Wallace v. State

• Decision Date: 01 October 2014
• Docket Number: No. 2100, Sept. Term, 2012.,2100, Sept. Term, 2012.
• Citation: 100 A.3d 1173,219 Md.App. 234
• Parties: Brandon WALLACE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

219 Md.App. 234

100 A.3d 1173

Brandon WALLACE

v.STATE of Maryland.

No. 2100, Sept. Term, 2012.

Court of Special Appeals of Maryland.

Oct. 1, 2014.

Celia A. Davis (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Jessica V. Carter (Douglas Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: WRIGHT, NAZARIAN and ARRIE W. DAVIS (Retired, Specially Assigned), JJ.

Opinion

NAZARIAN, J.

Matthew Womack was beaten and robbed by two men in the early morning hours of November 4, 2011. Minutes before, he had engaged in a brief discussion with Brandon Bernard Wallace. Shortly after the robbery, Mr. Wallace was seen at two convenience stores where Mr. Womack's stolen credit card was used. After Mr. Womack identified Mr. Wallace as one of his assailants from a photo array, Mr. Wallace was arrested, charged, and convicted in the Circuit Court for Prince George's County of robbery and related crimes, but was ultimately acquitted of second-degree assault. Mr. Wallace appeals, contending that insufficient evidence supported the convictions and that the circuit court erred by failing to suppress an impermissibly suggestive extrajudicial identification, by allowing an improper prosecutorial comment, and by accepting inconsistent jury verdicts. We find no merit in his first three contentions and affirm his convictions for theft under $1,000 and credit card theft. Because we conclude that the circuit court erred by accepting legally inconsistent jury verdicts, however, we reverse Mr. Wallace's robbery conviction, in the process filling a gap in the evolving jurisprudence of legally inconsistent verdicts, and remand for resentencing on the remaining convictions.

I. BACKGROUND

Mr. Womack caught a bus from work at 11:30 p.m. on November 3, 2011, and arrived at the Oxon Hill Road bus stop in Prince George's County between midnight and 1:00 a.m. on November 4. Upon his arrival, he was approached by Mr. Wallace. This was not, however, their first meeting—they had met and spoken two weeks before at that same bus stop, after Mr. Wallace tried to sell Mr. Womack a head set for three dollars.

Their discussion on November 4 lasted only a few minutes. While they spoke, two of Mr. Wallace's friends approached, and Mr. Womack became uneasy when one friend “made a look towards” him. He decided it was best that he leave, and as he left, Mr. Wallace inquired about the direction he was headed. Mr. Womack told him he was going north on Livingston Road, but instead went south, toward his home.

The lighting on Livingston Road dwindled as Mr. Womack traveled toward Stratwood Avenue, so he attempted to cross the street to a better-lit area. But as he looked for oncoming cars, two men came up behind him, each wearing dark hooded sweatshirts and ski masks that covered their mouths and noses but left their eyes exposed.¹ The two assailants first hit Mr. Womack from behind, then punched him in the face and knocked him to the ground. Then they flashed what appeared to be a shotgun and demanded Mr. Womack's money and possessions in urgently vulgar terms. In all, they took his cell phone and charger, security license, an ATM card, an ID holder, a pair of gloves, and a Baltimore Ravens jacket.

Mr. Womack phoned the police and accompanied them to the police station to provide an initial statement. Upon returning home, he contacted his bank to cancel his card, but was told that somebody used it that morning at several locations.

On November 22, 2011, Mr. Womack was contacted by Detective Jeffrey Konya, who requested a meeting to show Mr. Womack a photo array prepared by Detective Paul Schweinsburg. The two detectives visited Mr. Womack's home later that day and, before showing him the array, informed him that they had found the culprit. Mr. Womack covered the lower halves of the faces to see the men as if they were wearing the half-mask his assailants wore and selected picture number five—the photo of Mr. Wallace. When asked why he selected this photo, he explained:

Because when I was getting off the Metro bus, I was stopped and ... the guy starting talking to me for at least five minutes. Then I walked away. Dude asked me which way I was going to go home. So I remember that. I had some type of feeling that something was going to happen to me that night because why would somebody ask you which way you was going to go home. And I felt some type of way about it. Then five minutes later, bam, I get robbed. And I remember that conversation I had with him a couple weeks ago when he had said something to me prior to that.

