Somers v. State

Decision Date13 April 2004
Docket NumberNo. 1816,1816
Citation156 Md. App. 279,846 A.2d 1065
PartiesLarry Scot SOMERS v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

William E. Nolan (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Rachel Marblestone Kamins (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: DAVIS, SONNER, and DEBORAH S. EYLER, JJ.

DEBORAH S. EYLER, Judge.

This case stems from the February 18, 2002 robbery of the Northend Liquor Store, known as "Margie's," in Hancock, Maryland. Two men now stand convicted of that robbery. The first, Jesse Johnson, pleaded guilty to robbery in the Circuit Court for Washington County. He was sentenced by the court and is serving time in prison. The second, Larry Scot Somers, is the appellant in this case. He was tried by a jury in the circuit court and was convicted of robbery with a dangerous weapon; theft over $500; reckless endangerment; carrying a dangerous weapon openly with intent to injure; first degree assault; conspiracy to commit a robbery with a dangerous weapon; and conspiracy to commit felony theft. He was sentenced to 15 years' imprisonment, all but six years' suspended in favor of probation, on the robbery conviction; and five years imprisonment for each of the two conspiracy convictions and for the weapons conviction, all to run concurrent to the 15-year sentence. The court merged the remaining sentences.

On appeal, Somers raises six questions, which we have rephrased slightly:

I. Did the trial court err by denying his motion for mistrial?

II. Did the trial court err by admitting evidence of his other crimes, wrongs, or bad acts, in violation of Rule 5-404(b)?

III. Was the evidence sufficient to sustain his conviction for carrying a dangerous weapon openly with intent to injure?

IV. Did the trial court err by not merging his conviction for carrying a dangerous weapon openly with intent to injure into his conviction for robbery with a dangerous weapon?

V. Did the trial court err by not vacating his conviction for conspiracy to commit felony theft?

VI. Did the trial court err by denying his request for a pre-sentence investigation?

For the following reasons, we shall vacate Somers's conviction for conspiracy to commit felony theft and his sentence for carrying a dangerous weapon openly with intent to injure; otherwise, we shall affirm the judgments.

FACTS AND PROCEEDINGS

The State's theory of the case was that Somers and Johnson together planned and carried out the robbery of "Margie's." At trial, the State introduced evidence to support that theory, as follows.

The robbery happened on February 18, 2002, at a few minutes before 9:00 p.m. One clerk was on duty. He testified that a "two-tone blue Ford pickup" passed in front of the store and a man wearing a mask then ran inside, brandishing a light brown long-barreled rifle. The man put a mesh bag on the counter and demanded money. The clerk filled the bag with around $1,000. The man fled, running up an embankment in front of the store and onto Route 522. When the man was out of sight, the clerk called the police and reported the robbery. He gave the police a description of the pickup truck.

An off-duty state trooper testified that, right after the robbery was called in, he learned about the call and heard a description of the pickup truck. He drove to a restaurant on Route 522, near the bridge over the Potomac River into West Virginia, and parked his vehicle to observe traffic. At about 9:30 p.m., he spotted a two-tone blue and white Ford pickup truck with West Virginia tags. Two people were inside. The passenger turned and stared at him, allowing the trooper to see his face. Before trial, the trooper observed Jesse Johnson. At trial, he testified that Johnson was the passenger in the pickup truck.

Somers's ex-girlfriend testified that on the night in question she heard a police scanner report about a robbery involving a blue and white two-tone Ford pickup truck. She knew Somers drove a vehicle fitting that exact description, so she called him on the telephone and reached him at his father's house in West Virginia, where he lived. In the course of their 45-minute conversation, Somers admitted committing the robbery. A few days later, Somers again told her he had committed the crime, this time recounting the robbery in greater detail. He said he committed the robbery by himself, by parking his father's pickup truck on Route 522 and then returning to it to make a getaway. He also said he had driven over the bridge into West Virginia and had noticed a police car on the bridge.

