Schlamp v. State

THIEME, Judge. John Ryan Schlamp, appellant, was charged with first degree murder, common-law riot, first degree assault, and second degree assault in connection with the stabbing death of Brandon Malstrom in College Park, Maryland. On June 27, 2003, a jury in the Circuit Court for Prince George’s County convicted appellant of common-law riot and second degree assault. 1 The court sentenced appellant to ten years imprisonment for the common-law riot conviction and three years imprisonment, to be served consecutively, for the second degree assault conviction. On appeal to this Court, appellant contends that the evidence was legally insufficient to sustain his conviction for common-law riot, and that the ten-year sentence imposed for his common-law riot conviction violates the prohibition against cruel and unusual punishment.

Finding no error, we affirm the judgment and verdict of the circuit court. ²⁸⁶ Factual Background On November 9, 2002, Brandon Malstrom, a student at the University of Maryland, College Park, was stabbed in the chest and later died of his wounds. Brandon was killed in an incident occurring at a party in College Park. The evidence failed to disclose the identity of the person who actually stabbed the victim. Appellant and a friend of his, Quan Davis, were arrested and charged in connection with Brandon’s death.

The testimony pertinent to this appeal is as follows: William Malstrom, Brandon’s brother, testified that on November 2, 2002, he, Brandon, and some friends, Brandon Conheim, 2 Paul Speakman, and Matthew Mitchell, went to Dickinson Street 3 in College Park to attend a party. William Malstrom stated that there was also a party next door to the party that they were attending, and that people were “kind of milling” between the two houses. He said that, although the party was winding down, there were “a bunch of kids in the backyard making trouble,” and that there were several verbal confrontations. He and Brandon left the backyard and went out to the street to leave the party.

At that time, the same people who were making trouble in the backyard came out into the street. One of the people, later identified as appellant, was yelling about a cell phone and demanding that Brandon give it back to him. William Malstrom testified that, when Brandon refused to give appellant his cell phone, appellant took a real weak swing at [Brandon], kind of like almost pushing him (indicating) and they got tangled up, and then it was just, I, you know, I started moving toward them. And then two other ... of [appellant’s] friends started moving in, and ²⁸⁷ so two of my brother’s friends came in to try to like separate people.

Conheim, who had attended the party with William and Brandon Malstrom, Paul Speakman, and Matthew Mitchell, testified that when they arrived at the party they went into the backyard and came across a large group of “young adults” standing in the backyard and causing trouble with other people at the party. Conheim stated that he was trying to defuse the situation in the backyard when appellant approached him and started a verbal confrontation. Appellant appeared to be the “leader of the group.” After the confrontations in the backyard, Conheim, William and Brandon, Paul Speakman, and Matthew Mitchell went out into the street and were standing in a circle. At that time, appellant and a group of “ten or so guys” were standing in a group about 10 to 15 feet away.

Conheim said that appellant came over and “busted in the middle of our circle,” shouting, “turn out your pockets,” and “twjho’s got my boy’s cell phone?” Brandon said that they would not turn out their pockets and appellant punched Brandon in the face. In a matter of seconds, Brandon was being held in a choke hold by Robert Fournier, who had accompanied appellant to the party. Conheim said that Fournier was contributing to the melee. While William Mal-strom and Conheim were trying to pry Fournier off of Brandon, Conheim glanced over and saw Quan Davis, no more than 10 feet away, “favoring his hip ... reaching for something.” Conheim testified that he thought Davis had a “gun or something like that” in his pocket.

Scott Ehrlich testified that on the evening of November 9, 2002, both he and his next-door neighbor were having parties at their houses on Dickinson Avenue. Ehrlich said that there were several verbal arguments in the backyard during the party. At some point, Ehrlich went to talk to a group of about six guys, including appellant and Davis, who were being belligerent. According to Ehrlich, he asked the group of guys to leave several times.

