Edmund v. State

• Decision Date: 17 April 2007
• Docket Number: No. 94, Sept. Term, 2006.,94, Sept. Term, 2006.
• Citation: 921 A.2d 264,398 Md. 562
• Parties: Anson Miguel EDMUND v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

921 A.2d 264

398 Md. 562

Anson Miguel EDMUND v. STATE of Maryland.

No. 94, Sept. Term, 2006.

Court of Appeals of Maryland.

April 17, 2007.

Deborah S. Richardson, Assistant Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, MD, for Appellant.

Michelle W. Cole, Assistant Attorney General (Douglas F. Gansler, Attorney General of Maryland, on brief), Baltimore, MD, for Appellee.

Argued before RAKER, CATHELL, HARRELL, BATTAGLIA, GREENE, LAWRENCE F. RODOWSKY, (Retired, specially assigned), and ALAN M. WILNER, (Retired, specially assigned), JJ.

LAWRENCE F. RODOWSKY, J.

Appellant, Anson Miguel Edmund, was convicted in the Circuit Court for Baltimore County of first degree assault and use of a handgun in the commission of a felony. The court sentenced him to eight years incarceration for the first degree assault and imposed a concurrent five years incarceration, without parole, for the handgun crime. He asks this Court to dismiss the charge in the indictment for first degree assault because the State was unable to identify, by name, the individual who was assaulted. For the reasons hereinafter stated, we shall affirm.

The parties proceeded in the circuit court on an agreed statement of facts, following a plea of not guilty. In relevant part that statement reads:

"[On] January 20th, 200[5], approximately 2:50 p.m. in the afternoon, Officer Stein responded to the area of Enchanted Hills and Huntcliff Drive in Baltimore County for call of a shooting. The information on the 911 call advised that a black male suspect wearing a black jacket with a fur hoody shot a second black male subject wearing a red hat and a black jacket.

"A second call was received advising that the suspect ran into 26 Enchanted Hills. Officer Fischer responded to the area and was met by a witness, a Derick Edmund. He stated that his brother, the suspect Anson Edmund, had just shot at someone and the suspect at the moment was in 28 Enchanted Hills, Apartment 1, with a handgun.

"The apartment was surrounded. The suspect came out and was placed under arrest. The suspect then stated that the handgun was in the bathroom trash can.

.... "Inside was found a semi-automatic handgun with wooden grips by Officer Chiodi in a tissue box in the hallway bathroom of the apartment.

"The suspect was transported to precinct three.

"Witness Derick Edmund stated he was in the kitchen of his apartment when his brother, the suspect, Anson Edmund, approached him, stated there was a subject outside picking on him. The witness stated that he walked outside with the suspect in order to mediate the problem with the other subject.

"The witness, Derick Edmund, said the subject outside was a black male who's approximately five foot eight, 240 pounds, beard, mustache and was wearing a black puffy jacket, a brown hooded sweatshirt, and a red skull cap.

"Derick Edmund stated he and the suspect met the subject across the street from 28 Enchanted Hills. He stated the subject asked the suspect, [']Do you want to scrap?['] and then took off his black jacket and let it fall to the ground. He stated the suspect, Anson Edmund, pulled out a small black gun and fired approximately three shots at the black male victim who had been wearing the red skull cap and black jacket with an orange lining.

"He stated the victim ran down the hill into 21 Enchanted Hills. The victim ran out of the location after one minute and ran towards the woods behind 21 Enchanted Hills.

....

"The area was searched for the victim with negative results. The crime scene was located but a blood trail could not be located.

"K-9 Officer Clark along with Officer Muska searched the area with negative results and the perimeter of 21 Enchanted Hills was canvassed with negative results for the victim.

"Three shell casings were located across the street from 28 Enchanted Hills and a round lodged in the window between two panes of glass at 17 Enchanted Hills Road.

....

"The suspect stated he had an ongoing problem with the victim but did not know his name or where he lived. He stated the victim had given him hard looks in the past but they never had a verbal confrontation before.

"The suspect stated that on the date of January 20, 2005, he had walked down to the bus stop from 28 Enchanted Hills and went past the victim, who gave him a look. Suspect stated on his way back to 28 Enchanted Hills at the bus stop he passed the victim again and that the victim came up to him and stated, [']What's up?['] and pointed his finger in the suspect's face. The suspect stated he turned away and walked towards 28 Enchanted Hills and the victim followed him while cursing and waving his finger at his face. The suspect stated the victim reached into his jacket pocket like he had something concealed but the suspect never saw a weapon or outline of a weapon.

