Carroll v. State
| Decision Date | 05 December 2011 |
| Docket Number | 2010.,No. 2583,Sept. Term,2583 |
| Citation | 32 A.3d 1090,202 Md.App. 487 |
| Parties | George J. CARROLL v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Brian Rabbit, Washington, DC (Williams & Connolly, LLP, Paul B. DeWolfe, Public Defender, Baltimore, MD, on the brief), for Appellant.
Jessica Hall (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
Panel: KRAUSER, C.J., GRAEFF and HOTTEN, JJ.
A jury sitting in the Circuit Court for Frederick County convicted George J. Carroll, appellant, of four counts of attempted armed robbery, four counts of conspiracy to commit armed robbery, four counts of second degree assault, four counts of reckless endangerment, and four counts of false imprisonment.1 The court imposed concurrent sentences of 18 years on two of the convictions for attempted armed robbery and 20–year suspended sentences for the other two convictions for attempted armed robbery and for the conspiracy convictions.2
On appeal, appellant raises several issues for review, which we have rephrased as follows:
1. Did the trial court abuse its discretion in declining to instruct the jury that the State had the burden to prove each element of every charged offense beyond a reasonable doubt?
2. Was the evidence sufficient to support appellant's conviction for conspiracy to commit armed robbery?
3. Did the trial court commit plain error in admitting a recording of Mr. Carroll's interrogation by the police?
4. Did the trial court err in failing to merge: (1) Mr. Carroll's convictions for conspiracy to commit armed robbery with his convictions for attempted armed robbery; and (2) appellant's four convictions for conspiracy?
5. Should appellant's conviction on Count 24, second degree assault, be vacated?
For the reasons set forth below, we shall vacate the conviction on Count 24, vacate three of the four sentences for conspiracy, and otherwise affirm the judgments of the circuit court.
On April 24, 2010, four high school students, Andrew, Josh, Lauren, and Jessica, went to a campsite in Frederick, Maryland. When they arrived at the campsite, at approximately 11:00 p.m., it was raining. The girls stayed in the car, and Andrew and Josh started setting up the tent. While Andrew and Josh were setting up the tent, three men, appellant, Nicholas Cann, and Zachary Lee, entered their campsite. Andrew testified that he “thought there would be trouble” because the men were holding machetes and a baseball bat. The encounter remained friendly, however, and the men invited Andrew and Josh to their campsite to drink with them. Andrew and Josh appeared receptive to the offer because the men had machetes, and they did not want to make the men mad. Appellant, Mr. Cann, and Mr. Lee left, and Andrew and Josh finished setting up the tent. Lauren and Jessica then joined them in the tent.
Approximately fifteen to twenty minutes later, the three men returned to the teenagers' campsite. The men put more wood on the fire and began swinging the machetes against the sides of the tent. They told the teenagers to “[g]et the fuck out of the tent and give us everything you have.” Andrew and Josh exited the tent. Jessica and Lauren stayed inside the tent, and Jessica dialed 911. When the boys exited the tent, appellant held a machete to the boys' ankles. The other two men were holding a baseball bat and a machete. Mr. Cann reached into the tent, held a machete to Jessica's throat, and pulled her out of the tent. Mr. Cann ordered Lauren out of the tent. Appellant told the teenagers to put their cell phones in a pile and to give them any money that they had. Andrew had $100 with him and $100 in the center console of his car. The men took Andrew's license, and they told the teenagers that, if they involved the police, the men would come find them and kill them.
Andrew testified that the men “got rowdy, and started yelling at each other and wanted more” money. Andrew wanted to “get back to civilization [and] out of the woods,” so he suggested that they go to an ATM to get more money. The three men discussed the idea, and they ultimately agreed that Mr. Cann would go with all of the teenagers to the ATM.
