Gregory v. State
| Decision Date | 24 November 2009 |
| Docket Number | No. 2204, September Term, 2007.,2204, September Term, 2007. |
| Citation | 983 A.2d 542,189 Md. App. 20 |
| Parties | Donald Ray GREGORY v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Julia C. Schiller (Nancy S. Forster, Public Defender, on brief), for Appellant.
Sharon S. Street (Douglas F. Gansler, Atty. Gen., on brief), for Appellee.
Panel: HOLLANDER, MEREDITH and KEHOE, JJ.
Donald Ray Gregory, appellant, was charged with attempted felony theft and attempted unlawful taking of a motor vehicle. At his jury trial in the Circuit Court for Wicomico County, he claimed that he did not intend to steal the vehicle, and took it because he mistakenly believed that he was God. The jury convicted appellant of both offenses.1
On appeal, Gregory presents the following questions for our review:
I. Did the trial court err in failing to properly advise the appellant about his right not to testify?
II. Did the trial court err in allowing appellant to be impeached with his prior convictions for robbery and theft when appellant was on trial for attempted theft?
III. Did the trial court err in failing to give the jury instruction on mistake of fact?
IV. Was the evidence sufficient to sustain the convictions for attempted unlawful taking of a motor vehicle and attempted theft over $500?
Finding no error, we shall affirm the judgments of the circuit court.
The following evidence was adduced at the trial in November 2007.
On May 17, 2007, Brenda Huffman lived on Laurel Road in Mardela Springs and owned a 2004 Hummer H2 truck. She testified that, on that date, she went out with her mother, and the two returned to her home at approximately 3:35 p.m. At that time, she saw an unfamiliar truck in her front driveway, which was running. In her rear driveway, where her 2004 Hummer H2 was parked, Huffman discovered appellant sitting in the driver's seat, with "his hands ... in the floorboard area." At trial, she identified appellant as the individual she observed on the driver's side of her vehicle.
When Huffman asked appellant "what he was doing," appellant exited the Hummer and told Huffman that he "needed to take the truck." Huffman asked appellant "what was wrong[,]" because he "just didn't seem right and he kept saying he was in distress." Appellant replied "that God told him [that] he could take the truck." After appellant told Huffman that "he wasn't going to leave without the truck[,]" Huffman called the police.
Huffman had left the Hummer unlocked, although the keys to the Hummer were not in the vehicle. She examined the interior of the vehicle and saw "wiring hanging" underneath the dashboard of the Hummer. These wires were not hanging down before appellant entered her vehicle. Huffman purchased the Hummer for $49,000.
Joyce Caudill, Huffman's mother, testified that she drove her daughter home on May 17, 2007. Upon arriving, they saw a man in her daughter's truck. Ms. Caudill identified appellant as the man. Ms. Caudill and her daughter approached appellant and asked him what he was doing. Appellant told them that "God had told him to take the truck," and he could not leave without it. While inside of the truck, appellant was leaning toward the floorboard of the vehicle. Ms. Caudill told appellant to get out of the truck and he complied.
Trooper Richard Lee Hagel, Jr. of the Maryland State Police, responded to Huffman's home at approximately 3:59 p.m. He saw appellant "standing approximately [twenty] feet behind the Hummer[.]" Appellant's vehicle, a 1991 or 1992 Blazer, was parked at the end of the driveway, and it was running. Appellant, who was cooperative, told the trooper that
he was driving by and ... heard a voice inside his truck that told him [that] he had to take the Hummer. So he stopped, pulled into the driveway, and attempted to take the Hummer. He said that the voice he had heard in his truck, he believed there was a device in his truck that allowed ... God to speak to him.
The defense moved for judgment of acquittal. As to the charge of motor vehicle theft, appellant's attorney argued that "the State has not shown that the Defendant's actions were knowing and willful...." The court denied the motion.
Appellant was the sole witness for the defense. We quote from his direct examination:
* * *
So I came in at a speed more than enough to slow down and I buckled into their driveway.... So I got in there and I heard this sound, which I hadn't heard before, as if something snapped....
And I hit like it went in gear ... but the tires just spun....
* * *
So I was just at this house and I seen the driveway facing, there's a house right there, I see a Hummer truck[.] ...
* * *
... I'm just sitting there, I'm thinking about this Hummer, I'm looking at the Hummer, I'm looking at the truck, I'm like[,] well[,] I keep going through so much stuff with my truck, I keep having to get it fixed every now and then[.] ...
So I said well, I'll keep going through the stuff. So it told me that this Hummer truck, ... once the voice said that, it told me that, said this Hummer, the only thing in the yard said this Hummer, it said, told me the Hummer was mine.
Anyhow, I got that telepathy, it was telepathed to me that message there that this Hummer was mine....
* * *
And so anyway, ... I'm looking at the Hummer. I opened the door.... I did not get inside of it. And then I closed the door. And I was headed back to my truck. [A]t that exact time, ... the school bus was coming up. And it was a girl, I suppose she was about [eleven] or [thirteen] years old[.] And ... what I said to the little girl, I said listen. I said I am God and my truck knows that I am God. I said my truck will not leave your yard. I said that I want your family to let me have this Hummer.... And she said, well, you want me to get my dad. I said, yeah. And she was off. And she went to the house. And so I expected that her father was ... going to come outside....
* * *
... I didn't immediately go into the Hummer. I waited out there [for] three minutes, five minutes, ... I'm looking at this Hummer because now I'm confident that I'm going to get this Hummer because also even if it was about money, I could afford the Hummer. And so I'm looking at the green paint and ... the wheels ... and I seen that the windows are tinted. So I was like, well, she's going to tell him ... I'm out here about this truck, so I'm going [to] look inside the truck. So I'm like[,] they know I'm here, ... so I opened the door. And I sat in the driver's seat....
And from my left I could see a black Dodge Nitro ... coming up[.] And ... I saw it was two ladies.... I got out of the truck [and] went straight to them.... I told them, exactly what I said, I have an emergency, I need this Hummer, ... I said I need this truck, and I am God. And she said something, that's all good you have an emergency, she said, but what are you doing in my truck. And I said listen, I don't want [you to] tell anybody, I said I'm God....
During the State's cross-examination of appellant, the following colloquy occurred:
We shall include additional facts in our discussion.
The first contention concerns the advisement appellant received as to his rights to testify or remain silent. We pause to review additional facts.
Following the close of the State's case, the following colloquy occurred:
[DEFENSE COUNSEL]: [Appellant], as I have explained to you in the back there a few moments ago, the State has rested [its] case. This is now your case and you will have the opportunity to testify or decline to testify, as I explained to you. If you elect to testify, you must do so under oath from the witness stand right up there as...
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...right to testify is fundamental to a fair trial, the defendant must waive that right knowingly and voluntarily. Gregory v. State, 189 Md.App. 20, 32, 983 A.2d 542, 549 (2009); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The defendant's right to testify is a persona......
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