Latray v. State

221 Md.App. 544

109 A.3d 1265

Gary Ross LATRAY

v.STATE of Maryland.

No. 0588, Sept. Term, 2013.

Court of Special Appeals of Maryland.

Feb. 25, 2015.

Peter F. Rose (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.

Mary Ann Ince (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: KRAUSER, C.J., ZARNOCH, IRMA S. RAKER (Retired, Specially Assigned), JJ.

Opinion

RAKER (Retired, Specially Assigned), J.Gary Ross Latray,¹ appellant, was convicted in the Circuit Court for Garrett County of robbery with a dangerous weapon, robbery, second-degree assault, theft of property having a value less than $1,000, representing a destructive device and making a false statement about a destructive device. In this appeal, he presents the following question for our review:

“Whether the merged convictions and/or sentence/s for representation of a destructive device and/or false statement regarding a destructive device should have merged with the conviction and/or sentence for robbery with a dangerous or deadly weapon.”

We shall hold that the sentences do not merge and affirm.

I.

Appellant was indicted by the Grand Jury for Garrett County with the offenses of robbery with a dangerous weapon, robbery, second-degree assault, theft of property having a value less than $1,000, representing a destructive device and making a false statement about a destructive device. The jury convicted him of all the charges. The court sentenced appellant to a term of incarceration of twenty years for robbery with a dangerous weapon and a consecutive term of incarceration of ten years for making a false statement about a destructive device.²

The following evidence was presented at trial. On November 20, 2009, Christina Dawson was working at the Shoe Show store when a man entered the store. The man started looking at boots and walked around the store looking up and down around all the aisles. When he returned to the aisle where the boots were located, Ms. Dawson asked if the man needed any assistance. He responded that he wanted to try on the mate to a certain “Harley boot” that was on display at the store. Ms. Dawson retrieved the corresponding boot, gave it to the man to try on and then checked on other customers that were in the store.

After trying on the boots, the man informed Ms. Dawson that he wanted to purchase them. Ms. Dawson took the boots to the counter and rang them up on a cash register. As she did, the man put a bag on the counter, handed Ms. Dawson a note, walked around to the cash register and then informed her that he had a gun and wanted “all the money.” The handwritten note warned Ms. Dawson that there was a bomb in the box and that she had 30 seconds to hand over all of the cash. It instructed her that she was to wait for 30 minutes before calling the police, and if she called before the 30 minutes were up, the man would “blow this place up.”

When Ms. Dawson opened the cash register drawer, the assailant took all of the money from the tray. He then left the store, but, moments later, he returned to the store, approached the counter and took the boots stating, “[w]ell, I might as well take these boots, too.” Ms. Dawson identified appellant as the perpetrator from a photographic array and identified appellant in-court as the person who had robbed the store.

On the day of the robbery, Deputy Matthew Wrenn of the State Fire Marshal's Office went to the Shoe Show store in response to a call regarding a possible explosive device at that location. When he arrived, the whole complex had been evacuated and Ryan Chapman, a bomb technician, advised him that there was a possible explosive device on the counter in the shoe store and that there was a note indicating that it might be a bomb. Mr. Wrenn donned his bomb suit, x-rayed the suspected device and concluded that the device might, indeed, be a bomb. Upon further examination, however, he found that there was no bomb inside and that the box contained a cellular phone, a half-inch socket extension, a cellular phone charger, light gauge wiring, automobile spark plugs and a t-shirt.

Sergeant Clark Warnick, a Garrett County deputy sheriff, responded to a robbery call at the Shoe Show store. He interviewed Ms. Dawson, who said that the robber had brought into the store a plastic bag that had a box in it. The robber had warned her that there was a bomb in the box and that if she did not do what he told her to do, it would go off. She indicated that although the man stated that he had a gun, she never saw it. Police collected evidence from the crime scene, including a fingerprint that was later identified as appellant's print.

Sergeant P.B. Cork of the West Virginia State Police was involved in apprehending appellant. He testified that, based upon information he had received, he arrested appellant at a residence in Upshur County, West Virginia. Sergeant Cork stated that he recovered a pair of Harley Davidson boots from the residence.

As indicated, appellant was convicted and sentenced to incarceration. This timely appeal followed.

II.

Before this Court, appellant contends that the court should have merged his conviction for making a false statement concerning a destructive device with his robbery with a deadly weapon conviction. Specifically, he posits that because the false bomb threat formed the underlying act establishing the aggravated robbery violation, as indicated by the Grand Jury Indictment, the sentence for that offense should have merged into the aggravated robbery sentence. He relies on the required evidence test, the rule of lenity and principles of fundamental fairness to support his argument for merger.

Conversely, the State maintains that the court imposed properly two consecutive sentences for aggravated robbery and making a false statement concerning a destructive device. The State argues first that the convictions do not merge under the required evidence test because each offense requires proof of at least one fact that the other does not. The State argues next that appellant has not preserved his arguments for merger under the rule of lenity or principles of fundamental fairness because he did not raise them before the trial court. Nevertheless, the State maintains that neither theory of merger is appropriate in the instant matter because the offenses are distinct and the Legislature intended to punish them separately.

III.

We turn to appellant's sole issue before this Court: whether the court should have merged his convictions for robbery with a deadly weapon and making a false statement concerning a destructive device. We disagree with appellant.

The Fifth Amendment to the United States Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb....” U.S. Const. amend. V. The “Double Jeopardy” rule of the Fifth Amendment “bars multiple punishments and trials for the same offense.” State v. Long, 405 Md. 527, 536, 954 A.2d 1083, 1089 (2008). This prohibition is applicable to the states through the Fourteenth Amendment. Odum v. State, 412 Md. 593, 603, 989 A.2d 232, 238 (2010) ; see Benton v. Maryland,

395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Although the Maryland Constitution does not contain a double jeopardy clause, Maryland common law does provide “well-established protections” against double jeopardy. Long, 405 Md. at 536, 954 A.2d at 1089.

The preferred test to determine whether offenses stemming from the same transaction merge for double jeopardy purposes is the required evidence test. Anderson v. State, 385 Md. 123, 131, 867 A.2d 1040, 1044 (2005) ; