Bellamy v. State

• Decision Date: 01 September 1997
• Docket Number: No. 788,788
• Citation: 119 Md.App. 296,705 A.2d 10
• Parties: Fred BELLAMY, Jr. v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 296

119 Md.App. 296

705 A.2d 10

Fred BELLAMY, Jr. v. STATE of Maryland.

No. 788, Sept. Term, 1997.

Court of Special Appeals of Maryland.

Jan. 16, 1998.

Gina M. Serra, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen, Baltimore and Jack B. Johnson, State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Submitted before MOYLAN, HOLLANDER and EYLER, JJ.

HOLLANDER, Judge.

Fred Bellamy, Jr., appellant, was tried by a jury in the Circuit Court for Prince George's County (G.R. Hovey Johnson, J., presiding). Following his conviction for robbery with a deadly weapon, robbery, felony theft, and assault, appellant lodged an appeal to this Court and presents two questions for review:

I. Did the trial court err by making inappropriate comments to the jury?

II. Did the trial court err by imposing separate sentences for offenses that should have merged?

We shall affirm the convictions. Nevertheless, we agree with appellant that his sentence for felony theft should have merged with his sentence for robbery with a deadly weapon. Therefore, we shall vacate the sentence for felony theft.

Factual Background

Appellant was charged with the robbery of the Mobil Gas Station in Oxon Hill, Maryland, on May 5, 1996. At his jury trial in February 1997 in the Circuit Court for Prince George's County, the jury was presented with the following facts.

The cashier at the Mobil Gas Station testified that, at approximately 6:40 a.m. on May 5, 1996, he was robbed at gunpoint of between $450 and $500 in cash. The cashier said he recognized the robber as a regular customer and as an employee of a nearby carwash. The victim notified the police as soon as the robber fled the scene, and the police responded within minutes. The victim later identified appellant as the robber after viewing a photographic array. At trial, the victim again identified appellant as the robber.

Approximately ten hours after the robbery, appellant and a friend pulled into the gas station and were arrested by police. Appellant's friend, who denied any involvement in the robbery, testified that appellant was carrying a large amount of cash that day, which appellant claimed he had won earlier in the day at a casino. A police detective testified that appellant had approximately $660 in cash when he was arrested.

In its instructions to the jury, both before opening statements and prior to deliberations, the court admonished the jury that its verdict must be unanimous. After the jury had begun its deliberations, the court was notified that the jury had reached a verdict. When the jury then returned to the courtroom, the following transpired:

THE CLERK: Ladies and gentlemen of the jury, have you agreed upon your verdict?

THE JURY: We have.

THE CLERK: Who shall say for you?

THE JURY: Our Foreman.

THE CLERK: Madam Foreman, what say you in CT 96-1066X, State of Maryland versus Fred Bellamy, Jr., as to question one, is the defendant guilty or not guilty of felony theft?

THE FOREMAN: We could not reach a unanimous decision.

THE COURT: Oh, for God's sake.

Ma'am, you said you had a verdict. Now, are you telling me you have no verdict in any of these counts?

THE FOREMAN: Then it is not guilty, because it is not--

THE COURT: Just a moment. Do you have a unanimous verdict?

THE FOREMAN: No.

THE COURT: Then you have no verdict. All right. We will break sequestration, send them home, bring them back in the morning and resume deliberations. Folks, at this point, all discussion ceases. I have been on this bench since 1982, and this is the first time anything like this has happened. No more discussions about this until I bring you in in the morning, put you in the jury box, make sure all 12 of you are there, and everybody else will be here, and then I will send you to the jury room to resume your deliberations. How this could have happened, I have no idea. Ma'am, you don't have a verdict until 12 people unanimously agree. Remember, all of the admonitions I gave you on yesterday. Leave all of your pads on the railing.

Where are the notes? Turn them over to the Clerk. Don't take anything out of here relating to this case. Mr. Bailiff, were you told that they had a verdict?

THE BAILIFF: Yes.

THE COURT: Madam Clerk, put all of those in an envelope so they can be returned to them tomorrow morning. If there is anything in the room take it out of the trash, Mr. Bailiff, and turn it over to the Clerk. All right folks. No discussions about this case whatsoever until all of us are together tomorrow morning, and then when I send you back into the jury room to resume your deliberations. Be in the jury lounge ready to be picked up by the Bailiff at 9:00 a.m. tomorrow morning. Is there anything that either side wishes the court to do?

[DEFENSE COUNSEL]: No, your honor.

[THE PROSECUTOR]: No, your honor.

