Holmes v. State

• Decision Date: 24 January 2013
• Docket Number: Sept. Term, 2011.,No. 2128,2128
• Parties: Dewan HOLMES v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

209 Md.App. 427

60 A.3d 50

Dewan HOLMES

v.STATE of Maryland.

No. 2128, Sept. Term, 2011.

Court of Special Appeals of Maryland.

Jan. 24, 2013.

Matthew H. Blumenstein (Williams & Connolly, LLP, Paul B. DeWolfe, Public Defender, on the brief) Washington, DC, for appellant.

Ryan R. Dietrich (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: KEHOE, BERGER, and RONALD B. RUBIN (Specially Assigned), JJ.

BERGER, J.

On September 8, 2011, appellant, Dewan Holmes (“Holmes”) was convicted by a jury in the Circuit Court for Baltimore City. Holmes was convicted of first-degree assault; using a handgun during the commission of a crime of violence; wearing, carrying, or transporting a handgun; possessing a regulated firearm after having been convicted of a disqualifying felony; and discharging a firearm within the city limits of Baltimore City. Holmes was acquitted of attempted first-degree murder and attempted second-degree murder.

Thereafter, the trial court sentenced Holmes to 15 years imprisonment for first-degree assault; 15 years for using a handgun in the commission of a crime of violence (concurrent with the assault sentence); three years for wearing, carrying, or transporting a handgun (also concurrent with the assault sentence); five years for possessing a regulated firearm after havingbeen convicted of a disqualifying felony (consecutive to the assault sentence); and one year for discharging a firearm within Baltimore City limits (concurrent with the assault sentence), for a total of 20 years of imprisonment.

Holmes filed a timely appeal and presents four issues for our review, which we have expanded and rephrased as follows:

1. Whether the evidence presented at trial was sufficient to sustain Holmes's convictions beyond a reasonable doubt.

2. Whether the circuit court erred in replying to a jury note by deviating from the language used in Maryland Criminal Pattern Jury Instruction 2:01.

3. Whether the circuit court erred in denying Holmes's motion for new trial.

4. Whether the circuit court erred in failing to merge Holmes's sentence for wearing, carrying or transporting a handgun, with the sentence imposed for using a handgun during the commission of a crime of violence.

5. Whether the circuit court erred by invoking impermissible considerations in sentencing Holmes.¹

For the reasons set forth below, we affirm the judgments of the Circuit Court for Baltimore City. We, however, merge Holmes's sentence for wearing, carrying, or transporting a handgun into Holmes's sentence for use of a handgun during the commission of a crime of violence.

FACTS AND PROCEEDINGS

On December 15, 2009, Keytwan Deputy (“Deputy”) traveled from out-of-town to visit his father, Debro Muhammad (“Muhammad”) ² in Baltimore City. Some time later that evening, Deputy visited a friend of his father, a man by the name of Standsberry Lee (“Lee”). In addition to Deputy, Muhammad, and Lee, a handful of other individuals were present at Lee's house that evening, including Bruenell Coleman (“Coleman”), a man identified as “K.J.,” and another man that was referred to as “Q.” While at Lee's house, Deputy decided to use the computer. After browsing the internet for approximately ten minutes, Deputy heard a knock at the front door. Deputy testified that K.J. stood up, opened the front door, and an individual entered the residence who sat down in the living room next to K.J. According to the record, Deputy identified the individual as Holmes through the use of a photographic array.

From his seat in the living room, Holmes called out to Deputy to inquire where he was from and what he was doing. Without answering Holmes's question, Deputy responded: “[O]h, it's just a little website thing with girls on here.” Thereafter, Holmes stood up, brought his chair over to where Deputy was, and sat down next to him.³ Deputy testified that he was “uncomfortable” at this point and so he ignored Holmes for as long as possible. As Holmes persisted with criticisms and questions, Deputy finally responded by stating that:

[M]an, dog, I don't even know you. So why did you take your chair and come sit over here next to me. Take your chair and go back over there and sit by the front door where you were sitting at before you sat next to me.

Holmes responded that “he wasn't going nowhere [and that] he ain't moving.”

