Dyson v. State

• Decision Date: 13 July 2005
• Docket Number: No. 2579,2579
• Citation: 163 Md. App. 363,878 A.2d 711
• Parties: Lawrence Lambert DYSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

878 A.2d 711

163 Md. App. 363

Lawrence Lambert DYSON v. STATE of Maryland.

No. 2579, September Term, 2003.

Court of Special Appeals of Maryland.

July 13, 2005.

Brian M. Saccenti, Philip A. Rocca¹ (Nancy S. Forster, Public Defender, on the brief), Baltimore, for appellant.

Stephen H. Chaikin (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for appellee.

Panel: DEBORAH S. EYLER, KRAUSER and LAWRENCE F. RODOWSKY (Ret'd, Specially Assigned), JJ.

DEBORAH S. EYLER, J.

A jury in the Circuit Court for Howard County convicted Lawrence Lambert Dyson, Jr., the appellant, on one count of felony theft scheme of property valued over $500 and on three counts of misdemeanor theft of property valued at less than $500. The court sentenced the appellant to a 10-year term for the felony theft scheme conviction and to 18-month consecutive terms for each misdemeanor conviction, all to be served concurrently to the felony theft scheme sentence.

On appeal, the appellant presents two questions for review:

"I. Did the trial court err by admitting a hearsay statement which unduly prejudiced appellant?

II. Did the trial court err by failing to merge the convictions and sentences?"

For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS

On December 20, 2002, the appellant, a woman named "Tam," a woman named "Ebony," and a man whose name is not disclosed in the record drove to Michelle Wetmore's apartment in Columbia.² Ebony remained in the car while the other three met with Wetmore inside her apartment. Tam asked Wetmore if she "wanted to make some money." Wetmore responded, "Yeah," and left with the three. They all got in the car with Ebony, with the unnamed man at the wheel, and drove to the Patuxent Medical Group ("PMG") building, also in Columbia, where they parked nearby.

The appellant entered the lobby of the building. He took the elevator to the third floor and then walked down a hallway to the gynecology department, and entered. He walked through the gynecology department, entering the offices of three gynecology department employees: Janet Carletto, Victoria Hendrickson, and Kimberly Guldan. Carletto's and Hendrickson's offices were next to each other, and Guldan's office was one office over from Hendrickson's.

All three women were away from their offices at lunch, but had left their purses behind. Carletto's purse was behind a chair, by the edge of her desk; Hendrickson's purse was halfway underneath her desk, behind another bag; and Guldan's purse was in a drawer in her desk. The appellant went into each woman's purse and took credit cards. He took five credit cards from Carletto, three credit cards from Hendrickson, and one credit card from Guldan. About ten minutes after first entering the gynecology department, the appellant returned to the elevator, rode back down to the first floor lobby, and returned to the car.

The appellant showed the stolen credit cards to the occupants of the car. The group drove to a gas station, where the appellant tested the credit cards at the pump to confirm that they were valid. The group then drove to various retail stores around Howard County, including Target stores in Columbia and Ellicott City, a Wal-mart in Ellicott City, a CompUSA in Columbia, and a Rack Room Shoes in Columbia. The appellant gave Wetmore two of the credit cards, and told her to "just go get Play Station II's." Before using the cards, Wetmore checked the signatures so she could imitate them. Wetmore, Tam, and Ebony used the credit cards the appellant gave them to make purchases at the stores. The appellant did not enter the stores. At the Target in Ellicott City, he assisted in loading the store purchases into the car.

The three women charged a total of $3,257.62 in merchandise using Carletto's credit cards and $1,249.35 in merchandise using Hendrickson's credit card.³

After making the purchases, the group drove to a pawn shop in Baltimore City. The appellant pawned the items purchased at the retail stores for cash. He gave Wetmore $300 of the cash he received for the items.

The police were able to identify Wetmore after viewing a surveillance tape from one of the retail stores. She was arrested on January 8, 2003. She gave oral and written statements to Howard County Police Officer James Daly, implicating the appellant, whom she knew by the nickname "the rabbit."

