Clermont v. State

• Decision Date: 01 September 1996
• Docket Number: No. 115,115
• Citation: 348 Md. 419,704 A.2d 880
• Parties: Jean Alex CLERMONT v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 419

348 Md. 419

704 A.2d 880

Jean Alex CLERMONT v. STATE of Maryland.

No. 115, Sept. Term, 1996.

Court of Appeals of Maryland.

Jan. 20, 1998.

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for appellant.

Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

Before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW, RAKER and WILNER, JJ., and ROBERT L. KARWACKI, Judge (retired, Specially Assigned).

RODOWSKY, Judge.

This is a capital murder case. Appellant, Jean Alex Clermont (Clermont), was convicted by a jury in the Circuit Court for Prince George's County of premeditated and felony murder, robbery with a deadly weapon, kidnapping, and other offenses. The death sentence was imposed by the jury.

The murder was committed about 3:00 a.m. on September 19, 1995. John E. McMullen, III (McMullen), age twenty-eight, was the victim. ¹ Participating in the crimes with Clermont, then age twenty-three, were three companions with whom Clermont played basketball at the Knollwood Recreation Center and Neighborhood Park at 10400 Edgefield Drive in Prince George's County: Sean Bonner (Bonner), ² Mark Mutu (Mutu), ³ and Rawle White (White). The State's direct proof that Clermont was the principal in the first degree to the murder is found in the testimony of White, who had plea bargained with the State.

After midnight of September 18-19, 1995, Clermont was driving his three friends in his Sterling automobile. While returning home from the District of Columbia via Georgia Avenue, they saw a 1995 Black BMW in the vicinity of the Penthouse Club. Clermont parked his Sterling nearby so that the four young men could admire the BMW, which had been leased by McMullen one week before. McMullen was waiting for his friend, Patience Odina (Odina), to get off from work at the Club. Shortly after closing time McMullen, driving his BMW, and Odina, driving a separate car, proceeded northbound on Georgia Avenue. Clermont et al. followed. They watched as McMullen and Odina stopped for gasoline for which McMullen paid in cash. Clermont et al. followed the two cars to the Capital Beltway, to Interstate 95, and to the apartment complex in Laurel where McMullen resided. In the course of that trip Clermont and his companions agreed that they would rob the couple, steal the BMW, and take it to a chop shop in New York. In preparation Clermont placed a .38 caliber handgun on his lap, put on a latex glove, and he and Bonner covered their faces with bandannas.

When McMullen and Odina had parked their cars outside of McMullen's residence and while Mutu remained in the Sterling as getaway driver, the other three felons, with Clermont wielding the handgun, forced McMullen and Odina to lie prone and robbed them. The robbers took McMullen's wallet, which contained $19 in cash, a bank withdrawal card, and credit cards. Among the contents taken from the cars of the two robbery victims was McMullen's cellular telephone. Bonner and Clermont then forced McMullen into the trunk of the BMW and slammed the lid closed. With Mutu driving White and Clermont in the Sterling, and with Bonner following in the BMW while McMullen was locked in the trunk, the felons fled. Odina called the police.

Clermont directed Mutu to drive to the park at the Knollwood Recreation Center. Its parking lot is unlighted and has only one opening for vehicular ingress and egress. There Clermont pounded on the trunk of the BMW with the barrel of his handgun, cursed McMullen, and threatened to kill him in an effort to get the latter to divulge the PIN number or numbers for his bank and credit cards. When McMullen did not comply, Clermont drove the BMW rapidly in tight circles, and apparently over curbs or parking space blocks, with McMullen in the trunk. McMullen then disclosed a PIN number that he said was good for all of the cards in his wallet.

White testified that while McMullen was revealing the PIN number, White was approximately ten yards away, relieving himself. He heard a gunshot and immediately turned in the direction of the shot. He saw Clermont pointing his handgun against the trunk lid. The postmortem examination revealed that McMullen had been killed by a single gunshot wound that passed through his right wrist, grazed his face, and then entered the left chest wall, lacerating major blood vessels.

The felons left the park in the Sterling and went to an ATM machine at Colesville Road and University Boulevard. Mutu tried to withdraw $200 from McMullen's checking account and then from his savings account, but the number that McMullen had given them was not the authorized PIN.

