Allen v. State

• Decision Date: 27 May 2010
• Citation: 995 A.2d 1013,192 Md. App. 625
• Parties: Jeffrey Edward ALLEN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

995 A.2d 1013

192 Md. App. 625

Jeffrey Edward ALLEN v. STATE of Maryland.

No. 1935, September Term, 2008.

Court of Special Appeals of Maryland.

May 27, 2010.

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Allison Pierce Brasseaux (Elizabeth L. Julian, Acting Public Defender, on the brief), Baltimore, MD, for appellant.

Robert Taylor (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: WOODWARD, MATRICCIANI and RAYMOND G. THIEME, JR. (Retired, Specially Assigned), JJ.

MATRICCIANI, J.

This case, which is before us for the second time, presents a narrow legal question and one of first impression in this State. At appellant's second trial, held in August 2008, Jeffrey Edward Allen, appellant, was convicted by a jury in the Circuit Court for Charles County of first-degree felony murder and sentenced to life imprisonment. Appellant raises four questions on appeal:

I. Did the trial court err when it: A) informed the venire of appellant's prior armed robbery conviction, and B) instructed the jury that because he had been previously convicted of the underlying felony, armed robbery, the jury need not decide that element in determining appellant's guilt or innocence on first-degree felony murder?

II. Did the trial court abuse its discretion when it allowed the State to introduce into evidence appellant's drug use the day before and the day of the murder?

III. Did the trial court err when it instructed the jury that appellant was "presumed not guilty" instead of "presumed innocent"?

IV. Did the trial court abuse its discretion when it allegedly allowed the State to make a "golden rule" argument during closing?

We answer the first question in the affirmative and so shall reverse appellant's conviction. Of the remaining questions, only the second one may arise again during re-trial. We answer that question in the negative.

BACKGROUND AND PROCEDURAL HISTORY

In 2002, appellant was charged with several crimes relating to the stabbing death of John Butler. Among the many contested issues at the first trial was appellant's intent when he stabbed Butler: specifically, whether appellant had intended to kill Butler or whether he had acted in self-defense. After hearing the evidence presented by the parties, the jury returned guilty verdicts on first-degree felony murder, second-degree murder, armed robbery, robbery, theft, and two counts of carrying a weapon openly with the intent to injure.¹

On appeal, we vacated appellant's felony murder conviction because the trial court gave an erroneous jury instruction. See Allen v. State, 158 Md.App. 194, 857 A.2d 101 (2004). The trial court had instructed the jury that to convict appellant of the crime of felony murder based on robbery, the jury need not determine when the intent to commit the underlying felony had occurred—the intent could have been formed before, during, or after the murder. Id. at 237-47, 857 A.2d 101. We held that the instruction was in error because an "afterthought" robbery could not form the basis for a felony murder conviction. Id. at 246, 857 A.2d 101. Because we did not know whether the jury had found that appellant had formed the intent to steal Butler's car before or during the commission of the murder (in which case the conviction could stand) or after the murder (in which case the conviction could not stand), and because there was sufficient evidence presented at trial for the jury to base its conviction on any of those three situations, we vacated appellant's felony murder conviction and remanded to the circuit court. Id. at 246, 249-50, 857 A.2d 101. We affirmed his remaining convictions, specifically finding that there was sufficient evidence to support the underlying felony—the armed robbery of the car. Our mandate read: "FIRST DEGREE FELONY MURDER CONVICTION VACATED; ALL OTHER JUDGMENTS AFFIRMED; CASE REMANDED TO THE CIRCUIT COURT FOR CHARLES COUNTY FOR FURTHER PROCEEDINGS; COSTS TO BE PAID 50% BY APPELLANT, 50% BY CHARLES COUNTY." Id. at 251, 857 A.2d 101. Our decision was affirmed by the Court of Appeals on the same grounds. See State v. Allen, 387 Md. 389, 875 A.2d 724 (2005).

In August 2008, the State re-tried appellant on the felony murder charge. The State proceeded on the theory that appellant had formed the intent to steal the car prior to the killing, while the defense's theory was that stealing the car was an afterthought to the murder. Testifying for the State, among others, was Butler's friend who was in the car when Butler picked up appellant, several police officers who responded to the crime scene and spoke to appellant about the crime, and a person with whom appellant shared his prison cell after his arrest. Appellant, who testified at his first trial, did not testify at his second trial. Defense counsel introduced no testimonial evidence.

