Wallace v. State

NAZARIAN, J. Matthew Womack was beaten and robbed by two men in the early morning hours of November 4, 2011. Minutes before, he had engaged in a brief discussion with Brandon Bernard Wallace. Shortly after the robbery, Mr. Wallace was seen at two convenience stores where Mr. Womack’s stolen credit card was used. After Mr. Womack identified Mr. Wallace as one of his assailants from a photo array, Mr. Wallace was arrested, charged, and convicted in the Circuit Court for Prince George’s County of robbery and related crimes, but was ultimately acquitted of second-degree assault.

Mr. Wallace appeals, contending that insufficient evidence supported the convictions and that the circuit court erred by failing to suppress an impermissibly suggestive extrajudicial identification, by allowing an improper prosecutorial comment, and by accepting inconsistent jury verdicts. We find no merit in his first three contentions and affirm his convictions for theft under $1,000 and credit card theft. Because we conclude that the circuit court erred by accepting legally inconsistent jury verdicts, however, we reverse Mr. Wallace’s robbery convic ²⁴⁰ tion, in the process filling a gap in the evolving jurisprudence of legally inconsistent verdicts, and remand for resentencing on the remaining convictions. I. BACKGROUND Mr. Womack caught a bus from work at 11:30 p.m. on November 3, 2011, and arrived at the Oxon Hill Road bus stop in Prince George’s County between midnight and 1:00 a.m. on November 4.

Upon his arrival, he was approached by Mr. Wallace. This was not, however, their first meeting — they had met and spoken two weeks before at that same bus stop, after Mr. Wallace tried to sell Mr. Womack a head set for three dollars. Their discussion on November 4 lasted only a few minutes. While they spoke, two of Mr. Wallace’s friends approached, and Mr. Womack became uneasy when one friend “made a look towards” him.

He decided it was best that he leave, and as he left, Mr. Wallace inquired about the direction he was headed. Mr. Womack told him he was going north on Livingston Road, but instead went south, toward his home. The lighting on Livingston Road dwindled as Mr. Womack traveled toward Stratwood Avenue, so he attempted to cross the street to a better-lit area. But as he looked for oncoming cars, two men came up behind him, each wearing dark hooded sweatshirts and ski masks that covered their mouths and noses but left their eyes exposed. 1 The two assailants first hit Mr. Womack from behind, then punched him in the face and knocked him to the ground.

Then they flashed what appeared to be a shotgun and demanded Mr. Womack’s money and possessions in urgently vulgar terms. In all, they took his cell phone and charger, security license, an ATM card, an ID holder, a pair of gloves, and a Baltimore Ravens jacket. Mr. Womack phoned the police and accompanied them to the police station to provide an initial statement. Upon ²⁴¹ returning home, he contacted his bank to cancel his card, but was told that somebody used it that morning at several locations.

On November 22, 2011, Mr. Womack was contacted by Detective Jeffrey Konya, who requested a meeting to show Mr. Womack a photo array prepared by Detective Paul Schweinsburg. The two detectives visited Mr. Womack’s home later that day and, before showing him the array, informed him that they had found the culprit. Mr. Womack covered the lower halves of the faces to see the men as if they were wearing the half-mask his assailants wore and selected picture number five — the photo of Mr. Wallace. When asked why he selected this photo, he explained: Because when I was getting off the Metro bus, I was stopped and ... the guy starting talking to me for at least five minutes.

Then I walked away. Dude asked me which way I was going to go home. So I remember that. I had some type of feeling that something was going to happen to me that night because why would somebody ask you which way you was going to go home.

And I felt some type of way about it. Then five minutes later, bam, I get robbed. And I remember that conversation I had with him a couple weeks ago when he had said something to me prior to that. The State obtained Mr. Womack’s bank records, which showed that his stolen card was used multiple times shortly after the robbery.

The bank records showed that the card was used first for a $30.98 purchase at 5:01 a.m. at an Exxon on Old Branch Avenue in Camp Springs, but a corresponding receipt indicated that his card had been used there to make a $30.98 purchase at 1:01 a.m. The records also showed that the card was used at 5:09 a.m. at the 7-Eleven adjacent to the Exxon, but no receipt was produced. Surveillance stills produced by the State showed Mr. Wallace at the 7-Eleven that morning from 1:07 through 1:10 a.m., however. These stills, along with stills from the Exxon, 2 showed Mr. Wallace wearing ²⁴² a dark hooded sweatshirt at each establishment in the early-morning hours of November 4. 3 Before trial, Mr. Wallace moved to suppress the extrajudicial identification provided by Mr. Womack.

The circuit court held a suppression hearing on April 13, 2012, and denied the motion. Following a jury trial on August 23 and 27, 2012, Mr. Wallace was found guilty of robbery, theft under $1,000, credit card theft, and obtaining property by misrepresentation. The jury acquitted him of robbery with a deadly weapon and second-degree assault. The trial court sentenced Mr. Wallace on the robbery charge to fifteen years, with all but eight years suspended, to be followed by five years of supervised probation.

It then stated that “[a]s to ... the second degree offense, theft under a thousand the court finds that participation in the robbery[,] and the credit card theft, the third convicted offense, the Court will also merge.” II. DISCUSSION Mr. Wallace’s brief lists five questions that we have revised to four: 4 1. Did the suppression hearing court err by denying [Mr. Wallace’s] motion to suppress evidence of an out-of-court identification of him from a photo array? 2. Did the trial court err by denying a motion for mistrial made during the prosecutor’s rebuttal closing argument? 3.

Did the trial court err by accepting an inconsistent jury verdict? [4]. Is the evidence legally insufficient to sustain [Mr. Wallace’s] convictions? ²⁴³ We hold that sufficient evidence supported Mr. Wallace’s convictions and that the circuit court properly denied his motion to suppress. We hold as well, though, that the circuit court erred in accepting inconsistent jury verdicts, and we reverse the robbery conviction. 5 A. The Circuit Court Did Not Err In Denying Mr. Wallace’s Motion To Suppress. Mr. Wallace argues first that the circuit court erred in denying his motion to suppress Mr. Womack’s testimony identifying him from a photo array.

Mr. Wallace argues that Mr. Womack’s extrajudicial identification was impermissibly suggested when Detective Konya, before displaying the photo array, informed Mr. Womack that the police had “found the person that did it,” and that this “made him believe that the photo array contained an image of the suspect.” The State counters that the extrajudicial identification procedure was not impermissibly suggestive because the detectives did not indicate who should be chosen. We agree with the State. In reviewing the circuit court’s disposition of Mr. Wallace’s motion to suppress, “ ‘we look only to the record of the suppression hearing and do not consider the evidence admitted at trial.’ ” James v. State, 191 Md.App. 233, 251 , 991 A.2d 122 (2010) (quoting Massey v. State, 173 Md.App. 94, 100 , 917 A.2d 1175 (2007)). We accept the findings of fact and credibility determinations of the circuit court unless they are clearly erroneous, and we examine the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party prevailing before the circuit court, in this case the State.

McFarlin v. State, 409 Md. 391, 403 , 975 A.2d 862 (2009). We review the trial court’s conclusions of law de novo and make our own independent assessment by applying ²⁴⁴ the law to the facts of the case. Id.; see also Gatewood v. State, 158 Md.App. 458, 475-76 , 857 A.2d 590 (2004), aff'd, 388 Md. 526 , 880 A.2d 322 (2005). Extrajudicial identifications obtained through impermissibly suggestive procedures are not admissible.

James, 191 Md.App. at 251-52 , 991 A.2d 122 . We look at the circumstances of Mr. Womack’s identification of Mr. Wallace through a two-step process: The first is whether the identification procedure was imper-missibly suggestive. If the answer is “no,” the inquiry ends and both the extra-judicial identification and the in-court identification are admissible at trial. If, on the other hand, the procedure was impermissibly suggestive, the second step is triggered, and the court must determine whether, under the totality of the circumstances, the identification was reliable.

Jones v. State, 395 Md. 97, 109 , 909 A.2d 650 (2006) (citations omitted). “The defendant bears the burden of proof in the first stage of the inquiry, and, if the defendant meets this burden, then the prosecution has the burden in the second stage of the analysis.” Upshur v. State, 208 Md.App. 383, 400-01 , 56 A.3d 620 (2012) (citing In re Matthew S., 199 Md.App. 436, 447-48 , 23 A.3d 250 (2011)), cert. denied, 430 Md. 646 , 62 A.3d 732 (2013); see also James, 191 Md.App. at 252 , 991 A.2d 122 (“Although the reliability of the identification is the linchpin question, if the identification procedure is not unduly suggestive, then our inquiry is at an end.” (Internal citation and quotation marks omitted.)). The circuit court decided that Mr. Wallace had failed to carry his burden of establishing that the identification process was impermissibly suggestive, so it never reached the second step of the analysis. In looking at whether the identification was tainted by suggestiveness, we look in essence at whether the officers prompted Mr. Womack to identify Mr. Wallace: “To do something impermissibly suggestive is not to pressure or browbeat a witness to make an identification but only to feed the witness clues as to which identification to ²⁴⁵ make. THE SIN IS TO CONTAMINATE THE TEST BY SLIPPING THE ANSWER TO THE TESTEE.

All other improprieties are beside the point.” Jenkins v. State, 146 Md.App. 83, 126 , 806 A.2d 682 (2002) (emphasis in original) (quoting Conyers v. State, 115 Md.App. 114, 121 , 691 A.2d 802 (1997)) (observing that “the scope of identification procedures constituting ‘impermissible suggestiveness’ is extremely narrow”), rev’d on other grounds, 375 Md. 284 , 825 A.2d 1008 (2003); see also Matthew S., 199 Md.App. at 448 , 23 A.3d 250 . We agree with the circuit court that Mr. Wallace failed to meet his initial burden to prove impermissible suggestiveness. At the motions hearing, the circuit court heard testimony from Mr. Womack and Detectives Schwiensburg and Konya. Mr. Womack testified that prior to being shown the photo array, the detectives informed him that “they had the person.” 6 He also testified, however, that the detectives “did not tell [him] how they found the person,” nor did they give any kind of hint as to which photo he should choose from among those in the array.

Mr. Womack testified that he selected Mr. Wallace’s photo believing that the array contained the person who robbed him, but not that the detectives told him so: To my knowledge I would have figured that if they said they believed to have found the person for what I had provided to them, I was to believe that they had the person in the photo line up and that’s when I had made my decision this is the guy that did it. We were presented with a comparable circumstance in Gatewood, 158 Md.App. 458 , 857 A.2d 590 . In that case, an arresting officer was to serve as a witness in the prosecution of a defendant charged with various drug crimes. Id. at 471-72 , 857 A.2d 590 .

But before being presented with a photo array, the detective who prepared the array indicated to the ²⁴⁶ arresting officer that “[he] knew who [the suspect] was,” id. at 472 , 857 A.2d 590 , implicitly “suggesting that [the] person’s photograph was in the array.” Id. at 476 , 857 A.2d 590 . When presented with the array, the arresting officer ultimately selected the suspect referred to by the detective. In determining whether the detective’s statements were impermissibly suggestive, we recognized that although “ ‘[t]he chance of misidentifieation is ... heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime,’ ” id. (quoting Simmons v. United States, 390 U.S. 377, 383 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968)), each case must “nevertheless be judged on its own facts.” Id.

Considering that the detective “left it to [the witness] to select the photograph of the person who had [committed the crime at issue],” and that “the circuit court was entitled to consider that [the witness] could reasonably expect that the array shown to him would have contained a suspect,” we held that the extrajudicial identification procedure was not impermissibly suggestive. Id. 7 We reach the same conclusion here. The detectives did not “ ‘contaminate the test by slipping the answer to [Mr. Wom-ack],’ ” Jenkins, 146 Md.App. at 126 , 806 A.2d 682 (quoting Conyers, 115 Md.App. at 121 , 691 A.2d 802 ); they left it to him to select the photograph of the person who robbed him. And because the detective “did not in any way suggest which photograph or photographs were of the suspect or give any ²⁴⁷ indication why the person in the photograph was suspected of having committed the robbery,” State v. Bolden, 196 Neb. 388 , 243 N.W.2d 162, 164 (1976) (cited by Gatewood, 158 Md.App. at 477 n. 6, 857 A.2d 590 ), Mr. Wallace’s arguments do not support a finding of impermissible suggestiveness.

The circuit court did not err in ruling that Mr. Wallace failed to sustain his burden of showing that the identification procedure used by the police was unduly suggestive, and on that basis denying his motion to suppress Mr. Womack’s extrajudicial identification. That ends the inquiry. See James, 191 Md. App. at 252 , 991 A.2d 122 ; Jones, 395 Md. at 109 , 909 A.2d 650 . B. Sufficient Evidence Existed To Support Mr. Wallace’s Convictions.

Mr. Wallace argues next that insufficient evidence existed to support his convictions. 8 Mr. Wallace acknowledges that “there is [no] doubt that Matthew Womack was the victim of a robbery,” but he argues that the prosecution failed to produce sufficient evidence to establish that he was one of the robbers involved in the crime. We disagree. In reviewing a sufficiency challenge, we must “determine 'whether, after viewing 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.’ ” Taylor v. State, 346 Md. 452, 457 , 697 A.2d 462 (1997) (quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)). It is not our role to measure the weight of the evidence; instead, we consider “only whether the verdict was supported by sufficient evidence, direct or circumstantial, which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged ²⁴⁸ beyond a reasonable doubt.” Id.

(citing State v. Albrecht, 336 Md. 475, 478-79 , 649 A.2d 336 (1994)). “We defer to any possible reasonable inferences the jury could have drawn from the admitted evidence and need not decide whether the jury could have drawn other inferences from the evidence, refused to draw inferences, or whether we would have drawn different inferences from the evidence.” State v. Mayers, 417 Md. 449, 466 , 10 A.3d 782 (2010). Because Mr. Wallace concedes that a robbery did, in fact, occur, one fact inferred by the jury is of crucial importance here: that Mr. Wallace was, in fact, one of two men who robbed Mr. Womack. We focus, then, while reviewing the evidence in a light most favorable to the State, on whether any rational jury could have drawn this same inference. The jury’s inference relied primarily upon circumstantial evidence produced by the State regarding Mr. Wallace’s whereabouts between the time he spoke with Mr. Womack at the bus stop and when surveillance cameras captured him making purchases at the same time and at the same stores at which Mr. Womack’s stolen credit card was used. “A conviction can rest on circumstantial evidence alone,” but such a conviction “cannot be sustained on proof amounting only to strong suspicion or mere probability.” Taylor, 346 Md. at 458 , 697 A.2d 462 (citing Wilson v. State, 319 Md. 530, 535-36 , 573 A.2d 831 (1990)).

The circumstantial evidence may “not require the trier of fact to resort to speculation or conjecture,” and if this is the case, and there is “no solid factual foundation, there can be no conviction.” Id. Put differently, “when the evidence equally supports two versions of events, and a finding of guilt requires speculation as to which of the two versions is correct, a conviction cannot be sustained.” Id. (citing Hebron v. State, 331 Md. 219, 234 , 627 A.2d 1029 (1993)). Indeed, the parties propose two alternative versions of the events in the time between the meeting at the bus stop and Mr. Wallace’s visits to Exxon and 7-Eleven: the State argued that Mr. Wallace committed the robbery in that intervening ²⁴⁹ time, while Mr. Wallace contended that the connection was mere coincidence.

A review of the record in the light most favorable to the prosecution demonstrates a solid factual foundation upon which a rational factfinder could agree with the State: • Mr. Wallace and Mr. Womack had met twice at the bus stop prior to the robbery: once two weeks prior and again shortly before the robbery. In total, the two spoke for between twelve and eighteen minutes. • Shortly after the second meeting, during which Mr. Wallace asked Mr. Womack where he was going, and just down the road from their meeting point, Mr. Womack was robbed of his credit card, among other items, by two masked men. • Shortly thereafter, Mr. Womack’s card was used at an Exxon and a 7-Eleven in the vicinity of the robbery, and Mr. Wallace was caught on surveillance purchasing items from those same stores in the hours following the robbery. • The assailants wore dark hooded sweatshirts, Mr. Wallace was wearing a black and gray sweatshirt in the surveillance stills, and that same sweatshirt was found in his room months later. The connection between these pre- and post-robbery circumstances was strengthened further by Mr. Womack’s identification of Mr. Wallace at the scene of the crime as a result of his prior interactions with him. Mr. Womack testified that from those prior interactions, he recognized the eyes and voice of one of his assailants as those of Mr. Wallace.

The circumstantial evidence produced by the State, coupled with Mr. Womack’s identification, could readily have allowed the jury to infer that Mr. Wallace was one of the men who robbed Mr. Womack. The evidence on the record tying Mr. Wallace to the robbery (which he admits occurred) supports a finding that the jury’s inference was reasonable. And, as we noted above, “[w]e defer to any possible reasonable inferences the jury could have drawn from the admitted evidence.” Mayers, 417 Md. at 466 , 10 A.3d 782 . As such, after viewing ²⁵⁰ the evidence in the light most favorable to the prosecution, we hold that a rational trier of fact could have found beyond a reasonable doubt that Mr. Wallace committed the crimes for which he was charged.

C. The Circuit Court Erred By Accepting An Acquittal On A Lesser-included Offense Of A Crime For Which Mr. Wallace Was Convicted When Those Crimes Arose During The Same Criminal Transaction. Finally, Mr. Wallace challenges the circuit court’s decision to accept what he characterizes as a legally inconsistent jury verdict. At the conclusion of the trial, the jury found Mr. Wallace guilty of robbery, among other charges, but not guilty of second-degree assault. After the verdicts were read, Mr. Wallace’s counsel objected to the alleged verdicts, 9 and counsel for both Mr. Wallace and the State initially requested that the case be sent back to the jury to resolve the inconsistency.

But after a brief recess, the State changed course and opposed Mr. Wallace’s contention of legal inconsistency. The circuit court agreed and declined Mr. Wallace’s request. 10 Mr. Wallace argues here that second-degree assault is a lesser-included offense of robbery, and therefore that the acquittal for second-degree assault was legally inconsistent with the guilty verdict for robbery. The State counters that the verdicts were not legally inconsistent because the evidence produced at trial supported two separate and distinct instances of assault. “We review de novo the question of whether verdicts are legally inconsistent. This is so because we review