Facon v. State

Citation144 Md. App. 1,796 A.2d 101
Decision Date05 February 2002
Docket NumberNo. 1789,1789
PartiesSteven Fritz FACON v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Julia Doyle Bernhardt, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

M. Jennifer Landis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore and Jack Johnson, State's Attorney for Prince George's County of Upper Marlboro, on the brief), for appellee.

Submitted Before HOLLANDER, JAMES R. EYLER, and SONNER, JJ. HOLLANDER, Judge.

A jury sitting in the Circuit Court for Prince George's County convicted Steven Fritz Facon, appellant, of two counts each of robbery with a dangerous weapon, first degree assault, and use of a handgun in the commission of a felony. After merging the assault convictions into the armed robbery convictions, the court sentenced appellant to two concurrent terms of twenty-five years' imprisonment, without parole, for each armed robbery conviction, and concurrent terms of twenty years, the first five years without parole, for each handgun conviction.

On appeal, Facon presents a host of issues, including whether a defendant commits an armed robbery if the taking of property occurs after the weapon has been put away. He also asks whether the facts support a single robbery or two robberies when, in the course of one episode, the robber forcibly takes one item of property in the possession of two employees of a single entity that owned the property. Put another way, that issue concerns the appropriate unit of prosecution.

Appellant's questions, which we have rephrased and reordered, are as follows:

I. Did the motion court err in denying appellant's motion to suppress his oral statement to the police?

II. Was the evidence sufficient to support appellant's convictions for: 1) armed robbery, when there was no evidence that appellant used force or intimidation in taking cigarettes; 2) two counts of armed robbery when there was only a single taking; 3) first degree assault against Ms. Barton-Smith, when appellant never pointed a handgun at her; and 4) first degree assault, armed robbery, and use of a handgun, when there was no evidence that appellant used a handgun?

III. Did the trial court err in permitting the State to impeach appellant with two prior convictions for armed robbery?

IV. Did the trial court err in overruling appellant's objection to the State's closing argument?

V. Did the trial court err in imposing a sentence of twenty-five years without parole for each armed robbery conviction, pursuant to Md.Code Ann., Art. 27, § 643B(c)?

For the reasons discussed below, we shall affirm appellant's convictions, but vacate one of the two armed robbery sentences.

FACTUAL SUMMARY
A. TRIAL

During the early morning hours of August 22, 1999, Gadissa Terfa and Audrea Barton-Smith were working at the 7-Eleven store located at 2000 East-West Highway in Hyattsville. At around 1:15 a.m., Terfa was standing directly behind the sales counter next to the cash register, while Barton-Smith was in the back of the store. At that time, a man, later identified as appellant, walked into the store, asked Terfa for the price of a bag of chips, and put the bag on the counter. Suddenly, the man pulled up his shirt and displayed a small black and silver handgun. The assailant then demanded that Terfa "open the register." When Terfa was unable to do so, because he was too nervous, the assailant pulled out a gun and pointed it at Terfa.

According to Terfa, the assailant also pointed his handgun at Barton-Smith, who had emerged from the back of the store, and ordered her to open the cash register. She, too, was unable to do so. Appellant then put away the gun, grabbed a pack of cigarettes, and exited the store without paying for the cigarettes. He left the bag of chips behind. Terfa did not stop appellant from taking the cigarettes because appellant "had a gun."

Upon exiting the store, Terfa saw appellant enter a black car with a District of Columbia license plate. Terfa recorded the car's tag number, AM 1398, and gave the information to the police. At trial, Terfa could not identify appellant as the robber, but he identified a gun that had been recovered from the vehicle at the scene, indicating that it matched the one used by the robber.

Barton-Smith testified that she was in the back of the store and approached the counter in front when she heard the cash register making noise. At the time, she thought her co-clerk was having a problem with the register. She then "saw the customer pointing a gun and telling Gadissa to open the register." She added that the assailant "was leaning on the counter with the muzzle of the gun pointing toward us." Barton-Smith claimed that the man said to both of them: "Open the register or I'll blow your heads off."1 She identified appellant at trial as the assailant.

Officer Bernard Barnes responded to the scene following the incident. He testified that Terfa gave him a piece of paper bearing District of Columbia license tag number AM 1398. That car was linked to appellant by the testimony of Stephanie Young, appellant's girlfriend of 16 years and the mother of his son.

