Hagez v. State

• Decision Date: 03 April 2000
• Docket Number: No. 902,902
• Citation: 749 A.2d 206,131 Md. App. 402
• Parties: Adel G. HAGEZ v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

749 A.2d 206

131 Md. App. 402

Adel G. HAGEZ v. STATE of Maryland.

No. 902, Sept. Term, 1999.

Court of Special Appeals of Maryland.

April 3, 2000.

Samuel A. Abady, New York City, for appellant.

Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Marna McLendon, State's Attorney for Howard County, Ellicott City, on the brief), for appellee.

Argued before MOYLAN, DAVIS and HOLLANDER, JJ.

HOLLANDER, Judge.

Adel G. Hagez ("Hagez"), appellant, is not a newcomer to this Court; this is his fourth appeal stemming from charges that he murdered Riad Hijaz in 1991. As a result of Hagez's first appeal, we reversed his convictions and remanded the case to the Circuit Court for Howard County for a new trial. Hagez v. State, 110 Md.App. 194, 676 A.2d 992 (1996) ("Hagez I"). The re-trial, which has not yet occurred, is at issue here.

Prior to the commencement of the retrial, appellant unsuccessfully moved to dismiss the charges against him on the ground of double jeopardy. After two unsuccessful attempts to obtain relief from this Court, Hagez noted the present appeal. He presents a pentad of questions for our review, which we have condensed and reformulated as follows:

I. Did Hagez I decide the double jeopardy issue raised in appellant's motion to bar retrial?

II. Is retrial of appellant barred by the Fifth Amendment of the U.S. Constitution and Article 5 of the Maryland Declaration of Rights, due to prosecutorial misconduct?

For the reasons set forth below, we shall affirm.

FACTUAL BACKGROUND

In order to analyze the issues raised by appellant, we shall begin by recounting the facts that culminated in appellant's convictions in 1993 for the offenses of first degree murder and use of a handgun in the commission of that offense.¹

Virginia Hagez was divorced from appellant on March 8, 1991, after twenty-one years of marriage. A few months later, on June 22, 1991, Riad Hijaz was shot and killed in Room 410 of the Holiday Inn in Jessup, Maryland. That room was registered to Virginia Hagez. On Friday, April 30, 1993, while appellant was in jail awaiting trial for Hijaz's murder, set to begin on Monday, May 3, 1993, appellant and Ms. Hagez allegedly remarried.

At the time of the shooting, Ms. Hagez and others were affiliated with "The Mediterranean Chef," a portable food concession then servicing the Columbia City Fair in Howard County. Ms. Hagez's staff occupied Room 308 of the motel. Ms. Hagez had specifically asked that no one be informed of her room number.

On the morning of June 22, 1991, Howard County police officers responded to the motel in answer to a call that shots had been fired. At about 9:50 a.m., Officers David Ash and Paul Yodzis entered Room 410 and saw the victim's body about a foot from the door. Two full cups of coffee were located on a table in the room, and a bag on the dresser contained five unopened cans of beer. A copper jacket was found on the unmade bed, and spent projectiles were found on the floor by the victim's body.

As Howard County Detective Luther Johnson drove onto the motel parking lot, a woman ran out of the entrance toward his vehicle. The woman, who later identified herself as Virginia Hagez, was "hysterical" and was "screaming." She told Johnson that someone had been shot in Room 410 and she asked, repeatedly, "Is he dead?"

Officer Victoria Plank also saw Ms. Hagez as she ran from the motel. She described Ms. Hagez as "rather hysterical at the time." Ms. Hagez told Officer Plank that she had asked a man with her group to assist her with her luggage. When the man arrived, she went to the motel clerk because of a discrepancy in the bill. Upon her return to the room, the man who was supposed to help with the luggage was on the floor, and she ran for help. According to Officer Plank, Ms. Hagez "continued to state that there was nothing going on between the two of them. That he had just been there to help with the suitcases."

On the morning of Saturday, June 22, 1991, Detective A.J. Bellido-Deluna was off duty and was working as a security officer at the Columbia Fair. He recalled that, at about 9:00 a.m., a red "Datsun Nissan type vehicle" with Virginia license plates parked behind him. He noticed a man with a briefcase exit the car and proceed to the Mediterranean Chef, where two men were setting up. After a brief conversation, the man left.

Bernadette Williams was the receptionist on duty at the Holiday Inn at the time of the killing. She testified that, shortly before 9:45 a.m., two men carrying "money bags" identified themselves as Virginia Hagez's employees from the carnival and asked for her room number. According to Williams, Ms. Hagez "kept calling downstairs and saying don't tell them what room I'm in." Consequently, Williams did not disclose the room number. A third man approached the men and talked to them. Then, all three walked away. Two of the men went outside, but the third one went toward the elevators. Williams did not know if appellant was one of the three men.