He said that he told them to take “whatever your problem is, if you could take it elsewhere, take it on the street, down the street. This is my house. I am ²⁸⁸ responsible for the people here, and I just don’t want any trouble to be here.” Shortly after everyone left the house and the backyard, Ehrlich went to the front of the house and saw a “scuffle, verbal argument ... between [appellant, Davis, and Fournier] and a different group of people.” Matt Swope, a friend of Ehrlich, testified that he saw a group including appellant and Davis at the party starting fights and being aggressive toward other people. He said that there was also a loud, obnoxious marine who was part of appellant’s group.

At some point, Swope heard Davis mention something about a “shank.” Swope thought that a shank was a knife or a pick. After a couple of hours, the group finally moved from the back of the house to the front of the house. At that time, Swope saw “some words exchanged, and an altercation happened” between two groups. Swope saw appellant punch or push Brandon, “[b]ut after that ... [t]hey were all involved.” Jacob Adams testified that he accompanied appellant, Davis, Fournier, and Kenny Brock to the party.

At some point, Adams became aware that there was a commotion in the house and “some guy in [Davis’s] face wanting him to leave.” Adams said at that time “all of us” proceeded to the backyard. While in the backyard, Davis showed Adams a knife that he had brought to the party. Adams identified Brock as a marine who had attended the party with them. Matthew Mitchell testified that he, Brandon and William Malstrom, Paul Speakman, and Conheim left the party and were waiting on the road when appellant approached Brandon and asked him about a Nextel cell phone.

Brandon said he did not know anything about a cell phone and appellant pushed him. Thereafter, a scuffle broke out and “a tall individual” grabbed Brandon from behind. At that point, another “black male individual with cornrows came, and he was involved.” Mitchell also stated that the demeanor of appellant and his group that evening was “to cause trouble.” Paul Speakman testified that, when he got to the party, he noticed a lot of noise and commotion. An individual, later ²⁸⁹ identified as appellant, who was with a group of about ten other people, seemed to be taunting and confronting a lot of people at the party.

After some time, he, Brandon and William Malstrom, Conheim, and Mitchell left the party and went to the street in front of the house. After they left the party, appellant approached the group, asking where his Nex-tel cell phone was. After Brandon said that he did not take the cell phone, appellant pushed or punched him. At that point, the “other group of males” that were with appellant “converged around” Brandon.

Brandon was being restrained from behind by a tall white male and Davis was in “very close proximity” to Brandon. Fournier testified that he went to the party with appellant, Jacob Adams, and Kenny Brock. Davis was also present at the party. Fournier did not know the people who were having the party.

After the party broke up, Fournier went out to the street where he saw “a bunch of people yelling at each other, saw [appellant], [Davis], and a bunch of other people yelling at a bunch of other people ... and they just start to like pushing and shove each other.” Fournier “grabbed Brandon and held him back.” While he was holding Brandon, Fournier noticed “a couple of black kids there. [Davis] was standing there.” After the police arrived, Fournier saw Davis again, and Davis gave him appellant’s cell phone to return to appellant. Discussion 1. Sufficiency of the Evidence Appellant argues that the evidence was insufficient to sustain his conviction of common-law riot because the State failed to prove the elements of the crime. At the outset, we note that the standard for reviewing the sufficiency of the evidence is “whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 313 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); State v. Smith, ²⁹⁰ 374 Md. 527, 533 , 823 A.2d 664 (2003).

