Christian v. State

JOSEPH CHRISTIAN v. STATE OF MARYLAND

JAMES MILLIGAN v. STATE OF MARYLAND

No. 2565

No. 1986

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2012

October 3, 2014

REPORTED

CONSOLIDATED CASES

Hotten, Berger, Arthur, JJ.

Opinion by Arthur, J.

Appellants Joseph Christian and James Milligan were charged in the Circuit Court for Baltimore City with various offenses related to a shooting that was the result of a robbery gone wrong.

Specifically, Christian was charged with: (1) armed robbery; (2) conspiracy to commit armed robbery; (3) attempted first-degree murder; (4) conspiracy to commit first-degree murder; (5) conspiracy to wear, carry, and transport a handgun; and (6) use of a handgun in the commission of a felony or crime of violence.

For his part, Milligan was charged with: (1) armed robbery; (2) conspiracy to commit armed robbery; (3) attempted first-degree murder; (4) conspiracy to commit first-degree murder; (5) use of a handgun in the commission of a felony or crime of violence; (6) wearing, carrying, and transporting a handgun; (7) possession of a firearm by a disqualified person; and (8) conspiracy to wear, carry, and transport a handgun.

A joint trial commenced, at the close of which the State withdrew certain charges, and the trial court submitted certain lesser-included offenses to the jury.

The jury found Christian guilty of use of a handgun in the commission of a felony or crime of violence, first-degree assault, conspiracy to commit first-degree assault, attempted robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon.

The jury also found Milligan guilty of use of a handgun in the commission of a felony or crime of violence, possession of a regulated firearm by a prohibited person, attempted second-degree murder, conspiracy to commit first-degree assault, attemptedrobbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon.

Both Milligan and Christian took timely appeals, which this Court consolidated into one.

QUESTIONS PRESENTED

Appellants together raise ten issues, which we reorder, restate, and consolidate as follows:

1. Did the trial court deny Christian and Milligan a fair trial, pursuant to Bruton v. United States, 391 U.S. 123 (1968), when it admitted into evidence recorded statements made by each co-defendant?

2. Did the trial court err in denying Christian's request that it admit coercive police remarks that had been suppressed?

3. Did the trial court err in instructing the jury on the intent required to convict Christian on a theory of accomplice liability?

4. Was there insufficient evidence to sustain Christian's conviction for use of a handgun in the commission of a felony or a crime of violence?

5. Did the trial court deny Milligan his right to a fair trial by limiting the scope of his closing argument?

6. Did the trial court deny defendants a fair trial by overruling their objections to statements in the State's closing argument?

7. Did the trial court err in convicting both Christian and Milligan of separate counts of conspiracy to commit

first-degree assault and conspiracy to commit robbery with a dangerous weapon?

8. Should Christian's sentence for assault merge with his sentence for attempted robbery with a dangerous weapon?

For the reasons that follow, we reverse Milligan's convictions because of a Bruton violation. Because of our disposition of Milligan's convictions on Bruton grounds, we do not address his other challenges. In addition, we vacate Christian's sentence for conspiracy to commit robbery with a dangerous weapon and, for sentencing purposes, merge his convictions for first-degree assault and conspiracy to commit robbery with a dangerous weapon into his conviction for attempted robbery with a dangerous weapon. We affirm Christian's convictions in all other respects.

FACTUAL AND PROCEDURAL HISTORY

The trial concerned a series of events that occurred on December 28, 2010, at two apartment buildings on Woodland Avenue, in Baltimore City. The events centered around four perpetrators - Christian, Milligan, Nathaniel Lounds, and Albert Parker - and their victim, Curtis Jones. The evidence adduced at Christian's and Milligan's joint trial indicated that on the date in question the four perpetrators, in various capacities, planned a robbery of Jones, who was injured when Lounds shot him with a handgun.¹

Lounds, the shooter, lived with his older sister, Shinae "Nay-Nay" Rabey, at 3505 Woodland Avenue, Apartment 3A. Milligan lived next door at apartment 3B. Christian lived in the neighboring apartment building, 3503 Woodland, with Precious Hicks, the mother of his daughter. Christian and Milligan socialized frequently, and all four men were seen together at the apartments at various times on the day of the crime.

