Henry v. State, 946, September Term, 2007.
| Decision Date | 04 February 2009 |
| Docket Number | No. 946, September Term, 2007.,946, September Term, 2007. |
| Parties | Clarence HENRY v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Amy E. Brennan (Nancy S. Forster, Public Defender on the brief), Baltimore, for appellant.
Steven L. Holcomb (Douglas F. Gansler, Attorney General on the brief), Baltimore, for appellee.
Panel: MEREDITH, WRIGHT, RAYMOND G. THIEME, JR., JJ., (Retired, specially assigned).
By indictment filed in the Circuit Court for Prince George's County on August 15, 1997, the appellant, Clarence Henry, was charged with two counts of first degree murder (Counts 1 and 3) and two counts of use of a handgun in a crime of violence (Counts 2 and 4). Henry, who was 15 years old when the offense occurred, filed a motion to transfer the case to juvenile court as well as a motion to suppress the statement he made to police. On December 12, 1997, a hearing on the motion to remand to juvenile court was held. That motion was denied. On January 30, 1998, the court held a hearing on the motion to suppress, which was also denied.
Following a jury trial held on February 23-25, 1998, Henry was convicted of two counts of second degree murder and two counts of use of a handgun in the commission of a crime of violence. On March 27, 1998, Henry was sentenced as follows:
Count 1: 30 years for the second degree murder of William Curry, with credit for time served;
Count 2: 20 years, consecutive, for use of a handgun in the commission of the crime against Curry;
Count 3: 30 years, consecutive, for the second degree murder of Deana Bell; and
Count 4: 20 years, concurrent, for use of a handgun in the crime of violence against Bell.
The court imposed an aggregate sentence of 80 years. Henry filed an appeal to this Court two days late, on April 29, 1998. Because he filed late, the appeal was dismissed on April 21, 1999, and the dismissal was recorded on May 26, 1999.
A post-conviction hearing was held eight years later, on May 14, 2007. By order of the Circuit Court for Prince George's County, Henry was granted a belated appeal. Pursuant to the court order, Henry filed this appeal on June 26, 2007.
We have consolidated the questions presented by both parties as follows:
1) Did the circuit court err when it instructed the jury on the doctrine of transferred intent, where both the intended and unintended victims were killed?
2) Did the circuit court err when it declined to instruct the jury on the offense of involuntary manslaughter as to Deana Bell, the unintended victim?
3) Did the circuit court err in admitting evidence of a robbery in which Henry was involved, where the evidence established that he recently had possession of a gun similar to that used in the instant crime?
4) Did the circuit court abuse its discretion when it denied Henry's request, made on the day of trial, for a continuance so that his mother could attempt to hire private counsel?
Because we answer "no" to all of the above questions, we shall affirm the judgment of the circuit court.
On July 14, 1997, William Curry, Ronald Patterson, and Zelma D. Codray, Jr. went out to celebrate Curry's completion of a work-related computer training course. The three men, who were all in their forties, went to 3103 Good Hope Avenue, Apartment 315, Temple Hills, Maryland, where Alfred Barfield resided. Curry wanted to collect money that Barfield owed him so that he and his friends could celebrate, but Barfield did not have the money. Curry argued with Barfield before leaving the apartment with Patterson and Codray.
On their way out, the three men passed Kevin D. Queen, Sr., Michael Chew, Deana Bell,1 and Clarence Henry on the steps. What happened next was disputed at trial.2 It was undisputed, however, that a verbal argument ensued between Curry and Chew, and it escalated into a physical fight. Curry, an ex-Marine who "worked out three, four times a week" at the gym, threw the first punch, striking Chew. The fight moved from the front steps to the parking lot. Queen then came to Chew's defense, prompting Patterson to assist Curry. Henry was not involved in the fistfight. He was "down the street" when it started.
Henry left, came back with a sawed-off rifle, and began shooting at Curry. Queen testified to seeing Henry shooting "at the three guys." Upon hearing the shots, Patterson, Codray, and Queen all took cover. According to Patterson, it appeared that Henry was "trying to place his shots" to hit Curry and "miss his buddy." Patterson described the gun as a gun metal, sawed-off rifle, with a pistol grip and a pump action. It was approximately two feet long with a 16-inch barrel.
