Morris v. State
| Decision Date | 18 February 2021 |
| Docket Number | No. 1519,1519 |
| Parties | EARL MORRIS v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Baltimore County
Case No. 03-K-18-005374
UNREPORTED
Fader, C.J., Graeff, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.
Opinion by Fader, C.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.
A jury sitting in the Circuit Court for Baltimore County convicted the appellant, Earl Morris, of two counts of armed robbery and several related offenses in connection with the theft of dozens of cell phones, an iPad, and cash from an AT&T store in Baltimore County. As relevant to this appeal, in addition to sentences imposed for armed robbery and use of a firearm in connection with the crime, the trial court sentenced Mr. Morris to concurrent sentences of 20 years' imprisonment for conspiracy to commit armed robbery and 15 years' imprisonment for conspiracy to commit robbery.
Mr. Morris asks us to consider whether the trial court: (1) committed plain error in an instruction given in response to a jury note; (2) erred in permitting the State to introduce into evidence clothing seized from Mr. Morris's co-defendant; and (3) erred in sentencing Mr. Morris separately on each of the two conspiracy convictions. The State concedes, and we agree, that the trial court erred in not vacating one of Mr. Morris's conspiracy convictions. Accordingly, we will vacate the conviction and sentence for conspiracy to commit robbery. We will otherwise affirm the trial court's judgments.
At approximately 7:45 p.m. on November 17, 2018, Keonna Moore,1 a sales associate at the AT&T store on Harford Road in Parkville, was in the store's break room when two men—one "big" and one "short and skinny"—entered the store with their faces covered. The bigger man, later identified as Mr. Morris, directed Ms. Moore at gunpoint to the "safe room," where the store's inventory was secured. He ordered Ms. Moore toopen the safe and prompted her and Keisha Webster, the other sales associate working that night, to load phones from the safe into black trash bags that the men provided.2 Along with the phones, Ms. Moore surreptitiously placed a tracking device into one of the bags.
The men then ordered Ms. Moore onto the ground and took Ms. Webster to the front of the store to open the register, from which they grabbed approximately $250 in cash. After the men left, Ms. Webster pressed a panic alarm. The police arrived minutes later.
Officer Melvin Koramah responded to the robbery call and was tasked with locating the vehicle containing the tracking device, assisted by real-time updates of the device's location. Officer Koramah pursued the vehicle into Baltimore City, where he discovered that the getaway car had crashed and that Baltimore City Police officers had already detained Mr. Morris. Police also had detained Kelly Davis, another occupant in the car who had fled on foot after the crash and was apprehended near the crash scene. In a search conducted pursuant to a warrant, police later recovered black plastic bags from the vehicle containing the stolen cell phones, cash, latex gloves, masks, and a handgun loaded with blanks.
Dazha Adams,3 Mr. Davis's girlfriend, testified that Mr. Davis had told her that he and his friend, Mr. Morris, had come up with a way to obtain some money to wipe out theirdebt. Ms. Adams explained how she and Mr. Davis had picked up Mr. Morris, who brought the trash bags, and she drove them to the AT&T store. She waited in the car while the two men entered the store and later returned with the trash bags in their hands.4 The trio had planned to return to Ms. Adams's house to count and divvy up the proceeds from the robbery, but that plan was thwarted when the police located them almost immediately after they left the store. Ms. Adams said that at some point shortly into the police chase, Mr. Morris jumped out of the car. When she saw the police, Ms. Adams panicked, ran a red light, and was hit by an oncoming vehicle. After the crash, Mr. Davis exited the car and fled the scene, leaving the stolen phones, but Ms. Adams remained and was arrested.
Following his conviction, Mr. Morris filed this timely appeal.
Mr. Morris argues that the trial court committed plain error in an instruction it gave in response to a jury note provided during the jury's deliberations. He argues that the court's instruction "failed to convey the importance of individual judgment" and coercively "highlighted the court's 'preference' for the jury to 'come up with a unanimous verdict'"on all the charges. Acknowledging that he failed to object to the court's instruction at trial, Mr. Morris urges us to exercise our discretion to review the issue for plain error.
Rule 4-325 governs instructions to the jury and states. It states in pertinent part:
(e) Objection. No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.
Rule 4-325(e) makes clear that the absence of an objection to the giving or the failure to give a jury instruction at trial ordinarily constitutes a waiver of a claim that the instructions were erroneous. See Morris v. State, 153 Md. App. 480, 509 (2003). "Only if a party takes exception to an error in the jury instruction does the court have the opportunity to correct it." McMillan v. State, 181 Md. App. 298, 359 (2008), rev'd on other grounds, 428 Md. 333 (2012).
Rule 4-325(e) grants us "plenary discretion to notice plain error material to the rights of a defendant, even if the matter was not raised in the trial court." Id. (quoting Danna v. State, 91 Md. App. 443, 450 (1992)). But plain error review is a rarely used and tightly circumscribed method by which appellate courts can, at their discretion, address unpreserved errors by a trial court that "vitally affect[ ] a defendant's right to a fair and impartial trial." Diggs v. State, 409 Md. 260, 286 (2009) (quoting State v. Daughton, 321 Md. 206, 211 (1990)).
In the context of erroneous jury instructions, the plain error doctrine has been applied sparingly. Conyers v. State, 354 Md. 132, 171 (1999). The plain error hurdle, "high in all events, nowhere looms larger than in the context of alleged instructional errors." Gross v. State, 229 Md. App. 24, 37 (2016) (quoting Peterson v. State, 196 Md. App. 563, 589 (2010)). To recognize error in a trial court's instructions absent an objection, "the error must be plain, and material to the rights of the accused, and, even then, the exercise of [appellate] discretion to correct it should be limited to those cases in which correction is necessary to serve the ends of fundamental fairness and substantial justice." Campbell v. State, 243 Md. App. 507, 538 (2019) (quoting Brown v. State, 14 Md. App. 415, 422 (1972)), cert. denied, 467 Md. 695 (2020), & cert. denied, ___ S. Ct. ___, 2021 WL 78082 (2021). Moreover, where, as here, a party "affirmatively (as opposed to passively) waived his objection by expressing his satisfaction with the instructions as actually given[,]" we are "especially disinclined to take the extraordinary step of noticing plain error[.]" Choate v. State, 214 Md. App. 118, 130 (2013).
In State v. Rich, the Court of Appeals adopted a four-prong test regarding plain error review of a trial court's jury instructions:
First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the [trial] court proceedings. Fourth and finally, if the above three prongs are satisfied, the [appellate court] has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Meeting all four prongs is difficult, as it should be.
415 Md. 567, 578-79 (2010) (internal quotation marks, citations, and alterations omitted) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).
Here, less than an hour-and-a-half after the jury began its deliberations on the second day of trial, the jury sent the court a note asking: (1) "If one person votes not guilty on one count does that equal not guilty?" and (2) "If one charge is not guilty does it throw the rest of the rest of the guilty charges out?" The trial court summoned counsel to discuss the jury's questions, during which the court stated that "we're nowhere near an Allen charge territory."5 The transcript reflects that counsel for Mr. Morris and the State both "[i]ndicat[ed] in the affirmative" in response. The court then brought the jury back into the courtroom and instructed them as follows:
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