THE COURT: 9:00 o'clock tomorrow morning, in the jury lounge, ready to be picked up by the Bailiff. Thank you. You are excused for the evening.

The jury was then excused from the courtroom. Outside of the jury's presence, the court addressed counsel:

THE COURT: Did I tell them something wrong?

[DEFENSE COUNSEL]: No. We were all standing here. They said we have a verdict.

THE COURT: You think I should change the Foreman in the morning? I will leave it up to you two. She is not in control, and she has got to be in control. Just think about it.

Thereafter, the court recessed the hearing until the following morning. At approximately 9:00 a.m. the next day, outside of the jury's presence, the following colloquy occurred:

[DEFENSE COUNSEL]: Your honor, in light of what happened yesterday, what I'm asking the Court to do, in order to protect my client's interest, is to take the verdict on the count and to inquire as to the other counts.

THE COURT: There was no verdict. That's what she said.

[DEFENSE COUNSEL]: Well, then she did say not guilty. That was the last thing she said.

THE COURT: She did not. What she said was we couldn't reach a verdict, and, therefore, I guess that's not guilty.

[DEFENSE COUNSEL]: As I said, just for the record, to protect my client's interest.

THE COURT: I'm not changing the record. The record was made yesterday on whatever that woman said, the clerk took down--I mean the reporter took down.

[DEFENSE COUNSEL]: Correct.

THE COURT: I'm not changing anything. I'm not doctoring anything. Whatever the transcript says for yesterday, that's what it is.

[DEFENSE COUNSEL]: Okay.

THE COURT: I didn't direct anything to the reporter.

[DEFENSE COUNSEL]: Right. I know.

THE COURT: So the reporter was taking down everything.

[DEFENSE COUNSEL]: Right.

THE COURT: So why would I change it?

[DEFENSE COUNSEL]: I'm not asking you to change it. I am asking you to make an inquiry into these jurors'-- THE COURT: Absolutely not. Absolutely not.

[DEFENSE COUNSEL]: Thank you.

THE COURT: She said they had not reached a verdict. Then she said, "So I guess," that's when I cut her off, and she finished it by saying, "I guess that means not guilty." She started out by saying, "We were unable to reach a verdict."

[DEFENSE COUNSEL]: Correct.

THE COURT: That's clear. Plain to the understanding and unambiguous.

[DEFENSE COUNSEL]: Thank you, Your Honor.

The court then brought in the jury and provided an approved Allen charge. ¹ The jury resumed deliberations and, at approximately 2:00 p.m., the jury returned with a unanimous verdict; it convicted appellant of felony theft, assault, robbery, and robbery with a deadly weapon, and acquitted him of use of a handgun in the commission of a felony. The court then ordered a pre-sentence investigation.

On May 23, 1997, the court sentenced appellant to 20 years for robbery with a deadly weapon, suspending all but ten years. The court then merged the robbery and assault convictions into that offense. The court also sentenced appellant to ten years of incarceration for felony theft, concurrent with the sentence for robbery with a deadly weapon. This appeal followed.

Discussion

I.

Appellant complains about the trial court's comments to the jury after the foreperson erroneously advised the court that the jury had reached a verdict. Appellant argues that the court's remarks were "inappropriate and may have lead to a guilty verdict," thus warranting reversal of appellant's conviction.

Appellant concedes that this issue is not preserved; he did not object to the court's statement, or to the way in which the court responded to the unexpected situation, nor did he move for a mistrial. Preservation of an issue for appellate review is governed by Maryland Rule 8-131(a), which states, in pertinent part: "Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court...." It is clear that appellant did not raise his complaint below, and thus "there is nothing preserved for appellate review." Walker v. State, 53 Md.App. 171, 180, 452 A.2d 1234 (1982) (holding appeal based on trial court's response to a jury question was unpreserved because appellant's counsel made no comment about the response and did not object to it).

Notwithstanding the lack of preservation, appellant urges us to exercise our discretionary power to consider the merits of his contention. See Rubin v. State, 325 Md. 552, 587, 602 A.2d 677 (1992) (" '[A]n appellate court may in its discretion in an exceptional case take cognizance of plain error even though the matter was not raised in the trial court.' " (quoting Dempsey v. State, 277 Md. 134, 142, 355 A.2d 455 (1976))). The Rubin Court observed that there is no "fixed formula" to determine when an appellate court should exercise its discretion to review unpreserved issues. Id. at 588, 602 A.2d 677 (quoting State v. Hutchinson, 287 Md. 198, 202, 411 A.2d 1035 (1980))...