State v. Frazier

State of Maryland v. Kaleem Michael Frazier, No. 45, September Term, 2019. Opinion by Hotten, J. CRIMINAL LAW—MERGER—FOURTH DEGREE SEXUAL OFFENSE— SECOND DEGREE ASSAULT The Court of Appeals held that, under the merger rule articulated in State v. Lancaster, 332 Md. 385 , 631 A.2d 453 (1993), offenses and their sentences merge for purposes of sentencing. The Court declined to overturn Lancaster, citing principles of stare decisis. Departure from stare decisis should occur sparingly and is only warranted when precedent is “clearly wrong” or when it is plainly obvious that adherence to the decision would result in substantial injustice.

Neither of those situations were implicated in this case. Accordingly, the Court of Appeals affirmed the Court of Special Appeals and held that convictions for fourth-degree sexual offense and second-degree assault merge. Therefore, the only permissible punishment was the sentence for fourth-degree sexual offense—the offense having the additional element. Circuit Court for Harford County Case No. 12-K-16-001751 Argued: February 6, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 45 September Term, 2019 __________________________________ STATE OF MARYLAND v. KALEEM MICHAEL FRAZIER __________________________________ McDonald, Watts, Hotten, Getty, Booth, Biran, Raker, Irma S.

(Senior Judge, Specially Assigned), JJ. __________________________________ Opinion by Hotten, J. __________________________________ Filed: July 14, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-07-14 11:25-04:00 Suzanne C. Johnson, Clerk The events underlying this appeal stem from the sexual assault of a victim 1 in October 2016, by her then-boyfriend, Kaleem Michael Frazier (“Respondent”). Respondent was charged with rape in the second degree (Count I), second-degree sexual offense (Count II), fourth-degree sexual offense (Count III), second-degree assault (Count IV), and false imprisonment (Count V). On February 24, 2018, Respondent was convicted of second-degree assault and fourth-degree sexual offense after a seven-day jury trial in the Circuit Court for Harford County.

Respondent was sentenced on March 26, 2018 to a period of ten years’ incarceration with all but five years suspended for the second-degree assault count, and one year for the fourth-degree sexual offense charge to run consecutively, followed by supervised probation for a period of five years. The State presents the following questions for our review: 1. Should this Court reconsider the rule articulated in [State v. Lancaster], 332 Md. 385 [, 631 A.2d 453 ] (1993), and hold that where two offenses are deemed the same for purposes of merger, a court may impose a sentence based on the offense that carries the greater penalty? 2. If the Court permits a sentencing court to impose a sentence available pursuant to a lesser-included offense, even if it provides the greater penalty, was Respondent’s sentence legal?

For the reasons discussed infra, we answer the first question in the negative, and in light of our resolution of the first question, need not address the second. Accordingly, we shall affirm the decision of the Court of Special Appeals. 1 To protect the privacy of the victim, we will not to refer to her by name. FACTUAL AND PROCEDURAL BACKGROUND Underlying Incident and Trial Court Proceedings2 Respondent and the victim had been involved in a relationship since February of 2016.3 On the evening of October 3, 2016, the couple attended football practice of the victim’s son. Respondent had been drinking and became increasingly agitated with the victim.4 Respondent, the victim, and her minor sons returned to her townhome for dinner.

After the victim prepared her sons for bed and retired to her bedroom, Respondent confronted the victim about a text message she had received from the football coach of a rival team. The victim informed Respondent that the coach was just a friend, and that a few weeks before the incident, his team played against her son. Respondent accused the victim of lying about the nature of that relationship.5 He became angry, called the victim several disparaging names, grabbed her by the shirt and “pulled [her] up,” forcibly pulled her hair, ripping out some of her extensions, and repeatedly called her a liar and a slut. The victim also testified that Respondent slapped her across the face, and after locking her in the bedroom, forced her to perform oral sex.

The victim testified that she was crying as 2 The facts underlying this appeal are summarized from the testimony provided by the parties at trial. 3 Respondent and the victim had known one another for more than ten years and had been engaged in a sexual relationship “off and on” throughout that period. 4 Respondent was upset with the victim because she left his sunflower seeds in her car. They argued and Respondent left the area to purchase beer from the liquor store. Upon his return, Respondent appeared to be intoxicated. 5 The victim testified that the entirety of the text message exchange consisted only of messages about football. 2 she told Respondent “no” and asked him to “please stop,” but was afraid to scream for fear of waking her sons. When asked about the events that transpired after Respondent locked the door, she stated: So[,] he told me that I was going to suck his dick and I said, no.

