Dabney v. State

• Decision Date: 04 October 2004
• Docket Number: No. 1611,1611
• Citation: 159 Md.App. 225,858 A.2d 1084
• Parties: Franklin Roosevelt DABNEY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

858 A.2d 1084

159 Md.App. 225

Franklin Roosevelt DABNEY v. STATE of Maryland.

No. 1611, Sept. Term, 2003.

Court of Special Appeals of Maryland.

October 4, 2004.

Eve L. Brensike (Nancy S. Forster, Public Defender, on the brief), Baltimore, for Appellant.

Diane Keller (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: HOLLANDER, SHARER and CHARLES E. MOYLAN, Jr., (retired, specially assigned), JJ.

CHARLES E. MOYLAN, Jr., Judge (Retired, Specially Assigned).

The Baltimore County Police Department, after an obviously carefully prepared post-midnight surveillance of the appellant from the far northwestern corner of Baltimore County to its far southeastern corner—a surveillance involving six or seven unmarked police cars, a police helicopter, and the use of a highly sophisticated thermal imaging tracking device—ended up charging the appellant with attempted fourth-degree burglary. Attempted fourth-degree burglary? It smacks of convicting Al Capone, after Elliot Ness had been on his trail for a decade, of income tax evasion. It is perfectly legal, of course, but there remains the lingering aftertaste of overkill.

The appellant, Franklin Roosevelt Dabney, was convicted by a Baltimore County jury of attempted burglary in the fourth degree. In this appeal, he raises the three contentions

1. that he was convicted of a non-existent crime, to wit, an attempt to commit an attempt;

2. that the evidence was not legally sufficient to support the conviction; and

3. that the trial judge committed plain error in instructing the jury on the subject of a criminal attempt.

We need make no more than a passing observation or two about the second and third contentions. With respect to the appellant's invitation to us to invoke the "plain error" exemption from the preservation requirement, the appellant has given us no glimmer of a reason as to why we would wish to set a criminal free on a non-preserved technicality when we do not have to do it. Even if, arguendo, an error occurred that contributed to the appellant's conviction (we are not suggesting that it did), there is no due process problem for, when an objection is unpreserved, no process is due. As to how an appellate court might choose to react when a possible error is, by random chance, left unpreserved, we are not unsympathetic to Chief Justice Joseph Weintraub of New Jersey in State v. McKnight, 52 N.J. 35, 243 A.2d 240, 250 (1968), when he observed:

The Constitution is not at all offended when a guilty man stubs his toe. On the contrary, it is decent to hope that he will.

See Ciriago v. State, 57 Md.App. 563, 576, 471 A.2d 320 (1984). And see Morris v. State, 153 Md.App. 480, 506-24, 837 A.2d 248 (2003); Perry v. State, 150 Md.App. 403, 434-40, 822 A.2d 434 (2002); Jeffries v. State, 113 Md.App. 322, 325-26, 688 A.2d 16 (1997); Austin v. State, 90 Md.App. 254, 257-59, 260-72, 600 A.2d 1142 (1992).

As to evidentiary sufficiency, the evidence was overwhelming that the appellant, on the early morning of January 20, 2003, in a residential area of White Marsh, was up to no good—of one sort or another. That much was certain. From the abundant indications of ominous, albeit undifferentiated, skulduggery, moreover, there could arguably arise, inter alia, the permitted inference that he was out to steal something. The evidence was marginal, but it was probably enough if we were to assume a cognizable offense.

In the last analysis, however, it is unnecessary to address these two contentions formally because of our ultimate agreement with the appellant's first contention.

An Improbable Odyssey

At approximately midnight on the evening of January 19-20, 2003, the appellant left his apartment in northwestern Baltimore County, got into his black Infiniti, and drove out of his neighborhood. For reasons unexplained to us in this record, a police surveillance team, consisting of six or seven unmarked police cars, was on station, waiting to monitor the appellant's every move. They monitored him as he stopped at a service station and purchased gasoline. As the appellant then approached the Reisterstown Road entrance to the Baltimore Beltway (I-695) and turned east on it toward Towson, a police helicopter joined the surveillance.

