Whaley v. State

ZARNOCH, J. On July 9, 2007, appellant Lamont Whaley was tried by a jury in the Circuit Court for Wicomico County for his alleged involvement in the attempted armed robbery of Higimio Mendez-Roque. At the time of the alleged incident, Whaley was 16 years and four months old. Prior to trial, due to Whaley’s age, defense counsel sought to have Whaley’s case removed from circuit court to juvenile court and to have MendezRoque’s pretrial identification of Whaley and his co-defendant suppressed. Both motions were denied.

At trial, Whaley was convicted of attempted armed robbery, attempted robbery, first degree assault, reckless endangerment, and conspiracy. He was found not guilty of carrying a dangerous concealed weapon and wearing and carrying a dangerous weapon with intent to injure. Appellant presents the following issues in his appeal: 1. Did the judge abuse her discretion during the reverse waiver hearing by considering non-statutorily enumerated factors as a primary basis for denying Lamont’s transfer of jurisdiction, when the defense counsel, through Juvenile Services Reverse Waiver Report, met its burden of showing ⁴³⁴ that Lamont would be fit for rehabilitation in the juvenile system? 2.

Must Lamont’s conviction be reversed because the record clearly reflects that the court allowed impermissible and inflammatory prosecutorial remarks during summation, which amounted to reversible error and a denial of the constitutional right to a fair trial? 3. Must Lamont’s conviction be reversed and a claim for ineffective assistance of counsel stand because of defense counsel’s failure to object to the prosecutor’s change of theory after the jury began deliberations? For the following reasons, we reverse the judgment of the circuit court and remand for proceedings consistent with this opinion. FACTS AND LEGAL PROCEEDINGS On January 12, 2007, shortly after 7:10 p.m., Salisbury police responded to a call reporting an attempted armed robbery at 609 Railroad Avenue.

According to the victim, Mr. Mendez-Roque, two black males approached him outside his residence at 609 Railroad Avenue. They asked him if he had any money and proceeded to search his pockets. After discovering nothing in his pockets, one of the pair attempted to grab Mendez-Roque’s knapsack from his shoulder. At the same time, the other pulled out a BB gun and shot Mendez-Roque twice in the face.

Whether the first would-be robber also had a BB gun and fired would be a matter of some dispute. Shortly after the attempted robbery, Alex Venandez, a friend of Mendez-Roque, called the police. Venandez did not witness the attempted robbery, but communicated with the police, since Mendez-Roque spoke little or no English. Mendez-Roque was unable to provide a clear description of the would-be robbers.

He did not see their faces “because they had it [hoods] closed, the jacket closed up.” Mendez-Roque did not specify any of their features, such as height, weight, or facial appearance. However, through Venandez, Mendez-Roque did describe the assailants as two black males with black ⁴³⁵ hoods and gray shirts. According to Salisbury Police Officer Jason Harrington, Mendez-Roque told him that only one of the two males had a BB gun. 1 Gustavo Gomez, who lived in a house adjacent to Mendez-Roque and who had scared away the attempted robbers when he came outside of his home, told the officer that both men had BB guns. After receiving the description, Harrington left the scene to assist Officer Underwood of the Salisbury Police Department, who had detained a group of five teenagers who matched the limited description given by Mendez-Roque.

At 210 Records Street, a second group of three teenagers was detained by Officer Jeff Hughes. Appellant Lamont Whaley was one of the teenagers stopped by Hughes. According to Hughes, Whaley and another teenager, Christopher Maine, were wearing gray jackets and dark colored hoods. Whaley was the taller of the two.

The third person detained was wearing an orange colored jacket. At trial, Hughes stated that Whaley did not have a hood on when he was stopped, and that neither Whaley nor Maine had a hood on with fur around it. 2 Hughes performed a pat down and found on Maine what appeared to be CO-2 cartridges in his pocket. Whaley, Maine, and the third youth were detained so that Mendez-Roque could identify them. 3 Mendez-Roque and Venandez were transported in Officer Dimare’s patrol car to the show-up. Dimare relied on Venandez to communicate between him and Mendez-Roque.

At trial, Mendez-Roque testified through an interpreter that when he arrived at 210 Records Street, “there were other young men, and there were police officers and they didn’t take me in right next to them or in front of them but they pointed them to me.” Mendez-Roque stated at trial that he identified Whaley and Maine based on the clothing they were wearing. ⁴³⁶ At trial, Dimare said that Mendez-Roque pointed in the area where the officers had detained Whaley and Maine, but that he did not know what Venandez said to Mendez-Roque before he pointed in Whaley’s direction. At trial, Mendez-Roque testified that during the attempted robbery, his view of the two men was limited because during the entire incident, he was looking straight ahead and focusing on getting to the front door of his residence. Shortly before the attempted robbery, Mendez-Roque had stopped by a laundromat. There, he saw the two would-be assailants, without their hoods.

