Johnson v. State

• Decision Date: 30 June 2011
• Docket Number: 2007.,No. 3117,Sept. Term,3117
• Citation: 22 A.3d 909,199 Md.App. 331
• Parties: Jarmal JOHNSONv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

199 Md.App. 331

22 A.3d 909

Jarmal JOHNSON

v.STATE of Maryland.

No. 3117

Sept. Term

2007.

Court of Special Appeals of Maryland.

June 30, 2011.

Juan P. Reyes (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.Mary Ann Ince (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.Panel: MEREDITH, ZARNOCH and IRMA S. RAKER (Retired, specially assigned), JJ.IRMA S. RAKER (Retired, specially assigned), J.

This case has a long history in the courts. Appellant, Jarmal Johnson, was convicted in 1992 of the offenses of assault with intent to murder, assault, the use of a firearm in the commission of a felony, and the wearing, carrying, or transporting of a weapon. In this collateral attack on his conviction, he presents a single question: whether his conviction for the crime of assault with intent to murder ¹ should be

[199 Md.App. 336 , 22 A.3d 912]

vacated because he was never indicted for that offense. Appellant claims that because the indictment did not charge assault with intent to murder, the circuit court lacked jurisdiction to try him, and hence, he may raise lack of jurisdiction at any time. The heart of the issue in this case is whether the conviction for assault with intent to murder is void for lack of subject matter jurisdiction because the indictment in the case did not charge that offense. We shall hold that it is not. Because we conclude that this is a case not of lack of jurisdiction, but rather the improper exercise of the jurisdiction of the circuit court, appellant's claim was cognizable only on direct appeal. This appeal is untimely and we shall dismiss the appeal.

I.

Appellant was indicted by the Grand Jury for Baltimore City with the offenses of attempted murder in the first degree, assault, the use of a firearm in the commission of a felony, and the wearing, carrying, or transporting of a weapon. In September 1992, appellant proceeded to trial before a jury and was convicted of assault with intent to murder, assault, the use of a firearm in the commission of a felony, and the wearing, carrying, or transporting of a weapon. He was acquitted of attempted first degree murder. The circuit court sentenced him to a term of incarceration of thirty years for assault with intent to murder, merging the assault charge for sentencing purposes. On the use of a handgun in the commission of a felony, the court imposed a term of incarceration of twenty years, consecutive to the other sentence. Appellant noted a timely appeal to the Court of Special Appeals. The judgments of conviction were affirmed.²

We come now to the current issue before this Court. On January 25, 2008, appellant filed a motion to correct an illegal sentence, which the circuit court denied. For the first time, appellant argued that the conviction for assault with intent to murder must be vacated because he was convicted of and sentenced for a crime that was not charged. This appeal followed.³

The record as to what transpired below is not as complete as we would like, but certain things are clear. In March 1992, Baltimore City police executed a search warrant at 630 Baker Street, a residence in the City. Shots were fired from within the apartment and one police officer was shot in the foot. Appellant Jarmal Johnson was arrested, along with three other people. The initial statement of charges alleged drug violations, handgun violations and an assault with intent to murder charge. The Grand Jury for Baltimore City indicted appellant, and the others, in Indictment Number 192099061 and Number 192099063, with the offenses of attempted murder in the first degree, common law assault, two handgun offenses and several drug related offenses.

Appellant proceeded to trial before a jury in a joint trial with the other three co-defendants. The transcript provided to us does not indicate whether the indictment was read to the jury, or whether appellant waived a reading of the indictment; the transcript also does not include any portion related to the trial judge's preliminary comments to the jury, if he made any and whether the charges were summarized to the jury. What is clear is that the parties proceeded as though appellant had been charged with the offense of assault with intent to murder. At the close of the State's case, the defendants made motions for judgment of acquittal. Co-defendants James Harris, Gary Matthews, and Thomas Williams each argued that there was not even a scintilla of evidence against them indicating that they were guilty of the offenses that were charged against them. Co-defendant Harris argued that no evidence suggested he conspired to distribute controlled substances. Co-defendant Matthews argued that he could not have attempted murder or assault with intent to murder because he was cowering in a closet. Co-defendant Williams argued the same, pointing out that he was also in the closet and suggesting that he was on top, without access to the gun on the closet's floor. Appellant argued against the attempted murder charge, insisting that he did not aim at the police when he fired his weapon. Although appellant's counsel did not refer to the charge of assault with intent to murder explicitly, he did not express any exception to the notion that the defendants were charged with both attempted murder in the first degree and assault with intent to murder.