The cumulative evidence presented by the witnesses at appellant's second trial showed that on the evening of October 23, 2001, Butler and two of his friends drove to "the Stroll," a well-known area in the gay community where gay people meet other gay people. Butler parked his car. He remained seated and a few minutes later appellant walked up to the car. After a brief conversation, appellant got in the car. Butler drove his two friends to their home. He then drove to his home where he and appellant engaged in consensual sex. The next morning, appellant told Butler that he wanted to leave, but Butler made no effort to take him home. When Butler refused to take him home, appellant picked up Butler's car keys. He jingled them loudly at Butler and said that he was driving this "m-fucker" out of here. Butler approached appellant, and when he did, appellant grabbed a kitchen knife, stabbed Butler repeatedly, and then fled in Butler's car. Several miles from Butler's home, appellant lost control of the car and ran into a ditch. Appellant got out of his car and flagged down a passing motorist. The driver drove appellant to a store where he called the police. When the police arrived at the store, appellant, who was covered in blood, explained that he had stabbed someone. Appellant directed the police to Butler's home where Butler was found naked and dead lying next to a couch. The police also seized Butler's car. Appellant, who was taken to the police station, showed no signs of physical injury. Butler had almost two dozen stab wounds to his neck, chest, hands, and face.

The jury again convicted appellant of felony murder, and he was subsequently sentenced to life imprisonment.

DISCUSSION

I.

Appellant argues on appeal that the trial court erred when it: A) told the venire about his prior armed robbery conviction because it impermissibly introduced other crimes evidence which was unduly prejudicial and not probative, and B) instructed the jury that he had previously been convicted of armed robbery so the jury need not determine whether appellant had committed the underlying felony in deciding whether to convict appellant of felony murder. Appellant argues that the trial court's instruction collaterally estopped him from arguing an essential element of the crime of felony murder and therefore removed the issue from the jury's consideration.

The State initially argues that appellant has failed to preserve his arguments for our review because he raised different arguments below. The State argues that appellant's arguments, even if preserved, are meritless. The State argues that appellant was not entitled to re-litigate his armed robbery conviction at his second trial because the remand from his first appeal was a limited remand to determine only when the armed robbery occurred. Thus, the armed robbery conviction was the "law of the case" and not open to re-litigation.²

A. Preservation.

At the beginning of appellant's second trial, the parties and the court discussed whether the jury should be told of appellant's previous convictions. Defense counsel asked the court to tell the venire that appellant had previously been convicted of second-degree murder³ but not to tell them about the armed robbery conviction, arguing that it was not relevant. When the trial court stated that the jury would have to be informed at some point about the armed robbery conviction, given that the prior robbery conviction was the "law of the case," defense counsel rejected that characterization, again adding that the armed robbery conviction was not relevant. Defense counsel also stated during the bench discussion that the only issue before the jury was when the appellant had formed the intent to rob Butler. The State, in response, argued that it made no sense to tell the venire about the second-degree murder conviction but not the robbery conviction.

The trial court ultimately agreed with the State. When the venire was brought into the courtroom, the trial court said, among other things:

Ladies and gentlemen, you—will hear evidence ... that the Defendant, Mr. Allen, was previously convicted for the offense of Second Degree Murder and Robbery in connection with the incident—that is the subject of today's trial.

That in part is why or primarily is the reason why the only matter before the jury in this case—before the Court in today's case or today's trial, will be the First Degree Murder trial—charge related to the robbery incident.

The jury is going to be instructed to— consider the evidence that pertains to the First Degree Felony Murder Charge only. Is there any potential juror who feels you will have difficulty—with the case because of the fact that you know in advance the Defendant has previously been convicted of offenses arising out of the incident?

(Emphasis added). One juror was excused for cause because he stated that he would have difficulty deciding the case knowing of the previous convictions. Subsequently, defense counsel moved for a mistrial, arguing that advising the venire of the prior armed robbery conviction "tainted the entire pool." The trial court denied...