A statement of 31 charges was filed against the appellant on January 11, 2003. Before trial, the State nol prossed all but four charges against the appellant. Three of the remaining charges were for misdemeanor theft under Md.Code (2002), section 7-104 of the Criminal Law Article ("CL"), one each for stealing a credit card (or cards) from each victim. The fourth remaining charge was for felony theft scheme, under CL sections 7-103 and 7-104, for, "pursuant to one scheme and continuing course of conduct, steal[ing] MERCHANDISE of TARGET, SHOE RACK, COMP USA, [and] WALMART having a value of $500 or greater[.]" As noted, the appellant was convicted on all four charges.

We shall recite additional facts as pertinent to our discussion of the questions presented.

DISCUSSION

I.

At trial, the State called Wetmore as a witness. She testified that she knew the appellant from having "d[one] a credit card scheme with him." They had been introduced by a mutual friend.

Wetmore recounted the events of December 20, 2002, as we have recited them above.

On cross-examination, defense counsel questioned Wetmore about the written statement she had given to Officer Daly:

Q: Can I read to you what you wrote. You essentially told the officers that [the appellant] is the one who was responsible for all of this, correct?

A: Yes.

Q: And, what you wrote was a black male picks me up in the mornings, he goes around to different office buildings and goes in and makes an attempt to steal credit card[s] and brings them to the car. Then goes to check them at the gas station and that's to see if they work. And then goes to the stores and purchases thing[s] and take to the pawn shop, and then splits money with me on the profit we make. You didn't once in [here] say that you're the one in the store, making the charges, correct?

A: Okay.

Q: You took no responsibility whatsoever for these offenses, correct?

A: Yes, I did. I just didn't write it down.

Q: You never said I am the one who purchases things?

A: No, I didn't.

Q: You are the one who purchases the things, correct?

A: Not in the statement. I told them verbally, I didn't tell them in the statement. What's the point?

Q: But you didn't tell the truth right here. You're the one who purchases the items?

A: Okay.

On redirect examination, the prosecutor sought to have Wetmore clarify her responses to defense counsel's questions:

Q. When Ofc. Daly spoke to you, did he hand you that piece of paper and just ask you to give a statement? Was that the first thing he did?

A. No. He talked to me first.

Q. So you actually gave him an oral statement before you wrote something down?

A. Yes.

Q. And, did you admit your involvement in this credit card scheme?

A. Yes, I did.

Q. And, in fact, in this written statement you admitted that you guys split the profit, right?

A. Yes.

Officer Daly also was called as a State's witness. On direct examination, he testified that, after Wetmore was arrested, he "presented the evidence to her that was pretty substantial against her in the case[,]" and she "admitted she was involved." Officer Daly's testimony continued as follows:

Q: And what, if anything, did she say as to her involvement?

A: Well, she explained what had . . . been going on with her involvement with this case was that she was approached by a black male who —

[DEFENSE COUNSEL]: Your Honor, I'm going to object at this point to hearsay.

THE COURT: All right, why don't you approach here.

(Counsel approached the Bench and the following ensued.)

THE COURT: Well, it is hearsay. You phrased the issue that badgered, induced, promised, threatened, to get a statement. So I think that opens the door to the State to present the entire nature of how the statement was given. So I'll overrule the objection.

* * *

(Counsel returned to trial table and the proceedings continued in open court.)

[PROSECUTOR]: Ofc. Daly, you started to tell us about what Ms. Wetmore indicated as to what happened. Will you continue?

A: Yes, she informed me that she was approached by a black male who had an idea, for lack of a better word, so that she could make some money. That she was having some financial difficulty. She informed me that she would be picked up by this black male sometime in the morning, after her husband left. I think that's what she indicated. Her husband wasn't aware of the situation, so it would always be around the same time in the morning, she'd get picked up.

At which time, the black male would drive to any of several different apartment, office type buildings. At which points the black male would go into [an] office building and come back out with credit cards. I think most if not all the time belonging to females.

Q: And, what did she indicate happened next?

A: Then the black male would give her the credit cards at which point she would, they would drive to stores and she would go in and make purchases on the credit cards. Some of the items the black male was specific as to what he wanted purchased and then I believe she was also allowed to buy some of her own items.

Q: And what, if anything, else did she indicate as to what happened?

A: Well, then they would take the items that that Black male had requested which [were] mostly electronic type items including Playstation II's. At which point the black man would drive to unknown pawn shop in Baltimore City and would go in and then come back out with cash and they would split the cash.

(Emphasis added.)

The appellant contends the trial court erred in permitting Officer Daly to testify about Wetmore's oral statement. He argues ...