Fetrow v. State

• Decision Date: 30 April 2004
• Docket Number: No. 00425,00425
• Citation: 156 Md. App. 675,847 A.2d 1249
• Parties: David Michael FETROW v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

847 A.2d 1249

156 Md. App. 675

David Michael FETROW v. STATE of Maryland.

No. 00425, Sept. Term, 2003.

Court of Special Appeals of Maryland.

April 30, 2004.

Mark Colvin (Stephen E. Harris, Public Defender on the brief), Baltimore, for Appellant.

Sarah Page Pritzlaff (J. Joseph Curran, Jr., Atty. Gen. on the brief), Baltimore, for Appellee.

Panel: HOLLANDER, KRAUSER, CHARLES E. MOYLAN, JR., (Retired, specially assigned), JJ. HOLLANDER, Judge.

This case requires us to analyze the crime of robbery, with particular emphasis on the "intent to frighten" variety. A jury sitting in the Circuit Court for Prince George's County convicted David Michael Fetrow, appellant, of the robbery of Theodore Machen, along with related charges, including theft, hit and run, fleeing and eluding, and reckless driving.¹ On appeal, Fetrow poses one question: "Is the evidence insufficient to sustain the conviction for robbery?" We answer "no" and shall therefore affirm.

FACTUAL SUMMARY

As a result of his conduct on November 19, 2001, appellant was charged with a variety of offenses. On January 17, 2002, appellant entered a "Plea of Not Criminally Responsible by Reason of Insanity." The court subsequently granted appellant's motion to bifurcate the guilt and criminal responsibility phases of the trial; appellant elected a jury trial as to the issue of guilt, but waived his right to a jury trial with regard to the issue of criminal responsibility. The guilt phase began on March 3, 2003.

Theodore Machen testified that at about 1:00 p.m. on November 19, 2001, he drove his white 1984 Pontiac Trans Am to a Shell Station in Greenbelt. Machen recalled that he pulled up to the service bay and, with the engine running, exited his car to ask a mechanic to look at the vehicle. At the time, Machen was about three to four feet from the passenger side of his car. The mechanic directed Machen to pull the automobile into a nearby space. Machen turned around, took two steps towards the car, and saw appellant, who was wearing a long trench coat, walk up to the driver's side of Machen's automobile. According to Machen, appellant opened the car door, "pulled a 12 gauge shotgun" that was "concealed" out "from underneath his trench coat," and "put it on top of the T top" of Machen's car. Then, appellant removed his trench coat and put it in the car. Thereafter, Fetrow put the shotgun in the front seat of the vehicle, entered Machen's vehicle, and drove away.

Machen explained that he turned around at about the same time that appellant pulled the shotgun from under his trench coat. Further, Machen testified that, when he saw the gun, he "felt that [his] life was in danger." Indeed, upon seeing the shotgun, Machen stated that both he and the mechanic "ran for cover." Machen added that "[a]ll of the mechanics saw it and everybody went for cover." Then, they asked the cashier to call the police.

During cross-examination, Machen admitted that appellant never pointed the shotgun directly at him. Nor did appellant make any threatening remarks.

Michael Brooks testified that, while appellant was driving the Trans Am, he struck Brooks's vehicle, backed up to leave, and then struck an Acura. Accordingly, Brooks followed the Trans Am, which ran "a couple lights," until the police appeared.

Adam Paik, the driver of the Acura, testified that he called the police after he was sideswiped by the Trans Am. He, too, followed the Trans Am until the police arrived. Paik recalled that the Trans Am drove to a recreation area near a school, and he saw appellant "do like doughnuts in the field, then he proceeded on past the children and then he went back towards the wooded area like where the tree line was."

Corporal David Buerger, stationed at Roosevelt High School, pursued the Trans Am after he heard a broadcast over the radio. Buerger observed appellant run a stop sign, hit a marked police car and another car, and then drive over a foot bridge into the recreation field. Despite Buerger's attempts to stop the vehicle, it took three shots, fired into the hood of the Trans Am by Officer Seung Lee, to force appellant out of the car. After appellant was arrested, Buerger looked inside the Trans Am and found a 12 gauge shotgun in the front seat. Buerger testified, however, that he never saw the shotgun until he approached the empty vehicle; appellant did not point the shotgun at the officers nor did he fire the weapon.

