Holbrook v. State

• Decision Date: 03 July 2000
• Docket Number: No. 1374,1374
• Citation: 754 A.2d 1103,133 Md. App. 245
• Parties: Reginald T. HOLBROOK v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

754 A.2d 1103

133 Md. App. 245

Reginald T. HOLBROOK v. STATE of Maryland.

No. 1374, Sept. Term, 1999.

Court of Special Appeals of Maryland.

July 3, 2000.

Geraldine K. Sweeney, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Devy Patterson Russell, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and David R. Ruark, State's Atty. for Wicomico County, Salisbury, on the brief), for appellee.

Argued before WENNER, ADKINS and PAUL E. ALPERT (Ret., specially assigned), JJ. PAUL E. ALPERT, Judge, Retired, specially assigned.

In this case of first impression, we are called upon to decide whether a conviction for reckless endangerment merges with a conviction for arson. On April 29, 1999, appellant Reginald T. Holbrook was tried in a non-jury trial in the Circuit Court for Wicomico County (Davis, J. presiding). He was found guilty of first degree arson, eight counts of reckless endangerment, and one count of making a threat of arson. Sentencing was held on June 28, 1999. For the first degree arson conviction, Mr. Holbrook was sentenced to 30 years with all but 22½ years suspended. For the first count of reckless endangerment, Mr. Holbrook was sentenced to five years to run consecutive to the arson sentence. For the other 7 counts of reckless endangerment, Mr. Holbrook was sentenced to five years, which were to run consecutive to the arson sentence, but concurrent to each other and to the first reckless endangerment sentence. Finally, as to the threat of arson conviction, Mr. Holbrook was sentenced to 10 years to run concurrent to the arson sentence. This appeal followed.

ISSUES

Mr. Holbrook presents two questions for our consideration:

I. Whether the trial judge erred in refusing his request to merge reckless endangerment into first degree arson; and,

II. Whether the trial judge erred in allowing the State to amend the criminal information immediately prior to trial, changing the date of the alleged arson threat, and then allowing testimony regarding arson threats made at times other than that originally charged.

FACTS

There is no significant dispute about the facts in this case. In 1998, Alisha Collins leased a residence at 230 Ohio Avenue in Salisbury, Maryland. Between April and May of that year, nine people lived there: Alisha Collins, her husband, and their three-year old daughter; Alisha Collins's mother and her six-year old twins; Alisha Collins's aunt, DeKota Collins, and her three-year old daughter; and, Mr. Holbrook, who was DeKota Collins's boyfriend. Mr. Holbrook resided at the home for several months and contributed to the rent.

DeKota Collins was the representative payee for Mr. Holbrook's social security payments. On May 1, 1998, Mr. Holbrook and DeKota Collins had an argument over his money during which he made a menacing gesture toward her with a screwdriver. Alisha Collins called the police. The responding officer told Mr. Holbrook that he would have to leave and not to return to the premises. The officer stayed while Mr. Holbrook removed all of his belongings. Alisha Collins testified at trial that Mr. Holbrook was "really mad."

About an hour after leaving the premises, Mr. Holbrook returned and asked to speak to DeKota. She told him, "Reggie, I don't want you no more. I just want you to leave me alone and don't come back here no more." Mr. Holbrook sat on the porch and cried. About one hour later, Alisha Collins and her husband left the premises with Mr. Holbrook. The three shared a cab ride, during which Mr. Holbrook repeatedly said "I'm going to get all of you." On May 6, 1998, Alisha Collins observed Mr. Holbrook walking back and forth across the street from her house. She testified that he said "I'll burn this mother fucker up." Over the objection of defense counsel, Alisha Collins testified that a week before Mr. Holbrook left the home, she overheard an argument between him and DeKota Collins during which Mr. Holbrook said "I'll burn this mother fucker house down" and "I got people that can hurt you that live upstate."

On the evening of May 7, 1998, Mr. Holbrook came to the door of the home and asked to see DeKota Collins. Alisha Collins lied and said that she was not home. Mr. Holbrook remained outside of the house for about 45 minutes calling DeKota's name and saying that he wanted to talk to her. That night, Alisha Collins fell asleep on the living room sofa. Sometime after midnight, she awoke to the smell of smoke. She awoke her husband, who went out the back door and discovered a pillow burning on the back porch. All of the occupants safely evacuated the house.

