McCrea v. State
| Decision Date | 21 May 2015 |
| Docket Number | No. 1831,1831 |
| Parties | ELIAS McCREA v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Meredith, Woodward, Sharer, J., Frederick (Retired, Specially Assigned), JJ.
Opinion by Sharer, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Following a two-day jury trial in the Circuit Court for Prince George's County, Elias McCrea, appellant, was convicted on charges of first- and second-degree rape; first-, third-, and fourth-degree burglary; second-degree assault; false imprisonment; malicious destruction of property; and violating a protective order.1
In his timely appeal, appellant raises a number of issues for our consideration, which we have refined:
Because we conclude that the trial court failed to properly merge appellant's convictions for first-degree burglary and false imprisonment into his conviction for first-degree rape, we shall vacate the sentences imposed for those offenses. Discerning no other legal error or abuse of discretion, we shall affirm the judgments of the circuit court.
Appellant and the victim in this case were previously involved in a romantic relationship.2 In June 2012, the victim ended the relationship and obtained a restraining order against appellant. The victim and her adult son moved into a new apartment and she changed her phone number.
On the evening of August 8, 2012, the victim went to bed a little before midnight. In the following early morning hours, she was awakened by a loud banging from the front of her apartment. She secured a knife from beside her bed, opened her bedroom door to investigate, and saw appellant in her apartment. Appellant took the knife away from her, pushed her back toward her bedroom, put his hands over her mouth, and demanded that she be quiet. She struggled and yelled, hoping to attract attention, but the more she resisted, the more aggressive appellant became. Appellant knocked the victim onto her bed, then onto the bedroom floor, and said he wanted oral sex. The victim refused and continued to resist, but was overpowered by appellant, who forced her to engage in non-consensual sexual intercourse.
After the assault, in order to appease appellant, the victim agreed to renew their romantic relationship. She asked appellant to leave because her son would be home soon. When she walked with appellant into the front room, she saw that he had "busted [her] door." As soon as appellant left the apartment, the victim called 911 and reported that appellant had broken into her apartment. Moments after she ended the 911 call, appellant returned to her apartment.
Police officers who responded to the 911 call observed that the front door of the victim's apartment appeared to have been kicked in, the doorknob was missing, and the door was ajar. The officers announced themselves, entered the apartment, and found appellant and the victim in the living room. The victim reported to the officers that she had a restraining order against appellant, and that he had broken into her apartment and raped her. The officers placed appellant in handcuffs and removed him from the apartment.
The victim was taken to the police station to file a complaint and make a statement, and then to a hospital for a forensic examination and treatment. A DNA sample recovered from the sheet on the victim's bed was consistent with appellant's DNA.
During direct examination of the victim, the State moved to introduce a recording of her 911 call. Defense counsel objected to the jury hearing certain parts of the recording, stating, The court excused the jury, and the prosecutor played a portion of the 911 call for the court and defense counsel. The call includes the following:
Transcript of 911 call, at 3-4, 7.3 Defense counsel expanded his objection to encompass the references to weapons. The court agreed that "the drug use and the weapons need to come out." The prosecutor agreed to stop the recording at 1:22 and restart it at 1:40 to "take[ ] care of" all the drug and weapons discussion.
The jury returned to the courtroom and the State played the 911 recording, including at least one of the PCP references.4 Following this audio, the court instructed the jury to "please disregard that," and defense counsel asked for a bench discussion.
The court then instructed the jury as follows:
Mr. Foreman and ladies and gentlemen, please totally disregard that last comment made by the witness. I think it's obvious there is no way of knowing, and I don't want you to consider something that hasn't been proven. So just disregard that comment.
At the conclusion of the trial - just two minutes into deliberations - the jury asked to hear the 911 call again. The jury returned to the courtroom, where the State replayed the recording - including a reference to appellant's use of PCP. The trial court instructed the jury, "Please disregard that last statement, once again, for the reason I said yesterday." The State then replayed the 911 call, without the reference to appellant's drug use. Defense counsel renewed the motion for mistrial:
The jury resumed deliberating for about one hour and 15 minutes, and returned verdicts of guilty as to all counts, as we have noted, supra.
Appellant asserts that the trial court abused its discretion by denying his motion for a mistrial. He contends that the jury twice heard the "irrelevant and highly prejudicial" portion of the 911 recording that contained the victim's assertion that appellant was "on PCP" at the time of the crime, which had been excluded by the trial court as inadmissible "other crimes" evidence.
Though the record does not indicate what exact portions of the 911 recording were played in each instance, it is clear that, twice, the jury heard the victim assert that appellantwas "on PCP." Both times, defense counsel properly objected and moved for a mistrial. The second time, the court expressly found that the State's failure to stop the recording in time was "unavoidable." In each instance, the court denied the defense request for a mistrial, but provided a curative instruction.
A mistrial is "'an extreme sanction' that courts generally resort to only when 'no other remedy will suffice'" to cure prejudice that is "'so substantial that [the defendant] was deprived of a fair trial.'" Rutherford v. State, 160 Md. App. 311, 323 (2004) (quoting Webster v. State, 151 Md. App. 527, 556 (2003)); Kosh v. State, 382 Md. 218, 226 (2004) (quoting Kosmas v. State, 316 Md. 587, 594-95 (1989)). A trial court's denial of a motion for mistrial will not be reversed "'unless the defendant was so clearly prejudiced that the denial constituted an abuse of discretion.'" Parker v. State, 189 Md. App. 474,493 (2009) (quoting Hunt v. State, 321 Md. 387, 422 (1990)). When the trial judge gives a curative instruction, the reviewing court must determine whether "'the damage in the form of prejudice to the defendant transcended the curative effect of the instruction[.]'" Rainville v. State, 328 Md. 398,408 (1992) (quoting Kosmas, 316 Md. at 594).
This Court considers several factors in weighing whether a motion for mistrial was properly denied, including:
whether the reference to [the inadmissible evidence] was repeated or whether it was a single, isolated statement; whether the reference was solicited by counsel, or was an inadvertent and unresponsive statement; whether the witness making the reference is the principal witness upon whom the entireprosecution depends; whether credibility is a crucial issue; [and] whether a great deal of other evidence exists . . . .
Rainville, 328 Md. at 408 (quoting Guesfeird v. State, 300 Md. 653, 659 (1984) (alterations in Rainville)). These factors, however, "'are not exclusive and do not themselves comprise the test.'" Rainville, 328 Md. at 408 (quoting Kosmas, 316 Md. at 594). Rather, the...
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