For this reason, he was able to identify the two suspects, even though their identities were obscured by their “furry hoods” at the time of the attack. Mendez-Roque left the laundromat and went to his former residence on Cherry Street. There, he drank a beer and gathered his belongings. He did not see the pair from the laundromat again until he arrived at Railroad Avenue.

Mendez-Roque also testified that the two males did not follow him and that, prior to the laundromat, he had never seen either of them. After the show-up, Whaley and Maine were charged. 4 Whaley filed a Petition For Waiver of Jurisdiction to the Juvenile Court and Request For a Study Concerning Child. The State filed an opposition to the request for a reverse waiver, asserting among other things, that the “[djefendant is alleged to have pulled a BB gun on the victim in an attempted armed robbery and then shot the victim in the head several times,” and that the court had to presume the guilt of Whaley for purposes of the reverse waiver proceeding. 5 On May 1, 2007, a reverse waiver and motions hearing was held for both defendants. Darlene White, a Case Manage ⁴³⁷ ment Specialist with the Department of Juvenile Services (D JS), presented a Waiver Report to the court on Whaley.

In it, she recommended that “the Court consider waiver of jurisdiction back to the juvenile system since Lamont [Whaley] has not been afforded various services that are available to youth that are processed through the Court system.” 6 White was quizzed by the court on the ability of DJS to place Whaley in a secure facility if he were adjudicated by the juvenile court of an attempted robbery or first degree assault: THE COURT: ... Assume, for the sake of argument, that these facts were established, whether it was determined to be a robbery or an assault, I mean if these are the facts that support the underlying finding, there is no plan in place at this point in time for you to say this would be, if these facts were adjudicated our plan would be X and therefore we could address the issue of public safety. That’s not something you’re prepared to testify to today, is that correct? WHITE: Not at this moment since I don’t know what the adjudicated offense would be at this point.

PROSECUTOR: Assuming that he’s adjudicated delinquent of an attempted armed robbery, what options are there for him in Juvenile Services? ⁴³⁸ WHITE: There are secure confinement facilities that would be available to him. Sometimes they are difficult to get into but they are available. THE COURT: Of course, and if you can’t get into them— PROSECUTOR: Then what do you do with them? THE COURT: Good question.

All right, anything else? The DJS report also stated: New offenses pose more serious risk to the safety of our public than the use of a weapon in the commission of crime. While the nature of the offense is serious[,] it is noted that the weapon used was a BB gun. Young people who become involved in these types of offenses can be held accountable in juvenile jurisdiction.

Public safety can be ensured in juvenile jurisdiction via various levels of commitment, including placement in secure confinement facilities. Upon cross-examination, the following colloquy occurred between the prosecution and White: Q. Did you discuss with [Whaley] the crime itself? A. No, I did not. I discussed the five factors that are included in the reverse waiver report.

Q. And he is obviously, for purposes of this process, as you know he is presumed to be guilty, correct? A. I’m not sure about that, I assume that’s right. Also testifying at the hearing was Matthew Phillips of the Department of Juvenile Services. When asked by defense counsel whether there was an available facility if Whaley were adjudicated delinquent for armed robbery, he named three out-of-state facilities.

Phillips testified that the juvenile might not be placed in a residential facility, but “I can say secure confinement is our most structured and as it relates to public safety that secure confinement would address public safety.” The appearance concluded with the following exchange between the court and the witness: ⁴³⁹ THE COURT: Sir, in your experience has the Department of Juvenile Services approved out-of-state placements when they are requested by the Department? THE WITNESS: Yes, ma’am. THE COURT: Really. That’s not what I’m told.

All right, very good, you may step down. THE WITNESS: It’s a lengthy process. But if there are no facilities in the State of Maryland to place them, we have kids who routinely go to the Pines in Virginia, and that’s an out-of-state placement. THE COURT: So your department doesn’t tell you they won’t fund that out-of-state placement if that’s what’s been court ordered or recommended by the Department?

THE WITNESS: No, ma’am. After the hearing, the court denied the reverse waiver re quest. Addressing the nature of the alleged offense, the circuit judge said: “So for today’s proceeding, 1 believe that Mr. State’s Attorney is right, I am to assume that the charges as brought against the individual are true and that the allegations filed form the basis thereof are true, that’s my role today.” The court observed: I’m looking at the conduct in question, as I said before I left, this does not appear to me to be an act of immaturity, it’s not that one or the other of these individuals got caught up with the group and were just carried along, the facts that I have to accept is they apparently armed themselves in anticipation with BB guns, by mutual agreement approached a victim and without any kind of a—it wasn’t like a mutual affray, this victim was just attending to [his] own business and when they attempted to rob the victim!,] the robbery failed and at that point multiple shots were fired striking the victim in the face and head ... It doesn’t get much worse than that.