The State obtained Mr. Womack's bank records, which showed that his stolen card was used multiple times shortly after the robbery. The bank records showed that the card was used first for a $30.98 purchase at 5:01 a.m. at an Exxon on Old Branch Avenue in Camp Springs, but a corresponding receipt indicated that his card had been used there to make a $30.98 purchase at 1:01 a.m. The records also showed that the card was used at 5:09 a.m. at the 7–Eleven adjacent to the Exxon, but no receipt was produced. Surveillance stills produced by the State showed Mr. Wallace at the 7–Eleven that morning from 1:07 through 1:10 a.m., however. These stills, along with stills from the Exxon,² showed Mr. Wallace wearing a dark hooded sweatshirt at each establishment in the early morning hours of November 4.³

Before trial, Mr. Wallace moved to suppress the extrajudicial identification provided by Mr. Womack. The circuit court held a suppression hearing on April 13, 2012, and denied the motion. Following a jury trial on August 23 and 27, 2012, Mr. Wallace was found guilty of robbery, theft under $1,000, credit card theft, and obtaining property by misrepresentation. The jury acquitted him of robbery with a deadly weapon and second-degree assault. The trial court sentenced Mr. Wallace on the robbery charge to fifteen years, with all but eight years suspended, to be followed by five years of supervised probation. It then stated that “[a]s to ... the second degree offense, theft under a thousand the court finds that participation in the robbery[,] and the credit card theft, the third convicted offense, the Court will also merge.”

II. DISCUSSION

Mr. Wallace's brief lists five questions that we have revised to four:⁴

1. Did the suppression hearing court err by denying [Mr. Wallace's] motion to suppress evidence of an out-of-court identification of him from a photo array?

2. Did the trial court err by denying a motion for mistrial made during the prosecutor's rebuttal closing argument?

3. Did the trial court err by accepting an inconsistent jury verdict?

[4]. Is the evidence legally insufficient to sustain [Mr. Wallace's] convictions?

We hold that sufficient evidence supported Mr. Wallace's convictions and that the circuit court properly denied his motion to suppress. We hold as well, though, that the circuit court erred in accepting inconsistent jury verdicts, and we reverse the robbery conviction.⁵

A. The Circuit Court Did Not Err In Denying Mr. Wallace's Motion To Suppress.

Mr. Wallace argues first that the circuit court erred in denying his motion to suppress Mr. Womack's testimony identifying him from a photo array. Mr. Wallace argues that Mr. Womack's extrajudicial identification was impermissibly suggested when Detective Konya, before displaying the photo array, informed Mr. Womack that the police had “found the person that did it,” and that this “made him believe that the photo array contained an image of the suspect.” The State counters that the extrajudicial identification procedure was not impermissibly suggestive because the detectives did not indicate who should be chosen. We agree with the State.

In reviewing the circuit court's disposition of Mr. Wallace's motion to suppress, “ ‘we look only to the record of the suppression hearing and do not consider the evidence admitted at trial.’ ” James v. State, 191 Md.App. 233, 251, 991 A.2d 122 (2010) (quoting Massey v. State, 173 Md.App. 94, 100, 917 A.2d 1175 (2007) ). We accept the findings of fact and credibility determinations of the circuit court unless they are clearly erroneous, and we examine the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party prevailing before the circuit court, in this case the State. McFarlin v. State, 409 Md. 391, 403, 975 A.2d 862 (2009). We review the trial court's conclusions of law de novo and make our own independent assessment by applying the law to the facts of the case. Id.; see also Gatewood v. State, 158 Md.App. 458, 475–76, 857 A.2d 590 (2004),aff'd, 388 Md. 526, 880 A.2d 322 (2005).

Extrajudicial identifications obtained through impermissibly suggestive procedures are not admissible. James, 191 Md.App. at 251–52, 991 A.2d 122. We look at the circumstances of Mr. Womack's identification of Mr. Wallace through a two-step process:

The first is whether the identification procedure was impermissibly suggestive. If the answer is “no,” the inquiry ends and both the extra-judicial identification and the in-court identification are admissible at trial. If, on the other hand, the procedure was impermissibly suggestive, the second step is triggered, and the court must determine whether, under the totality of the circumstances, the identification was reliable.

Jones v. State, 395 Md. 97, 109, 909 A.2d 650 (2006) (citations omitted). “The defendant bears the burden of proof in the first stage of the inquiry, and, if the defendant meets this burden, then the prosecution has the burden in the second stage of the analysis.” Upshur v. State, 208 Md.App. 383, 400–01, 56 A.3d 620 (2012) (citing In re Matthew S., 199 Md.App. 436, 447–48, 23 A.3d 250 (2011) ), cert. denied, 430 Md. 646, 62 A.3d 732 (2013) ; see also James, 191 Md.App. at 252, 991 A.2d 122 (“Although the reliability of the identification is the linchpin question, if the identification procedure is not unduly suggestive, then our inquiry is at an end.” (...