Alston v. State, No. 0156, September Term, 2005.

CourtCourt of Special Appeals of Maryland
Writing for the CourtAdkins
Citation934 A.2d 949,177 Md. App. 1
PartiesAnthony ALSTON v. STATE of Maryland.
Docket NumberNo. 0156, September Term, 2005.
Decision Date03 October 2007
934 A.2d 949
177 Md. App. 1
Anthony ALSTON
v.
STATE of Maryland.
No. 0156, September Term, 2005.
Court of Special Appeals of Maryland.
October 3, 2007.

[934 A.2d 952]

David P. Kennedy, Baltimore, for appellant.

Michael R. Braudes, Baltimore, for appellee.

Panel: ADKINS, WOODWARD, and CHARLES E. MOYLAN, JR., (Retired, Specially Assigned) JJ.

ADKINS, J.


What is the significance of the jury oath in a criminal trial? We answer that question as we decide Anthony Alston's challenge to his conviction for conspiracy to murder on the ground that the jury was not sworn until after the State completed its case.

Standard Of Review

We are reviewing the court's denial of appellant Alston's motion for a mistrial, as well as its failure to grant Alston's post-verdict motion for a new trial. The decision to grant a motion for a mistrial is a matter within the discretion of the trial judge. See Hunt v. State, 321 Md. 387, 422, 583 A.2d 218 (1990), cert. denied, 502 U.S. 835, 112 S.Ct. 117, 116 L.Ed.2d 86 (1991). A denial of a motion for mistrial will only be reversed on appeal when there was clear prejudice to the defendant. See Johnson v. State, 303 Md. 487, 516, 495 A.2d 1 (1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907 (1986). This Court may reverse a denial of a new trial motion if the trial court made an error of law, or abused its discretion. See Merritt v. State, 367 Md. 17, 30-31, 785 A.2d 756 (2001).

FACTS

Johnny Cabizza was shot and killed in Baltimore City on July 10, 2003. Anthony Alston was charged with first degree murder; second degree murder; conspiracy to murder; use of a handgun in the commission of a felony or crime of violence; and wearing, carrying, and transporting a handgun.

The State presented testimony from Shervin Easton, an alleged accomplice and coconspirator, at Alston's trial. According to Easton, Easton met up with Alston and another man, El, shortly after noon on the day of the incident. The three men gathered at Easton's workplace in Prince George's County and then drove to Baltimore, with Easton in his blue Ford van, and Alston and El in Alston's red Kia. Easton said the men went to Baltimore to "get some blow, some heroin, sniff."

When in Baltimore, the three men parked their cars and walked down Fulton Street to Edmondson Avenue. They approached a group of four or five teenagers sitting on a stoop at the corner of Edmondson and an alley. Easton asked the teenagers if there was "anything out" and they told Easton "yes . . . just walk around the corner." El stayed on the corner, and Easton and Alston walked around the corner. Easton testified that, when he and Alston went where directed, "a little guy . . . pulled a pump shotgun from under

934 A.2d 953

a cardboard box and stuck it in [his] face." The man robbed him of his cell phone and $50.00. All of this happened with Alston standing about five to ten feet behind Easton.

Easton, Alston, and El returned to their cars after Easton was robbed. They drove around for a while and spotted the teenagers, but were unable to catch up with them. The men eventually drove to Easton's home in Anne Arundel County. At Easton's home, Alston said to Easton, "Hey boy, you want your stuff back[.]" Easton testified that he replied, "yes, you know, I would like to have my stuff back, you know." Alston then asked Easton for his gun, a Taurus .380, and the three men drove back to Baltimore in Alston's Kia.

When the men returned to Baltimore, they parked on West Franklin Street, near the location of the earlier robbery. According to Easton, he stayed in the car while Alston and El walked through an alley. After fifteen or twenty minutes, Easton heard two or three shots. Alston and El returned quickly, telling him to drive away. Alston told Easton that he did not have time to retrieve the phone.

Officers testified that they responded to a call about a shooting at approximately 5:00 p.m. that evening. The officers found Cabizza lying on the sidewalk on Edmondson Avenue. Cabizza was pronounced dead at the hospital from multiple gunshot wounds. The medical examiner testified that there was no evidence of stippling or soot, indicating that the shots were fired from more than two feet away. The examiner removed two large caliber bullets from the body. A crime lab technician testified that he removed three cartridge casings from the scene. A firearms examiner testified that the bullets and cartridges were all .380's, each coming from one gun. The examiner also indicated that the gun was probably a Taurus or Beretta semi-automatic.

