Miss v. State
| Decision Date | 30 September 2016 |
| Docket Number | No. 1330,1330 |
| Parties | ROBERT WAYNE MISS, JR. v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Opinion by Berger, 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.
Appellant, Robert Wayne Miss, Jr. ("Miss"), was indicted in the Circuit Court for Anne Arundel County and charged with attempted armed robbery and related offenses. A jury convicted Miss of attempted robbery, verbal extortion, and attempted theft less than $1,000. After his motion for new trial was denied, Miss was sentenced to fifteen years, with all but seven suspended, for attempted robbery, to be followed by five years' supervised probation. Miss timely appealed and raises the following question for our review:
Whether the trial court abused its discretion in failing to grant the motion for new trial, in the interest of justice.
For the following reasons, we shall affirm.
In May 2014, Philip Balboni resided in a townhome in Crofton, Maryland, with his friend David Medford ("Medford"). Susan Pratt ("Pratt"), Balboni's girlfriend, used to live in the same residence, but had moved out due to financial problems. Relevant to the charges in this case, Balboni testified that he owned a 2008 Ford Ranger, which he obtained as a gift from Pratt. Balboni identified a copy of the title to the truck and testified that the title listed him as the sole owner.1
At around midnight on May 28, 2014, Balboni and Medford were home when there was a knock at the front door. Balboni went to the door and saw Chrissy Hawkerson, Pratt's daughter. Hawkerson said she needed some clothes, so Balboni let her inside.
Balboni then went upstairs to use the bathroom. When he emerged, he encountered the appellant, Miss, and Christopher Ruck ("Ruck") standing in the hallway.2 Balboni knew Miss through Pratt, because Pratt treated Miss like a son. Balboni explained that she "took [Miss] in at a very young age," and "took him under her wing and took care of him pretty much most of his childhood."
Miss told Balboni that it was "[t]ime to sign the title over to your truck." After Balboni declined, Miss became "very angry looking like he was ready to beat up somebody," and, in fact, both threatened to and did assault Balboni. Miss also grabbed a cord and strangled Balboni to the point of unconsciousness. At one point during this assault, Ruck aided Miss by grabbing Balboni's pocket knife, opened it and "threatened to slit my throat if I tried anything funny or made any cries for help."
Miss kept demanding the title to the truck, and Balboni eventually told them he would sign it over but it was located at his "boss's house" in Edgewater, about ten to twelve miles away. Balboni admitted he was lying and was just trying to "buy some time." The three then drove to Edgewater in Pratt's car, with Balboni testifying that he was "taken by force." Hawkerson apparently drove Balboni's truck to the same location, after Miss took the keys from him.
While Miss and Hawkerson were attempting to locate the title, Balboni was left alone with Ruck. Feigning illness, Balboni then managed to escape, found a police officer and reported the incident.
On cross-examination, Balboni testified that Pratt let him stay at the residence in Crofton, but that it was in foreclosure at the time. He also admitted that, within the last fifteen years, he had been convicted of giving a false statement to a police officer.
Medford testified he also lived in the residence with Balboni on the day in question. We will provide additional detail about Medford's testimony in the following discussion. It is sufficient for now to simply indicate that Medford was called to corroborate Balboni's version of events.
After he was convicted by the jury, Miss timely filed a motion for new trial, specifically citing Maryland Rule 4-331(a), and alleging 17 errors in his motion. These included, but were not limited to, an allegation of juror misconduct, error in responding to a jury note, improper closing argument by defense counsel, and "for such other and further reasons as may be argued at the hearing on this motion." These grounds, as well as an allegation that the court erred in permitting the State to use Medford's statement, were argued at a hearing on the motion, where Miss maintained that a new trial should be awarded "in the interest of justice" because he did not receive a fair trial. The court denied the motion, and Miss was sentenced as set forth above. We shall include additional detail in the following analysis.