At some point after the murder and before the attempt to make an ATM withdrawal, White asked Clermont why Clermont had shot McMullen. Clermont replied, "He made me impatient."

Over the next day or two the felons, using McMullen's identification at a bank's drive-in window, were able to cash a check made payable to McMullen, and they successfully used McMullen's credit card to make purchases at a shopping center. They had also been using McMullen's cellular phone. Working with the addresses of the places principally telephoned on McMullen's phone after his death, the police arrested Clermont on September 22 at 3:40 p.m. while he was carrying the phone. Arrests of the other felons followed swiftly. A search under warrant of Clermont's bedroom produced a .38 caliber handgun, a set of latex gloves, and a bandanna. Firearms identification testing subsequently revealed the .38 semi-automatic handgun seized at Clermont's home to be the murder weapon.

At the sentencing phase of Clermont's trial the jury found, as aggravating factors, that the victim was taken in the course of a kidnapping and that Clermont committed the murder while committing robbery. As a mitigating factor the jury unanimously found that Clermont had not previously been convicted of a crime of violence. Further, one or more, but less than all, of the jurors found to be mitigating that Clermont was the father of a small child.

In this Court, Clermont presents the following issues which we have renumbered to their sequence at trial.

I. The trial court impermissibly restricted the cross-examination of the principal State's witness;

II. The trial court erred in instructing the jury that appellant was presumed to be not guilty, and in failing to instruct that he was presumed to be innocent;

III. The court erred in admitting a written victim impact statement since it was not a part of the presentence investigation report in the sense that the statute contemplates;

IV. The trial court erred in admitting as part of the presentence investigation report appellant's prior conviction for possession with intent to distribute cocaine;

V. The trial court erred in permitting the State to cross-examine a defense witness concerning statements allegedly made by appellant to the witness;

VI. The court erred in overruling defense counsel's objection to the State's use of grand jury testimony to impeach a defense witness at the sentencing hearing;

VII. The trial court erred in excluding evidence offered in mitigation of punishment;

VIII. The trial court erred in refusing to permit appellant to exercise his right of allocution after the State's final closing argument;

IX. The court committed plain error in failing to curtail the prosecutor's improper closing argument and in failing to give a curative instruction; and

X. The Maryland death penalty law is unconstitutional.

Additional facts will be presented, as required, in the discussion of these issues.

I. Cross-Examination of Rawle White

The defense attacked White's credibility by cross-examining him regarding the plea bargain that he had made with the State. White pled guilty to first-degree murder and agreed to testify against Clermont in exchange for a life sentence with all but thirty years suspended. Clermont claims that the portion, set forth below, of his cross-examination of White was erroneously limited.

"[DEFENSE COUNSEL] Q. You went down to the police station.

"[WHITE] A. Yes, sir.

"Q. In fact, what happened, Detective Rositch is the one who questioned you, is that correct?

"A. I guess. I can't remember his name, it's been so long.

"Q. And he said to you, I believe that [Clermont] is lying and trying to save himself, and [Bonner] is telling the truth.

"Is that what he said to you?

"A. No, sir.

"Q. He didn't say that to you?

"A. He came at me and said Alex Clermont claimed that I pulled the trigger that night.

"Q. And so you claim that Alex Clermont pulled the trigger that night.

"[STATE'S ATTORNEY]: Objection. Move to strike.

"THE COURT: Sustained. Grant the motion to strike.

"Ladies and gentlemen of the jury, the last statement is stricken from the record, and is not to be used by you in your deliberations."

Clermont submits that "[i]t was without question proper on cross-examination to explore the very real possibility that White was motivated to implicate Mr. Clermont because he had been told by a detective (truly or falsely) that Mr. Clermont had implicated him."

Every aspect of the record, however, indicates that the sentence spoken by defense counsel that is last quoted above was a declarative sentence, asserting something as a fact, and not an interrogative sentence, asking a question. Had the sentence been spoken with a rising tone, the court reporter should have ended the sentence with a question mark, but the reporter used a period. It is clear that the State's Attorney interpreted defense counsel's sentence as a statement asserting a fact. Not only did the State object, but it moved to strike, even though White had not given any answer to the question. The object of the motion to strike, which is usually accompanied by a request for an instruction to the jury to disregard certain evidence, is to remove matters which have not been properly admitted...