The State also presented testimony from three of Cabizza's friends: Brandon Sims, Ray Issac, and Kevin Morgan. Sims testified that he first encountered two men on July 10, 2003, while sitting with Issac and Morgan at the corner of Edmondson and Fulton. The two men asked them for drugs. Cabizza then came over and took the men down the alley. Sims did not see what happened in the alley, nor did he see the men come out. Sims said that the group left and then later returned to Edmondson Avenue. This time, a man came around the corner and "start[ed] firing or shooting and was like, give me my money back"; however, Sims did not see the man's face. Sims indicated he previously picked Alston's photograph out of a photo array because he thought he was the man who killed Cabizza.

Issac's testimony of the events at Edmondson Avenue that afternoon was similar to Sims' account. When the friends returned to Edmondson Avenue, Issac said that one person came out of the alley "real quick" saying, "Where's my mother-fucking money[?]" Issac indicated that the man then started shooting. Issac also did not see the man's face, but indicated that he had previously picked out Alston's photo as the "same guy in the red Jeep and the same guy who was there when Johnny got shot."

Morgan also gave an account of the July 10, 2003 events similar to Sim's and Issac's. Morgan first recounted that two men approached him and the others, with whom he was standing, earlier in the afternoon at the corner of Fulton and Edmondson. The men asked if they had any heroin. He and the others said no, but Cabizza then said he had some and told the two men to follow him to the end of the alley. The men followed Cabizza

934 A.2d 954

around the corner. Morgan then saw the two men come "skipping back around the corner" after a minute or two as if something had just happened to them.

Morgan then testified about his observations at the time of the shooting. He indicated that two men came out of the alley. Morgan asked them if they wanted heroin and the men denied his offer. He thought that one of the men looked familiar. Morgan said that the two men walked toward the teens in an unusual way. The men then turned and walked away. But one of the men then turned around, pulled out a gun, and said "bitch, give me my money[.]" Morgan testified that he recognized this individual as one of the two men Cabizza had robbed, and that the second man was not one of the original two. Morgan said that he was only a short distance away. Morgan ran at this point and saw the shooter fire off the first shot. In court, Morgan identified Alston as the shooter.

LEGAL PROCEEDINGS

Alston was indicted in the Circuit Court for Baltimore City on September 5, 2003. On June 10, 2004, Judge Ellen Heller heard and decided Alston's motions to suppress pretrial identifications. Judge Heller also presided over jury selection. Alston's case was tried before a jury on June 11, 14, and 15, 2004, with Judge John Glynn presiding.

The jury returned verdicts of not guilty on the charges of first and second degree murder, not guilty on the handgun charges, and guilty on the charge of conspiracy to murder. On March 23, 2005, Judge Glynn denied Alston's motions for a new trial, and then sentenced Alston to life in prison for conspiracy to murder. Alston appealed, asking us to consider the following questions:

I. Did the trial court err in denying Alston's motions for a mistrial and for a new trial where the jury was not sworn until after the essential conclusion of the State's case?

II. Did the trial court err in permitting an in-court identification by a witness whose pre-trial identification had been suppressed as the product of improper suggestion and not reliable?

III. Did the trial court err in sentencing Alston to life for conspiracy to murder where under the instructions given the jury could have found Alston was guilty only of conspiracy to commit second degree murder?

IV. Was the evidence insufficient to sustain a conviction of conspiracy to murder where the only pertinent evidence was direct evidence from an alleged co-conspirator establishing at most an agreement to commit robbery?

We answer no to all four questions.

DISCUSSION
I.
Jury Swearing

Md. Rule 4-312(h) requires that a jury be sworn. Although the rule does not specify what exact words comprise the juror's oath, the language typically used is the following:

Ladies and gentlemen of the jury, please stand and raise your right hands to be sworn. You, and each of you, solemnly promise and declare you shall well and truly try, and a true deliverance make, between the State of Maryland and [Mr. Alston], whom you shall have in charge, and a true verdict give, according to the evidence.

