Alexis v. State

• Decision Date: 27 February 2013
• Docket Number: 2787,Sept. Term, 2010.,Nos. 2786,s. 2786
• Citation: 61 A.3d 104,209 Md.App. 630
• Parties: Jamaal Garvin ALEXIS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

209 Md.App. 630

61 A.3d 104

Jamaal Garvin ALEXIS

v.STATE of Maryland.

Nos. 2786, 2787, Sept. Term, 2010.

Court of Special Appeals of Maryland.

Feb. 27, 2013.

Deborah S. Richardson (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.

Gary E. O'Connor (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: WATTS, BERGER, PAUL E. ALPERT (Retired, Specially Assigned), JJ.

WATTS, J.

Following a trial of consolidated cases from October 4, 2010, to October 29, 2010, a jury in the Circuit Court for Prince George's County convicted Jamaal Garvin Alexis, appellant, in case number CT08–0504X, of second-degree murder and robbery with a dangerous weapon of Raymond Brown, use of a handgun in the commission of a crime of violence, common law conspiracy to commit theft over $500, and two counts of theft over $500.¹See Md.Code Ann., Crim. Law Art. (“C.L.”) § 2–204 (second-degree murder); C.L. § 3–403 (robbery with a dangerous weapon); C.L. § 4–204(use of a handgun in the commission of a crime of violence); C.L. § 7–104 (theft). In case number CT09–1040B, the jury convicted appellant of solicitation to commit the murder of Bobby Ennels to prevent him from testifying in case number CT08–0504X, and solicitation to commit the murder of Bobby Ennels in retaliation for testifying before the grand jury.²SeeC.L. § 9–302(b)(2)(ii) (solicitation to induce a witness to be absent from an official proceeding to which the witness has been subpoenaed or summoned); C.L. § 9–303(b)(1) (solicitation with the intent of retaliating against a witness for giving testimony in an official proceeding).

On December 14, 2010, the circuit court sentenced appellant to a total of one hundred forty years' incarceration, as follows: As to case CT08–0504X, thirty years' incarceration for second-degree murder; twenty years' incarceration for use of a handgun in the commission of a crime of violence, the first five years to be served without the possibility of parole; twenty years' incarceration for robbery with a dangerous weapon; fifteen years' incarceration for conspiracy to commit theft over $500; fifteen years' incarceration for one count of theft over $500 and fifteen years' incarceration for another count of theft over $500; ³ and, as to Case No. CT09–1040B, twenty years' incarceration for solicitation to commit murder to prevent a witness from testifying and twenty years' incarceration for solicitation to commit murder in retaliation against a witness for testifying before the grand jury.⁴

Appellant noted an appeal raising four issues, which we quote:

I. Did the [circuit] court err in disqualifying [a]ppellant's attorney, who had previously represented a State's witness, when [a]ppellant's counsel had arranged for co-counsel to cross-examine the witness?

II. Did the [circuit] court err in allowing the State to introduce Amadu Jalloh's prior testimony when the witness refused to testify at trial?

III. Did the [circuit] court err in admitting Bobby Ennels'[s] grand jury testimony on the ground that [a]ppellant procured his unavailability at trial?

III. Did the [circuit] court err by sentencing [a]ppellant on two counts of solicitation although there was but one incitement?

For the reasons set forth below, we answer each question in the negative. We shall, therefore, affirm the judgments of conviction.

FACTUAL AND PROCEDURAL BACKGROUND

The acts for which appellant was convicted concerning the murder of Raymond Brown occurred on October 13, 2006, outside of a residence on Stillwater Place in Prince George's County. The acts concerning the murder of Bobby Ennels occurred on October 7, 2008, on Nalley Road, in Prince George's County.

Motion to Strike Appearance of Defense Counsel

After his indictment, appellant's trial was scheduled to begin on April 13, 2009. On April 1, 2009, the State filed a Motion to Strike Appearance of Defense Counsel (the “Motion to Strike”) and an accompanying memorandum of law. In the Motion to Strike, the State contended that appellant's counsel, Harry Tun, Esq., had a conflict of interest under the Maryland Lawyers' Rules of Professional Conduct (“MLRPC”) because he had previously represented a State's witness, Amadu Sulamon Jalloh aka Kamara Mohamed (“Jalloh”), in a separate criminal case. The State argued that Tun was in possession of confidential information regarding Jalloh as a result of the prior representation. Jalloh became a witness for the State, in appellant's case, when he contacted the State and advised that, while they were incarcerated together, appellant confessed to him that he had murdered Brown. In an affidavit accompanying the Motion to Strike, Jalloh attested that he had not waived the attorney-client privilege with Tun, and that he had filed a complaint against Tun with the Attorney Grievance Commission.

