Brooks v. State

• Decision Date: 01 September 1990
• Docket Number: No. 214,214
• Parties: Wayne Anthony BROOKS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 355

85 Md.App. 355

584 A.2d 82

Wayne Anthony BROOKS v. STATE of Maryland.

No. 214, Sept. Term, 1990.

Court of Special Appeals of Maryland.

Jan. 16, 1991.

Kathleen M. Brown, Assigned Public Defender, Towson (Alan H. Murrell, Former Public Defender, on the brief), Baltimore, for appellant.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Submitted before ROSALYN B. BELL, ROBERT M. BELL and CATHELL, JJ.

ROBERT M. BELL, Judge.

Wayne Anthony Brooks, appellant, was convicted by a jury in the Circuit Court for Baltimore City of five counts of first degree murder, five counts of use of a handgun in the commission of a crime of violence, five counts of false imprisonment and two counts of robbery. Having been sentenced to a term of imprisonment in excess of five consecutive life terms, he has appealed, presenting two questions for our review:

1. Did the trial court err in denying Appellant's motion for mistrial based upon the admission of hearsay testimony under the co-conspirator's exception when the conspiracy was improperly charged and the charges were therefore dismissed?

2. Should the false imprisonment charges be dismissed because they were brought more than one year after the incident occurred?

Discerning no error, we will affirm.

In addition to the charges of which he was ultimately convicted, appellant was charged with five counts of conspiracy to commit murder. Toward the end of the State's case, during the cross-examination of the last State's witness, appellant realized that those conspiracy counts had been brought more than one year after the termination of the conspiracy. See Maryland Cts. & Jud.Proc.Code Ann. § 5-106(a). ¹ He thereupon moved to dismiss those conspiracy charges, arguing that the statute of limitations had run. The court agreed and, consequently, dismissed them.

Seizing upon the dismissal and noting that co-conspirator testimony had been introduced in connection with the dismissed charges, appellant moved for mistrial. He argued that the co-conspirator testimony was inadmissible as a result of the dismissal. Again, the court agreed; it held that co-conspirator testimony admitted to prove the conspiracy charges was inadmissible, as to appellant, to prove the substantive charges. The court did not, however, grant appellant's motion for mistrial. Instead, it gave the jury curative instructions concerning its use of the co-conspirator testimony during deliberations. The court informed the jury, in part:

I am instructing you at this juncture, however, that all statements made in the nature of co-conspirators' statements that were received by you must now be disregarded by you and must be totally struck from your consideration. These were statements that were allowed in which were made by co-conspirators, namely Wesley Evans, ... Fitzroy Aston Young, David Thompson and Temple Bravo.

The curative instructions were comprehensive; nevertheless the court gave the jury supplemental instructions which further emphasized the necessity for the jury to refrain from considering the co-conspirator testimony in reaching its decision. On that latter point, it said:

If during the course of your deliberations it becomes necessary for you in any way to resort to the statements of the co-conspirators in order for you to be convinced beyond a reasonable doubt, then the evidence is not sufficient. You must make, your decision must be, to be convinced beyond a reasonable doubt, based on the evidence that I have ordered you to segregate from the evidence of the co-conspirators' statements. In other words, the co-conspirators' statements must not under any circumstances contribute to the verdict in the case. You must be able to arrive at your verdict without those statements. If those statements are necessary in order for you to return a verdict of guilty then a guilty verdict would not be appropriate. ²

Appellant argues on appeal, as he did below, that the only way of curing the problem created by the admission of the co-conspirator testimony was for the court to grant a mistrial. He asserts that a curative instruction was totally inappropriate and, more to the point, ineffectual in preventing the jury from considering and, thus, using the inadmissible testimony; the curative instructions, in other words, asked too much of the jury--given the complexity of the task, to exercise judgment which it, a group of twelve lay persons, was ill-equipped to exercise. Thus, appellant maintains that the court abused its discretion when it denied appellant's motion for mistrial.