And he said, yes, you are. He was wearing basketball shorts, no shirt, no underwear. He told me to take off my clothes. I said, no, I don’t want to.

And he then grabbed my pants and like pulled me towards him and then took my shirt off and then he--I don’t remember how I got on the bed. He got on the bed and he had already taken off his basketball [shorts] and he starts taking my head and putting it down there and I’m still asking him to please stop. But he wouldn’t. The victim further testified that she begged Respondent “please, no, don’t do this.” According to the victim, Respondent “proceed[ed] to put his penis inside [her]” and squeezed her neck and throat as she was laying on her stomach.

The victim testified that she did not physically resist Respondent because she was “scared he would hurt [her] a lot more.” She hoped that Respondent would become unaroused by her running nose, tears, and repeated pleas to “please stop.” Sometime after midnight on October 4, the victim attempted to leave the bedroom. Respondent told the victim that she could not leave. When she informed Respondent that she just wanted to get something to drink, Respondent followed her to the kitchen, again calling her a “slut[]” and a “liar.” The victim testified that Respondent then “grabbed [her] by the hair” and “slapped [her] in the face again.” After violently pulling her hair and slapping her, the victim testified that: “He looks at me and says, ‘do you know what you and Nicole Brown Simpson … have in common? [B]oth of your father’s names are Lou, and that is how long I have been thinking about killing you.’” When the prosecution 3 questioned the victim regarding her reaction to the statement, she replied that she did not think she was “going to make it through the night.” While in the kitchen, the victim asked Respondent for permission to go back upstairs to check on her sons. He responded, “yeah, but I’m not done with you.” When the victim entered her son’s bedroom, she found one of her sons awake and afraid.

He asked her if she was okay because he had heard arguing. While she was consoling her son, Respondent texted the victim, asking: “[W]hat are you doing, are you playing games[?]” Respondent instructed the victim to come back to the room. The victim returned to the bedroom and Respondent locked the door behind her. He told her, “you are going to fuck me again[,]” and took off her clothes.

The victim testified that he then raped her a second time. The victim attempted to leave when it appeared Respondent had fallen asleep, but “he popped back up [again].” That morning, the victim dropped off her sons at school and Respondent at a nearby bus stop. The victim testified that Respondent asked whether the relationship was over and she assured him that “everything [was] fine[]” and that they would “work through this.” The victim alleged that Respondent responded, “If you are lying, I’m going to kill you.” Thereafter, the victim called her mother to tell her what happened. Her mother suggested that she go to her sister’s (“G.’s”) house to be safe.

At trial, G. testified that the victim appeared “frantic” and “very upset” when she arrived. A family friend, E.T., had already been in contact with G. because one of the victim’s sons emailed E.T. in the middle of the night, alleging that Respondent was hurting the victim. The victim reported the physical and sexual assault to the police. Deputy Novak, the officer who conducted the preliminary interview, testified that she observed red bruises on the victim’s chest and neck that were 4 consistent with the victim’s statement of events, and that the victim told her that Respondent “ma[d]e her do some things she felt she didn’t want to do.” Deputy Novak sent the victim to Harford Memorial Hospital for examination.

A nurse performed a Sexual Assault Forensic Examination (“SAFE”) and a consulting expert testified that the results from that exam were inconclusive regarding whether the victim had been raped.6 After leaving the hospital, the victim filed for and was granted a protective order. Respondent also testified at trial, describing his relationship with the victim as “up and down[,]” and that “trust issues[]” contributed to the tumultuous nature of the relationship. He testified that he and the victim had consensual sexual intercourse and fellatio on the evening of October 2 and again, on the morning of October 3.7 When asked about the events that transpired the evening of October 3, 2016, after football practice, Respondent testified that he was upset because the victim received a text message from an unsaved number and provided answers that he believed “didn’t add up[.]” Respondent admitted that he grew increasingly angry, and that he yelled at her because he was upset, but denied physically or sexually assaulting the victim. In closing argument, the prosecutor stated: 6 The expert stated that the results of the genital examination were “normal,” meaning there were no “physical or acute genital injuries.” She did note that the SAFE revealed the victim had sexual intercourse, but it could not be determined whether the encounter was forced or consensual. 7 Respondent testified that he stayed at the victim’s house on the night of October 2 because the couple agreed that he would watch her sons, who had the day off from school on October 3.

