Howard v. State

• Citation: 232 Md.App. 125,156 A.3d 981
• Decision Date: 28 March 2017
• Docket Number: No. 747, Sept. Term, 2015,747, Sept. Term, 2015
• Parties: Paul Earnest HOWARD, Jr. v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

232 Md.App. 125

156 A.3d 981

Paul Earnest HOWARD, Jr.

v.STATE of Maryland

No. 747, Sept. Term, 2015

Court of Special Appeals of Maryland.

March 28, 2017

Michael T. Torres (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for Appellant.

Brenda Gruss (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for Appellee.

Deborah S. Eyler, Wright, Paul E. Alpert (Senior Judge, Specially Assigned), JJ.

Eyler, Deborah S., J.

A jury in the Circuit Court for Baltimore County convicted Paul Howard, Jr., of first-degree assault, first-degree burglary, theft under $1,000, and false imprisonment. The court sentenced him to a total of 81½ years of executed prison time.¹

On appeal, Howard presents seven issues for review, which we have rephrased:

I. Did the trial court err by denying his motion to inspect the interior of the house where the crimes were committed, which was solely under the control of the victim and her son?

II. Did the trial court abuse its discretion by denying his motion for mistrial and to strike the testimony of the State's latent fingerprint expert?

III. Did the trial court abuse its discretion by giving a modified jury instruction on first-degree burglary?

IV. Did the trial court abuse its discretion by admitting the State's DNA evidence without conducting a Frye –Reed hearing?

V. Was the evidence legally sufficient to sustain his conviction for false imprisonment?

VI. Did the sentencing court err by not merging his sentences for false imprisonment and first-degree assault?

VII. Did the sentence for false imprisonment violate his constitutional right to be free from cruel and unusual punishment?

We shall affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS

Howard's trial commenced on April 15, 2015, and concluded on April 20, 2015. The State's witnesses included Edna Lobell, the victim, who was 98 years old at the time of the crimes. The following evidence was adduced.

Ms. Lobell moved into her row house in Rogers Forge in 1963. She still lives there. On April 26, 2014, she was at home when, in the early afternoon, Howard knocked on her back door. Ms. Lobell did not know Howard and had never met him.

Ms. Lobell answered the door, and Howard told her that her next-door neighbor, Linda Lang, had hired him to make some repairs to her roof. He offered to make repairs to her roof as well. In fact, Ms. Lang had not hired Howard to fix her roof or to do anything and had never met him. Ms. Lobell allowed Howard to come in and eventually agreed for him to prepare an estimate for the repair work. Howard insisted on being paid in advance for the estimate and for some materials. Ms. Lobell said she only had $30 in cash. He told her that was not enough. She gave him the $30 and wrote him a check for $40 on her State Employees Credit Union ("SECU") checking account. He gave her his name to use to make the check out to him. He then left, saying he was going to get some materials.

At around 6:00 p.m. the same day, Howard again knocked on Ms. Lobell's back door. She answered, and he said something to the effect of "Remember me? ... Didn't expect me to come back so soon, did you?" Ms. Lobell let him in, and he proceeded to sit in a chair in her dining room. He had no materials with him that she could see. He remained in her house for at least an hour and a half. He asked her for more money. She said she didn't have any. At some point, he went upstairs to her bedroom. She kept some money hidden in envelopes behind pictures hanging on her bedroom walls. He found one such envelope, took the money from it, and left the envelope on the dresser.

When Howard returned to the dining room, Ms. Lobell asked him to leave because it was time for her to eat dinner.

He became upset and violent, grabbing her by the arms, "propel[ing]" her from the dining room into the living room, throwing her to the floor, and choking her. Having previously broken her right hip, Ms. Lobell knew when she hit the floor that her left hip had broken. Howard announced that he was going to return the next day and take her to the bank to withdraw $20,000 for him. He pushed his finger down her throat, cutting her lip and causing her dentures to come out. He got on top of her and attempted to have sex with her, but his penis was "limp." Ms. Lobell bit him hard on the finger, drawing blood. He got up, turned up the volume on the television, and went into the kitchen, where he pulled the telephone base out of the wall and threw a white box that was the electronic connecting device for a medical alert system down the stairs into the basement.

