Sequeira v. State

• Decision Date: 01 April 2021
• Docket Number: No. 2148, Sept. Term, 2019,2148, Sept. Term, 2019
• Citation: 248 A.3d 1151,250 Md.App. 161
• Parties: Marcos Daniel SEQUEIRA v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

250 Md.App. 161

248 A.3d 1151

Marcos Daniel SEQUEIRA

v.STATE of Maryland

No. 2148, Sept. Term, 2019

Court of Special Appeals of Maryland.

April 1, 2021

Argued by: Nancy S. Forster (Forster & LeCompte, on the brief), Towson, MD, for Appellant.

Argued by: Cathleen C. Brockmeyer (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee

Panel: Kehoe, Gould, Deborah S. Eyler, Senior Judge, Specially Assigned, JJ.^*

Eyler, Deborah S., J.

A jury in the Circuit Court for Montgomery County convicted Marcos Sequeira, the appellant, of use of a firearm in the commission of a felony or crime of violence ("use of a firearm"), for which he was sentenced to 17 years in prison, and conspiracy to commit that offense, which the court merged for sentencing. The jury acquitted Sequeira of three counts of first-degree assault, each of which named a specific victim. Those were the only counts sent to the jurors that were predicate crimes for the use of a firearm charge. The use of a firearm and related conspiracy counts did not identify a particular victim or victims.

This case raises as a primary issue whether, when a multicount indictment identifies particular victims in the counts charging predicate crimes, the defendant may be convicted of use of a firearm not in the commission of those charged predicate crimes but in the commission of uncharged predicate crimes against other victims in the same incident. We answer that question in the negative and shall reverse Sequeira's conviction for use of a firearm. For the reasons we explain, that count cannot be retried. We shall vacate Sequeira's conviction for conspiracy to commit the charged predicate crimes and remand for further proceedings on that count.

FACTS AND PROCEEDINGS

The incident giving rise to this case took place at 2 a.m. on December 1, 2018, on the surface parking lot of a strip shopping center in Silver Spring. As Sequeira drove his car through the lot, in front of Sole D'Italia restaurant, one of his two passengers fired a handgun out the window. At the time, restaurant security guards Jermaine Brown, Desmond Brown, and Alvester Jacobs, and disc jockey John Callahan, were standing on the sidewalk in front of the restaurant and two customers, Rashad Hall and William Powell, were walking through the parking lot to their vehicle. Fortunately, no one was injured.

Sequeira and Quinnton Brown, one of Sequeira's passengers, were separately charged in identical multicount indictments (differing only in their names) setting forth the following counts, in this order:

• Counts One, Two, and Three: Attempted first-degree murder

• Counts Four, Five, and Six: Conspiracy to commit first-degree murder

• Counts Seven, Eight, and Nine: First-degree assault

• Counts Ten, Eleven, and Twelve: Conspiracy to commit first-degree assault

• Count Thirteen: Use of a firearm in the commission of a felony or crime of violence

• Count Fourteen: Conspiracy to commit use of a firearm in the commission of a felony or crime of violence.

In each of counts one through twelve, one of the security guards was named as the victim. The last two counts did not name a victim.

Sequeira and Brown were tried jointly. The State called thirteen witnesses, including the security guards¹ , Callahan, Hall, police officers who responded to the scene, and a firearms examiner. The evidence included surveillance footage from four Sole D'Italia cameras, three inside and one outside. The following was adduced.

The three security guards were working at Sole D'Italia on the night of November 30, 2018, and into the early morning hours of December 1, 2018. Desmond and Jacobs were armed. At 11:43 p.m., Sequeira parked his black Mercedes coupe directly in front of the restaurant and entered, alone.² Around midnight, he overheard Jermaine tell a regular patron that she and her friend could not use the men's restroom and heard the patron make a "smart" remark in response. Jermaine noticed Sequeira standing nearby and, recognizing him as the bartender's ex-boyfriend, said, "no offense," adding, "just doing my job." Sequeira looked Jermaine "up and down" and replied, "I'm good." Jermaine asked, "sure you good[?]" and suggested they could go outside to have a conversation.

Jermaine thought Sequeira was acting "defensive." The patron and her friend alerted Desmond and Jacobs about the "heated discussion." Desmond and Jacobs tried to de-escalate the situation, which Desmond described as "tense." Jacobs heard Sequeira tell Jermaine, "I don't fight, I shoot."