Respondent denied that he and the victim engaged in sexual acts on the morning of October 4 and that “[he] pushed her off [of him] while [they] were having sex[]” on the evening of October 3 because he was still “upset about [the text messages].” 5 [The victim] tells you all the while this is happening, he is threatening her. So[,] all of this is done by force. He is pushing her down. He is grabbing her hair.

But it is also by threat of force. You only have to actually find as you saw in the elements, one of the two, that it is by force or threat of force. In this case, we actually have both because he is actually physically forcing her but he is also threatening her throughout, he is going to kill her over and over and over again. One time she leaves the room because he will allow it.

Okay. I won’t harm you when you walk out of the room this time. That is threat of force, ladies and gentlemen of the jury. I will allow it.

Because had she walked out prior to that, you can bet the assault would have continued. And he slammed the door. His own words. *** There is no question [the victim] didn’t consent. And then you heard some testimony that she went downstairs and he continues to threaten her.

And still--in that bedroom[,] prior to letting her out, while he is physically assaulting her, slapping her, choking her, strangling her, and that when they go downstairs, he slaps her again. (Emphasis added). Following deliberations, the jury convicted Respondent of second- degree assault and fourth-degree sexual offense, and acquitted him of the remaining charges. At sentencing on March 26, 2018, the State argued that the trial judge should exceed the sentencing guidelines because of the “egregious nature of the harm,” and impose a sentence of eleven years—ten years for the second-degree assault and one year for the fourth-degree sexual offense to run consecutively—suspending all but six years.8 Defense counsel argued that the conviction for second-degree assault was the lesser included offense of the fourth-degree sexual offense conviction and, as such, both offenses should 8 The guidelines range was three months to two years.

The court departed from the sentencing guidelines and imposed a harsher sentence because Respondent had been convicted of a domestically related crime, involving a different victim, once before. 6 merge for purposes of sentencing. The sentencing judge rejected the merger argument, stating: With regard to the merger suggestion by [defense counsel] as made, my review of the evidence is that there were separate events of physical assault which was separate from or in addition to the sexual penetration of the victim. So[,] the Court sees this as a case in which[,] because there are these separate aspects of the acts of the [Respondent], both the slapping or smacking as [defense counsel] characterized it, and the push, putting the hands around the neck, as well as the sexual fourth[-]degree sex offense aspect, I believe that it is appropriate to sentence separately as to the two offenses. The judge imposed a sentence of ten years, suspending all but five years for the second- degree assault and one year for the fourth-degree sexual offense, to be served consecutively, followed by five years of supervised probation.

Respondent timely appealed to the Court of Special Appeals. Frazier v. State, No. 344, Sept. Term, 2018, 2019 WL 2539288 (Md. App. June 20, 2019). Appeal to the Court of Special Appeals The issue confronting the Court of Special Appeals was whether a jury found that the two offenses were based on the same act, or separate acts that could sustain the convictions for second-degree assault and fourth-degree sexual offense.9 Respondent contended that the circuit court failed to merge the two convictions, for purposes of sentencing, in violation of the Double Jeopardy Clause of the Fifth Amendment to the 9 Respondent also argued that there was insufficient evidence to support a conviction for fourth-degree sexual offense. The Court of Special Appeals declined to address the legal sufficiency argument, finding that Respondent “failed to state with particularity why his motion for judgment of acquittal should be granted[,]” and therefore, his argument on the issue of whether the evidence was sufficient was not preserved for appellate review.

Id. at ⁴. 7 United States Constitution. Id. at ⁴. The State argued that the convictions were based on “separate and distinct acts,” not requiring merger. Id.

