Morris v. State, No. 2924, September Term, 2007 (Md. App. 4/29/2010)

Decision Date29 April 2010
Docket NumberNo. 2924, September Term, 2007.,2924, September Term, 2007.
CourtCourt of Special Appeals of Maryland

Opinion by KENNEY, J.

On January 18, 2008, a jury sitting in the Circuit Court for Howard County found appellant, Brandon T. Morris, guilty of numerous offenses related to appellant's escape from Washington County Hospital and the death of Officer Jeffery Wroten, a correctional officer who had been guarding appellant at the hospital.1

Appellant elected to be sentenced by the trial court, and, after proceedings on the prosecution's request that appellant be sentenced to death, appellant was sentenced as follows:

                  First degree premeditated murder                             Life without Parole
                  Robbery of Jeffrey Wroten                                    15 years, consecutive
                  Escape in the first degree                                   10 years, consecutive
                  Use of a handgun in the commission of a crime of violence    20 years, consecutive
                  Disarming a correctional officer                             10 years, consecutive
                  Kidnapping Tina Bussard                                      30 years, consecutive
                  Assault in the first degree of Tina Bussard                  25 years, consecutive
                  Attempted armed robbery of Tina Bussard                      20 years, consecutive
                  Use of a handgun in the commission of a crime of violence    20 years, consecutive
                  Reckless endangerment of Shelly Bussard                       5 years, consecutive
                  Armed carjacking of Frank Fultz                              30 years, consecutive
                  Kidnapping of Frank Fultz                                    30 years, consecutive
                  First degree assault of Frank Fultz                          25 years, consecutive
                  Armed robbery of Frank Fultz                                 20 years, consecutive
                  Use of a handgun in the commission of a crime of violence    20 years, consecutive
                  Fleeing and eluding by car and by foot                        6 months, consecutive
                  Illegal possession of a regulated firearm                    10 years, consecutive
                  Carrying a handgun                                            5 years, consecutive

He presents the following questions for our review:

1. Did the trial court err in denying [appellant's] Motion to Strike Death Penalty Notice because the Capital Punishment Execution Protocols have been struck down by the Maryland Courts, rendering the death penalty an illegal sentence?

2. Did the trial court err in allowing irrelevant and prejudicial testimony into evidence?

3. Was the evidence sufficient to sustain convictions for premeditated first degree murder, felony murder committed during the course of an escape, felony murder committed during the course of a robbery, and robbery?

4. Did the trial court err in the way escape was defined in the jury instructions?

5. Did the sentencing court err when it did not merge appellant's first-degree assault sentences into the corresponding sentences for robbery and attempted robbery with a dangerous weapon?2

With respect to the sentences imposed on appellant for the assault and robbery crimes committed against Tina Bussard and Frank Fultz, we conclude that the circuit court erred by failing to merge the first degree assault convictions into the corresponding armed robbery and attempted armed robbery convictions. We affirm the judgments in all other respects.


On January 26, 2006, Officer Wroten was fatally shot at Washington County Hospital in Hagerstown while guarding appellant, an inmate of the Roxbury Correctional Institution ("RCI"). Officer Wroten was shot with the gun that had been issued to him for guard duty at the hospital. Less than an hour after Officer Wroten was shot, appellant was seen throwing that gun aside as law enforcement officers surrounded him in an open field near a trucking terminal. Because appellant has challenged the sufficiency of the evidence to support certain of the convictions, we will summarize, in some detail, pertinent facts introduced at appellant's trial.

On the afternoon of January 25, 2006, appellant complained of a wound that he would not allow the prison nurse to examine and was sent to the hospital with two armed escort guards. When an x-ray revealed that a sewing needle lodged under appellant's skin had punctured his liver, the emergency-room physician removed the needle and admitted appellant to the hospital for observation overnight. Appellant told the physician that he had been injured when someone bumped him that day, but, because it had healed over, the physician did not believe that the wound was new.

