Garcia–perlera v. State

• Citation: 197 Md.App. 534,14 A.3d 1164
• Decision Date: 06 April 2011
• Docket Number: 2009.,Sept. Term,No. 1371,1371
• Parties: Jose GARCIA–PERLERAv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

197 Md.App. 534
14 A.3d 1164

Jose GARCIA–PERLERA
v.
STATE of Maryland.

No. 1371

Sept. Term

2009.

Court of Special Appeals of Maryland.

Feb. 2, 2011.Reconsideration Denied April 6, 2011.

[14 A.3d 1167]

Deborah S. Richardson (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.Daniel J. Jawor (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.Panel: KRAUSER, C.J., MATRICCIANI and CHARLES E. MOYLAN, JR., (Retired, Specially Assigned), JJ.MATRICCIANI, J.

[197 Md.App. 539] Appellant, Jose Garcia–Perlera, appeared before the Circuit Court for Montgomery County on one count of felony murder, four counts of first degree burglary, one count of robbery with a dangerous weapon, four counts of false imprisonment, one count of first degree assault, and one count of use of a handgun in the commission of a felony. After a five-day trial [197 Md.App. 540] from May 11 to 15, 2009, a jury acquitted appellant of the use of a handgun in the commission of a felony and convicted him of all remaining charges. On August 13, 2009, the court sentenced appellant to incarceration for life, without parole, for the crime of felony murder, and to three concurrent sentences of life, plus thirty-five years, for the remaining crimes.

In his timely appeal, appellant raises four questions for our consideration:

I. Did the trial court err in denying appellant's motion to sever?

II. Did the trial court err in denying appellant's motion to suppress evidence seized as a result of two search warrants?

III. Did the trial court err in failing to merge the sentences for false imprisonment into the sentences for robbery?

IV. Did the trial court err in failing to merge the sentence for first degree assault into the sentence for robbery?

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

Facts and Proceedings

Appellant's convictions arise from four burglaries perpetrated in Montgomery County between September, 2007, and September, 2008.

Margaret Arnold was ninety-four years old at the time of appellant's trial and resided alone in Bethesda, Maryland, along the “River Road corridor.” On September 17, 2007, at approximately 10:45 p.m., Mrs. Arnold was accosted in the basement of her home by an unknown assailant. The assailant was wearing a mask, gloves, and black clothing, was approximately twenty years of age, a little taller than her height of 5' 4 1/2?, and described as male with a Hispanic accent. Using a piece of clothesline taken from her yard, the assailant tied Mrs. Arnold's wrists to her ankles and then gagged her. The intruder ransacked Mrs. Arnold's home, stealing her [197 Md.App. 541] watch, wedding and engagement rings, and other pieces of jewelry. Mrs. Arnold was discovered later that night by a family member.

Betty Tubbs resided alone in Chevy Chase, Maryland, also along the River Road corridor. On the night of November 27, 2007, the seventy-seven year old Mrs. Tubbs was accosted in the basement of her home by an unknown assailant wearing a baseball cap and a piece of beige cloth across his nose and mouth. Mrs. Tubbs described her assailant as approximately her height of 5' 5 1/2?, wearing dark clothing

[14 A.3d 1168]

and a hat, and speaking with a Hispanic accent. Using rope, the assailant tied Mrs. Tubbs' wrists to her ankles, then gagged and blindfolded her. The intruder ransacked Mrs. Tubbs' home, stealing money, her laptop computer, and multiple items of costume jewelry. Shortly after the intruder left her home, Mrs. Tubbs managed to loosen the ropes that were binding her and to seek assistance at the home of a neighbor.

Ann Wolfe was seventy-nine years old and resided alone, along the River Road corridor of Potomac, Maryland. On the morning of February 27, 2008, Mrs. Wolfe was outside her home retrieving the newspaper when she was accosted by a Hispanic man, approximately twenty-five years of age, between 5'6? and 5'8? tall, wearing a theatrical costume.¹ Mrs. Wolfe's attacker spoke to her in Spanish. Her assailant dragged her into the basement of her home, hitting her on the head with a pistol three times. Using rope and duct tape, the intruder tied Mrs. Wolfe's hands to her feet. He then taped her mouth shut with duct tape and put a sheet over her head, which he tied with rope. Mrs. Wolfe's home was ransacked and her car stolen, along with cash, bottles of wine, and jewelry from a wall safe in her bedroom. After her attacker left, Mrs. Wolfe was able to chew through the duct tape so that she could breathe through her mouth. She was found by her daughter, two days later. Mrs. Wolfe was hospitalized for five days and suffered permanent damage to her hands.