The Court of Special Appeals disagreed and found that it was “unable [] to specifically determine, which act or acts were the basis for [Respondent’s] convictions[,]” because “the prosecutor muddled the second- degree assault elements and the fourth-degree sexual offense elements in her last and final words to the jury.” Id. at ⁵–6. According to the Court of Special Appeals, the jury could have determined that the sexual offense and the physical assault were one continuous act— not two distinct acts. Id. at ⁶. The Court cited opening statements and closing argument, in which the prosecution repeatedly described the events as “continuing” from one place to the next, implying that the physical and sexual violence should be treated as one ongoing criminal act.

The Court noted that the record reflected two separate acts of assaultive conduct, but was not clear which act or acts formed the basis for each conviction and in the face of such “an unreasonable ambiguity[,]” the offenses must merge if the required evidence test is satisfied. Id. at ⁶. The Court then applied the required evidence test to ascertain whether “all the elements of one crime are necessarily in evidence to support a finding of the other, such that the first is subsumed as a lesser included offense of the second.” Id. at ⁷ (citing Monoker v. State, 321 Md. 214, 220 , 582 A.2d 525, 527 (1990)). According to the Court, the fourth-degree sexual offense bore a distinct element that the offense of second-degree assault lacked, and as such, the assault conviction merged into the sexual offense conviction under the required evidence test.

Id. The Court acknowledged that the greater 8 offense carried a lesser penalty than the lesser included offense and reiterated that the prosecutor could have, and should have, clarified whether Respondent was being charged with two distinct acts of assaultive behavior or one, leaving no ambiguity regarding whether the jury convicted Respondent for one continuous act or two separate acts. Id. at ⁶. The Court reversed and remanded the case to the circuit court for resentencing consistent with the holding that the convictions merged.

In the concurrence that was joined by Judge Andrea Leahy, Chief Judge Matthew Fader opined that the Lancaster rule—which the Majority opinion relied on in vacating the two separate sentences for convictions that merged—should be revisited. Id. at ⁹ (Fader, C.J., concurring). “[C]ourts in other jurisdictions facing the same issue have reached a result that is both consistent with [] double jeopardy jurisprudence and, at least in circumstances like [this one], more faithful to legislative intent and the amount of deference properly afforded jury verdicts.” Id. at ¹⁰. According to Chief Judge Fader, strict application of the Lancaster rule would mean that “by adding a sexual component to his assault of the victim, [Respondent] reduced 10-fold the maximum penalty for that assault[]” and that is neither the result the General Assembly could have intended, nor does it accord due regard to the weight of the jury verdict. Id.

DISCUSSION We begin our analysis with whether the respective sentences for second-degree assault and fourth-degree sexual offense should merge. The State appears to concede that the offenses merged under the required evidence test, but disagrees that the merger of the offenses required the imposition of a sentence according to the “lesser included offense.” 9 The State invites this Court to overturn our holding in State v. Lancaster, 332 Md. 385 , 631 A.2d 453 (1993), and now hold that, where one offense merges into another, a trial judge may still impose the sentence based on the “lesser included offense,” if the lesser included offense carries the harsher penalty. The State contends that “protecting double jeopardy rights by merging a conviction on a lesser [included] offense under the required evidence [test] does not require a court to disregard the potential sentence for that conviction.” According to the State, this portion of Lancaster and the decisions that followed, were wrongly decided, because they incorrectly interpreted the required evidence test to limit available sentences. The State argues that the current rule unnecessarily restricts the trial judge’s ability to sentence upon merger of the lesser included offense.

In contrast, Respondent argues that Lancaster was rightly decided and that Lancaster and its progeny mandate merger for purposes of conviction and sentencing. Respondent contends that the greater of the offenses, fourth-degree sexual offense, provides the sole sentence for his acts. We agree. We are not compelled to rewrite Maryland merger law, which provides that where the lesser included offense merges into the greater inclusive offense, the sentence merges as well.

A. The offenses and their sentences merge. To understand the sentencing implications, it is useful to review and outline why state merger law requires the merger of the fourth-degree sexual offense and second-degree assault convictions, and their respective sentences. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the Due Process Clause of the 10 Fourteenth Amendment, provides that no individual shall be tried or punished more than once for the same offense.10 See U.S. CONST., AMEND. V. Double jeopardy rights “protect[] against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” State v. Jones, 340 Md. 235, 242 , 666 A.2d 128, 131 (1995) (quoting United States v. Halper, 490 U.S. 435, 440 , 109 S. Ct. 1892, 1897 (1989)).