Sequeira left the restaurant around 1:00 a.m., an hour before closing time. He returned at 1:41 a.m., accompanied by Brown and Daniel Rivas.³ This time, he did not park his car near the entrance. The three men entered the restaurant and walked through the bar area, where the security guards saw them. All three security guards described Brown as a tall African American man wearing a gray or black hooded jacket and Rivas as a Hispanic man with his hair in a bun and wearing a grey puffy coat.

Three minutes later, Sequeira, Brown, and Rivas left. As they walked to the door, past the security guards, Sequeira told Jermaine, "I'm going to see you, OG." Jermaine understood OG to mean "original gangster" and took the words as a threat. Brown asked Jermaine, "What's up with you?" Jermaine also took that as a threat. Jacobs and Desmond overheard these remarks. Jacobs characterized Sequeira's tone as "aggressive" and said Brown got "kissing close" to Jermaine before saying, "What's up?"

Jermaine stayed inside the restaurant for a while, helping to close the bar. Desmond and Jacobs stood outside in front of the restaurant and waited for Jermaine. The interaction with Sequeira and his companions had made them concerned for Jermaine's safety. At 1:56 a.m., Jermaine joined Desmond and Jacobs outside.⁴ They stood in the parking lot, just past a row of parked cars immediately in front of the restaurant. They noticed an occupied black Mercedes coupe parked in the middle of the parking lot, facing the restaurant. All three security guards identified Sequeira as the person sitting in the driver's seat of that vehicle. Desmond could not see the other occupants. Jermaine saw Brown in the front passenger seat. Jacobs thought Rivas was in the front passenger seat and Brown was in the back seat, on the passenger side.

A minute later, Jermaine, Desmond, and Jacobs walked back to the sidewalk right outside Sole D'Italia. Callahan, the disc jockey, had just finished packing his equipment into his Honda CRV, which was parked directly in front of the restaurant, and was standing on the sidewalk too.

Seconds before 2 a.m., Sequeira drove forward and turned right out of his parking space, then drove the Mercedes parallel to the sidewalk near, but not directly in front of, Sole D'Italia and then away from the restaurant.⁵ As he did so, an arm emerged from a window of the vehicle and began firing a gun. The security guards testified that the Mercedes continued driving away from Sole D'Italia, made another right turn, toward an exit onto Layhill Road, and then made a third right turn onto the southbound lane of Layhill Road. From this position, the shooter fired several more rounds toward the parking lot.

The eyewitness testimony varied from witness to witness and internally with respect to the shooter's location in the Mercedes and where the shots were fired. Jermaine testified that the shooter was an African American man in the front passenger seat whose arm was clothed in a gray sweatshirt sleeve and that the shots were fired "in the direction of where [Jermaine, Desmond, and Jacobs] were [standing]." Later in his testimony, he acknowledged that the first round of shots was fired in the direction of Hall and Powell.⁶ In a police interview at the scene, captured on an officer's body camera, Jermaine said, "they shot over there first[,]" meaning where Hall and Powell were walking.

According to Jacobs, a "black arm" emerged from the rear passenger side window of the Mercedes and fired shots in his direction. He returned fire. He agreed that he may have told officers at the scene that the shots were fired in the direction of Hall and Powell, one of whom was wearing a yellow construction vest. Desmond testified that an African American man's arm holding a gun came out of the passenger's window on the side of the Mercedes closest to the restaurant. He did not say where the shots were fired but acknowledged telling a police officer at the scene that the passenger fired the gun in the direction of a man on the parking lot who was wearing a neon hooded sweatshirt. Callahan testified that he heard gunshots and saw a flash from near the Mercedes but could not say where the shots came from. He agreed that he had told the police at the scene that the gunshots were not close to him and it seemed as if the shooter had fired into the air.

Hall testified that Powell was wearing a bright yellow vest. He explained that, as he and Powell were walking across the parking lot, he saw someone shooting out of the passenger side of a Mercedes. He did not think the shots were directed at him. He acknowledged that he may have told police at the scene that the shots were fired into the air.⁷

Surveillance footage and crime scene evidence showed that, in response to the gunshots, Jacobs fired five shots in the direction of the Mercedes. At the same time, Desmond dropped to the ground near Jacobs, Jermaine took cover behind Callahan's vehicle, and Callahan ran around to the back of the restaurant.

Officer Anthony Copeland was on patrol nearby and heard the first volley of gunshots. He responded immediately and saw the Mercedes speeding through the shopping center parking lot. He heard a second volley of gunshots and saw muzzle flashes coming from the Mercedes.⁸ He remained at the scene and interviewed witnesses. In an excerpt from his body-worn camera footage that was played for the jury, he told another officer that it appeared that the shooter was...