Ndunguru v. State
| Decision Date | 30 August 2017 |
| Docket Number | No. 520, Sept.Term, 2016.,520, Sept.Term, 2016. |
| Citation | 168 A.3d 1003,233 Md.App. 630 |
| Parties | David Deodatus NDUNGURU v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Submitted by: Samuel Feder (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
Submitted by: Christopher Mason (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
Panel: Graeff, Kehoe, Lawrence F. Rodowsky (Senior Judge, Specially Assigned), JJ.
Graeff, J.David Deodatus Ndunguru, appellant, was convicted by a jury in the Circuit Court for Prince George's County of robbery, assault in the second degree, and theft of property having a value of less than $100. The court imposed a sentence of ten years' imprisonment, all but three years suspended, for the robbery conviction, to be followed by five years' probation.
The court merged the other convictions for sentencing purposes.
On appeal, appellant presents two questions for this Court's review:
For the reasons set forth below, we shall affirm the judgments of the circuit court.
On April 25, 2015, members of the Tanzanian community held a party at "Signature Blue," an event venue in Beltsville, Maryland. Among the attendees were Andrew Ngatena and his friend, David Mwimanzi, who had been hired as the "disc jockey" ("DJ") for the party.
During the party, Mr. Ngatena stood near Mr. Mwimanzi so he could observe him at work and learn "how to [DJ] the music." At some point, Mr. Ngatena left "to grab a drink." When he returned, appellant, whom he did not know, was standing near the DJ booth, impeding his path. Mr. Ngatena asked appellant to move, but appellant refused to do so. Mr. Ngatena then decided to go "outside to grab a smoke." Although Mr. Ngatena was unable to recall precisely when he went outside to smoke, he estimated that the time was between 9:00 and 11:00 p.m.
Appellant followed Mr. Ngatena outside. At first, the two men engaged in conversation, but at some point, appellant "took offense" to something that Mr. Ngatena said and punched Mr. Ngatena in the face. Both men began throwing punches at each other. A second unknown man, who was standing behind Mr. Ngatena, then knocked Mr. Ngatena to the ground. A third man, whom Mr. Ngatena also did not know, joined the fight, and the three men kicked Mr. Ngatena repeatedly.
The assailants eventually stopped kicking Mr. Ngatena and began to walk away. At that point, Mr. Ngatena "started throwing the words at them," prompting them to return and resume punching him. By then, Mr. Ngatena was struggling to retain consciousness, but he was able to "sense" that the three assailants began to rifle through his pockets, taking his cell phone, wallet, passport, and gold necklace. Finally, appellant and the two unknown assailants fled.
Shortly after appellant and his accomplices fled, Mr. Mwimanzi was notified that his friend had been beaten and robbed. For the next few hours, Mr. Mwimanzi and others at the party attempted to contact appellant to recover the property taken from Mr. Ngatena and resolve the dispute without police involvement. Mr. Mwimanzi ultimately called the police, and Detective Ben Leach, a member of the Prince George's County Police Department, responded to Signature Blue at approximately 2:46 a.m. on April 26.
Mr. Mwimanzi was acquainted with appellant because the two men had attended several events held by the tightly-knit Tanzanian community, where Mr. Mwimanzi had been a DJ and appellant had performed as a member of a three-man rap ensemble. Mr. Mwimanzi identified appellant to Detective Leach as one of the assailants. Detective Leach obtained a photograph of appellant and showed it to Mr. Ngatena, who identified appellant as the man who robbed him. An arrest warrant was issued for appellant.
Prior to appellant's arrest on June 1, 2015, Mr. Ngatena contacted appellant via Facebook and telephone, attempting to obtain his stolen property. When Detective Leach learned of those attempts at communication with appellant, he advised Mr. Ngatena "not to contact" appellant, and Mr. Ngatena thereafter took that advice. Mr. Ngatena testified that, at one point, appellant called him. Mr. Ngatena's property eventually was given to Mr. Mwimanzi, who returned it to Mr. Ngatena.
Appellant testified that he did not know Mr. Ngatena, did not see him the night of the incident, and he did not assault Mr. Ngatena or take his property. He denied that he ever called Mr. Ngatena.
