Oesby v. State

• Decision Date: 04 January 2002
• Docket Number: No. 0448, No. 0445, No. 0447
• Citation: 788 A.2d 662,142 Md. App. 144
• Parties: Antonio Donnell OESBY, v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

788 A.2d 662

142 Md. App. 144

Antonio Donnell OESBY, v. STATE of Maryland.

Nos. 0445, , Sept. Term, 2001.

Court of Special Appeals of Maryland.

January 4, 2002.

Bradford C. Peabody, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Shannon E. Avery, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Jack Johnson, State's Attorney for Prince George's County, Upper Marlboro, on the brief), for appellee.

Submitted before MURPHY, C.J., and CHARLES E. MOYLAN, Jr. (Retired, specially assigned) RAYMOND G. THIEME, Jr. (Retired, specially assigned), J J CHARLES E. MOYLAN, Jr., Judge, Retired, Specially Assigned.

During the month of February 2001, the appellant, Antonio Donnell Oesby, was convicted in three separate trials by three separate Prince George's County juries, all presided over by Judge E. Allen Shepherd, of a variety of assaults on women.

On February 1, 2001, he was convicted of 1) a third degree sexual offense, 2) second degree assault, and 3) carrying a deadly weapon openly with intent to injure (No. 0445). The victim of those crimes, committed on November 3, 1999, was Teresa Hicks. On February 5, he was convicted of 1) attempted armed robbery, 2) second degree assault, and 3) carrying a deadly weapon openly with intent to injure (No. 0447). The victim of those crimes, committed on November 4, 1999, was Madinah Rasheed. On February 14, he was convicted of 1) a third degree sexual offense, 2) armed robbery, and 3) carrying a deadly weapon openly with intent to injure (No. 0448). The victim of those crimes, committed on October 27, 1999, was Martha Yates.

Two of the appellant's four contentions challenge pretrial rulings made at a single pretrial hearing that applied to all three trials. The appellant complains:

1. that Judge Shepherd erroneously failed to suppress physical evidence seized pursuant to an allegedly defective search warrant; and

2. that Judge Shepherd, in ruling on a motion in limine, erroneously agreed to admit "other crimes evidence" at each of the three trials.

The third contention concerns a proposed jury instruction that was requested and denied in two of the three cases. The appellant complains:

3. that Judge Shepherd erroneously failed to give his requested instruction concerning the specific intent element of the crime of carrying a weapon openly with intent to injure; with respect to the third trial, the appellant claims, pursuant to the notion of "plain error," that Judge Shepherd erroneously failed to give the instruction spontaneously even though he was never requested to do so.

The fourth and final contention arose out of the sentencing hearing that was common to all three trials. In that regard, the appellant complains:

4. that Judge Shepherd erroneously failed to merge lesser included second degree assault convictions into other convictions for greater inclusive offenses.

Because of the commonality of the issues, it is meet that we consolidate these three appeals into a single appeal.

The Search Warrant

The first contention concerns the pretrial denial of the appellant's suppression motion. Pursuant to a search warrant issued by District of Columbia Superior Court Judge Peter Wolf to Detective Karen Moss, D.C. police searched the appellant's residence at 625 L Street, Northeast, in the District. Recovered in that search and later received in evidence were 1) a black knit hat and 2) a black leather jacket, both identified by both victims as having been worn by the assailant in the assaults committed on Hicks and Rasheed.

The appellant does not challenge the probable cause to believe that he was the assailant. Indeed, all three victims (plus a fourth not directly involved with this appeal) had selected a photograph of him from photographic arrays. The basis of the appellant's challenge was that the warrant application failed to establish an adequate nexus between the appellant and 625 L Street, Northeast. The application and its supporting affidavit sought a warrant:

FOR THE PREMISES OF 625 "L" STREET, NORTHEAST, WASHINGTON, D.C. THE PREMISES IS A THREE STORY, PINK AND WHITE BRICK ROWHOUSE....

On October 31, 1999, an adult complainant reported to the member of the Prince George's County Police Department that she had been the victim of a sexual assault.

The complainant explained that she was approached by the defendant while unloading groceries from her vehicle.... The defendant displayed a knife.... [After committing forced sexual acts on the complainant], the defendant took one hundred and forty dollars in U.S. Currency and a business card with the complainant's name printed on it.