Officers Edward Holland and Seung Lee provided testimony similar to that of Corporal Buerger. Detective Steven Keller, a crime scene analyst for the Greenbelt Police Department, testified that he recovered a 12 gauge, Remington Model 1100 semi-automatic, shot gun from the front seat of the Trans Am. According to Keller, the weapon measured approximately 30 inches in length and was loaded. Keller also recovered a bookbag containing three boxes of 12 gauge ammunition from the back of the Trans Am.

Detective William Allwang testified that he obtained a written statement from appellant after his arrest. Appellant wrote, in part:

On [November 19, 2001] I David Fetrow became aggrivated [sic]. I believed that people were going to abandon me in my situation being broke jobless without food and hungry. It seemed as if I was being used against my will. This prompted me to take action. In my eyes I had done virtually all that had been alloted [sic] in my ability. So what transpired was little more than an aggitated [sic] call for help. I put on my vest and coat, grabbed my bookbag and shotgun looked outside and decided to go ahead and do whatever it was I was going to do. In my mind I wanted to destroy cop cars ... I also kept getting ideas about doing something else whether it was robbing somebody or taking someone hostage. I walked out of my house and up to Greenbelt rd. I took a breathe [sic] having little or no fear in me and began walking down the road holding the shotgun in my left hand. The gun was heavy so I switched it's [sic] position a couple times and kept walking. As I was approaching the Beltway Plaza Shell gas station, a white Camaro or other sports car pulled in to get gas. I walked up to the car, which was empty, saw that the keys were in the ignition and got in. The apparent owner of the vehicle was stand-off-ish and did not seem aware of what I was doing, until I had already got into the car or very shortly before.

* * *

While in the car the shotgun was in my lap the barrel closest to me. On the road I began thinking of what I was going to do. My ideas included shooting cop cars, robbing somebody, killing people, and getting my mail. I decided shooting cop cars would be my best determination so I got in the left lane to get onto Kenilworth avenue towards Crescent road. At the stoplight I bumped into a car at which point I decided to get out of the turn lane back onto Greenbelt road. My alternate route was down southway which was blocked off. This prompted me to get onto Ridge rd. which is when I noticed cop cars behind me. With the shotgun in my lap I decided to go instead of stop. I do not know the names of all the roads I turned on but during the chase I had not 1 idea of stopping and could not feel 1 ounce of fear. When I realized the car I was driving was not any good anymore [sic] and my path was blocked I gave up. Part of me wanted to go out shooting but I recognized all of the police officers and I had no chance of winning so I put my hands in the air and out the window right before the cops pulled me out of the car and put me on the ground. I had no fear during the entire incident. And only looked on questioningly while I was being shot at. I did not try to hurt anybody and hope that nobody was hurt....

At the end of the State's case, appellant moved for judgment of acquittal. In regard to the charges of assault of a police officer based upon the car crash, the State agreed to nolle prosse that charge. With regard to the charges of attempted murder, reckless endangerment, malicious destruction of property, and carrying a dangerous weapon openly, the court granted Fetrow's motion. Concerning the carjacking, appellant pointed to Machen's distance from the vehicle and the lack of actual force used by appellant to take the car. Nevertheless, the court denied the motion as to that charge. With respect to the two robbery charges, appellant argued that the State failed to show he took Machen's car by force or threat of force. Defense counsel said:

The charge in this case was specifically indicted [sic] that my client used force and violence, and I would submit that that would require more than, like I just said, just placing the shotgun on top of the car, if you were to believe that and that, in fact, Mr. Machen saw that.

This is not a situation where the State is charging my client with my client putting a person in fear through intimidation or threat of force and violence. And I think that that's distinguishable in this case.

If my client had pointed the shotgun at Mr. Machen, then you could argue that that was done without putting Mr. Machen in fear through intimidation of threat or force and violence. But, again, the allegation is that my client used force and violence. I argue at this juncture that there isn't a sufficient showing to allow this court to go forward because there isn't a sufficient showing that my client used force or violent. [sic]

Again, the court denied the motion. As to the assault charges, the court denied the motion based on the presence of the shotgun.

Appellant was the sole witness for the defense. He stated that he was walking from his home in College Park to Greenbelt, alternately carrying the weapon openly and concealing it under his coat. As he passed the Shell station, he saw a car with the engine running. Appellant testified:

While I was walking by the Shell Gas Station, I saw that there was a car with the keys in the ignition running in the parking lot. And there were two men standing approximately 15

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