Davis v. State, 030719 MDSCA, 409-2018

Docket Nº:409-2018
Opinion Judge:THIEME, J.
Party Name:RALPH EDWARD DAVIS v. STATE OF MARYLAND
Judge Panel:Nazarian, Arthur, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned) JJ.
Case Date:March 07, 2019
Court:Court of Special Appeals of Maryland
 
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RALPH EDWARD DAVIS

v.

STATE OF MARYLAND

No. 409-2018

Court of Special Appeals of Maryland

March 7, 2019

Circuit Court for Prince George's County Case No. 161346B

Nazarian, Arthur, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned) JJ.

OPINION [*]

THIEME, J.

After a jury trial in the Circuit Court for Prince George's County, Ralph Edward Davis, appellant, was convicted of robbery and conspiracy to commit robbery. The court sentenced appellant as a subsequent violent offender[1] to a mandatory term of 25 years for the robbery and a consecutive term of 10 years, with all but 616 days suspended, for conspiracy to commit robbery. This timely appeal followed.

ISSUE PRESENTED

Appellant presents the following questions for our consideration: I. Did the trial judge's comments at sentencing exceed the outer limits of the judge's broad discretion in sentencing and amount to impermissible sentencing criteria?

II. Did the trial court err in permitting the State to make improper comments during closing argument?

For the reasons set forth below, we shall affirm.

FACTUAL BACKGROUND

In July 2016, Goutan Karmakar worked the night shift, from 8 p.m. to 8 a.m., at a 7-11 store on Crain Highway in Upper Marlboro. At about 3:40 a.m. on July 17, 2016, while Mr. Karmakar was waiting on one of his regular customers, two men entered the store. Mr. Karmakar described both of the men as black, with the taller man having dark skin and the other having lighter skin. After Mr. Karmakar's regular customer left the store, one of the men, later identified as appellant, brought a bottle of water and a bag of chips to the counter. After paying for the bottle of water, appellant left the counter to return the bag of chips to the shelf. The second man approached the counter and stood there, in front of Mr. Karmakar. At that point, Mr. Karmakar felt something hard against his back and heard appellant say, "[l]ay down, lay down."

Mr. Karmakar did not lie down, but just stood in place as appellant pulled boxes of cigarettes out of the cigarette case and stuffed them into a trash bag. Appellant took about 200 to 220 boxes of cigarettes. According to Mr. Karmakar, each pack of cigarettes within a box cost about $8. After taking the cigarettes, appellant told Mr. Karmakar to open the cash register and then took about $80 from it. Appellant and the other man then left the store. Mr. Karmakar testified that although the men entered and left the store together, they did not communicate with each other while they were in the store.

After the men left, Mr. Karmakar called the owner of the store and the police. The police responded to the 7-11 store and obtained surveillance video from which they made still photographs. Two days later, police interviewed Rodney Wormley in regard to an unrelated case. During that interview, Mr. Wormley identified appellant and Adrian Hall as the men in the photographs from the 7-11 store. The lead detective handling the 7-11 store robbery acknowledged that Mr. Wormley reached out to the police and that police did not "go looking" for him to identify either appellant or Mr. Hall. In August 2016, police showed Mr. Karmakar two photographic arrays from which he identified appellant as the man who took the cigarettes and cash and Adrian Hall as the man who stood in front of the counter.

At trial, Mr. Wormley testified for the State. He acknowledged that he had been arrested for "a lot of theft charges," including an arrest on July 19, 2016, for robbery. While at the detention center in Upper Marlboro, Mr. Wormley spoke with appellant, whom he knew as "Abe," who asked him to tell a man named Adrian Hall not to take any pleas because "they don't have no evidence." Appellant also told Mr. Wormley that he had robbed a gas station in Upper Marlboro and that he had taken cigarettes and money. Mr. Wormley entered into a plea agreement with the State pursuant to which he agreed to testify against appellant and the State agreed to "cap itself in the middle of the guidelines" in Mr. Wormley's case, in which he faced a maximum sentence of 15 years. (Tr. 9/13/17 at 13)

We shall include additional facts as necessary in our discussion of the issues presented.

DISCUSSION

I.

Appellant contends that as a result of comments made at his sentencing hearing, the sentencing judge exceeded the outer limit of her broad discretion in sentencing and engaged in impermissible considerations that influenced his sentence. Specifically, appellant argues that the sentencing judge improperly considered the fact that his residence was in the District of Columbia and that he had requested a jury trial, or "at the very least" gave the impression that those impermissible considerations influenced the sentence that was imposed. As evidence that the court's impermissible considerations influenced his sentence, appellant points to the fact that his sentence for conspiracy ran consecutive to the mandatory sentence imposed for robbery. We are not persuaded.

A. Standard of Review

In Cruz-Quintanilla v. State, the Court of Appeals explained the standard of review to be employed when considering a challenge to a sentence: This Court has long adhered to the general principle that the "sentencing judge is vested with virtually boundless discretion" in devising an appropriate sentence. The sentencing judge is afforded such discretion "to best accomplish the objectives of sentencing - punishment, deterrence and rehabilitation." To achieve those objectives, the sentencing judge is not constrained simply to "the narrow issue of guilt." Rather, "[h]ighly relevant - if not essential - to [the judge's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics." So it is that, in exercising that discretion, the sentencing judge may take into account the defendant's "reputation, prior offenses, health, habits, mental and moral propensities, and social background." "The consideration of a wide variety of information about a specific defendant permits the sentencing judge to individualize the sentence to fit 'the offender and not merely the crime.'" Given the broad discretion accorded the sentencing judge, "generally, this Court reviews for abuse of discretion a trial court's decision as to a defendant's sentence.

The sentencing judge's discretion, although broad, is not without its limits. A given sentence is subject to review on any of three potential grounds: "(1) whether the sentence constitutes cruel and unusual punishment or violates other constitutional requirements; (2) whether the sentencing judge was motivated by ill-will, prejudice or other impermissible considerations; and (3) whether the sentence is within statutory limits."

Cruz-Quintanilla, 455 Md. 35, 40-41 (2017)(internal citations omitted).

B. Challenged Statements

Appellant's challenge to his sentence is based on the second ground articulated in Cruz-Quintanilla, "whether the sentencing judge was motivated by ill-will, prejudice or other impermissible considerations[.]" In support of his contention that the sentencing judge improperly considered his request for a jury trial, appellant directs our attention to the following portion of the sentencing hearing: THE COURT: [T]he Court does remember this trial vividly and I remember the defense and I thought it was quite creative.

But I also watched the video, which was clear as day. I watched you, Mr. Davis, walk up to someone who was working hard and working the midnight shift, and you walked up to him and stuck your finger in his back like it was a gun. And you still - I don't know how many packs of cigarettes, how many cartons of cigarettes you stole.

DEFENDANT: It was a lot.

THE COURT: It was a lot. And you ran out of there. Which then caused Mr. Guptman [sic] and (inaudible) call the police. And then he had to come here and testify. And all he's trying to do is his work. (Inaudible). And he now has to worry about - and I don't know if this is the first time this has ever happened to him or the tenth, but that's irregardless [sic].

DEFENDANT: Right.

(Emphasis provided by appellant).

In support of his assertion that the sentencing judge improperly considered his place of residence, appellant points us to the following comments by the prosecutor at the sentencing hearing: [PROSECUTOR]: Mr. Davis, when he was arrested didn't confess, showed no remorse. And at the time during plea negotiations, the State did try to negotiate some pleas, knowing and recognizing that the Defendant had a lengthy record. The Defendant opted to go to trial, had the victim come in and relive everything, had the victim actually come in after doing a...

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