Knight v. State

EARL ELLWOOD KNIGHT v. STATE OF MARYLAND

No. 909

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

October 15, 2019

Circuit Court for Prince George's County

Case No.: CT161541X

UNREPORTED

Meredith, Wells, Gould, JJ.

Opinion by Wells, 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.

Appellant, Elmore Ellwood Knight, was indicted and charged in the Circuit Court for Prince George's County with second-degree burglary, theft between $10,000 and $100,000, and fourth degree burglary. His first two trials ended in deadlocked juries, necessitating mistrials due to manifest necessity. At his third trial, a jury convicted appellant on all counts. He was subsequently sentenced to fifteen years' incarceration, with all but five suspended for second-degree burglary, to be followed by a consecutive five years, all suspended, for theft, with the remaining count merged, and to be followed by five years' supervised probation. In this appeal, appellant presents the following questions for our review, which we have slightly rephrased:

1. Did the circuit court err in discharging defense counsel without following the dictates of Maryland Rule 4-215?

2. Did the circuit court commit plain error in admitting hearsay and other unfairly prejudicial evidence?

3. Was the evidence insufficient to sustain the convictions for second-degree burglary, fourth-degree burglary, and theft?

The State concedes error on the first question presented, and, because we agree with the State's concession, we shall vacate appellant's convictions and remand this case for further proceedings. Because we are remanding for a new trial, we decline to address the evidentiary issues raised in question two. As for question three, we conclude that the appellant's sufficiency arguments as to his burglary convictions are not preserved. As for the theft conviction, we conclude that the evidence was sufficient to sustain that conviction.

BACKGROUND

Tyler Baumler, the Director of Operations for Brother Jimmy's BBQ Restaurant, located at National Harbor in Oxon Hill, Maryland, testified that appellant was previously employed at the restaurant, first as a server and then later, as operations manager. As manager, appellant worked both the opening and closing shifts. Depending on his schedule, appellant's duties included: distributing and collecting cash banks to and from the bartenders for making change during service; distributing cash tips to servers at the end of their shifts; and, accounting for the cash proceeds at the end of the service day after the restaurant closed.

The restaurant accounted for its daily income via a handwritten log and a point-of-sale computer system which recorded the transactions each day. The proceeds were placed in a locked double-stacked safe with two compartments, and that safe was located in the office. Any cash taken in during the regular business day went into one locked compartment, while the money for the bar banks were kept after hours in the second locked compartment. The bar bank safe normally contained approximately $2,000. Appellant was one of five people who both had keys to the office and knew the combinations to the safe.

Several months after working at the restaurant, appellant was fired due to multiple incidents of drinking on the job. After he was terminated, appellant sent Baumler several text messages concerning the reasons for his termination. Those messages, included with the record on appeal, accuse Baumler of lying; warn that appellant was going to hire a lawyer; and, questioned what would happen "if someone gets killed over this?"

The underlying incident at issue in this case occurred on or about Monday, October 10, 2016. On that day, at approximately 10:30 a.m., after Baumler arrived to open the restaurant, he discovered that the cash proceeds from the restaurant's business on Friday, Saturday and Sunday were missing from the safe. Based on information in the safe's log, as well as information from the point-of-sale system, Baumler testified that $10,234.11 from three cash drops, as well as at least $2,000.00 for the bar banks, was missing from the safe. There were no signs of forced entry, either into the office or into the safe.

Before calling the police, Baumler reviewed the recorded video surveillance from the night before. According to Baumler, that video captured appellant walking through the kitchen earlier that day after the restaurant had closed, pulling out a set of keys, and then entering the office. The video revealed that appellant remained in the office for a short period of time, and then left the restaurant.

Baumler was certain that appellant was the person depicted in the surveillance video. Additionally, Baumler identified appellant as the person depicted on other surveillance photographs recorded around National Harbor at around the same time. He also testified that appellant was not authorized to take the money from the safe.