As she lay on the living room floor, Ms. Lobell managed to press her medical alert button, which she wore on a device that looked like an ordinary watch. Howard returned to the living room with a bottle of liquor. As he was starting to get on top of Ms. Lobell again, Lieutenant Byron Welker, accompanied by other members of the Baltimore County Fire Department ("BCFD"), arrived at the front door and knocked. Howard jumped up and ran out the back door. When there was no response to the knock, Lieutenant Welker gained entry and found Ms. Lobell on the living room floor with her pants pulled down around her ankles. She told him a man had tried to rape her and that he had run out the back door. Lieutenant Welker saw a liquor bottle on the floor near Ms. Lobell. The base of a phone, which appeared to have been pulled from the wall, was on the floor. The back door to the house was ajar. Lieutenant Welker contacted the police and called for an ambulance.

Officer Richard Tabaka of the Baltimore County Police Department ("BCPD") quickly responded to the scene. Ms. Lobell was still on the living room floor, awaiting medical transport. She gave him a basic description of her assailant. Officer Tabaka secured the scene, taking note of several items on the floor near Ms. Lobell: "a bottle of what appeared to be an alcoholic beverage, a tan shirt, a bag of what appeared to be jewelry," "several spots of what appeared to be blood," and a phone base that had been removed from the kitchen wall.

BCPD forensic examiner Sarah Kersse "photograph[ed] the residence as is without disturbing anything." She took 113 pictures, almost all of the interior of the house, photographing "each room of interest." These included the kitchen, dining room, living room, and Ms. Lobell's bedroom. The photographs of the bedroom showed that containers on Ms. Lobell's dresser in which she kept jewelry were open, even though she always left them closed. They also showed an empty envelope on the dresser. There was no blood on the items in the bedroom, suggesting that Howard had touched them before Ms. Lobell bit him. By contrast, the photographs of the living room and kitchen showed blood on several objects. Ms. Kersse processed the scene "for prints on different surfaces that appear [ed] to be involved in the incident[,]" submitted the fingerprints to the BCPD Latent Print Unit for examination, and collected physical evidence, including "swabs of different areas of possible blood that were present on the living room floor." She recovered the t-shirt found on the floor near Ms. Lobell and submitted it for testing.

Ms. Lobell was transported to the hospital where she was diagnosed with a fractured left hip. Forensic nurse examiner Lisa Krueger performed a modified Sexual Assault Forensic Examination ("SAFE Exam"). (A complete exam could not be performed due to Ms. Lobell's hip fracture.) Nurse Krueger "collected swabs from the bridge of [Ms. Lobell's] nose and from her upper and bottom lip" and "photographed pictures of a sore that she had in her mouth[.]"

Detective Ryan Anderson of the BCPD Special Victims Team served as the lead investigator on the case. While the crime scene was being processed, he noticed a "control module for [Ms. Lobell's] alert medical bracelet" on the basement floor. It was emitting a beeping sound. Later, Detective Anderson determined that the module functioned as the conduit from Ms. Lobell's medical alert bracelet to the BCFD.

On the day of the attack, Barbara Gillin and her husband were staying at their daughter's house in Rogers Forge, near Ms. Lobell's house. As they were walking their dogs in the afternoon, they were approached by a man who appeared "agitated and aggressive." He was holding a check for $40 and wanted to know where the closest SECU branch was located. The next day, Detective Anderson interviewed Ms. Lobell's neighbors, including Ms. Gillin, and she told him about the man with the check. Detective Anderson found Ms. Lobell's SECU checkbook in her house and saw that it contained a carbon copy of the check written to Howard. The memo line read "chimney repair."

Timothy Fitzgerald had lived in the Rogers Forge vicinity for decades and knew Ms. Lobell. Sometime in the "late afternoon" on the day in question, he was socializing with his neighbors in a common area behind the row houses that included Ms. Lobell's residence when he saw a man walk down an alley and approach a gate to Ms. Lang's backyard. The man could not open the gate. He then turned and walked to Ms. Lobell's back door. Mr. Fitzgerald saw the man approach Ms. Lobell's back door and "sa[y] something into the house." From a photo array, Mr. Fitzgerald identified Howard as the man he had seen approach Ms. Lobell's house.

Howard was arrested on April 30, 2014. Detective Anderson collected buccal swabs from him and submitted them to the BCPD crime lab for testing. Rebecca Schlisserman, a forensic biologist with the crime lab, processed the items recovered by Ms. Kersse. She forwarded select samples of those items, the DNA sample taken from the bridge of Ms. Lobell's nose during the SAFE Exam, and the buccal swabs taken from Howard to a private DNA testing laboratory. Testing revealed that samples taken from the t-shirt recovered from Ms. Lobell's living room floor and blood stains from her living room carpet matched Howard's DNA. The State presented evidence showing...