Ferrell v. State

• Citation: 73 Md.App. 627,536 A.2d 99
• Decision Date: 01 September 1987
• Docket Number: No. 213,213
• Parties: Avery V. FERRELL v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 627

73 Md.App. 627

536 A.2d 99

Avery V. FERRELL v. STATE of Maryland.

No. 213, Sept. Term, 1987.

Court of Special Appeals of Maryland.

Jan. 18, 1988.

John L. Calhoun, Towson, for appellant.

Valerie J. Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and William Townsend, Asst. State's Atty. for Baltimore City, on brief), Baltimore, for appellee.

Argued before WILNER, BISHOP and ROBERT M. BELL, JJ.

WILNER, Judge.

Just after 7:00 on the morning of April 10, 1985, a man brandishing a handgun and wearing a three-quarter length gray coat, white tennis shoes, and a ski mask robbed three women and a child standing at a bus stop in Baltimore City. He took a purse from each of the women and a school bag from the child. During the course of the robbery, a shot was fired. One of the victims--Mary Henderson--followed the robber as he made his escape and reported seeing him heading toward Swann Avenue, changing his clothes as he ran.

Police officers responded promptly. From the information obtained from the victims and from an anonymous call, several of them went looking for the assailant in the Uplands Apartment development, located on Swann Avenue about a block from the bus stop. Officer Wagner observed appellant emerging from the building at 405 Swann Avenue dressed in a blue-gray suit and carrying a gray jacket in one hand and a shopping bag in the other. Appellant walked away from the officer, at an increasingly brisk pace. When he got to a corner, he dropped the shopping bag and ran behind one of the buildings. Officer Wagner saw appellant cross Swann Avenue and go into the building at 400 Swann Avenue; he relayed that information by police radio to Officer Brown, who was also on the scene searching for the robber.

Officer Brown saw appellant go into 400 Swann Avenue carrying a gray coat; he followed him in and brought him back outside. Officer Garrity then arrived with the victims. Inside the shopping bag, picked up by Officer Wagner, were three purses, which the women, respectively, identified as their own, a ski mask, a glove, and a handgun containing five live rounds and one spent cartridge. Several of the victims identified the gray coat taken from appellant as looking like the coat worn by the robber. Also inside the shopping bag was a black vinyl case containing certain papers belonging to appellant.

None of the victims was able to identify appellant as the masked robber. Although the shopping bag certainly was full of incriminating evidence, appellant, directly disputing Officer Wagner's testimony, contended that he never had the shopping bag. He claimed that he was on his way to the Westside Skill Center, that he had stopped at 400 Swann Avenue to meet one Karen Lucas, a fellow student at that center, and that his school papers allegedly found inside the shopping bag, had been in his coat pocket.

As a result of this incident, the State's Attorney filed four criminal informations against appellant (Nos. 28514739-28514742), each charging him with the following eight offenses:

Count 1--Robbery with a deadly weapon;

Count 2--Attempted robbery with a deadly weapon;

Count 3--Robbery;

Count 4--Assault with intent to rob;

Count 5--Assault;

Count 6--Theft of less than $300;

Count 7--Use of a handgun in the commission of a crime of violence; and

Count 8--Unlawful carrying of a handgun.

Appellant was first brought to trial on all of these charges in November, 1985. He was convicted on all four counts of robbery with a deadly weapon (Count 1 of each information) and apparently on Counts 3, 5, 6, 7, and 8 of each information as well. It is not clear what happened to Counts 2 and 4, except that there is no indication (and appellant makes no contention) that he was acquitted on those counts at that time.

On February 22, 1986, the court granted appellant's motion for new trial on all counts set forth in the four informations. ¹ He was brought to trial again in June, 1986; on that occasion, the jury was unable to reach a verdict on any of the counts, and so a mistrial was declared.

Appellant's third trial took place in August, 1986. Precisely what occurred at that trial is not altogether clear from the record before us--a matter we shall discuss in more detail later. It appears, however, that only five counts were submitted to the jury--the four flagship counts of robbery with a deadly weapon and one count of use of a handgun in the commission of a felony. The jury acquitted of the latter offense ² but, once again, was unable to agree on Count 1.

