Sutton v. State

• Decision Date: 06 July 2001
• Docket Number: No. 1630,1630
• Citation: 776 A.2d 47,139 Md. App. 412
• Parties: Robert John SUTTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

776 A.2d 47

139 Md. App. 412

Robert John SUTTON v. STATE of Maryland.

No. 1630, Sept. Term, 2000.

Court of Special Appeals of Maryland.

July 6, 2001.

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Zoe M. Gillen, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen, Baltimore and Joel Todd, State's Atty. for Worcester County, Snow Hill, on the brief), for appellee.

Submitted before SALMON, DEBORAH S. EYLER, and RAYMOND G. THIEME, Jr. (Retired, specially assigned), JJ. RAYMOND G. THIEME, Jr., Judge, Retired, Specially Assigned.

Appellant Robert John Sutton, Jr. was convicted by a jury in the Circuit Court for Worcester County of felony-murder, first degree assault, robbery with a deadly weapon, and theft. Sutton appeals from his convictions and presents the following questions for our review:

1. Did the trial court err in failing to instruct the jury concerning voluntary intoxication?

2. Did the trial court err in permitting appellant to waive the right to counsel in mid-trial on the basis of reasoning and analysis which did not apply after the trial had commenced?

3. Did the trial court err in failing to weigh the potential for unfair prejudice against the probative value of appellant's prior convictions, and in admitting convictions which were inadmissible as a matter of law?

4. Did the trial court err in ruling that appellant would not be permitted to call certain witnesses?

5. Did the trial court err in instructing the jury that self-defense applied to the charge of first-degree assault and not to any of the other charges?

6. Did the trial court err in refusing to instruct the jury concerning second-degree murder and manslaughter?

Facts

Shortly after 6:30 a.m. on April 30, 1999, the body of Thomas Lynch was discovered in the Inlet Parking Lot in Ocean City, Maryland, near large tents that had been erected for Ocean City's Spring Fest celebration. Also recovered near the tents was a large metal tent stake, which appeared to be covered with blood.

The Assistant Medical Examiner for the State of Maryland, who performed the autopsy on Lynch, testified that the cause of death was multiple severe skull fractures and brain injuries resulting from four blows to the head by a large blunt object. The medical examiner said that the injuries were consistent with being struck at least four times with the tent stake that had been found near the scene. The Assistant Medical Examiner further testified that the victim "probably would have lost consciousness and probably collapsed" from the first blow.

It was undisputed that appellant had struck Lynch in the head, but appellant denied the version of events as it was told by the State. The State contended at trial that appellant had killed Lynch during a robbery. On the other hand, appellant insisted that Lynch was actually the initial aggressor, and that appellant struck him in self-defense.

Evidence at trial established that, on April 29th, Lynch's employer had paid him in excess of $200.00 in cash. When his body was found the next morning, however, he had only twelve one-dollar bills and $8.82 in change in his pockets.

Testimony further adduced that Lynch was drinking at the Dutch Bar in Ocean City on the night of his death. During the course of the evening, he had become so intoxicated that he was denied further liquor. Appellant was present at the bar and subsequently attempted to purchase drinks for Lynch. Witness accounts established that Lynch and appellant left the bar together; one witness testified that this occurred at 12:30 a.m. on April 30, and another witness recalled that they left the bar sometime between 11:30 p.m. and midnight. The homicide took place shortly thereafter.

It was established that following the homicide a cab driver picked up appellant at 12:52 a.m. and drove him from the Cork Bar to the Tavern By The Sea. According to the cab driver, appellant repeatedly and insistently asked him to drive to a place where he could obtain drugs and offered him $100.00 to do so. The cab driver testified that appellant had "a wad" of currency in his hand when he paid his fare.