Pointing to Whaley’s “disruptive” behavior in school and prior contacts with the juvenile justice system that did not lead to adjudications, the circuit judge said: ⁴⁴⁰ I cannot find that there is evidence to suggest to me that treatment in the juvenile facility for this individual would be particularly more effective than the treatments available through the normal adult criminal justice system or that the programs available in DJS would outweigh my concerns regarding public safety. Secure confinement placements are very limited resources in the Department of Juvenile Services. The nature of these charges would indicate to me that we would certainly be looking, if he were a juvenile, at a secure confinement placement and there are very lengthy delays in that process. Whereas, he is going to be 18 years old in a year and a half.

For the offense in question it appears that the criminal justice system would be able to supervise him for up to five years, if that was necessary. He would be well within his adulthood during the mid to later portion of that, and I find the Court can address his needs through detention, supervision in the community, community based interventions or confinement as well as the juvenile justice system could be this point in his life. So I’m going to find that the defense has not met its burden in his case to demonstrate that transfer of jurisdiction is in the interest of the child or society and I’m going to deny the reverse waiver. In addition, defense counsel moved to suppress the show-up identification by Mendez-Roque.

This motion was also denied. 7 A jury trial was held in the Circuit Court for Wicomico County on July 9, 2007. At trial, when Mendez-Roque was asked to identify Whaley in the courtroom, Mendez-Roque, at first, could not identify Whaley: Prosecutor: Do you see either of the two boys in the courtroom this morning that grabbed you and went through your pockets? ⁴⁴¹ Mendez-Roque: Is he here or around here? When the prosecutor repeated the question, Mendez-Roque identified Whaley as one of the two assailants. At trial, the State also introduced a BB gun allegedly connected to the attempted robbery.

The BB gun was found the day after the attempted robbery, on Saturday, January 13, 2007, at 409 Elizabeth Street in Salisbury on the property of Matthew Workman. Workman’s son came upon the BB gun under a bush on the side of the house. Workman took it to the Salisbury Police Department. Mendez-Roque was shown the BB gun and said that he had never seen it before.

Mendez-Roque said that the gun was the same size as the “one” used in the attempted robbery, “but it looked different.” When questioned, by the prosecutor, Mendez-Roque stated that there were two weapons. Upon cross-examination, the following exchange occurred: Defense counsel: “And only one of them shot the BB gun at you, correct? Mendez-Roque: Yes, the one that was on the sidewalk. The witness also said that the “one on the sidewalk” was the shorter of the two and that person was not Whaley. 8 ⁴⁴² During closing arguments, the prosecutor remarked that “we have in our community those who will take advantage of some who cannot or aren’t familiar with the system, who aren’t from here, who are easy pickings, because you have a language barrier to start with.

And we find several of the Hispanic community move from place to place.” Defense counsel objected that “he [the prosecutor] is making reference to others in the community and his own personal opinion about the Hispanic community and the [sic] whether or not they’re a target.” The judge overruled the objection. Shortly after they retired to deliberate, the jurors sent a note to the judge, asking, “If two people are involved, one is holding a gun, can both be charged with armed robbery?” 9 Defense counsel asked the court, “Well, I don’t have the aiding and abetting instruction, but is there any way we can look at it and see if we should send that back instead?” Both the prosecutor and defense counsel approved the aiding and abet ⁴⁴³ ting pattern jury instruction, and the judge read it to the jury. Whaley was then convicted of attempted armed robbery, attempted robbery, first degree assault, reckless endangerment, and conspiracy. He was found not guilty of carrying a dangerous concealed weapon and wearing and carrying a dangerous weapon with intent to injure.

He was sentenced to 10 years imprisonment for attempted armed robbery and a concurrent 10 year sentence for conspiracy. The other counts were merged with the attempted armed robbery charge. Additional facts will be discussed below. DISCUSSION I. The Trial Court’s Reverse Waiver Hearing Whaley argues that the trial court abused its discretion when it considered non-statutorily enumerated factors as the basis for denying Whaley’s motion for reverse waiver.

