Nicolas v. State , 88

CourtCourt of Appeals of Maryland
Citation44 A.3d 396,426 Md. 385
Docket NumberSept. Term, 2011.,No. 88,88
PartiesMcKenzie A. NICOLAS v. STATE of Maryland.
Decision Date08 May 2012

426 Md. 385
44 A.3d 396

STATE of Maryland.

No. 88, Sept. Term, 2011.

Court of Appeals of Maryland.

May 8, 2012.

[44 A.3d 397]

Brian L. Zavin, Asst. Public defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner.

Ryan R. Dietrich, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.



[426 Md. 387]On December 12, 2009, three police officers from the Montgomery County Police Department responded to a 911 call in [426 Md. 388]the Rockville area. Subsequent investigation by the officers led them to question Petitioner, McKenzie A. Nicolas, at his home. As a result of events that occurred during that encounter, Petitioner was charged in the Circuit Court for Montgomery County with one count of disorderly conduct, one count of obstructing and hindering, three counts of resisting arrest, three counts of second degree assault, three counts of second degree assault on a law enforcement officer, one count of malicious destruction of property, and one count of escape.1 Following a jury trial,2 the jury convicted

[44 A.3d 398]

Petitioner of one count of resisting arrest and two counts of second degree assault stemming from a confrontation with two of the officers present at the scene. The court imposed a sentence of eighteen months for each of the convictions, to run consecutively with each other, and three years of supervised probation. The court then suspended the sentences for the second degree assault convictions.

After the trial had concluded and the jury had been discharged, an unmarked jury note was found in the record purporting to inquire about whether an assault is committed when contact is made with another person as a result of acting in self-defense. Trial counsel was unaware of the existence of that note during the course of the trial and jury deliberations. The trial judge stated in a letter to Petitioner's appellate counsel that he did not have any recollection of the particular note at issue. Furthermore, the trial judge indicated that his usual practice upon receiving a communication from the jury is to convene with counsel on the record to discuss possible responses and, thereafter, to provide a written response to the jury on the note itself. The trial judge maintained that if he [426 Md. 389]had received the note at issue, he would have handled it in accordance with his usual practice.

Petitioner noted an appeal to the Court of Special Appeals, claiming, inter alia, that the trial court erred in failing to merge his second degree assault convictions with his conviction for resisting arrest, thereby vacating his sentences for the second degree assault convictions, and in failing to disclose, to him and his trial counsel, the jury note found in the record. The intermediate appellate court affirmed the judgment of the trial court. We granted certiorari, Nicolas v. State, 423 Md. 450, 31 A.3d 919 (2011), to answer the following questions posed by Petitioner:

1. Does a jury note with no date or time stamp found in the appellate record establish that the trial court received the jury communication at issue in order to trigger the requirements of Md. Rule 4–326(d)?

2. Did the Court of Special Appeals err in holding that Petitioner's convictions for second degree assault do not merge into his conviction for resisting arrest for sentencing purposes where the record is ambiguous as to whether the jury convicted Petitioner of second degree assault based on acts different than those underlying his conviction for resisting arrest?

We shall answer the first question in the negative and affirm the judgment of the Court of Special Appeals on that issue. In response to Petitioner's second question, we hold that the intermediate appellate court erred in affirming the trial court's failure to merge Petitioner's convictions for second degree assault into his conviction for resisting arrest, pursuant to the required evidence test. It is ambiguous whether the jury found Petitioner guilty of both counts of second degree assault based on events that were an integral part of the resisting arrest conviction, or whether the underlying factual bases for the second degree assault convictions were separate and distinct from the events leading to Petitioner's conviction for resisting arrest. In such a situation, we resolve the ambiguity in Petitioner's favor. Therefore, we [426 Md. 390]hold that the trial court should have merged the second degree assault convictions into the conviction for resisting arrest.