Immediately after her first telephone conversation with Somers, on the night of the robbery, the ex-girlfriend called the Morgan County, West Virginia, Sheriff's Department and reported that she might have information about the driver of the vehicle suspected in the robbery. The West Virginia police contacted a Maryland State Police investigator, who telephoned Somers's ex-girlfriend. The ex-girlfriend told the investigator about her telephone conversation with Somers and gave him information about where he was living.

The investigator testified that, the same night, accompanied by West Virginia police, he went to Somers's parents' house. A two-tone blue and white Ford pickup truck with West Virginia tags was parked in the yard. Somers was present. He admitted that the pickup truck belonged to his father; that earlier that night he had driven the pickup truck on Route 522 westbound, across the bridge from Maryland into West Virginia; and that, as he was driving, the pickup truck had been illuminated by the headlights of a police car. Somers also told the investigator that he owned a rifle matching the description of the one used in the robbery, and it was under his bed. With Somers's permission, the investigator searched under the bed, but found nothing. Somers could not explain where the weapon was. The investigator searched Somers's room and found $300 in $20 bills.

A teenaged girl who was living in Pennsylvania and was a friend of Somers testified that, on the night of the robbery, at about 10:00 p.m., Somers called her, in tears, and asked her to provide an alibi for him. Specifically, Somers asked her to say he had been with her that night, in Pennsylvania. Later the same night, he called her a second time and asked her also to tell the police that she was his girlfriend. When first interviewed by the investigator soon thereafter, the girl said that Somers had been with her on the night of the robbery. A few weeks later, when she realized the trouble she could face for lying, she told the investigator the truth, that Somers had not been with her that night. The evidence showed that, at the time of the robbery, Johnson had been living in a house owned by one Bradford Spielman, up the street from Somers's parent's house. The Spielman house was occupied by Helen Hewett, who is Somers's cousin and Bradford Spielman's girlfriend, and three of Bradford's brothers: Wilbur, Alston, and Arloff Spielman. The Spielmans all had known Somers since he was a small child. Johnson had been staying at the Spielman house for a few weeks, because he had no place to live.

During the investigation of the robbery, Hewett and Wilbur, Alston, and Arloff Spielman gave the police written statements implicating Johnson and Somers in the robbery. The statements included information that Somers and Johnson had been overheard discussing plans for a robbery and that, on the night of the robbery, Somers and Johnson drove away in Somers's father's pickup truck and returned some time later carrying a large amount of cash and a rifle.

The State called Hewett and the three Spielmans as witnesses at trial. Their written statements all were introduced into evidence, either without objection or, in the case of Hewett, Alston, and Arloff, when they recanted all or some of the statements.

When called by the State, Somers's father testified that he owned a blue and white two-tone Ford pickup truck.

Johnson was called as a witness by the State. We shall discuss his testimony in detail in addressing the first question presented.

DISCUSSION
I

Somers first contends the trial court abused its discretion by denying a mistrial motion he made during Johnson's testimony.

As previously explained, Johnson pleaded guilty to the robbery and was incarcerated. This occurred before Somers went to trial. The specifics of Johnson's plea agreement are not in the record. Johnson did not pursue an appeal, to the limited extent that he was entitled to. His presence at Somers's trial was secured by the State on the first day of trial by a writ of habeas corpus.

In opening statement, the prosecutor forecast the testimony he expected to elicit from the State's witnesses, except for Johnson. The prosecutor told the jurors the State would be calling Johnson as a witness, that he had pleaded guilty to the February 18, 2002 robbery of "Margie's," for which the appellant was on trial, but that he did not know what Johnson was going to say: "He has not given a statement to anybody concerning his involvement [in the robbery], and again, at this point, I don't know what his testimony will be."

Johnson was the first witness called by the State. He did not invoke or attempt to invoke a Fifth Amendment privilege, or any testimonial privilege. On direct examination, he testified that he was residing in a Maryland prison because he had robbed "Margie's" on February 18, 2002. He said he had entered into an agreement with the State in which he had admitted his involvement in the robbery. He further testified that he did not commit the robbery alone.

At that point in the examination, the prosecutor asked, "Who did you act with?" Johnson said, "I'd rather not answer." When the prosecutor asked why, Johnson said he felt "uncomfortable answering." The trial judge interjected and told Johnson he had to answer the question....

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