Specifically, appellant claims that the circuit court, in gauging the nature of his alleged offense, improperly assumed his guilt and, in weighing his amenability to treatment, impermissibly speculated about the juvenile’s likely sentence and the availability of placement options in the juvenile system. After a juvenile delinquency petition has been filed, the prosecution has the right to request waiver of the juvenile court’s jurisdiction so that the juvenile may be tried as an adult in criminal court. Md. Code (1973, 2007 Repl. Vol.), Courts & Judicial Proceedings Article (“Cts. & Jud.

Proc.”) § 3-8A-06 10 ; In re Johnson, 17 Md.App. 705, 708 , 304 A.2d ⁴⁴⁴ 859 (1973). When a case is brought in criminal court and an accused child is between the ages of fourteen and eighteen, the juvenile defendant may request a transfer back to the juvenile system. Md. Code (2001, 2007 Repl. Vol.), § 4-202(b) of the Criminal Procedure Article (“Crim.

Proc.”) During a so-called “reverse waiver” hearing, the court must consider the following factors: (1) the age of the child; (2) the mental and physical condition of the child; (3) the amenability of the child to treatment in an institution, facility, or program available to delinquent children; (4) the nature of the alleged crime; and (5) the public safety. Crim. Proc. § 4-202(d). The burden is on the juvenile to demonstrate that under these five factors, transfer to the juvenile system is in the best interest of the juvenile or society.

Crim. Proc. § 4-202(b)(3); and Kennedy v. State, 21 Md.App. 234, 240 , 319 A.2d 850 (1974). The weighing of the five factors by the circuit court is reviewed by an appellate court for abuse of discretion. King v. State, 36 Md.App. 124, 128 , 373 A.2d 292 (1977).

However, the question of whether an assumption of guilt of the charged juvenile is permitted under Crim. Proc. § 4-202 is purely a legal issue, reviewable de novo. Appellant points to the obvious fact that an express directive to a juvenile court to assume guilt in a waiver case is found in Cts. & Jud. Proc., § 3-8A-06(d), but no such provision clearly appears in Crim.

Proc., § 4-202 to govern when a criminal court considers a reverse waiver. He seems to argue ⁴⁴⁵ that this creates a negative implication that the expression of assumed guilt in one statute mandates its intentional exclusion from the other. The State contends that the circuit court, in fact, did not presume guilt, but that in assessing the “nature of the alleged crime” under Crim. Proc. § 4-202(d)(4), “it could not look behind the charges to determine if Whaley was properly before the circuit court in the first place.” We believe the relationship of these two statutes does shed meaning on whether an assumption of guilt or, even a lesser prohibition on looking beyond the charges, is permissible under § 4—202(d).

It is often said that the relevant factors for judicial consideration of waiver and reverse waiver are “the same,” Smith v. State, 399 Md. 565, 582 , 924 A.2d 1175 (2007); and King v. State, supra, 86 Md.App. at 127, 373 A.2d 292 , or are “similar”, Kennedy v. State, supra, 21 Md.App. at 240 , 319 A.2d 850 . But see Miles v. State, 88 Md.App. 860 , 891, 594 A.2d 1208 (1991)(It is incorrect to conclude that if the legal principles governing reverse waivers are the same as those governing waiver, that the unconstitutionality of one scheme affects the other.). However, upon closer examination, we find that the two statutes differ in significant respects, even as their histories have intersected. The same law that introduced the five-factor waiver analysis created the reverse waiver, with a more generalized standard: “[T]he interests of the child and society.” Chapter 432, Laws of 1969.

However, in 1975, both statutory schemes were amended in separate pieces of legislation. The five-factor waiver analysis was re-enacted along with new language providing that, “[f]or purposes of determining whether to waive its jurisdiction, the court shall assume that the child committed the delinquent act alleged.” Chapter 554, Laws of 1975. 11 ⁴⁴⁶ At the same time, the amorphous standard for reverse waiver was particularized with a five-factor analysis that mirrored in many, but not all, respects the waiver standard. Chapter 830, Laws of 1975. The word “alleged” was attached to the “nature of the crime” and, most importantly, there was no mention of an assumption of guilt. 12 Nevertheless, it is possible to argue that the 1975 legislation merely incorporated a guilty assumption in waiver situations from earlier caselaw, see Matter of Murphy, 15 Md.App. 434, 435-36 , 291 A.2d 867 (1972), and that the Legislature, by adopting the five-factor waiver analysis for reverse waiver cases, intended the same assumption to apply.

However, this is not the most likely explanation for the Legislature’s actions. Chapter 554 (HB 384) and Chapter 830 (HB 1654) were enacted during the same session of the General Assembly, passing in each chamber within days of each other. The bills were considered by the same committees in the House and Senate. 13 Each related to the same general subject and could easily have been included in a single bill. Most importantly,