Upon learning that appellant would be admitted to the hospital for the night, RCI assigned Correctional Officer Glen Barnes to guard appellant at the hospital. Officer Wroten was assigned to relieve Officer Barnes at 11:00 p.m. Officer Barnes relieved the escort guards at the emergency room and waited with appellant for a private room for approximately three hours. While they waited, appellant, who was on a gurney, complained of nausea and asked to go to the bathroom five or six times. At about 9:30 p.m., the hospital assigned Room 5006 to appellant. Room 5006 had one bed and was located on the fifth floor, one room away from the nurses' station. An inmate from another correctional institution, who was also being guarded, had been admitted to an isolation room down the hall from Room 5006.

In accordance with RCI procedure, Officer Barnes was armed with one of the two 38-caliber revolvers which RCI stored in a vault at the hospital when not in use. RCI's protocols required officers to keep their revolvers in their holsters, which were equipped with thumb snaps.

Officer Barnes spent about two hours with appellant in Room 5006. During that time, appellant was in bed with one leg shackled to the bed. Appellant appeared drowsy but he remained awake and asked Officer Barnes when the shifts changed and who would guard him next. He also asked to go to the bathroom several times. To accommodate those requests, Officer Barnes shackled appellant's legs together, unshackled appellant's leg from the bed, and accompanied him to the bathroom. On one occasion, appellant jumped up while Officer Barnes was re-shackling his leg to the bed. Officer Barnes was startled and told appellant to lie down. After initially refusing, appellant complied. When appellant asked to go to the bathroom at 10:30 p.m., Officer Barnes refused the request because the shift was about to change. Officer Wroten arrived at 10:45 p.m., and Officer Barnes told him that appellant felt nauseated and was going to the bathroom often.

When Denise Hudson, the registered nurse assigned to care for appellant, came in after midnight to administer antibiotics, she saw appellant returning to bed from the bathroom without shackles. She observed Officer Wroten re-shackle appellant's leg to the bed. At around that time, appellant complained that his bandage had come off, and Kristi Miller, also a registered nurse, came in to change it. At 2 a.m., Dorothy Reed, the nursing assistant assigned to appellant, entered Room 5006 to take appellant's vital signs. Officer Wroten was sitting in a chair with his gun holstered, and the television was on. Appellant appeared to be asleep, and, when she woke him, he sat up suddenly and startled her. He laid back down when Officer Wroten told him, "It is okay, Brandon."

At some point, Diane Reid, another nursing assistant, entered the room and reconnected appellant's IV tube, which had become disconnected from his arm and was leaking. At 2:30 a.m., Hudson returned because appellant's IV alarm had sounded. His tubing, which was attached by a lever, lock, and screw system, was again dislodged from his arm. She disconnected the machine and left the catheter in. At 3:30 a.m., Hudson noticed that appellant was awake and that the television was on. Also, during the evening, appellant yelled out to Rachael Yeagy, a registered nurse, that his bandage had come off, and she came in to change it. During the night, someone in the room called to Miller to pull the door further shut.

At around 5 a.m., Yeagy was across the hall in Room 5007 when she heard what sounded like the bed and a chain banging against the wall of Room 5006. At about the same time, Melissa Sestak, a nursing supervisor, was in the room almost directly below Room 5007. She heard noises from above that sounded like fighting and furniture being moved around and ran upstairs. Meanwhile, Yeagy walked across the hall to listen further, but could not see anything because the door was closed. She heard heavy breathing and pushing and heard the guard say, repeatedly, "That is enough[.] [S]top that[.] [T]hat is enough." She called to the nurses' station that there was a fight and opened the door slowly because the noise was loud and she thought the people in the room were fighting near the door. When she looked into the room, Yeagy saw appellant crouching over Officer Wroten, who was "on the ground and [] leaning back on his right arm[.] [H]e looked up at [her,] just for a split second, and was back down, looking up to the inmate." Describing what she had seen, she stated:

The inmate was crouched over top of [Officer Wroten]. [Officer Wroten] kind of had, he had his left arm above head, trying to guard himself. . . . .

[T]he inmate had the gun in his right hand. He had the gun to the left side of his head. . . . . To his temple. . . . .

Q. [PROSECUTOR]: To the guard's head?

A. Yes, yes, and he had — he crouched, was crouched down, and he was pushing, kind of had him pushed down with his right hand, was holding him down. He was crouched over top of him, and hehe did not yell it, but he said it in a very deep, like he was very angry, in a deep voice he stated —

Q. Who is he, . . . ?

A. The inmate stated to the guard. He got down,...

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