Detective Jeffrey Collins observed that the appellant's driving was "normal" while on the Baltimore Beltway. Detective Steven Inge observed that the appellant was driving "very slow." On his way around the Beltway, the appellant first took the Dulaney Valley Road exit and detoured through a residential neighborhood just off Dulaney Valley Road. Apparently finding nothing to his liking, he returned to the Beltway and, still attended by his police escort, resumed his journey east and south. Without a single traffic infraction, the appellant followed the Beltway to the southeastern corner of the county, where he left the Beltway and proceeded into a residential neighborhood in White Marsh.

As the appellant entered the residential area, the police cruisers dropped off from close surveillance and set up a perimeter blockade around the neighborhood. The helicopter, however, continued the surveillance from an altitude of 3,000 feet. Officer Patrick Connolly, of the Police Department's Aviation Section, conducted that surveillance with a thermal imaging camcorder, a device that registers and records the heat emitted from persons or objects in order to trace their movements. When viewed through the thermal imaging camcorder, persons or objects that emit heat will appear white, whereas objects that do not emit heat will appear as black or gray. The appellant's car, for instance, appeared as white because of the heat emitted by its motor.

Using the thermal imaging camcorder, Officer Connolly described the appellant's behavior once inside the residential neighborhood: "[He] just did a lot of driving around all of these little side streets." Using a map, Officer Connolly narrated for the jury the route of the appellant's vehicle.

"It came in Deviation, up Ballygar, drove around. Here's Santa Rita. It did a lot of just driving around in this area. It came down Santa Rita to Ballygar, back around, went up Kilbride. He turned around, came back down Kilbride, turned onto Ballygar. And he parked, approximately, right here."

Officer Connolly observed the appellant park his car on Ballygar Road, around the corner from the home of Vendel and Patricia Ann Katona, who lived on the perpendicular Kilbride Road. When the appellant alighted from his vehicle, he walked up Ballygar Road to its intersection with Kilbride. He turned right on Kilbride and walked to the Katona home, which is the second house in from the intersection.

Mr. and Mrs. Katona did not know the appellant, had neither met him nor heard of him, and did not give him permission to enter onto their property. The light was on in the Katona living room. Mrs. Katona was still up, reading and watching television, although Mr. Katona had gone to bed at around 11:30. Two cars were parked in the Katonas' front driveway.

Officer Connolly, from the helicopter, observed the appellant walk up that driveway, pause for about ten seconds between the two parked cars, walk back down the driveway to the street, and then cross the lawn to the front porch of the house. After standing on the porch for a short time, the appellant walked around the side of the house and then to the rear of the house.

At that point, Detective Molly Gardner, in one of the unmarked surveillance vehicles, drove slowly down Kilbride Road and stopped almost in the front of the Katonas' home. The appellant, apparently "alerting" to the vehicle, ran behind the Katona home, behind the neighboring home, and back to his car on Ballygar Road. Officer Connolly described in detail the appellant's movements from the time he left his car until the time he returned to it.

He exited the vehicle, came up onto the sidewalk here, walked down the sidewalk toward Kilbride Road, made a right-hand turn on Kilbride, came down Kilbride. There's a house here on the corner. It was the second house that was actually facing Kilbride, this one right here (indicating). He walks down the sidewalk, goes right down the driveway of this house, spends maybe 10 seconds or so just standing next to the vehicles here in the driveway; then goes between the vehicles, walks back around, comes out to the sidewalk, actually steps out into the street here on Kilbride. Then, he cuts right down across the front lawn of the house and goes up on the porch of the house.

He was there for several seconds. We see him come down off the porch, walk down around the side of the house, come down along the side of the house and almost go to the rear of the house right here. He then comes back around from the rear of the house and he's coming up along the side of the house. Then, a car comes down the street, pulls up and stops, approximately, in front of the house that he was at. He then runs down behind the house, runs down behind the neighbor's house here, goes down here to the house at the corner and is hiding behind the house here at the corner.

He stays here, approximately, maybe 20 seconds or so. Then, he runs straight from this house back to his car. And then from our vantage point, there's like a big row of trees or bushes here. We see him from this house, going toward his car. Approximately, five seconds or so goes by, and then we see the vehicle leave. We see this vehicle drive out from behind the tree line here and drive down the road.

The appellant drove immediately away from the White Marsh neighborhood. He was not stopped by the police. Indeed, he was not arrested until a month later, at which time he was charged with, inter alia, attempted fourth degree burglary. The thermal imaging tape was played for the jury. The appellant did not testify. The odyssey was never explained.

A Dubious Charge

The appellant was not convicted of a consummated fourth-degree...