Miss contends that the court abused its discretion in denying his motion for new trial on four specific grounds and asks that we grant a new trial "in the interest of justice." The State responds that the grounds raised were not properly preserved for our review and are without merit in any event.
There is no dispute that Miss timely filed his motion under Maryland Rule 4-331(a). That rule provides that "[o]n motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial." But, before we consider that motion, the State suggests that, to the extent they were not raised during trial itself, Miss's contentions are not properly before us.
We have discussed preservation of issues for appeal in new trial motions in earlier cases. In Washington v. State, 191 Md. App. 48, cert. denied, 415 Md. 43 (2010), Washington raised several issues in a motion for new trial, including, but not limited to, allegations that the court erred by: excluding evidence of a victim's prior convictions relevant to Washington's claim of self-defense; and admitting testimony from another victim that Washington was "looking for a fight," as a "present sense impression[.]" Washington, 191 Md. App. at 121. With respect to these two arguments, this Court noted:
The first two grounds of the motion for a new trial raised alleged errors that were not preserved at trial. Raising trial errors for the first time in a motion for a new trial is not a substitute for preservation. Torres v. State, 95 Md. App. 126, 134, 619 A.2d 566 (1993) ()
Washington, 191 Md. App. at 121 n. 22.
Moreover, we have stated that, if trial errors are "not preserved for appellate review by timely objection at trial, raising them in a Motion for New Trial and then appealing the denial of that motion is not a way of outflanking the preservation requirement." Isley v. State, 129 Md. App. 611, 619 (2000), overruled on other grounds, Merritt v. State, 367Md. 17, 24 (2001). And,"[i]f we will not look at the non-preserved original, neither will we look at its reflection in the mirror of a New Trial Motion." Isley, 129 Md. App. at 620.
But, notwithstanding these principles, this Court has recognized that unpreserved claims may be raised in a motion for new trial. We explained: "[b]ecause a Motion for a New Trial appeals to the trial judge's subjective "sense" or "feel" as to whether a verdict was unfair or unjust, he may consider anything he wants to, preserved or unpreserved." Isley, 129 Md. App. at 622 (2000). Further:
The non-preservation of the claim in this case could well serve as an unassailable reason for the trial judge, in his discretion, to reject the claim and to deny the motion. It does not serve, however, as a legal bar to the trial judge's consideration of the claim. Indeed, in the Buck v. Cam's Broadloom Rugs, Inc. case itself [328 Md. 51 (1992)] the Court of Appeals affirmed the granting of a new trial by the trial judge on the basis of a combination of alleged trial errors, some of which had not been preserved for review on direct appeal."
Isley, 129 Md. App. at 622 (internal citations omitted); see also Murphy, Maryland Evidence Handbook, § 100, at 3 (4th ed. 2010) ().
Our reading of these cases leads us to conclude that, although unpreserved errors may be raised in a motion for new trial, the court may consider the lack of preservation in ruling on that motion, especially when considering a motion filed under Rule 4-331(a). See Isley, 129 Md. App. at 619 ().
The standard of review of such a motion is as follows:
It is a movant who holds the burden of persuading the court that a new trial should be granted. Whether to grant a new trial lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent an abuse of discretion. [Argyrou v. State, 349 Md. 587, 600 (1998)]. The abuse of discretion standard requires trial judges to use their discretion soundly, and we do not consider that discretion to be abused unless "the judge 'exercises it in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law.'" Washington v. State, 424 Md. 632, 667-68, 37 A.3d 932 (2012) (quoting Campbell v. State, 373 Md. 637, 665-66, 821 A.2d 1 (2003)). A trial court's discretion to grant or deny a new trial expands and contracts, depending upon the nature of the factors being considered, and its exercise "depends upon the opportunity the trial judge had to feel the pulse of the trial, and to rely on his or her own impressions in determining questions of fairness and justice." Argyrou, 349 Md. at 600, 709 A.2d 1194, Washington, 424 Md. at 668, 37 A.3d 932.
Brewer v. State, 220 Md. App. 89, 111 (2014).3
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