"The suspect then went in his apartment, Apartment 1, 28 Enchanted Hills, went to his bedroom, retrieved a twenty-five caliber semi-automatic handgun from the dresser. He advised he told witness Derick Edmund that the subject outside was hassling him. He stated he and his brother exited the apartment and met up with the victim across the street.

"The suspect stated the victim then took off his jacket stating, [']Do you want to fight?['] And he admitted that when the boy took off his jacket he did not appear to have a weapon. The suspect advised he pulled a twenty-five caliber handgun, shot at the victim from a distance of three to four feet. He stated he was almost able to touch the victim with his outstretched hand at the time he began shooting.

. . . .

"At this time he made a confession stating he shot the victim.

. . . .

"There was a check of local hospitals for a victim of a gunshot wound that matched or looked to have been suffered by the victim and none was found.

"Continuing investigation was unable to determine the identity of the victim."

In the District Court, Mr. Edmund was served with a statement of charges to which was attached the five-page statement of probable cause by the arresting officer. Included in that statement was that the shooting occurred in the area of Enchanted Hills and Huntcliff Drive.

On February 14, 2005, a Baltimore County grand jury returned a five-count indictment against Mr. Edmund. The second count of that indictment reads:

"And the Jurors aforesaid, upon their oath aforesaid, do further present that ANSON MIGUEL EDMUND, on or about January 20, 2005, in Baltimore County, did unlawfully assault unknown/John Doe in the first degree; contrary to the form of the Act of Assembly in such case made and provided and against the peace, government and dignity of the State. (1st Degree Assault—Criminal Law Article — CR 3-202) 1-1420."

Counsel entered his appearance for Mr. Edmund on March 8, 2005, and filed a seven-page omnibus motion. On page 6, Mr. Edmund alleges, without any explanation, "That the Criminal Information and/or Indictment information is defective."

Mr. Edmund's motions were heard on June 6, 2005, before Judge Robert E. Cadigan. Consistent with a prior discussion between counsel, the State moved to amend Count Two to which Mr. Edmund objected "only for the record." The amendment added the following description of the unknown victim:

"Physical description is a black male, approximately five feet eight inches tall, 240 pounds, with a beard and mustache, wearing a black puffy jacket, brown hooded sweatshirt and red skull cap."

Mr. Edmund then argued that the indictment "does not allege a cognizable crime," because "we do not have a name of a victim." He submitted that "where a fundamental element of the charge is omitted, the Court essentially lacks jurisdiction."

In its response, the State first argued that Mr. Edmund's challenge to the indictment was not timely under Maryland Rule 4-252. That rule, in relevant part, reads:

"Motions in circuit court.

"(a) Mandatory motions. In the circuit court, the following matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise:

....

"(2) A defect in the charging document other than its failure to show jurisdiction in the court or its failure to charge an offense[.]

....

"(b) Time for filing mandatory motions. A motion under section (a) of this Rule shall be filed within 30 days after . . . the appearance of counsel[.]"

The State contended that the brief, conclusory reference to the indictment in the omnibus motion did not comply with the rule, so that the oral motion in open court was untimely and the issue had been waived.

The circuit court, however, chose not to decide the motion on the ground of waiver; it addressed the merits. After putting the case of a murder by arson, in which a homeless person, whose DNA is not in any database, has been burned beyond recognition, the court denied the motion to dismiss, inter alia, the first degree assault count in the indictment.

Trial on the agreed statement and sentencing were before Judge John Grason Turnbull, II, following which Mr. Edmund timely appealed. This Court issued the writ of certiorari on its own motion prior to consideration of the matter by the Court of Special Appeals. Edmund v. State, 396 Md. 11, 912 A.2d 647 (2006).

Appellant presents the following questions.

"1. Is a charge that the Appellant assaulted an unidentified John Doe victim a cognizable offense?

"2. Was the evidence sufficient to convict Appellant of first degree assault?"

As appellee, the State also presents a waiver argument, based upon Rule 4-252, which we shall address first.

I

It is clear that Mr. Edmund's omnibus motion, insofar as it purported to challenge the indictment, was not in compliance with Rule 4-252(e).¹ See Denicolis v. State, 378 Md. 646, 660, 837 A.2d 944, 952-53 (2003) (stating that a "motion, seeking a panoply of relief based on bald, conclusory allegations devoid of any articulated factual or legal...