Hamm v. State

SHAMAR TERRENCE HAMM v. STATE OF MARYLAND

No. 294

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

June 23, 2021

Circuit Court for Anne Arundel County

Case No. C-02-CR-19-000406

UNREPORTED

Berger, Arthur, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.

Opinion by Kenney, 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 sitting in the Circuit Court for Anne Arundel County convicted appellant, Shamar Terrence Hamm, of felony murder, and related charges in addition to two charges of wearing and carrying a handgun. He was sentenced to life imprisonment for felony murder, twenty years for robbery with a dangerous weapon to be served consecutive to the felony-murder sentence, fifteen years for conspiracy to commit robbery, and three years for each of the wearing and carrying counts, the latter three sentences to be served concurrently.

In this appeal, he presents four questions for our review:

I. Did the circuit court err in declining to ask prospective jurors whether they had strong feelings about interracial relationships?

II. Did the circuit court err in preventing the defense from eliciting from the lead detective that the co-defendant made a statement against interest under Md. Rule 5-804?

III. Did the circuit court err in permitting the State to elicit evidence of other crimes/prior bad acts?

IV. Did the circuit court err in imposing separate sentences for robbery with a dangerous weapon and for both counts of wearing & carrying a handgun?

FACTUAL AND PROCEDURAL BACKGROUND

During a robbery by Mr. Hamm and Dwayne Stephen Commock in the Waugh Chapel area of Gambrills on January 28, 2018, Mr. Commock shot Andrew Kolta. Mr. Hamm's defense was that he was with Mr. Commock for the purpose of breaking into cars but not to rob anyone.

The State's primary witness to the shooting of Mr. Kolta was Celeste Maureen Long,¹ who was the person who drove Mr. Commock and Mr. Hamm to and from the robbery. Ms. Long had entered a plea under a plea agreement to plead guilty to "manslaughter, robbery with a deadly weapon, and use of a handgun in a violent crime" with the understanding that her potential sentence was "15 to 20 years." She acknowledged her obligation to tell the truth and expressed her hope that the sentencing judge "will consider [her] cooperation in this case when imposing sentencing."

Ms. Long testified that Mr. Hamm "was [her] boyfriend" and that, for several days before that incident, they had been living in her vehicle. After driving Danielle Ray and Mr. Commock to a pawn shop to sell "a stolen watch" and "a gold ring," they returned to Ms. Ray's house where Mr. Commock got his "gun and bullets" and then went "shooting for fun" out the window of Ms. Long's car while she was driving.

They later dropped Ms. Ray off at her home, and Mr. Commock, Mr. Hamm, and Ms. Long then drove "around" to "kill time." They arrived at the Waugh Chapel Shopping Center "about 11 o' clock" and parked in the Wegman's parking lot. There, Mr. Hamm put on a bandana to cover his face and Mr. Commock put on a mask and they then approached a vehicle. Their intent was "to get money out of the ladies" in that vehicle, but it was unsuccessful.²

They then drove to an apartment complex "to find something to steal or hopefully some money." Ms. Long parked the car and Mr. Commock and Mr. Hamm got out of it wearing a "mask and the bandana," respectively. When a man got out of "a large SUV" they approached him. That man was Mr. Kolta and, when he tried to run, Mr. Commock "grabbed his jacket" and "pushed him back." Mr. Kolta "got loose and started trying to run again," and Mr. Commock shot him. After he fell, Mr. Commock "grabbed the man's wallet."³

According to Ms. Long, neither Mr. Commock nor Mr. Hamm were "at all phased" or seemed to "care about what had just happened." When they got in the car, they were laughing and Mr. Commock "was kind of joking because he had thought that the man had gotten shot in the butt."

On cross-examination, Ms. Long stated that it was "Mr. Commock's idea" to find some money by "breaking into" cars. And that it was Mr. Commock who put his hands on Mr. Kolta and "went after him" and who "pulled out the gun . . . and shot him," none of which she knew that he was going to do.

Other facts will be added in the discussion of the questions presented.