At the close of all of the evidence, the trial judge, out of the presence of the jury, discussed the proposed instructions with the parties. It is clear from the colloquy that defense counsel had submitted requests for particular instructions, although the written requests are not in the record. It is clear also from the discussion that the court used a written verdict sheet, but that document is not in the record either. Nonetheless, appellant agreed to the court's instructions as it related to the particular crimes charged, including the elements of assault with intent to murder, and never indicated to the court that appellant was not charged with assault with intent to murder. The trial court instructed the jury as to attempted murder in the first degree, attempted second degree murder (a lesser included offense of attempted first degree murder), assault with intent to murder, assault, two handgun offenses, and various drug offenses. The court told the jury as follows:

“Each defendant is charged with the crime of assault with intent to murder. In order to convict the defendant, the State must prove (1) that the defendant shot at the victim and (2) that the defendant intended to kill the victim. The requisite mental state is the specific intent to murder. This requires the specific intent to kill, meaning the specific intent to bring about the death of the assault victim. The Court has defined assault with intent to murder as assault with intent to kill under circumstances such that if the victim should die, the crime would be murder. As with murder, the specific intent to kill may be inferred from firing a deadly weapon at a vital part of the human body. Merely pointing a gun in and of itself is insufficient.”

The court instructed as to the other charges in the indictment, including attempted murder in the first and second degrees. After the court finished instructing the jury, the court excused the jurors and asked counsel if there were any exceptions to the instructions. Several of the attorneys objected to the failure to give a missing witness instruction and the aiding and abetting instruction. In fact, the court then gave a supplemental aiding and abetting instruction. However, no one objected to the instructions or the verdict sheet listing the charge of assault with intent to murder. Additionally, the State argued to the jury the merits of the offense of assault with intent to murder. No one objected or stated that the defendants were not charged with that crime.

The jury found appellant guilty of assault with intent to murder police officer Melvin Russell. Again, appellant offered no objection, or even a comment. At sentencing, the court indicated that it was merging the assault conviction into the assault with intent to murder conviction. No objection was lodged and no comment offered that appellant had been convicted of an offense with which he had not been charged. He filed no motion then to correct an illegal sentence and he did not raise the issue on direct appeal.

II.

Before this Court, appellant argues that he was not charged with the crime of assault with intent to murder and therefore, the conviction for assault with intent to murder must be vacated. He points out that the indictments returned by the Grand Jury charge only attempted murder, assault, the use of a firearm in the commission of a felony or a crime of violence, and wearing, carrying, or transporting a handgun, but do not charge assault with intent to murder. ⁴ Appellant bases his argument on Article 21 of the Maryland Declaration of Rights,⁵ which provides that each person charged with a crime must be informed of the accusation against him and that a “[c]onviction upon a charge not made would be sheer denial of due process.” De Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937).

Appellant's argument is that he was never indicted for the crime of assault with intent to murder and that assault with intent to murder is not a lesser included offense of attempted murder. In his view, the circuit court did not have jurisdiction to try him for an uncharged offense. In his view, this appeal is timely because lack of jurisdiction may be raised at any time.

The State presents several arguments. First, the State argues that appellant has failed to provide a sufficient record for this Court to review the arguments because appellant failed to make the arraignment proceedings part of the record. This omission is significant, the State maintains, because at the arraignment, the trial court must have made clear which...