The jury initially returned an inconsistent verdict, convicting appellant of second-degree assault and robbery but acquitting him of theft. As discussed in more detail, infra , the circuit court re-instructed the jury, advising it to continue its deliberations. The jury then convicted appellant of all three charges.
Appellant contends that the circuit court erred in sustaining the State's objection to his testimony that a police officer told him that they were going to search his cell phone to determine if he called Mr. Ngatena. Appellant concedes that this testimony was hearsay, but he argues that it was admissible pursuant to Maryland Rule 5–803(b)(3), a hearsay exception addressing, among other things, a "statement of the declarant's then existing state of mind, ... offered to prove the declarant's then existing condition or the declarant's future action." Appellant argues that the "police officer's statement to [a]ppellant—that he or she intended or planned to examine his phone to determine whether he or she had called [Mr.] Ngatena—was admissible to prove that the officer had acted in conformity with that plan." He contends that excluding this testimony prejudiced his defense because testimony regarding the police officer's intent to search his cell phone would have cast doubt on the victim's testimony, as well as bolstered his testimony.
The State argues that this claim is not preserved for this Court's review because appellant failed to proffer below the relevance of the excluded testimony. In any event, it argues that appellant answered the question and the State did not move to strike the testimony from the record, and therefore, appellant suffered no prejudice as a result of the court's ruling.
We begin our analysis by setting forth the relevant factual background. During appellant's testimony, the following colloquy occurred:
(emphasis added).
As the State points out, when the prosecutor objected to appellant's testimony, and the court sustained that objection, appellant did not proffer the basis for the admissibility of the excluded testimony. At no time did appellant argue, as he does on appeal, that the testimony was admissible pursuant to Rule 5–803(b)(3).
"Ordinarily, a formal proffer of the contents and relevancy of the excluded evidence must be made in order to preserve for review the propriety of the trial court's decision to exclude the subject evidence." Merzbacher v. State , 346 Md. 391, 416, 697 A.2d 432 (1997). Accord Mack v. State , 300 Md. 583, 603, 479 A.2d 1344 (1984), abrogated on other grounds , Price v. State , 405 Md. 10, 949 A.2d 619 (2008). When "evidence is inadmissible on its face and admissible only for a limited purpose or under some theory, the proponent must ... explain to the court how the evidence is admissible and why it should be received." Randall v. State , 223 Md.App. 519, 557, 117 A.3d 91 (2015) (quoting In re Adoption/Guardianship Nos. CAA92–10852 and CAA92 - 10853 , 103 Md.App. 1, 33, 651 A.2d 891 (1994) ). Accord 5 Lynn McLain, Maryland Evidence, State and Federal , § 103:20 (May 2017) ().
Here, as indicated, appellant failed to explain why the excluded testimony was admissible. Accordingly, this contention is not preserved for this Court's review, and we decline to address it.
Appellant's second contention is based on the jury verdicts. On the second day of trial, the jury returned its initial verdicts, finding appellant guilty of assault in the second degree and robbery, but not guilty of theft. Defense counsel then requested the court to poll the jury. Prior to the conclusion of the polling, however, the circuit court interrupted the proceedings and convened a bench conference, where the following occurred:
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Pitts v. State
...(2008), the Court of Appeals stated as follows...(Emphasis supplied.) Judge Graeff wrote to a similar effect in Ndunguru v. State, 233 Md. App. 630, 639, 168 A.3d 1003 (2017): Until relatively recently, inconsistent verdicts of conviction and acquittal by a jury in a criminal case were perm......
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Pitts v. State
...(2008), the Court of Appeals stated as follows...(Emphasis supplied.)Judge Graeff wrote to a similar effect in Ndunguru v. State, 233 Md. App. 630, 639, 168 A.3d 1003 (2017) : Until relatively recently, inconsistent verdicts of conviction and acquittal by a jury in a criminal case were perm......
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Saunders v. State
... ... Rule ... 5-103(a)(2). "'Ordinarily, a formal proffer of the ... contents and relevancy of the excluded evidence must be made ... in order to preserve for review the propriety of the trial ... court's decision to exclude the subject ... evidence.'" Ndunguru v. State , 233 Md.App ... 630, 637 (2017) (quoting Merzbacher v. State , 346 ... Md. 391, 416 (1997)) ... Here, ... the "question" at issue was: "You recently had ... a case placed on the stet docket. Did they --". Before ... defense counsel ... ...