Jones, the victim, testified that he had known Christian from construction work they had done together. At around 11:00 a.m. on the morning of the shooting, Christian telephoned Jones, asking to buy some marijuana from him. Jones testified that he did not have any marijuana to sell to Christian, but that he nonetheless went to meet Christian at the Woodland Avenue apartments.

At around 4:00 p.m., Jones arrived at the apartments, where Christian greeted him. Christian then walked into the building at 3503 Woodland, and Jones followed him.

When Jones reached the top of the stairs inside the building, he was accosted by two men whom he did not recognize. The men told Jones to "kick it out." One of the assailants then reached for Jones's car keys and cell phone. When Jones "reached back" in response, one of the men instructed the other to "bust him" - i.e., to shoot him. Jones was then shot in the chest.

Jones managed to get outside the building, where he telephoned for an ambulance. He survived the shooting, but not without surgery and considerable post-operative medical treatment.

Lounds, who testified pursuant to a plea agreement with the State, corroborated and supplemented Jones's testimony. Lounds told the jury that when he arrived at his apartment on the afternoon of the robbery, Christian, Milligan, and Parker were in the hallway discussing a plan to rob Christian's connection, Jones, for money and marijuana. Lounds stated that he did not know a handgun - a .357 caliber Magnum - would be involved in the robbery until Milligan handed it to him and told him that he would kill him if he did not brandish the gun in the robbery. Christian was present at that time.

Lounds testified that when Jones arrived at the apartments, Christian identified him to the others, at which point Milligan gave the gun to Lounds. He and Milligan then went from their building, at 3505 Woodland, to the neighboring building, at 3503, which Jones (following Christian) had just entered. Lounds and Milligan accosted Jones, telling him to "kick it out." When Jones did not comply, Milligan twice instructed Lounds to shoot. Lounds pulled the trigger, shaking as he did so. Lounds then went to his sister's apartment in the other building, told her that he shot someone, asked for money, and quickly fled.

Detectives McMorris and Brown were, respectively, the primary and secondary investigators assigned to the case. McMorris followed leads to Lounds's sister, Ms. Rabey, who, after being arrested for a controlled substance violation, implicated the four men, including her brother Lounds. Parker was arrested a week later, and Lounds a m onth after that.

After being advised of his Miranda rights, Lounds made two recorded statements, in which he confessed to his role in the shooting. Lounds identified Christian and the others in photo arrays and described their various roles in the event. McMorris then obtained arrest warrants for Christian and Milligan.

McMorris and Brown subsequently interviewed Christian as a suspect in the shooting. After reading Christian his Miranda rights, the detectives conducted a recorded interview, during which Christian confessed to his part in planning and aiding the botched robbery. Christian specifically said that the plan was for his accomplices, including Milligan, to stage a hold-up, in which they would steal the drugs from Jones and purport to steal the $125 that Christian was going to pay to Jones for the drugs. Afterward, Christian's accomplices would keep the money, Christian would get the drugs (an ounce of marijuana), and Christian would sell some of the marijuana (to get his money back) and smoke the rest. The circuit court suppressed the portion of Christian's statement that came after the detectives improperly threatened to implicate his child's mother, Precious Hicks, in the offense.

After the jury convicted Christian and Milligan, the circuit court sentenced the two co-defendants on November 19, 2012. Christian received a total sentence of 20 years' executed prison time: ten years, the first five without parole, for use of a handgun in the commission of a felony or crime of violence; ten years, to be served consecutively, for first-degree assault; ten years, to be served concurrently, for conspiracy to commit first-degree assault; 20 years, to be served concurrently, all but ten suspended, plus five years of probation, for attempted robbery with a dangerous weapon; and ten years, to be served consecutively, all suspended, plus five years of probation, for conspiracy to commit robbery with a dangerous weapon.

Milligan received a total sentence of 55 years' executed prison time: 20 years, the first five without parole, for use of a handgun in the commission of a felony or crime of violence; five years, consecutive, without parole, for possession of a regulated firearm by a prohibited person; 20 years, consecutive, for attempted second-degree murder; 20 years, consecutive, all but five suspended, plus five years of probation, for conspiracy to commit first-degree assault; ten years, consecutive, all but five suspended plus, five years of probation, for attempted robbery with a dangerous weapon; and ten years,...