Crucial testimony came from Tammy Lonsinger, the mother of appellant's child and his girlfriend at the time of the homicide. She recalled statements appellant had allegedly made to her. She said that she and her children were with appellant in Ocean City on the evening of April 29th. She recalled that she and appellant had gotten into an argument sometime around 10 11:00 p.m. and that appellant then left to go drinking on his own. She did not see him again until 2:00 a.m. the following morning, when he returned intoxicated. At that time he began talking loudly with her six-year-old son, Corey. It was her testimony that she overheard appellant tell Corey that "he had a lot of money ... he said he had gotten it from a man [that he] beat the man and took the money ... at that time he was saying [he beat him with] a crow bar." She also heard appellant tell her son that he had several thousand dollars, and that he was "trying to show him what a hundred dollar bill looked like and what a fifty dollar bill looked like." She testified that appellant later recounted to her slightly different accounts, in which he mentioned that he had struck the man with a tent stake or tent pole in order to take his money. Lonsinger testified that appellant told her that "[h]e did strike the man.... They went walking outside and when he went to throw up, he hit him once [with a tent pole] to take the money.... When he first told me, he had said that he had hit him because he wanted the money. Later, in other stories, he told me that he knew he hit him at least twice."

Detective Scott Bernal interviewed appellant in Pennsylvania after his arrest and took both an oral and written statement. Appellant confessed to a plan to get Lynch as drunk as possible so that he could take his money, after which he "lost himself" and struck Lynch with a bar. In a statement, appellant told the police that, on the night in question, the victim had told him that he had $13,000 in his pocket. Appellant confessed that he decided to rough up the victim and take his money "when he told me about the [money] at the bar." He further admitted hitting the victim in the stomach with a heavy metal bar and then swinging the bar again, very hard like a baseball bat, this time hitting the victim in the head. The victim fell forward but gargled and blurted words, so appellant hit him again while he was on the ground. Appellant then went through the victim's pockets for the money that he thought was there. Appellant admitted that the reason he hit the victim in the head and stomach with the bar was so he would not struggle when he took the money. Appellant confessed to taking $160 from the victim.

At the close of the State's case, appellant discharged counsel, and resumed with his own defense. Appellant testified in his own defense, denied any robbery, and stated that Lynch was struck in self-defense. Appellant testified that he and Lynch left the Dutch Bar to find another bar that would serve Lynch. Lynch began to get angry and abusive, wrongly believing that appellant was among those responsible for throwing him out of the Dutch Bar. Lynch picked up a bar, threatened appellant, and "rammed" him. Appellant pushed back, and picked up the bar when Lynch dropped it. Lynch continued to be verbally abusive, and came at appellant with a large, heavy key ring. It was only at that point that appellant struck him in the head with the bar, which he believed was not the large, heavy stake entered into evidence by the State. Appellant also claimed at trial that he had given his earlier statements to police because he was coerced by officers who refused his request for counsel, threatened to prosecute his girlfriend, and told him what to write.

Discussion

We note at the outset that appellant failed to raise several of his contentions at trial and, consequently, those issues have not been preserved. Because this pertains to several of his contentions, we set forth the basic applicable principles on that point for the sake of efficiency.

Maryland Rule 4-323(a) requires that "[a]n objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived." Also applicable is Md. Rule 8-131(a), which provides:

The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court....

(Emphasis added.)

We said in Acquah v. State, 113 Md.App. 29, 43, 686 A.2d 690 (1996), that "this Court will not decide issues unless they plainly appear to have been decided below." The Court of Appeals has stated: "We have repeatedly held that unless a defendant makes timely objections in the lower court or makes his feelings known to that court, he will be considered to have waived them and he can not [sic] now raise such objections on appeal." Caviness v. State, 244 Md. 575, 578, 224 A.2d 417 (1966) (citations omitted).

We shall find that no bases exist to overturn appellant's convictions. Although we have set forth, supra, a basic statement as to the facts of this case, we will supplement additional facts relevant to each issue as is necessary below.

I. Voluntary Intoxication

Appellant argues that the jury should have been instructed regarding the legal relevance of voluntary intoxication as it related to the intent element of the robbery charge. He claims that substantial evidence was adduced that he was intoxicated at the time of the offense, and...