Undaunted by its three false starts, and now down to only one count in each information, the State decided to try again. Prior to his fourth trial, appellant moved to dismiss Count 1 (of each information) on the related grounds of double jeopardy and collateral estoppel. His argument centered solely on the effect of his acquittal on Count 8. He posited that the only deadly weapon indicated by the evidence was a handgun, that his acquittal on Count 8 sufficed as a finding that he had not used a handgun, and that, ergo, a fact necessary to his prosecution on Count 1 had been decided in his favor and could not be re-litigated. That conclusion, he urged, was mandated by Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

The court denied his motion, whereupon he was brought to trial for the fourth time on Count 1 of each information. He was convicted on all four charges, given substantial sentences, and appeals. He raises six issues, to which, nostra sponte, we have added a seventh. In the end, we shall affirm.

(1), (2)

Double Jeopardy/Collateral Estoppel

In the "Statement Of The Case" section of his brief, appellant informed us that, at his third trial, the court disposed of Counts 2 through 7 of each information by granting "judgments of acquittal" as to them. The State did not challenge that assertion in its brief, and indeed the docket entries for the third trial clearly indicate that disposition. ³ Aware that Count 3 of each information charged simple robbery, a necessary included element in robbery with a deadly weapon, we questioned whether, in light of that disposition, retrial on Count 1 might be precluded under Wright v. State, 307 Md. 552, 515 A.2d 1157 (1986). Given the generally dismal state of the record, ⁴ however, we directed the parties to address that issue and, if necessary, to supplement the record in order to address it.

In response to that order, the State filed certain excerpts from the transcript of proceedings at the third trial, which we have accepted as a supplement to the record. Md.Rule 1027.

At the conclusion of the State's case at the third trial, defense counsel moved for judgment of acquittal, arguing briefly that the State had failed to show "that the evidence seized was in possession of my client and that he is, in fact, the robber that's involved in this case." The motion was denied. At the end of the entire case, counsel renewed the "motion for judgment of acquittal at this time for the same reasons...." Without responding to the motion, the court asked the prosecutor which counts he was pressing; he replied that he wanted "the four armed robbery counts and the four handgun counts to go to the jury." The judge then said that it was her practice in multiple robbery cases to send only one handgun count to the jury, as she was not inclined to give consecutive sentences if there were multiple convictions on that count. The prosecutor indicated no objection to that approach. The colloquy then concluded thusly:

"THE COURT: Now, do you [defense counsel] have any argument as to the first and eighth counts?

MS. JULIAN: No, your Honor. I'll submit on the record on the motion.

THE COURT: All right. Well, it will go to the jury as to each of the indictments [sic, informations] on the first and eighth counts although I will only require one verdict as to the eighth."

From this, it is clear that the docket entry for August 11 is indeed in error. The court never entered a judgment of acquittal as to Counts 2 through 7, and it certainly never ruled, or even suggested, that the evidence presented by the State was legally insufficient with respect to those counts. It is apparent that the State simply decided not to press those middle counts, as in Bynum v. State, 277 Md. 703, 357 A.2d 339, cert. denied 429 U.S. 899, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976). The predicate for the Court's ruling in Wright v. State, supra, 307 Md. 552, 515 A.2d 1157--a finding by the trial court of evidentiary insufficiency on a lesser included offense--is missing here. On the more complete record, therefore, we find no merit to the issue that appeared to be very real from the record as we received it.

Appellant's double jeopardy/collateral estoppel argument, as we observed, rests on the implication he draws from his acquittal on Count 8. In Powers v. State, 285 Md. 269, 401 A.2d 1031, cert. denied 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979), the Court of Appeals, after reviewing what it regarded as the relevant pronouncements of the Supreme Court, concluded that

"the doctrine of collateral estoppel applies after a jury, at a single trial, acquits on one count of a multicount indictment and is unable to agree upon a verdict on a related count of the same indictment involving a common issue of ultimate fact, which if found in favor of an accused would establish his innocence on both counts."

Id., at 288, 401 A.2d 1031. (Emphasis added.)

As initially pointed out in Ashe v. Swenson, supra, 397 U.S. at 444, 90 S.Ct. at 1194, and as reiterated in Powers and later in Wooten-Bey v. State, 308 Md. 534, 544, 520 A.2d 1090 (1987), collateral estoppel in criminal cases "is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality." Quoting from Ashe, the Wooten-Bey Court held that the reviewing court must ...