Appellant, apparently, gained entry to the closed restaurant because a cleaning crew and building maintenance personnel had left the door open while they were cleaning up after the accidental activation of the fire suppression system in the kitchen area. One of the maintenance workers, Ricardo Mejia, testified he saw appellant inside the closed restaurant. Mejia positively identified appellant at trial and in a double-blind photo array the police administered after the burglary.

Corporal Marcus Tibbs and Detective Dale Sollars, both officers from the Prince George's County Police Department, were involved in the investigation of this incident. At trial, these witnesses reiterated details of Baumler's account at trial, including the identification of appellant as the perpetrator. Detective Sollars also offered additional information concerning a comparison of the perpetrator's height to the known height for appellant. We shall include additional detail in the following discussion.

DISCUSSION

I.

Appellant contends that the circuit court violated Maryland Rule 4-215 when it discharged appellant's public defender because the court: (1) informed appellant that, if he discharged counsel he would have to represent himself; (2) failed to determine whether appellant's reasons for wanting to discharge counsel were or were not meritorious; and, (3) failed to ensure that appellant understood the maximum penalties for the three offenses in this case. More specifically with respect to the first two reasons, appellant asserts:

"Never at any point did the court convey to Mr. Knight that if he had meritorious reasons for discharging his attorney, he would be entitled to an opportunity to obtain either another public defender, a panel attorney assigned by OPD, or court-appointed counsel. Second, and related to the first reason, the circuit court erred in failing to make a determination regarding whether Mr. Knight had meritorious reasons to fire his attorney."

The State does not address appellant's initial arguments, but instead, concedes that the court failed to inform appellant of the maximum penalties before discharging counsel. Therefore, due to the court's inadequate compliance with Maryland Rule 4-215 (a) (3), the State agrees that this case must be remanded for further proceedings. We concur.

By way of background, after appellant was charged, Janet Hart, the District Public Defender, entered an appearance on his behalf on January 12, 2017. [R. 18] Andrea Smith, from that same office, then was assigned to be appellant's public defender, on or around January 31, 2017. Less than two months later, on or around March 10, 2017, Alan D'Appolito, Assistant Public Defender, took over the case from Smith. D'Appolito was counsel of record when appellant's first two trials resulted in mistrials after those juries were unable to come to a unanimous verdict. Shortly following the second mistrial, D'Appolito requested that appellant's competency be evaluated for purposes of considering the entry of a plea of not criminally responsible. After the evaluators determined that appellant was competent to stand trial, and prior to appellant's third trial, appellant asked to discharge D'Appolito.

At the December 15, 2017 hearing on that request, appellant personally informed the court that he had "problems" with D'Appolito because he refused to subpoena evidence, namely a "handwritten safe logbook" that Baumler maintained. Appellant believed that the logbook would show that either Baumler, or one of seven other individuals, accessed the safe in question and stole the money. Appellant asserted that D'Appolito lied to him about whether he would ask Baumler at his previous trial about this safe logbook.

Appellant also claimed that D'Appolito failed to obtain the transcripts from the first trial in a timely fashion and failed to provide them to appellant for review. Appellant also asserted that D'Appolito did not provide him with copies of the evidence obtained during discovery, stating: "this is a major problem. I am 23 days away from being tried a thirdtime and the guy is withholding evidence that is potentially going to be used against me for a third time."

Appellant also took issue with D'Appolito's examination of him when he took the stand at the second trial. Appellant asserted that he and his attorney agreed that appellant would be asked a series of twenty questions at trial, and that D'Appolito only asked him six of those questions. Further, D'Appolito strayed into other matters, according to appellant, that they had previously agreed to avoid.

Appellant then turned to D'Appolito's examination of a detective, presumably, Detective Sollars, and whether that detective lied about the routine collection of DNA and fingerprint evidence in burglary cases. The court responded that, in its prior experience as a...