, prejudice from the failure to specifically respond to a request for a bill of particulars is unlikely.

Id. at 341 , 493 A.2d 1062 (it was “likely that the open file