Quick v. State, 011019 MDSCA, 262-2018

Docket Nº:262-2018
Opinion Judge:EYLER, JAMES R., J.
Party Name:JOSEPH QUICK v. STATE OF MARYLAND
Judge Panel:Nazarian, Arthur, Eyler, James R. (Senior Judge, Specially Assigned), JJ.
Case Date:January 10, 2019
Court:Court of Special Appeals of Maryland
 
FREE EXCERPT

JOSEPH QUICK

v.

STATE OF MARYLAND

No. 262-2018

Court of Special Appeals of Maryland

January 10, 2019

Circuit Court for Baltimore City Case No. 117086012

Nazarian, Arthur, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

OPINION [*]

EYLER, JAMES R., J.

Joseph Quick, appellant, was convicted by a jury sitting in the Circuit Court for Baltimore City of robbery and second-degree assault.1 He raises the following three questions on appeal, which we have reordered and rephrased for clarity:

I. Did the trial court err when it interjected itself into the State's case?

II. Did the trial court err when it allowed in evidence a police photograph of appellant because that evidence was irrelevant, unduly prejudicial, and inadmissible "other crimes" evidence?

III. Did the trial court err in not merging for sentencing purposes appellant's second-degree assault conviction into his robbery conviction?

For the reasons that follow, we shall vacate his sentence on second-degree assault conviction but otherwise affirm the judgments.

BACKGROUND

The State's theory of prosecution was that on the evening of February 19, 2017, appellant assaulted Robert Sparks outside the apartment building from which appellant had been recently evicted. Mr. Sparks and the lead detective on the case testified for the State. The theory of defense was that the physical altercation between appellant and Mr. Sparks ensued only after Mr. Sparks withheld money and property belonging to appellant. Appellant testified in his defense. Viewing the evidence in the light most favorable to the State, the following was established.

In 2016, Mr. Sparks managed a restaurant at the corner of Preston and Calvert Street in Baltimore City and the apartment above the restaurant. Both the restaurant and apartment were owned by a friend of Mr. Sparks. Sometime in late August or early September of that year, Mr. Sparks hired appellant to help in the kitchen of the restaurant, and then rented to him the third-floor apartment above the restaurant for $100 a week. There was no written lease agreement.

Mr. Sparks testified that over the months appellant worked at the restaurant and lived above it the situation devolved. Mr. Sparks explained that at first appellant was "very happy to have a job again . . . steadily making money, [but] there came more and more and more times that he didn't feel good, didn't feel like coming to work, needed to sleep all day, and then he couldn't sleep at night, couldn't pay his rent[.]" In February 2017, Mr. Sparks fired appellant and asked him to leave the apartment.

Appellant moved out on February 19, and the next evening, around 11:00 p.m., Mr. Sparks met appellant at the building because appellant had said he needed to retrieve some documents he had left inside the apartment. When they met, appellant told Mr. Sparks he wanted to get his things later, and Mr. Sparks left to run an errand. Mr. Sparks returned within an hour and found appellant sitting inside the building on the bottom stair. When Mr. Sparks approached, appellant stood up. Appellant said, "I'm sorry to do this to you, Mr. Rob. Give me all your money[, ]" and aimed what appeared to be a handgun at him. Mad and frustrated, Mr. Sparks took a swing at appellant and missed. Appellant then began beating Mr. Sparks with his fists and broke the gun, which turned out to be a toy, over Mr. Sparks' head. Appellant shoved Mr. Sparks to the back of the foyer. Mr. Sparks fell to the ground, and appellant started kicking him. Appellant took money from Mr. Sparks' pockets and repeatedly kicked him in the face. Mr. Sparks "played dead," and appellant ran out of the building.

The police arrived shortly thereafter. Mr. Sparks was taken to the police station where he gave a statement and identified appellant as his assailant. The next day, Mr. Sparks was taken to the hospital where he underwent surgery for a broken jaw. Photographs of his injuries and his hospital records were admitted into evidence.