A trial court is given broad discretion to determine whether, and, if so, when, to grant a mistrial motion. Wilhelm v. State, 272 Md. 404, 429, 326 A.2d 707 (1974); 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); Tibbs v. State, 72 Md.App. 239, 253, 528 A.2d 510, cert. denied, 311 Md. 286, 533 A.2d 1308 (1987); Hickman v. State, 76 Md.App. 111, 120, 543 A.2d 870 (1988); Vandegrift v. State, 82 Md.App. 617, 635, 573 A.2d 56 (1990). The exercise, by the trial court, of the discretion to deny a mistrial motion will not be disturbed on appeal in the absence of clear prejudice to the defendant. Wilhelm, 272 Md. at 429, 326 A.2d 707; Hickman, 76 Md.App. at 120, 543 A.2d 870; Vandegrift, 82 Md.App. at 635, 573 A.2d 56; Russell v. State, 69 Md.App. 554, 562, 518 A.2d 1081 (1987). A mistrial should be declared only under extraordinary circumstances and only when there is shown manifest necessity to do so. Tibbs, 72 Md.App. at 253, 528 A.2d 510. Moreover, "when curative instructions are given, it is presumed that the jury can and will follow them." Brooks v. State, 68 Md.App. 604, 613, 515 A.2d 225 (1986), cert. denied, 308 Md. 382, 519 A.2d 1283 (1987). See also Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627 20 L.Ed.2d 476 (1968); Wilson v. State, 261 Md. 551, 570, 276 A.2d 214 (1971).

Applying these precepts to the facts sub judice, a clear result is reached. There is no doubt but that the court fully apprised the jury of its obligation not to use the co-conspirators' testimony to support a guilty verdict. It did so on more than one occasion and, on each occasion, in a detailed fashion. There is, moreover, nothing in the verdict itself which suggests that the court's instructions were not heeded. Indeed, appellant does not point to any concrete evidence to that effect; he merely speculates, given the complexity of the task with which it was charged, that the jury could not possibly have discharged that task appropriately. That, of course, is totally insufficient. On the contrary, when one considers that the jury is presumed to be able to, and in fact will, follow curative instructions, it becomes manifest that there was no error.

Although, as we have seen, appellant raised the issue of the statute of limitations with respect to the conspiracy counts, he neglected to raise it in connection with the misdemeanor false imprisonment charges. Since each of the charges lodged against appellant were filed at the same time, if the statute had run in the case of the conspiracy counts, i.e. the counts were filed more than one year after the last act of conspiracy, the statute would necessarily have run in the case of the false imprisonment charges as well, more than one year after the incident out of which they arose must have elapsed. Hence, pursuant to Maryland Cts. & Jud.Proc.Code Ann. 5-106(a), those counts were also subject to dismissal on limitation grounds.

Despite his failure to raise the issue below, appellant argues, for the first time on appeal, that the false imprisonment charges should have been dismissed. Starting with the fact that he brought the limitations problem to the attention of the trial court, albeit in connection with the conspiracy charges, he suggests that the court, on its own, should have recognized the limitation problem as to the false imprisonment charges. His contention is that the false imprisonment charging document "is so defective that it deprives the trial court of jurisdiction"; hence, this Court may review the issue. In other words, appellant believes the issue is one to which the first sentence of section (c) is applicable and, therefore, may be raised at any time. He cites Cordovi v. State, 63 Md.App. 455, 492 A.2d 1328 (1985) to refute the State's argument that failure to raise limitations below constitutes a waiver of that argument.

Maryland Rule 4-252 provides, in pertinent part:

(a) Mandatory Motions.--In the circuit court, the following matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise:

(1) A defect in the institution of the prosecution;

(2) A defect in the charging document other than its failure to show jurisdiction in the court or its failure to charge an offense;

(3) An unlawful search, seizure, interception of wire or oral communication, or pretrial identification;

(4) An unlawfully obtained admission, statement, or confession;

(5) A motion for joint or separate trial of defendants or offenses.

(b) Time for Filing Mandatory Motions.--A motion under section (a) of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 4-213(c), except when discovery discloses the basis for a motion, the motion may be filed within five days after discovery is furnished.

(c) Other Motions.--A motion asserting failure of the charging document to show jurisdiction in the court or to charge an offense may be raised and determined at any time. Any other defense, objection, or request capable of determination before trial without trial of the general issue, shall be raised by motion filed at any time...