Constant v. State

BENOIT CONSTANT v. STATE OF MARYLAND

No. 1440

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

March 5, 2020

Circuit Court for Wicomico County

Case No. 22-K-16-0338

UNREPORTED

Nazarian, Beachley, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

Opinion by Nazarian, J.

* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

A jury convicted Benoit Constant of multiple counts in connection with two robberies of the same bank. The Circuit Court for Wicomico County sentenced Mr. Constant to multiple sentences totaling approximately forty years. During trial, the State called his sister, Milandra Constant, to testify against him. She had been implicated in the crime through testimonial and DNA evidence, and in exchange for her testimony, the State offered her use and derivative use immunity. When she took the stand, though, Ms. Constant invoked her Fifth Amendment privilege against self-incrimination in the presence of the jury. Mr. Constant objected and moved for a mistrial on the ground that Ms. Constant's invocation of her privilege was unfairly prejudicial to Mr. Constant's defense. The circuit court denied the motion.

Mr. Constant argues on appeal that the circuit court abused its discretion in denying his motion for mistrial. He argues also that the commitment record, docket entries, and criminal hearing sheet must be amended to strike language stating that the first ten years of his sentence for Count 1 (robbery with a dangerous weapon) are to be served "with limited possibility of parole." The State agrees. We affirm Mr. Constant's convictions and remand to the circuit court for the sole purpose of correcting the sentencing record.

I. BACKGROUND

The Hebron Savings Bank on Main Street in Sharpstown was robbed both on September 18, 2014 and December 12, 2014. After a two-day trial on July 25 and 26, 2017, the jury convicted Mr. Constant in connection with both robberies. With respect to the September 18 robbery, Mr. Constant was convicted of two counts of robbery with adangerous weapon, two counts of robbery, two counts of second-degree assault, threatening to explode a destructive device, theft, and openly carrying a dangerous weapon. With respect to the December 12 robbery, Mr. Constant was convicted of two counts of robbery with a dangerous weapon, two counts of robbery, two counts of second-degree assault, theft, and openly carrying a dangerous weapon.

The State nol prossed some of the counts, the court granted Mr. Constant's motion for judgment of acquittal on others, and seven counts remained for sentencing. The court imposed no sentence for two of those counts under the rule of lenity, and otherwise sentenced Mr. Constant to twenty years for Count 1 (robbery with a dangerous weapon on September 18), with a ten-year mandatory minimum; a consecutive ten years for Count 9 (robbery with a dangerous weapon on September 18); a consecutive one year for Count 13 (threatening to explode a destructive device on September 18); a concurrent twenty years for Count 16 (robbery with a dangerous weapon on December 12); and a consecutive ten years for Count 24 (robbery with a dangerous weapon on December 12). The commitment record and the docket entries and the criminal hearing sheet for July 27, 2017 indicate that the first ten years of the sentence for Count 1 are to be served "with limited possibility of parole."

We summarize the testimony and evidence admitted during the two-day trial.

A. September 18, 2014

Susie Pruitt, the head teller at Hebron Savings Bank on September 18, 2014, testified that she saw, through a window, a silver PT Cruiser pull up in front of the bank.She did not recognize the car—she testified that "we know most of our customers"—so she "walked over by the window" and saw a man get out. When she first saw him, she "knew that something wasn't right [] with his face" and she testified that "didn't know if maybe he had been in an accident or something like that." She saw later that he was wearing a mask.

She saw the man pull out from the back seat what looked like a briefcase, then walk into the bank. She testified that she "had a sick feeling in [her] stomach," but she nevertheless "greeted him like we normally do with every customer." He told her he wanted to open a business account. She turned around to her desk and called her manager, Debbie Lowe, which is what she usually did when a customer wanted to open a business account. Ms. Lowe answered, and after Ms. Pruitt said "Debbie" into the phone, the man told her "put it down." Ms. Pruitt turned to the teller window and saw that the man "had a gun stuck up to the window." She hung up the phone, and the man walked to a glass door and told Ms. Pruitt to open it. She complied.