On April 9, 2009, appellant filed a Memorandum of Law in opposition to the State's Motion to Strike, advising that Tun represented Jalloh for a “brief and limited period of time” in a separate criminal case. Appellant advised, that: (1) on December 18, 2007, Tun filed a motion for release on bond on Jalloh's behalf and requested discovery,(2) on January 25, 2008, Tun filed a motion to sever charges in Jalloh's matter, and (3) on February 5, 2008, Tun withdrew as counsel for Jalloh. Appellant argued that, if there were a potential conflict of interest, Tun could create a “Chinese wall” to screen himself from the conflict by not using any confidences that he may have obtained from Jalloh in representation of appellant, and by having an attorney not affiliated with his firm (Hecht) cross-examine Jalloh at trial. Appellant asserted that Jalloh had waived the attorney-client privilege by filing a complaint with the Attorney Grievance Commission against Tun, and disclosing “the details of his case in an effort to express his dissatisfaction[.]”

On April 10, 2009, the circuit court conducted a hearing on the Motion to Strike. At the hearing, the State contended that Tun's representation of appellant violated: (1) MLRPC Rule 1.7, which provides that “a lawyer shall not represent a client if the representation involves a conflict of interest”; (2) MLRPC Rule 1.8(b), titled “Conflict of Interest: Current Clients: Specific Rules”; and (3) MLRPC Rule 1.9, titled “Duties to Former Clients.” The State asserted that Tun's offer to build a “Chinese wall” violated his duty of loyalty to a former client. The State argued that there was a “relationship” between Tun and Hecht, the attorney Tun argued he could use to cross-examine Jalloh, that “make[s] them similar to partners in a law firm.”

On behalf of appellant, Tun contended that he and Hecht “[were] not in the same firm[,]” did not have keys to each other's offices, and were not the equivalent of partners in a law firm. Tun argued that a “Chinese wall” would be effective because Hecht did not have access to his files. Tun asserted that, by filing a complaint against him with the Grievance Committee, Jalloh had waived any privilege. Tun maintained that appellant had knowledge of the alleged conflict and was “willing to waive that conflict on his part so that he can have [the] attorney of his choice.”

At the conclusion of the hearing, ruling from the bench, the circuit court granted the motion, stating as follows:

THE COURT: All right. On the State's motion to strike [ ] Tun as attorney for [appellant], for some reason, I don't know what the statistical likelihood of this happening is, the [appellant] in this case and [ ] Tun's former client, [ ] Jalloh, were placed in the same jail cell [at] the County Correctional Center and apparently have some conversations which I believe the State intends to use, if I'm not mistaken.

[PROSECUTOR ENGEL]: Yes, Your Honor.

THE COURT: While [appellant] has waived whatever conflict [ ] Tun might have, [ ] Amadu ... Jalloh—thank you—has not and, in fact, takes significant exception to [ ] Tun continuing to participate in this case when he, in fact, is going to be a witness for the State. The conflict is a significant one and I think we all agree there is, in fact, conflict. There is conflict with the duty of loyalty. I appreciate [ ] Tun represented him for a short period of time but, I think, that duty of loyalty continues and, in fact, there [ ] really is truly a conflict were this case to go to trial with [ ] Tun at the table.

To say that we can create a Chinese wall, a masonry wall, a brick or a block wall that solves this problem I think is folly. I just don't believe that we can do that. Having said all that, accordingly, I'm going to direct the Clerk to strike [ ] Tun's appearance.

Motion to Admit the Testimony of Bobby Ennels

On April 8, 2009, the State filed a “Motion to Admit Testimony Under Maryland Rule of Evidence 5–804(a) and Courts and Judicial Proceedings Article [ (“C.J.P.”) ] § 10–901” (the “Motion to Admit Testimony”), requesting that the circuit court allow Ennels's grand jury testimony to be admitted at trial. The State contended that appellant “engaged in, directed or conspired with Rashadd Alexis, his brother[,] and others known to the State, to murder Bobby Ennels so that he could not testify against him at trial.”

On August 4, 2009, and August 5, 2009, the circuit court held a hearing on the Motion to Admit Testimony.⁵ After hearing testimony and the argument of counsel, ruling from the bench, the circuit court granted the State's Motion to Admit Testimony, finding as follows:

In weighing all of the pluses and the minuses and the great deal of testimony and the evidence that we have heard, it would be difficult to have to overlook the obvious of what transpired in this case. So we're going to make the finding, by a clear and convincing evidence standard, that, in fact, State's Exhibit 47 should, in fact, be allowed for use at the trial, the first trial that [appellant] faces with regard to the murder of [Raymond Brown].

It would appear from the...