Johnson v. State
| Decision Date | 14 March 2022 |
| Docket Number | 11-2021 |
| Court | Maryland Court of Appeals |
| Parties | EVERETTE WILLIAM JOHNSON v. STATE OF MARYLAND |
Argued: October 4, 2021
Circuit Court for Baltimore County Case No. 03-K-18-003634
OPINION
Hotten, J. Everette William Johnson ("Petitioner") was tried in the Circuit Court for Baltimore County for first-degree burglary, first-degree assault, second-degree assault, use of a firearm in the commission of a crime of violence, and illegal possession of a firearm after conviction of a disqualifying crime. He was acquitted of first-degree assault but convicted of the remaining charges. Although evidence was presented to the jury of two incidents, occurring within minutes of each other, that could have satisfied two counts each of first or second-degree assault and use of a firearm in the commission of a crime of violence, Petitioner was charged with a single count of each crime. The circuit court declined defense counsel's request after closing arguments that the jury be instructed that it must unanimously agree as to Petitioner's guilt for the same underlying incident to support a verdict regarding those counts.
Petitioner appealed to the Court of Special Appeals, which affirmed the circuit court in a 2-1 decision. The majority found that no special unanimity instruction or election between incidents was required, determining there was only a single ongoing incident at issue, as the two allegedly separate incidents occurred within a short period of time and space, and all in furtherance of Petitioner's burglary. The dissent disagreed, identifying the commission of two separate assaults involving two different weapons, and thus, concluded that Petitioner's conviction did not comply with the constitutional guarantee of a unanimous jury verdict for criminal defendants.
We granted certiorari to address the following question:
Whether a defendant's right to a unanimous jury verdict is violated when the State presents evidence of multiple incidents at trial to prove a single charged count, in absence of an election between the incidents or a special jury instruction?
We answer in the affirmative and reverse the decision of the Court of Special Appeals.
On August 1, 2018, Petitioner entered an unoccupied and unlocked house in Catonsville, Maryland. Sometime later, the homeowner, Jeanne Robin, returned with her minor son and discovered Petitioner in her attic. Ms. Robin testified that when she discovered Petitioner, he was holding her husband's antique rifle, which she believed to be inoperable and not loaded. She attempted to wrestle the rifle from Petitioner's hands, but Petitioner told her "this thing is loaded" and cycled its lever, which was the rifle's mechanism for allowing ammunition to be loaded. Ms. Robin then testified that she became concerned that the rifle was actually operable, since she had previously assumed that its lever was jammed. She yelled for her son, who was downstairs, to go outside, and she ran down the attic stairs. While Ms. Robin was downstairs, she called 911 to report the home invader, retrieved her handgun from a lockbox located in her bedroom closet, loaded the gun with bullets located in a different location from the lockbox, and then returned to the bottom of the stairs.
Armed with her handgun, Ms. Robin shouted up to Petitioner from the bottom of the attic stairs that she had called the police and would shoot him if he tried to come down the stairs. She testified that she was surprised to find Petitioner in the same place she had left him, stating:
[I]n this whole thing, he has not fled. I have time to go down the stairs. Get into my bedroom. Into my closet. Open the lockbox. Get my gun. Get the speed loader. Load the gun. Close the gun. Get back to the door, and the man is still at the top of the stairs.
Ms. Robin closed and leaned against the attic stair door, attempting to detain Petitioner until the police arrived.[1] Petitioner, however, came down the stairs, managed to push through the door, and struggled with Ms. Robin over control of her handgun. During that struggle, the handgun discharged through Ms. Robin's right hand. Petitioner ultimately escaped from the home with Ms. Robin's handgun.[2] He was apprehended by police shortly thereafter.
Petitioner was tried in the Circuit Court for Baltimore County for one count of first-degree burglary, one count of first-degree assault, one count of second-degree assault, one count of use of a firearm in the commission of a crime of violence, and one count of illegal possession of a regulated firearm after being convicted of a disqualifying crime. During closing arguments, the State made the following statements, among others, pertaining to the assault and use of a firearm in the commission of a crime of violence charges:
And again, in its closing rebuttal, the State argued:
Thereafter, defense counsel requested that the court provide a supplemental instruction to the jury that "what they're finding [Petitioner] guilty or not guilty of is the allegation of firing the gun through Ms. Robin's hand, and that the firearm we're talking about is the revolver." The State replied that the charges pertained to one continuing criminal event and a breakdown of each individual action was unnecessary. The court ultimately denied defense counsel's request, reasoning that the jury had "listened to the elements of the crime . . . [and] listened to the instructions that include that opening statement and closing argument are not evidence in the case."[3] The court noted, but overruled, defense counsel's objection to the court's denial of its requested supplemental instruction.
The jury acquitted Petitioner of first-degree assault but found him guilty of all other charges levied against him, including second-degree assault and use of a firearm in the commission of a crime of violence.[4]
Petitioner filed a timely appeal to the Court of Special Appeals, asking whether the circuit court "abused its discretion in failing to provide a supplemental instruction after the State argued in closing that the jury could rely on either of two distinct incidents to find [him] guilty of crimes that were charged as single counts."[5] Johnson, 2021 WL 408845, at *1. The Court of Special Appeals affirmed the circuit court in a 2-1 unreported opinion. Id. at *3. Citing to Cooksey v. State, 359 Md. 1, 752 A.2d 606 (2000) and Mohler v. State, 120 Md. 325, 87 A. 671 (1913), the majority reasoned that all of Petitioner's conduct "was committed as part of a single incident[]" that was "in furtherance of the burglary." Id. at *3. The majority specifically focused on the fact that all of the alleged criminal actions occurred within a short span of time and space. Id. at *3.
Judge Friedman dissented, disagreeing that Petitioner's actions were all part of a single incident. Id. at *4 (Friedman, J., dissenting). His opinion stated:
As I understand the record, there were allegations of two separate assaults- one at the top of the stairs, one at the bottom of the stairs-in two different modalities, and even involving two separate weapons. If the State had charged both assaults, Johnson might well have been convicted of both. As it is, however, the State only charged one but specifically told the jury it could convict on evidence of either. As a result, in my view, we cannot know of which assault Johnson was convicted. Although it might not seem likely, it is possible that the jury was divided on whether to convict of the assault at the top of the stair[s] and divided on whether to convict of the assault at the bottom of the stairs, but all agreed to convict him of either one assault or the other. Because we don't know, I don't think this conviction complied with our constitutional requirements. See Cooksey v. State, 359 Md. 1, 8-9, 752 A.2d 606, 609-610 (2000). I respectfully dissent.
Id. (Friedman, J., dissenting) (footnote omitted).
Petitioner filed a petition for certiorari to this Court, which we granted on May 11, 2021. Johnson v. State, 474 Md. 633, 255 A.3d 170 (2021).
This Court has held that "[t]he decision of whether to give supplemental instructions is within the sound discretion of the trial judge and will not be disturbed on appeal absent a clear abuse of discretion." Sidbury v. State 414 Md. 180, 186, 994 A.2d 948, 951 (2010); see also Lovell v. State, 347 Md. 623, 657, ...
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