Video from a camera located inside the building's stairwell recorded some of the assault. The video was downloaded into a DVD, admitted into evidence, and played for the jury. The minute and a half video shows Mr. Sparks walk up the front stairs of the building, enter through the front door, and stand in the stairwell. He greets appellant who is sitting on the stairs. Appellant stands, shoves Mr. Sparks away from the front door, and looks out the front window of the door. Appellant then turns toward Mr. Sparks, who swings at him and misses. Appellant begins to hit Mr. Sparks repeatedly, while Mr. Sparks attempts to fend off the blows. Appellant backs Mr. Sparks to the back of the stairwell, and for the next minute neither man appears on the video. Appellant is next seen on the video leaving the building through the front door.

Appellant testified in his defense. He testified that shortly after he began working at the restaurant, Mr. Sparks began withholding $100 from his weekly pay. Appellant complained to Mr. Sparks, but Mr. Sparks continued to do so. In the middle of February, Mr. Sparks fired appellant and told him to remove his personal property from the apartment by the end of the month. Two days later, appellant was told to leave immediately or the police would be called. Over the next several days, appellant repeatedly attempted to retrieve his property from the apartment and the money owed him by Mr. Sparks, but each time Mr. Sparks told him to come back later.

On the evening of February 20, the two met at the building. When Mr. Sparks said he did not feel like walking up the stairs to the apartment, appellant admitted that he tried to force Mr. Sparks to go up the stairs with a toy gun, but the two ended up fighting. Mr. Sparks eventually gave appellant some money, and appellant decided to take the money and leave. Appellant testified that he only hit Mr. Sparks three times, and he denied kicking him. Appellant admitted to a prior conviction for extortion.

DISCUSSION

I.

Citing Diggs v. State, 409 Md. 260 (2009), appellant argues that the trial court committed reversible error when it engaged in repeated questioning of Mr. Sparks that assisted the State in laying a proper foundation for admission of the assault video (the DVD). Appellant argues that the "protracted and inquisitorial nature of the [trial] court's questioning undoubtedly reflected partiality towards the State and more directly, it enabled the State to present critical evidence to the jury." Appellant acknowledges that he did not object at any time to the trial court's questioning, but asks us to nonetheless exercise plain error review because the trial court's intrusion "affect[ed] the entire trial process" and any objection by his defense counsel "would likely have been futile and created an even more hostile environment for appellant." The State argues that appellant has not preserved his argument for our review because he did not object to the trial court's behavior at any time, and even if preserved, appellant's argument lacks merit.

After Mr. Sparks testified about the assault, the State attempted to admit the assault video into evidence. The State elicited from Mr. Sparks that there were cameras in the building where the assault occurred, that he provided the video footage from the cameras to the police, and that he had reviewed the video footage. When the State sought to admit the video, defense counsel objected and a bench conference ensued. When asked to state her objection on the record, defense counsel said: "I think it's been properly authenticated, but the witness has said 'we,' 'we.' I don't know if he means himself or who?" The trial judge responded that the State had not laid a proper foundation and sustained the objection, informing the State, "I don't know how many cameras there are. I don't know how they're kept. I don't know . . .who is in charge of the cameras. I don't know where they're positioned in the hallway. I don't know anything that I need to know before I can allow this into evidence." Questioning of Sparks resumed and the following colloquy occurred:

[THE STATE]: Mr. Sparks, can you tell this Court where the cameras in the apartment are situated?

THE COURT: Well, first, can you - there are cameras. How many cameras?

THE WITNESS: There's eight or ten cameras. The one relevant to this [] one -

THE COURT: Just how many cameras are there totally on this address, 200 East Preston Street?

THE WITNESS: At least three.

THE COURT: And how do you know that?

THE WITNESS: Because I see them everywhere I go in that building in plain sight.

THE COURT: Okay. So, you see the three cameras?

THE WITNESS: Yes.

THE COURT: Can you tell me exactly where they are?

...

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