We give “due regard to the [fact-finder’s] findings of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.” Harrison v. State, 382 Md. 477, 488 , 855 A.2d 1220 (2004) (citing McDonald v. State, 347 Md. 452, 474 , 701 A.2d 675 (1997), cert. denied, 522 U.S. 1151 , 118 S.Ct. 1173 , 140 L.Ed.2d 182 (1998) (quoting State v. Albrecht, 336 Md. 475, 478 , 649 A.2d 336 (1994))). 2. Background Whether one may view the development of the common law either as a seamless continuity likened to streams, sometimes guided in their courses by statutory dams and canals and flowing into the bay through wide rivers, or as a topsy-turvy accretion whereby, each day, in courts across the nation, another layer is added, in this case we shall begin with some common law definitions. The common law and its progeny in the United States recognize the increased danger of assembled groups. The conduct of one or more persons was variously proscribed by one of the three following offenses: affray, riot, and unlawful assembly. “If two or more persons fight in a public place to the terror of the King’s subjects, this constitutes an affray .... ” Hals-bury, The Laws of England § 919 (1909).

Riot, on the other hand, is a tumultuous disturbance of the peace by three or more persons, who assemble together, without lawful authority, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprise of a private nature, and who afterwards actually begin or execute the same in a violent and turbulent manner to the terror of the people. It is immaterial whether the enter ²⁹¹ prise intended was of itself lawful or unlawful, and it is sufficient if only one person was put in fear. Id. at § 929. Lewis Hochheimer, in The Law of Crimes and Criminal Procedure (1897), follows the common-law definition of riot, stating: “Riot is where three or more persons, assembled with intent to carry out a common purpose, execute the same, in whole or in part, in such a violent and turbulent manner as is calculated to terrify others.” Common-law riot was punishable regardless of whether it involved an underlying criminal purpose. “Placing another in fear” was sufficient to constitute a riot; accomplishment of a separate crime was unnecessary.

Halsbury at § 929. Clearly, the essential distinctions between an affray and a riot are that an affray requires at least two individuals engaging in a fight, whereas a riot requires at least three individuals engaging in violent or turbulent conduct. The other common-law offense with which we must deal is unlawful assembly. At common law, this consisted of an assembly of three or more persons with intent either to commit a crime by open force or to carry out any common purpose, lawful or unlawful, in such a manner as to give firm and courageous persons in the neighborhood of such assembly reasonable grounds to apprehend a breach of the peace in consequence of it.

Halsbury at § 922. BLACK’S LAW DICTIONARY (8th ed.2004) defines unlawful assembly as “[a] meeting of three or more persons who intend either to commit a violent crime or to carry out some act, lawful or unlawful, that will constitute a breach of the peace.” Hochheimer defines unlawful assembly as “the gathering, or congregating, of three or more persons with intent to carry out a common purpose the execution of which would involve the guilt of riot.” Hochheimer at § 429. Thus, the distillate from these various definitions is that the essence of riot was the effecting of an unlawful purpose by three or more participants, whereas unlawful assembly was a complete offense even if nothing was done beyond the assembling of three or more participants. See Sir John Baker, The ²⁹² Oxford History of the Laws of England: 1483-1558 at 591 (2003).

With these definitions in mind, we can now turn to the contemporary law on riot. 3. Riot In Cohen v. State, 173 Md. 216, 221 , 195 A. 532 (1937), cert. denied, 303 U.S. 660 , 58 S.Ct. 764 , 82 L.Ed. 1119 (1938), the Court of Appeals, closely following the common-law definition, explained that, for the common-law crime of riot it was necessary that three or more persons be unlawfully assembled to carry out a common purpose in such violent or turbulent manner as to terrify others, and assault or destruction of property may or may not be incident to the execution of the riot. The assembly must be unlawful, else there is no riot, and the unlawful assembly must be charged in the indictment. Id.

(citing Hochheimer, §§ 429-431). Cohen states that “one person can be charged with rioting, provided he is alleged to have been so engaged with at least two other persons. If known to the grand jury, they should be indicted; if unknown, it is essential that the indictment so state.” Cohen, 173 Md. at 222 , 195 A. 532 . As Maryland has not codified the crime of riot, the Cohen definition remains in effect today. a.

Three or More Persons As to the requirement that one person can be charged with rioting, provided he is alleged to have been so engaged with at least two other persons, whether known or unknown, appellant’s