DISCUSSION

I."Strong Feelings about Interracial Relationships"

Ms. Long is white; Mr. Hamm, as is Mr. Commock, is black. Prior to jury selection, one of the voir dire questions proposed by the defense was: "Does any member of the panel have strong feelings toward interracial relationships [such] that they would not be able to render a fair and impartial verdict[?]" The trial court denied the request stating that it was "fairly covered by the general question about bias⁴ and "the catchall question at the end."⁵

Standard of Review

"An appellate court reviews for abuse of discretion a trial court's decision as to whether to ask a voir dire question." Pearson v. State, 437 Md. 350, 356 (2014). We review the trial judge's rulings "on the record of the voir dire process as a whole." Washington v. State, 425 Md. 306, 313-14 (2012). "The standard for evaluating a court'sexercise of discretion during the voir dire is whether the questions posed and the procedures employed have created a reasonable assurance that prejudice would be discovered if present." White v. State, 374 Md. 232, 242 (2003).

Contentions

Mr. Hamm contends that the circuit court committed "reversible error" in denying his request for the proposed question, which is a question that was, in his view, "likely to elicit disqualifying information" by identifying juror that might hold his relationship with a white woman and committing "alleged crimes with her" against him. Quoting Moore v. State, 412 Md. 635, 664 (2010), he argues that failing to ask that question "taint[ed] the objectivity and thus impartiality of the jury, with negative impactions for [his] right to a fair trial." He asserts that the proposed question was "status based" in that a juror might have biases against persons "in an interracial relationship." He cites a study from the University of Washington and reports from Psychology Today, CBS, and Associated Press that indicate "prejudice against interracial relationships still exists." He further contends that the "catch-all question" and the question regarding racial bias in addition to ethnicity, age, cultural heritage, gender identification, sexual orientation, and religion did not "fairly cover interracial relationships" and were "not an adequate substitute for properly framed questions designed to highlight specific areas where potential jurors may have biases that could hinder their ability to fairly and impartially decide the case."

The State first contends that Mr. Hamm did not sufficiently preserve the issue for review by providing the trial court with a "timely" basis "for concluding that a questionregarding interracial relationship was actually 'directly related' to any issue in this case." More specifically, it argues that Mr. Hamm did not present to the trial court his contention that the proposed voir dire question "directly concerned" his relationship with Ms. Long, who was a "critical witness" for the State, when the court was considering what voir dire questions to ask.

The State, citing Pearson v. State, 437 Md. 350, 357 (2014), further contends that the Court of Appeals has concluded that voir dire inquiries were "designed to uncover biases directly related to the crime, the witnesses, or the defendant," but that there is no precedent that compelled an inquiry into "any and all areas of potential bias, even those which are only indirectly related to the actual issues in the case." It recognizes that Ms. Long was a "critical" witness, but argues that the only reference to their relationship was her testimony that Mr. Hamm was her boyfriend and that he had stayed with her in her car prior to the commission of the crimes at issue. In the State's view, her testimony did not spring from a "'romantic' quality of her past relationship" but from her personal observations regarding the commission of the crimes and was, at most, "indirectly related to the issues in this case."

Analysis

A criminal defendant has a right to "an impartial jury" under the Sixth Amendment and Article 21 of the Maryland Declaration of Rights. Voir dire serves toimplement that right by uncovering specific causes of disqualification. Pearson, 437 Md. at 356-57. As the Court of Appeals has recently explained:

[O]n request, a trial court must ask a voir dire question if and only if the voir dire question is reasonably likely to reveal specific cause for disqualification. There are two categories of specific cause for disqualification: (1) a statute disqualifies a prospective juror; or (2) a collateral matter is reasonably liable to have undue influence over a prospective juror. The latter category is comprised of biases that are directly related to the crime, the witnesses, or the defendant.

On request, a trial court must ask voir dire questions that are reasonably likely to reveal a cause for disqualification involving matters that are liable to have undue influence over a prospective juror. Such matters may be comprised of biases related to the crime or the defendant.

Kazadi v. State, 467 Md. 1, 44-45 (2020) (citation omitted).

Before discussing the merits of Mr. Hamm's claim that the trial court erred in declining to ask whether the prospective jurors held strong beliefs about interracial relationships, we will first address the State's argument that the issue was not adequately preserved. In short, we are not persuaded.

Not only was the trial court probably familiar with the individual participants in the...