Kevin Ward, a firefighter with the Salisbury Fire Department, testified that the flames from the burning pillow were about 6 to 12 inches high when he arrived, and that there were char marks on the threshold to the rear door and smoke in the basement.

Alisha Collins testified that she saw Mr. Holbrook across the street 10 to 15 minutes after the fire was discovered. She told the police that Mr. Holbrook started the fire. Mr. Holbrook was questioned by the police and by the fire marshall. He was subsequently arrested and charged with arson, reckless endangerment, and threats of arson.

DISCUSSION

I.

A. The offenses are not the same for double jeopardy purposes

As Judge Karwacki recognized in Richmond v. State, 326 Md. 257, 261, 604 A.2d 483, 485 (1992), "[m]ultiple punishment challenges generally arise in two different sets of circumstances: those involving two separate statutes embracing the same criminal conduct, and those involving a single statute creating multiple units of prosecution for conduct occurring as a part of the same criminal transaction." This case involves the former type of challenge. Mr. Holbrook claims that the trial court erred in refusing to merge his reckless endangerment conviction into his conviction for first degree arson.

In Maryland, the test for determining whether different statutory or common law offenses, growing out of the same transaction, are to merge and be treated as the same offense for double jeopardy purposes, is the required evidence test, also known as the Blockburger test. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Simpson v. State, 121 Md.App. 263, 708 A.2d 1126 (1998); Williams v. State, 323 Md. 312, 593 A.2d 671 (1991); State v. Ferrell, 313 Md. 291, 545 A.2d 653 (1988). The test focuses upon the evidence necessary to sustain a conviction on each offense. As the Court of Appeals stated in Thomas v. State, 277 Md. 257, 267, 353 A.2d 240, 246-47 (1976), and reiterated in State v. Ferrell, supra:

The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes.

State v. Ferrell, 313 Md. at 298, 545 A.2d at 656 (quoting Thomas v. State, 277 Md. at 267, 353 A.2d at 246-47

). When one offense is found to be a lesser-included offense of another under the required evidence test, ordinarily a sentence may be imposed only for the offense having the additional element or elements. State v. Lancaster, 332 Md. 385, 391, 631 A.2d 453, 456 (1993).

The first statutory offense at issue in this case is reckless endangerment. Maryland's statute provides, in relevant part, as follows:

(1) Any person who recklessly engages in conduct that creates a substantial risk of death or serious physical injury to another person is guilty of the misdemeanor of reckless endangerment....

Md. Ann.Code art. 27, § 12A-2 (1996 & 1999 Supp.). As succinctly set forth in the Maryland Criminal Pattern Jury Instructions, in order to convict a defendant of reckless endangerment, the State must prove:

(1) that the defendant is engaged in conduct that created a substantial risk of death or serious physical injury to another;

(2) that a reasonable person would not have engaged in that conduct, and that the defendant acted recklessly.

A defendant acts recklessly if he is aware that his conduct creates a risk of death or serious physical injury to another and then consciously disregards that risk. See generally, State v. Albrecht, 336 Md. 475, 649 A.2d 336 (1994),

on remand, Albrecht v. State, 105 Md.App. 45, 658 A.2d 1122 (1995); Williams v. State, 100 Md.App. 468, 641 A.2d 990 (1994); Mills v. State, 13 Md.App. 196, 282 A.2d 147 (1971),

cert. denied, 264 Md. 750 (1972).

Reckless endangerment is an inchoate crime against persons that is intended to deal with the situation in which a victim is put at substantial risk of death or serious bodily harm but may, through a stroke of good fortune, be spared the consummated harm itself. Albrecht v. State, 105 Md.App. 45, 58, 658 A.2d 1122, 1128 (1995). In Williams v. State, 100 Md.App. 468, 641 A.2d 990 (1994), we examined the inchoate nature of reckless endangerment and made the following observation:

As with all inchoate crimes, reckless endangerment was intended to plug a gap in the law. Inchoate crimes are designed to inhibit criminal conduct before it goes too far or to punish criminal conduct even when, luckily, it misfires. Reckless endangerment is, indeed, doubly inchoate. At the actus reus level, it is one element short of consummated harm. At the mens rea level, it is one element short of the specific intent necessary for either an attempt or for one of the aggravated assaults.

Williams, 100 Md.App. at 481, 641 A.2d at 996.

Indeed, as we noted in Albrecht v. State, the consummated crimes from which the inchoate crime of reckless endangerment is removed are...