The Arrest

During Petitioner's trial, the State called Alycia Moss, who testified that on December

[44 A.3d 399]

12, 2009, at approximately 10:00 p.m., she was at home when she noticed headlights in her driveway. When Ms. Moss went outside, she observed a white SUV backing out of her driveway. According to her, as the SUV backed up, she heard it hit a parked van on her street. Ms. Moss indicated that she called out to the driver of the vehicle, “Hey, you all hit that car.” In response, she heard a voice say, “No, I didn't.” At that time, Ms. Moss was unaware of the identity of the driver of the vehicle or anyone else who may have been in the vehicle. Ms. Moss testified that she then told the driver that she had his license plate number, and she went inside to write it down. As she was walking inside, Ms. Moss heard a voice in the car say, “I'm going to fucking kill her.” She then decided to call 911, and while she was on the phone with the operator, “somebody [came] up to the door and start[ed] banging, and saying stuff.” Although Ms. Moss could not hear everything that was being said, she indicated that at some point she heard the word “neighbor” and realized that her neighbor may have been the driver of the SUV. When Ms. Moss expressed that she was on the phone with 911, the person at her door “went away.” The police soon arrived at her home, and Ms. Moss recounted the events of the evening to them.

The State next called Officer Jonathan Anspach of the Montgomery County Police Department, who testified that he responded to the 911 call placed by Ms. Moss on December 12, 2009. Officer Anspach testified that Officer Mark Burhoe and Officer William Sands also responded to the scene of the alleged motor vehicle accident. When Officer Anspach arrived at the scene, he and the other officers attempted to identify [426 Md. 391]the owner of the SUV, which was parked outside with the headlights on and the engine still running. An MVA registration check revealed that Petitioner was the owner of the vehicle. In addition, on the dashboard of the vehicle was a piece of mail addressed to Petitioner. After observing a small dent in the left rear bumper of the SUV, as well as some minor damage to the van that had allegedly been hit, the officers approached Petitioner's house to identify the driver of the vehicle and gather more information about what had happened.

Officer Anspach testified that an older woman answered the door and indicated that her son, Petitioner, had been driving the SUV. The officers entered the home, and according to Officer Anspach, when Petitioner came upstairs from the basement he was “very agitated, started using profanity and everything along those lines.” Officer Anspach explained the investigation to Petitioner, who agreed to accompany Officers Anspach and Burhoe outside. Officer Anspach testified that at that point in the encounter, he did not have any intention of placing Petitioner under arrest; the purpose of the interview was to gather information about the alleged accident. According to Officer Anspach's testimony, Petitioner initially walked toward his car when he went outside, but when asked for his identification, Petitioner walked by Officer Anspach “kind of brushing [him] and just pushing [him]” with his arm. The brush or push was hard enough to cause the officer to step back. Officer Anspach indicated that Petitioner then approached the porch, where Officer Burhoe was standing, and “as he walked up to Burhoe, he hit him in the face.”

Officer Anspach was asked on direct examination: “[A]fter [Petitioner] had pushed you ... [a]nd hit Officer Burhoe in the face, at that point did you make a decision as to whether or not you wanted to place [Petitioner] under arrest?” Officer Anspach responded, “That decision after

[44 A.3d 400]

he brushed against me, any type of unwanted touching is considered assault on any person, let alone a police officer. So at that point, it was decided he was going to [be] placed under arrest for assault on a police officer.” When asked, “[A]fter you and Officer Burhoe[426 Md. 392]had been assaulted and decided to place [Petitioner] under arrest, did you tell him he was under arrest,” Officer Anspach replied that he repeatedly told Petitioner he was under arrest and that Petitioner refused to comply.

Petitioner then attempted to re-enter his home, and Officer Anspach testified that he grabbed onto Petitioner's shirt to keep him outside. Petitioner managed to get back into his house, with Officer Anspach following, and a struggle ensued for several minutes. Officer Anspach stated, “[Petitioner] and I grabbed each other and started pushing each other against the walls and hitting each other.” Officer Anspach described in further detail Petitioner's actions during the scuffle:

We were hitting each other in the chest. I don't, [sic] we then hit each other in the face, I don't believe that many times, a few times here and there.

I mean, it was so chaotic for these two or three minutes I don't really remember. It was more or less, the main thing I remember is him grabbing me and me grabbing him and just him putting me in the wall and vi[ce] ver[s]a, for a length of time.

Officer Anspach estimated that “the entire fight was probably two to three minutes.”...

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