The man asked her where the vault was, so she led him to it and began filling the man's bag with money. In the meantime, Ms. Lowe came out of her office and saw them in the vault. The man told Ms. Pruitt to "hurry up" and asked, "Do you see this?" He opened the briefcase, and Ms. Pruitt saw what she described as "three barrels" "taped together with wires on it." When she finished filling up the bag, the man told her and Ms. Lowe "not to move or say or do anything or he'd blow the place up." He left in the PT Cruiser, and they pulled the alarm and called police.

Ms. Pruitt described the man as wearing a mask and testified that he wore a ball cap, sunglasses, and black gloves. She testified that he was about five foot seven inches, tall, and "stocky." She reported that his voice was "real deep" and like a "man's voice." And she described the gun as "like a .9 mm or something size-wise" and that it looked real.¹

Ms. Lowe testified that as the September 18 robbery began, Ms. Pruitt called her, said "Debbie," and then hung up. Ms. Lowe came out of her office, went to the vault, and saw Ms. Pruitt putting money into the man's bag. The man turned around, looked at Ms. Lowe, and said "do you think this is funny?" and "don't move." She testified that the man walked out of the vault with his gun pointed, and on his way to the bank's exit said "don't move, or I'll blow this place up." Ms. Lowe described the man as wearing a dark jacket, a cap with hair hanging down the back, gloves, and dark glasses. She explained that her "first instinct" was that the person was a man, but she admitted on cross-examination that she was not one hundred percent certain. Ms. Lowe testified that the man took approximately $45,000.

Trooper Theodore Buck of the Maryland State Police testified that on September 18, 2014, he was assigned to check a license plate that witnesses to the robbery had seen. He located the car associated with the plate, a Nissan passenger vehicle, at a towing company, but saw that the license plates were missing.

B. December 12, 2014

Ms. Pruitt was working as well on the date of the second robbery, December 12, 2014. She testified that she saw the same man as before ride up on a bicycle and come into the bank. She testified that she "knew it was the same person because of the mask and the sunglasses." She reported that "[t]his time he came up on a bike," "he came in the front door," and "he had his gun out as soon as he came in." He walked straight to the glass door by the teller area, and "again, we went in the vault, and I opened the vault" and "I emptied the vault, and with that, he turned and left." She described the man as having the same height and build, and the same voice, as the man she had seen on September 18.

Ms. Lowe was also at work that day. She testified that she was in her office, watched him as he came in, saw that he had a gun drawn, and immediately pushed the alarm button and dialed 911. She said that the man took approximately $55,000 to $60,000.

Alan Nichols, an employee of the State Highway Administration, was a bystander. He testified that he saw a "silver Chrysler Pacifica" with "Delaware tags" near the bank. He first noticed the car near the bank "sitting there kind of holding up traffic," and then it "proceeded to go by the bank and park."

Maryland State Police Officer Sam Woods responded to the scene of the December 12 robbery. Approximately a block from the bank, he located a bicycle and, about twenty feet from the bicycle, a cigarette butt. He swabbed the bicycle for DNA and sent the whole cigarette butt to the lab for analysis.

Melissa Harvey, a Maryland State Police crime scene tech, processed a silverChrysler Pacifica on January 5, 2015. From the trunk, she recovered a 4.5 mm BB gun, a "latex mask with cowl," one black glove, a plaid jacket with a gray hood, and a baseball style hat.

The DNA analysis of the mask, bicycle, and BB gun implicated Mr. Constant. The DNA analysis of the cigarette butt implicated Ms. Constant.

Finally, Latoya Milbourne testified about contacts she had with Mr. Constant after he was arrested and charged. These included a phone call from the facility where he was incarcerated and a letter she received from him. The phone call was recorded, and the transcript of the call was introduced into evidence and played for the jury. Ms. Milbourne testified that she had been an instructor at Delmarva Beauty Academy and had known Mr. Constant from his time as a student there around 2010. Ms. Milbourne testified that the last time she had seen Mr. Constant was years ago, but that he called her several months before his trial. She testified that he said that he had been incarcerated "under false pretenses" and asked her whether she would do him "a favor." Mr. Constant told her that he wanted her "[t]o say that [she] took him to BWI," even though she had never taken Mr. Constant to the airport.

After the phone call, Ms. Milbourne received a letter from Mr. Constant, that she read to the jury in part, laying out a story he wanted her to...