During the investigation, Sergeant Glenn Hansen interviewed Virginia Hagez several times. On June 25, 1991, using information obtained from Ms. Hagez, he directed Montgomery County police to the Shady Grove Metro Station parking lot. There, they found a red Nissan with Virginia license plates and parking tickets dated June 24 and 25, 1991. The car was registered to "The Roast Beef Co., Inc.," 2012 Fon-Du-Lac Road, Richmond, Virginia.

The police obtained a search warrant and seized the vehicle. Documents in the car established Mr. Hagez's residence at 2012 Fon-Du-Lac Road in Richmond. Police found a white bank pouch inside the passenger compartment of the Nissan, which appeared blood stained and contained eleven .38 caliber bullets. Two briefcases were in the trunk. One contained items belonging to Ms. Hagez, and the other had papers that appeared to be bloodstained. Between the papers was a bloodstained revolver with six spent cartridges, four from .38 caliber bullets and two from .357 caliber bullets. The gun was a Colt Lawman MK III 357 OTG revolver; appellant's fingerprint was found on the gun. The number of spent casings was consistent with the forensic examination, which revealed that Hijaz had been shot six times; three of the shots had been fired from within eighteen inches. The second briefcase also had bloodstained papers, including a letter addressed to appellant, the victim, and another man at 2012 Fon-Du-Lac Road, Richmond, Virginia. The same address also appeared on other business papers, including a check drawn on the account of "The Roast Beef Company" that was signed by appellant.

FBI Special Agent J.R. Williamson, a firearms expert, testified that, due to insufficient microscopic markings, he could not determine if the bullets and bullet fragments recovered from the body of the victim and Room 410 were fired from the gun found in the red Nissan. Nevertheless, he concluded that certain of the bullets and bullet jackets could have been fired from the revolver in issue, based on the specific rifling impressions. He also said that certain of the .38 caliber bullets and the .357 caliber bullets belong to the same "family" of ammunition; Agent Williamson described them as "interchangeable." Moreover, both types of bullets may be fired from a .357 revolver.

Ms. Hagez was called as a witness by the State. Out of the presence of the jury, the court had previously rejected Ms. Hagez's invocation of her spousal privilege² and instructed her that she could be found in contempt if she refused to testify. Nevertheless, Ms. Hagez declined to answer any of the more than twenty questions posed by the prosecutor on direct examination.

Appellant did not present a defense case and the trial judge denied his motion for judgment of acquittal. After deliberating for nearly nine hours, the jury convicted appellant of murder in the first degree and a related handgun charge. Thereafter, appellant was sentenced to life imprisonment for the murder and a concurrent threeyear term for the handgun offense.

On appeal in Hagez I, appellant presented a number of questions for our consideration, focusing on three general issues: (1) the sufficiency of the evidence; (2) the trial court's refusal to grant Ms. Hagez immunity from testifying; and (3) alleged prosecutorial misconduct.³ Specifically, appellant alleged that the circuit court erred in allowing the State "1) to force Ms. Hagez to invoke the spousal privilege in front of the jury; 2) to persist in asking Ms. Hagez leading questions; and 3) to refer to Ms. Hagez's silence during closing argument." Hagez I, 110 Md.App. at 212-13,676 A.2d 992. Although we concluded that the evidence was sufficient to support appellant's convictions, id. at 203-07, 676 A.2d 992, we agreed that reversal was warranted, based on appellant's claims of prosecutorial misconduct. Therefore, we found it unnecessary to "resolve the thorny issue concerning the availability of the [spousal] privilege, in light of our decision to reverse on other grounds." Id. at 211, 676 A.2d 992. With respect to our determination of prosecutorial misconduct, it is noteworthy that we never suggested that the State acted deliberately in an effort to abort the trial. To the contrary, we noted that the prosecutor acted zealously in an effort to secure a conviction.

In Hagez I, we recounted what transpired when Ms. Hagez was called to testify, stating:

[I]n the presence of the jury, the court again ordered the witness to respond to the questions, reminded her that she was subject to contempt for her failure to respond, and told her that she could be sent to jail. Undaunted, Ms. Hagez again asserted her right not to testify. Still, the questions continued.

At yet another bench conference, defense counsel asked the court, "Your Honor how long will the Court permit [the prosecutor] to continue testifying?" The Court acknowledged the problem with the form of

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