[197 Md.App. 542] Mary Francis Havenstein was sixty-three years old when she died in her home along the River Road corridor. Mrs. Havenstein was last seen alive by her neighbor on September 2, 2008. On September 4, 2008, Mrs. Havenstein's niece arrived to take her to a doctor's appointment and found her corpse. Mrs. Havenstein was on the floor in her bedroom with her hands tied to her feet. There were numerous abrasions and binding injuries to Mrs. Havenstein's body, but the fatal wound was an injury to her head consistent with blunt-force trauma. Mrs. Havenstein's car was missing from her garage, and jewelry was missing from her home.

Appellant was arrested in connection with multiple crimes on October 15, 2008. When police arrived at appellant's home to execute a search warrant, appellant said, “You're here for me.” Items recovered from appellant's home were identified as having been stolen from the homes of each of the four victims. DNA specimens recovered from the Tubbs, Wolfe, and Havenstein crime scenes were consistent with appellant's DNA.

Additional facts will be provided as necessary to support our analysis of the issues.

Discussion I. Motion to Sever A. Background

Prior to trial, appellant moved for separate trials, contending that the counts related to each of the four incidents should be tried separately from the others to avoid prejudice. The State opposed, and after hearing arguments, the trial court ruled:

Before the Court is the defendant's motion to sever the counts in the indictment; from 1 and 4; from 6 through 8; from 9 through 11; from 12 through 17; and by agreement 18 and 19 have been and will be severed, but are to be tried each with the other.

[14 A.3d 1169 , 197 Md.App. 543]

As to the remaining counts, the Rules implicated are 4–253(c), which says that the offenses may be charged together if they are of the same or similar character. The State maintains, in this instance, they are. That notwithstanding, under Rule 4–253 the counts should be severed if they are unfairly prejudicial.

Clearly, based upon the evidence presented to the Court, as in a number of the cases as cited by counsel, the identity of the assailant is the primary issue in this indictment, and in the counts referred to. The Court further finds, based upon the proffer of facts, that the facts of each case in this particular matter are so distinctive that they do constitute what is occasionally referred to as a “signature crime,” and that without trying to be exhaustive of the facts, the Court notes that each involves a home invasion; it is represented that each is within close proximity to the other. At one point there was reference to being almost within walking distance; each occurred on days, Monday—between Monday and Wednesday; but most significant for the Court each involved a victim being hog-tied, which is described as hands together, feet together, and feet to hands; each was tied up using ropes with knots that had been described as complex, but not identical; in each instance, the victim was gagged; and in each instance, the victim was—I don't know if “elderly” is appropriate given my own advanced years, but they were middle-aged victims, let me say but of similar age; and that each—if I didn't already mention it, obviously each was a woman. Based upon those facts, the Court finds there is, at the very least, a reasonable inference that the same person committed the four remaining offenses, which would make them relevant to the issues of identity and admissible in the other cases.

With respect to the issue of prejudice, as discussed already, all probative evidence is, to some degree, prejudicial, and the question is whether it is unfairly so. As I have mentioned, each—in each of these four cases, standing alone, there is some evidence that tends to suggest that the defendant might have been involved; but, in each instance, [197 Md.App. 544] the State is relying upon circumstantial evidence as to the issue of identity.

* * *

And in the final case, the fourth case, which is Ms. Arnold's case, property stolen from her residence is recovered from the defendant's apartment, but it's recovered approximately 13 years—sorry—13 months after the theft took place.

Now, no one would question that if in fact, for instance, in Ms. Wolfe's case, in addition to the evidence of the DNA on the gag, that there was a stick recovered from her bedroom that had the defendant's DNA on it; that there was a hat recovered from another room, even if it was in a bag presumably that she would say was not hers; and that the hat and the bag had the DNA, the defendant's DNA on it; and that assume in Ms. Wolfe's case, the property stolen from her was recovered from the defendant's apartment 13 months later, no one would question that all of that evidence would be probative—would be admissible and probative of the issue of identity. In this case, because the Court finds it's reasonable to infer that the same person committed all four of these, then that evidence has the same probative value.

However, if instead you looked at each of these cases in isolation, the evidence would not nearly be as probative. So, while the Court cannot dispute the fact that joining them is prejudicial to the defendant, the Court does not find that it is...