Members of the Prince George's County Police Department became aware of an arrest made by the affiant with similar circumstances. A photograph of the defendant was obtained from the affiant and utilized in a photo array by members of the Prince George's County Police Department. The defendant was positively identified as the person who sexually assaulted her.

All other identifiable information of the defendant was submitted to Prince George's County Police Department from the affiant.

Based on the aforementioned facts, the affiant has probable cause to believe that ANTONIO DONNELL OESBY, did commit the Sexual Assault which occurred in Prince George's County Maryland and that evidence of this crime may be located inside of 625 "L" Street, Northeast, Washington, D.C. Specifically, a business card, clothing worn and the weapon used during the offense. It is therefore respectfully requested that a District of Columbia Superior Court Judge issue a Search Warrant, directing a search of the premises described herein, authorizing the seizure of any evidence connected to the case.

(Emphasis supplied).

A. Inadequacy of the Nexus

We agree with the appellant that the application for the search warrant failed to establish an adequate nexus between the person of the appellant and the Washington, D.C. residence that was searched. Dispositive on this issue is Judge Hollander's definitive opinion for this Court in Braxton v. State, 123 Md. App. 599, 618-31, 720 A.2d 27 (1998). The issue there was indistinguishable from the issue here:

Appellant posits that the warrant was not based on probable cause because the supporting affidavit failed to specify that the targeted apartment actually was appellant's residence. Even if the affidavit implied that the subject premises was appellant's place of abode, Braxton contends that the affidavit was defective because it lacked any factual foundation to substantiate that assertion. Specifically, Braxton complains that the affidavit was devoid of facts particularizing the basis for the affiant's belief that the targeted premises was actually appellant's residence.

123 Md.App. at 618-19, 720 A.2d 27 (emphasis supplied).

The warrant application in that case actually represented more of a predicate than we have here for an inference of the required connection, as it at least linked the name of the suspect with the street address of the place to be searched:

Persons/Premises to be Searched:

Arnold Braxton, Jr. M/B/10-31-75 BPI# 440-492, 4310 Seminole Ave. Apt. A three story brick apartment building with the numbers 4310 affixed. Apt. 203 has a white door the numbers 203 on the same.

123 Md.App. at 611, 720 A.2d 27 (emphasis supplied). In our case, there is no such juxtaposition of the person and the place.

By way of a further footing for the required inference in Braxton, the warrant application in that case went on to aver that criminals frequently store the fruits of their crimes in their residences:

It is common for persons who have committed armed robberies to store the fruits of their crimes in the place of their residence as well as the weapons used to commit these offenses. It is for this reason that Your Affiant prays that a search and seizure warrant be issued for the above named persons and premises.

123 Md.App. at 613, 720 A.2d 27 (emphasis supplied).

We rejected even that significantly stronger predicate for the required inference as still inadequate. Judge Hollander explained, 123 Md.App. at 629-30, 720 A.2d 27:

In construing the affidavit here, the issuing judge first had to infer that the targeted premises was appellant's residence, based on the street address on the face of the affidavit, coupled with the general assertion that criminals typically store fruits and instrumentalities of crime in their residences. Yet the affidavit contained absolutely no clue as to why the police believed appellant lived at the particular location identified in the affidavit and warrant application; the affidavit failed to provide a factual basis for the claim that the targeted premises was the suspect's residence. Thus, it did not guard against an unfounded intrusion into one's sanctuary. As the State candidly conceded at oral argument, we may not uphold a warrant merely because the premises turned out to be the suspect's home. In other words, the ends cannot justify the means.

(Emphasis supplied).

Our holding in Braxton was unmistakably clear:

Accordingly, we hold that the mere identification in the affidavit of appellant's address, without even a single predicate fact showing the basis for the belief that appellant resided at that address, did not establish probable cause to search that location. This is so even if there was otherwise every reason to believe that appellant committed the armed robbery and harbored the fruits and instrumentalities wherever he may have lived.

123 Md.App. at 630, 720 A.2d 27 (emphasis supplied). See also United States v. Hove, 848 F.2d 137 (9th Cir.1988).

The requirement placed on the police in this regard is not onerous, but it is something that cannot be ignored. Again, Judge Hollander explained:

Given the urgency that is often associated with matters such as this one, we acknowledge that a police officer cannot always prepare the

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