Additionally, “[t]he Supreme Court has held that states may impose cumulative punishment if it is clearly the intent of the legislature to do so.” Jones v. State, 357 Md. 141, 163 , 742 A.2d 493, 505 (1999) (citing Missouri v. Hunter, 459 U.S. 359 , 365–69, 103 S. Ct. 673 , 677–78 (1983)). The Supreme Court has also indicated that the protection against multiple punishments derived from the Double Jeopardy Clause “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Hunter, 459 U.S. at 366 , 103 S. Ct. at 678 . Merger is the common law principle that derives from the protections afforded by the Double Jeopardy Clause. Brooks v. State, 439 Md. 698, 737 , 98 A.3d 236, 258 (2014).

It is the mechanism used to “protect[] a convicted defendant from multiple punishments 10 The Double Jeopardy Clause states that no person shall “be subject for the same offense to be twice put in jeopardy of life and limb[.]” The Maryland Constitution does not contain a double jeopardy clause. Scott v. State, 454 Md. 146, 167 , 164 A.3d 177, 189 (2017) (citing Scriber v. State, 437 Md. 399, 408 , 86 A.3d 1260, 1265 (2014)). Merger and prohibition against double jeopardy are addressed in Maryland common law. Id.; see also State v. Long, 405 Md. 527, 536 , 954 A.2d 1083, 1089 (2008) (internal citations omitted). 11 for the same offense.”11 Id.

This Court has required merger “when: (1) the convictions are based on the same act or acts, and (2) under the required evidence test, the two offenses are deemed to be the same, or one offense is deemed to be the lesser included offense of the other.” Id. Both elements must be satisfied before merger is required.12 1. Same Acts or Distinctive Acts We must first resolve whether Respondent’s respective convictions for second- degree assault and fourth-degree sexual offense were predicated on “the same act or acts” or separately distinguishable acts. Id.

In Nicolas v. State, we held that, in situations where there is a factual ambiguity regarding whether the convictions arose out of the same act or transaction, “that ambiguity is resolved in favor of the defendant.” 426 Md. 385, 400 , 44 11 See RICHARD P. GILBERT & CHARLES E. MOYLAN, JR., MARYLAND CRIMINAL LAW: PRACTICE AND PROCEDURE 452 (1983) (“When a defendant is convicted of a greater inclusive offense, double jeopardy considerations protect him from being punished separately for a lesser included offense. To punish an individual both for an aggravated assault and for the lesser included simple assault would constitute multiple punishment for the same offense, one of the classic evils against which double jeopardy provision protects.”) 12 Where the required evidence test has not been satisfied, the court may still pursue merger under the rule of lenity and fundamental fairness tests. Under the rule of lenity, “if we are unsure of the legislative intent in punishing offenses as a single merged crime or as distinct offenses, we, in effect, give the defendant the benefit of the doubt and hold that the crimes do merge.” Monoker v. State, 321 Md. 214, 222 , 582 A.2d 525, 529 (1990). A court may also merge in the interest of fundamental fairness.

In this situation, “[c]onsiderations of fairness and reasonableness reinforce our conclusion [to merge] .... We have ... looked to whether the type of act has historically resulted in multiple punishment[s]. The fairness of multiple punishments in a particular situation is obviously important.” Marlin v. State, 192 Md. App. 134, 169 , 993 A.2d 1141, 1162 (2010) (quoting White v. State, 318 Md. 740, 746 , 569 A.2d 1271, 1274 (1990)). 12 A.3d 396, 404 (2012); see also Brooks, 439 Md. at 739 , 98 A.3d at 260 . Under these circumstances, the reviewing Court can “look to the record for other indications that might resolve the ambiguity in favor of non-merger.” Id. at 741 , 98 A.3d at 261 .

However, in the case at bar, the record is “not so clear.” Frazier, 2019 WL 2539288 at ⁵. As the Court of Special Appeals aptly acknowledged: The record reflects two separate acts of assaultive behavior. One where [Respondent] choked and slapped the victim. The second where [Respondent] raped the victim and forced the victim to perform fellatio on him.

The jury could have disbelieved the occurrence of the neck grabbing and slapping