Henry struck Curry seven times, killing him. According to Dr. Jack Titus, an associate pathologist at the Chief Medical Examiner's Office, four of the seven gunshot wounds were to Curry's back side. Two bullets also struck Deana Bell, who was killed while sitting on the front steps of the apartment building.3 Dr. Titus stated that one bullet entered the back of her left arm and came out through the front. The other bullet "entered the left chest, went through some skin and muscle and went through the left lung" before getting lodged in the left chamber of her heart.
When the firing stopped, Patterson and Codray came to Curry's aid. They tried to take Curry to their car but he collapsed before they could do so. Patterson then saw Henry, Queen, and Chew flee the scene so he went to call an ambulance. At trial, both Patterson and Codray identified Henry as the person who shot Curry.
Nine expended cartridge casings were recovered from the crime scene. In addition, a total of six bullets were recovered. Gary Phillips, a firearm examiner with the Prince George's County Police Department, testified that all nine of the recovered cartridge casings "had been fired in one single firearm." Similarly, all six recovered bullets "had been fired through ... one firearm." Phillips added that the bullets were "fired from a weapon compatible with the same weapon that fired the nine casings." Without recovery and examination of the firearm, however, it was not possible to determine whether the bullets were fired from the same firearm that ejected the casings.
Additional facts will be supplemented in the relevant sections below.
Henry's first contention on appeal is that "the trial court committed plain error by instructing the jury on the doctrine of transferred intent where both the intended victim and the unintended victim were killed." We disagree. We first note that this issue was not preserved because Henry failed to object after the instruction for transferred intent was given to the jury. Maryland Rule 4-325(e) states that "[n]o party may assign as error the giving [of] ... an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection." We explained the importance of this rule in McMillan v. State, 181 Md.App. 298, 359, 956 A.2d 716, cert. granted 406 Md. 744, 962 A.2d 370 (2008):
The policy behind the preservation rule is clear. The trial court cannot correct errors of which it is not informed. Only if a party takes exception to an error in the jury instruction does the court have the opportunity to correct it. Johnson v. State, 310 Md. 681, 686, 531 A.2d 675 (1987).... Put another way, considerations of fairness and judicial efficiency generally require that all challenges that a party wishes to make to a trial court's ruling, action, or conduct "be presented in the first instance to the trial court so that (1) a proper record can be made with respect to the challenge, and (2) the other parties and the trial judge can respond to the challenge." Chaney v. State, 397 Md. 460, 468, 918 A.2d 506 (2007).
Henry himself concedes that "defense counsel did not object to the court's transferred intent instruction to the jury," but argues that this Court should still review it because the trial court's instruction constituted plain error. Maryland Rule 4-325(e) provides that "[a]n appellate court, on its own initiative or on the suggestion of a party, may ... take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object." " McMillan, supra, 181 Md.App. at 359-60, 956 A.2d 716 (quoting Morris v. State, 153 Md.App. 480, 507 n. 1, 837 A.2d 248 (2003), cert. denied, 380 Md. 618, 846 A.2d 402 (2004)). Because this specific application of transferred intent — where both the intended and the unintended victims die — has not been addressed by an appellate court of this state, we will take up the invitation to decide the issue. After reviewing the evolution of the doctrine in Maryland, we conclude that the circuit court did not err in giving the transferred intent instruction.
In this case, the circuit court instructed the jury, with regard to transferred intent, as follows:4
... [T]he State has offered evidence of a concept called transferred intent. What it really means is that, for example, if there are three people, A, B, and C, and A intends to shoot C and either accidentally or in the process shoots B, the intent is transferred from C to B, the person who was actually shot.
Upon being informed that the jury "had no idea what was going on," the court reinstructed the jury:
Let me explain this. Maybe you didn't get the transferred intent. We'll give you a — see if I can straighten that out. Let's say you have four people, four or five people, and A intends to shoot B, but in the process of doing it he shoots two other people, C and D. The intent to kill A is transferred to C or D or a third person. So if you — let me see, I see expressions on your faces.
If I...
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