After Holmes remained on his knees for approximately 20 to 30 more seconds, Deputy then advised Holmes that if he said anything else, Deputy would “beat him up.” Holmes replied with “okay, okay, all right, all right,” at which point Holmes then “grabbed his jacket, slowly put his jacket on real nice and calm and then he left.” Moments later, Deputy heard a knock at the door. K.J. answered the door and Holmes re-entered the house. Deputy testified that:

When [Holmes] came in, he shut the door behind him, he lift his shirt up. When he lift his shirt up he's drawing a handgun. It was a revolver from his waistband and said, talk that shit now.

Deputy described the revolver as a “357” with a “western style butt” and a “long nose.” At trial, Deputy demonstrated, with his hands, the length of the barrel for the jury.

After Holmes revealed the revolver, Deputy began running through the residence away from Holmes. Deputy ran down a hallway, turned right into a bedroom, and ran straight through a glass window. Deputy testified that:

When I crashed through the window—I felt down to the ground. As I'm getting up I heard something go pow and the glass was cutting my hands up from the glass being on the ground from me jumping through the window. I took off running.

Deputy further described the “pow” as a gunshot.

After running for a few blocks, Deputy hid behind a house. Approximately five minutes later, Deputy “peeked” his head out from behind a wooden fence and saw an individual who he believed was Holmes and another individual with him. Deputy again took off running, and eventually came to a place with which he was familiar. Deputy began knocking on doors to houses, and eventually was able to find someone who provided him with water and alerted the paramedics. While being inspected for injuries on a porch, Deputy was told by the paramedics that he was shot. Thereafter, Deputy was transported to a hospital and treated for a gunshot wound to his right leg, along with other cuts from the shattered glass.

At trial, Coleman testified that he shared a residence with Lee, and at the time that Deputy arrived that evening, Coleman was in his bedroom watching a football game. When Deputy was using Lee's computer to access the internet, Coleman left the residence to purchase a snack. When Coleman returned two to three minutes later, Coleman witnessed Holmes leaving the residence. Coleman then closed and locked the front door, and returned to his bedroom. Shortly thereafter, Coleman witnessed Deputy running into his bedroom through his closed glass window.

Coleman further testified that he witnessed K.J. “tussling” with Holmes near the front door of the residence. Moreover, when Coleman identified Holmes soon after the shooting through a photographic array, Coleman wrote: “[T]he person I pick out [was] the person in the door with the guns.” Lee, however, testified at trial that the individual who came back with the gun was not Holmes. Nevertheless, evidence was admitted that Lee had told Detective Jeffrey Rivera (“Detective Rivera”) during an interview that Holmes was the individual “who was in the house with the gun.”

The jury began deliberations on September 7, 2011 which continued into the following day. On the second day, the jury submitted a note to the court stating that “[w]e are unable to meet an agreement on three charges. What are our options for next steps in the proceeding? Thank you.” The court instructed the jury that they were to “[c]ontinue in [their] deliberations.” The defense moved for a mistrial, which the circuit court denied.⁴ More than one hour later, the jury reached a verdict. The jury returned a guilty verdict on five of the seven counts.

Shortly after the jury rendered its verdict, defense counsel informed the court that Holmes had told her that one of the jurors saw him in shackles while he was escorted by a correctional officer in the hallway. Defense counsel explained to the court that, upon initially learning of this, she had investigated the incident by speaking with one of the correctional officers involved and with that officer's sergeant, both of whom denied that the incident occurred. The trial court eventually questioned the foreman and the foreman confirmed that, in delivering the jury's “[s]econd question,” he had seen Holmes while “they was bringing him in.” In response to questioning, the foreman stated that he “didn't notice” that Holmes was shackled at the time, and he denied that the incident impacted his verdict.

Thereafter, defense counsel filed a motion for a new trial on the ground that the jury foreman viewed the defendant in shackles and in custody which violated Holmes's right to a fair trial. The circuit court denied the motion and determined that Holmes “had to have been shackled at the time” when the juror saw him, and that “there is reasonable concern of prejudice during the course of deliberation.” Nevertheless, the court found that the juror “did not see that he was being escorted,” and that “there was no prejudice of the Defendant being seen in the hallway by the juror.”

Upon a review of the facts and circumstances of the case, as well as Holmes's prior contacts with the criminal justice system, the circuit court sentenced Holmes to 20 years incarceration for all five convictions. This timely appeal followed.

DISCUSSION

I.

When reviewing the sufficiency of the evidence in a criminal trial, this Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a...