934 A.2d 955

On the morning of the third day of trial, June 15, 2004, defense counsel informed the court that the jury had not yet been sworn. Alston moved for a mistrial, and his motion was denied without prejudice. The circuit court then had the jury sworn, and inquired of the jury:

Now, what I'm going to ask you individually, and I'll ask each of you in turn, is whether anything has occurred during the course of this trial or whether now, having been sworn in, you're aware of anything that in any way would interfere with your fulfilling of this oath and treating this oath as though it were administered at the beginning of this case....

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34 practice notes
  • Armstaed v. State , No. 469, Sept. Term, 2009.
    • United States
    • Court of Special Appeals of Maryland
    • 28 Octubre 2010
    ...the agreement was to commit murder in the first degree. Recognizing that this Court had dealt with a similar issue in Alston v. State, 177 Md.App. 1, 934 A.2d 949 (2007), a case pending in the Court of Appeals on certiorari review at the time appellant filed his brief in this195 Md.App. 617......
  • Alston v. State Of Md., No. 129
    • United States
    • Court of Appeals of Maryland
    • 11 Mayo 2010
    ...The Court of Special Appeals affirmed the judgment, and this Court granted Alston's petition for a writ of certiorari. Alston v. State, 177 Md.App. 1, 934 A.2d 949 (2007), cert. granted, 403 Md. 304, 941 A.2d 1104 (2008). Testimony elicited at trial described the incidents that led to the d......
  • Markham v. State, No. 424, September Term, 2008.
    • United States
    • Court of Special Appeals of Maryland
    • 25 Noviembre 2009
    ...contexts, such as double jeopardy, "Maryland law treats the swearing of the jury as the beginning of trial." See, e.g., Alston v. State, 177 Md.App. 1, 19, 934 A.2d 949 (2007) ("the swearing of the jury is the critical demarcation of when a trial commences for double jeopardy purposes."), c......
  • Molter v. State , No. 1079
    • United States
    • Court of Special Appeals of Maryland
    • 7 Septiembre 2011
    ...Cooley v. State, 385 Md. 165, 173, 867 A.2d 1065 (2005); Wilhelm v. State, 272 Md. 404, 429, 326 A.2d 707 (1974); Alston v. State, 177 Md.App. 1, 6, 934 A.2d 949 (2007). A mistrial is “an extraordinary remedy and should be granted only ‘if necessary to serve the ends of justice.’ ” Klauenbe......
  • Request a trial to view additional results
34 cases
  • Armstaed v. State , No. 469, Sept. Term, 2009.
    • United States
    • Court of Special Appeals of Maryland
    • 28 Octubre 2010
    ...the agreement was to commit murder in the first degree. Recognizing that this Court had dealt with a similar issue in Alston v. State, 177 Md.App. 1, 934 A.2d 949 (2007), a case pending in the Court of Appeals on certiorari review at the time appellant filed his brief in this195 Md.App. 617......
  • Alston v. State Of Md., No. 129
    • United States
    • Court of Appeals of Maryland
    • 11 Mayo 2010
    ...The Court of Special Appeals affirmed the judgment, and this Court granted Alston's petition for a writ of certiorari. Alston v. State, 177 Md.App. 1, 934 A.2d 949 (2007), cert. granted, 403 Md. 304, 941 A.2d 1104 (2008). Testimony elicited at trial described the incidents that led to the d......
  • Markham v. State, No. 424, September Term, 2008.
    • United States
    • Court of Special Appeals of Maryland
    • 25 Noviembre 2009
    ...contexts, such as double jeopardy, "Maryland law treats the swearing of the jury as the beginning of trial." See, e.g., Alston v. State, 177 Md.App. 1, 19, 934 A.2d 949 (2007) ("the swearing of the jury is the critical demarcation of when a trial commences for double jeopardy purposes."), c......
  • Molter v. State , No. 1079
    • United States
    • Court of Special Appeals of Maryland
    • 7 Septiembre 2011
    ...Cooley v. State, 385 Md. 165, 173, 867 A.2d 1065 (2005); Wilhelm v. State, 272 Md. 404, 429, 326 A.2d 707 (1974); Alston v. State, 177 Md.App. 1, 6, 934 A.2d 949 (2007). A mistrial is “an extraordinary remedy and should be granted only ‘if necessary to serve the ends of justice.’ ” Klauenbe......
  • Request a trial to view additional results

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