Andrew then drove his car out of the woods, with Mr. Cann in the passenger seat and the three other teenagers in the back seat. Mr. Cann told them that he had a gun, and he kept his hand under his shirt on the waistband. As they were driving, police cars passed them. Andrew pulled the car to the side of the road and turned it off. As vehicles passed the car, Andrew flashed his high beams repeatedly. An officer approached the car, and Andrew mouthed the word “help.” Andrew got out of the car and ran toward the officer shouting that Mr. Cann had a gun. The other teenagers got out of the car, and the police took Mr. Cann into custody.
As the police were speaking with the teenagers, appellant approached from the woods. The two females screamed, and the officers arrested appellant. Mr. Lee was subsequently found kneeling next to a tree. Close to where Mr. Lee had been hiding, officers recovered a driver's license belonging to Andrew, a machete, a machete holder, a belt, a flashlight and an empty case that could hold a machete. A second machete was recovered at the teenagers' campsite, and a baseball bat was recovered from the men's campsite.
After appellant's arrest, he was interviewed by police. At trial, the State introduced into evidence a recording of the interview.
Appellant initially told police that he did not have any knowledge of what happened, and he denied going to any campsite other than his own. Eventually, after the police told him that the victims had described him, including a tattoo on his arm, he admitted that he did go to the teenagers' campsite. He maintained, however, that he did not do anything wrong. Appellant suggested that the other two men may have had a plan, stating that they were winking at each other and looking at each other “a little funny,” in a way that his “gut [told him] was bad.” He denied, however, that he was in on any plan.
Ultimately, appellant admitted that he was there when Mr. Cann dragged a “stick” along the side of the tent and that he discussed whether to go to the bank to get money. He said that he told the other men that it was not a good idea to get in the car and go to the bank. Appellant indicated, however, that Mr. Cann was “the mouth,” the ringleader.
As indicated, the jury found appellant guilty of four counts of attempted armed robbery, four counts of conspiracy to commit armed robbery, four counts of second degree assault, four counts of reckless endangerment, and four counts of false imprisonment. This timely appeal followed.
Appellant's first contention involves the court's instructions regarding the State's burden to prove his guilt beyond a reasonable doubt. He argues that the court erred “by refusing to instruct the jury that the State had the burden of proving each element of every charged offense beyond a reasonable doubt.” The State asserts that the court's instructions were proper.
The Maryland Criminal Pattern Jury Instruction (“MPJI–CR”) 2:02, addressing the presumption of innocence and reasonable doubt, provides, in part, as follows:
The defendant is presumed to be innocent of the charges. This presumption remains with the defendant throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The defendant is not required to prove [his] [her] innocence.
Appellant requested that the court modify the pattern instruction to add that the State had the burden to prove each element of a charge beyond a reasonable doubt. Additionally, he asked that the pattern instructions for each substantive offense be modified to add, after the listing of elements, the following: “In order for the person to be convicted, the State must prove beyond a reasonable doubt each of these [number of] elements.”
The State objected to the modifications, arguing that “it's not in the Pattern anywhere and its sufficiently covered” by the instructions as a whole. The prosecutor asserted that it would be “an unfair focus to put on each of the charge[s], the beyond the reasonable doubt standard,” and that if the court did so, then “to be fair Your Honor should include the whole reasonable doubt instruction ... where it's mentioned.”
The court responded:
The reasonable doubt, in some of the Patterns, although not in any of the ones here, they add each element beyond a reasonable doubt as the nature of the instruction. But there is a separate instruction and quite frankly I instructed the jury at the ... initiation of this case as to ... presumption of innocence and reasonable doubt and I don't think that it's necessary that that be repeated for each ... offense.
Ultimately, the court instructed the jury pursuant to MPJI–CR 2:02, modifying the instruction by adding that the jury must be convinced beyond a reasonable doubt that appellant was guilty “of each charge.” The trial court instructed the jury as follows:
Mr. Carroll is presumed to be innocent of the charges. This presumption remains on Mr. Carroll throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the Defendant is guilty of each charge. The State has the burden of proving the guilt of the Defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The Defendant is not required to prove his innocence. However the State is not required to prove guilt beyond all possible doubt or to a mathematical certainty. Nor is the State required to negate every conceivable circumstance of innocence. A reasonable doubt is a doubt founded...
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