Ms. Young testified that she and appellant were co-owners of a burgundy Mazda 626, although appellant was the primary driver of the car. She said that the vehicle was registered in D.C. and had a license tag number of AM 1398. According to Ms. Young, appellant told her in late August 1999 to sell the car because he was no longer employed and could not afford the car payments. Accordingly, she arranged to sell the vehicle to her cousin, John Wallace. In the process of doing so, she found a small handgun in the center console of the car. She claimed that she had never seen appellant with a gun. Wallace confirmed that a loaded gun was in the Mazda and the police took custody of the car.

Corporal Scott McVeigh, an evidence technician with the Prince George's County Police, testified that a loaded .38 pistol was recovered from the center console of the vehicle. Further, the bag of chips that appellant left in the store was processed for fingerprints. Expert testimony from Elores Clark revealed that fingerprints recovered from the bag matched those of appellant. In addition, the incident was captured on videotape by the store's video recording equipment.

Detective Michael Olds testified as to his interview of appellant and Facon's waiver of rights. He told the jury that Facon gave an oral statement to police, admitting that he robbed the 7-Eleven on August 22, 1999. Facon claimed that he had smoked a lot of cocaine that day and had also consumed alcohol, but the "motivation for doing the robbery was not to get money for narcotics." Rather, he needed money to buy gasoline for his car.

Appellant was one of the defense witnesses. He admitted that he went to the 7-Eleven store on the date in question, "with the intent to rob" the store. At the time, he was "high" on crack cocaine and "drunk" from malt liquor, and needed money "to get some ... drugs." He denied using a handgun, claiming instead that he used a paint gun and pretended that it was a real gun. He also denied pointing the paint gun at either clerk, but acknowledged that he put the paint gun on the counter. Although Facon was a cigarette smoker, he denied any intent to take the cigarettes, and testified that he did not even remember taking the cigarettes "until I seen the film in court." Further, he testified that he did not know how the handgun got in his car, and maintained that the gun was not his. On cross-examination, appellant admitted that he pleaded guilty to armed robbery in both 1995 and 1989.

B. PRE-TRIAL SUPPRESSION HEARING

The court held a two-day motion hearing prior to trial, involving several issues in two cases. We shall include here only the evidence relevant to the motion to suppress appellant's oral statement to the police, made on September 2,1999.

After appellant's car was tied to the incident at the 7-Eleven, a warrant was issued for his arrest. Facon was arrested on the evening of August 31, 1999, in the District of Columbia. The next day, appellant waived extradition to Prince George's County, and he was transported to Central Processing on the evening of September 1, 1999, about 24 hours after his arrest.

At about 10:00 p.m. on September 1, 1999, Corporal Michael Olds and Detective John Craig of the Prince George's County Police Department placed appellant in an interview room, which measured approximately twelve feet by eight feet. Both officers maintained that, throughout the interview, Facon was coherent, alert, physically fine, and appeared to understand what was said to him. Moreover, he never requested an attorney. At appellant's request, the officers did not close the door whenever they left the interview room. But, when appellant was left alone, his hand was cuffed to a ring attached to the wall. As Corporal Olds recalled, appellant never complained that the handcuff was too tight.

Corporal Olds testified that, at the outset, he asked appellant if he wanted coffee. Appellant replied that he did, and was given coffee at 10:08 p.m. At about the same time, appellant asked to make a telephone call, but Corporal Olds responded, "in a little while." In fact, appellant was not permitted to make a phone call until after 9:00 a.m. the next day.

Initially, Detective Craig spoke with appellant alone, from 10:30 p.m. until 11:55 p.m. During the early portion of that segment, Detective Craig gave Facon some cigarettes and discussed general matters, such as appellant's drug problem, his prior arrests, and the recent death of appellant's nephew. They did not talk about the robbery at that point. Moreover, while Detective Craig was speaking with Facon, he did not wear a weapon, nor was Facon handcuffed.

Detective Craig testified that he asked appella...

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    • Supreme Court of Colorado
    • March 24, 2003
    ...arise out of a single taking from multiple victims. See Borchardt v. State, 367 Md. 91, 786 A.2d 631, 662-65 (2001); Facon v. State, 144 Md.App. 1, 796 A.2d 101, 118 (2002); State v. Jones, 344 S.C. 48, 543 S.E.2d 541, 543-44 (2001); Jordan v. Commonwealth, 2 Va.App. 590, 347 S.E.2d 152, 15......
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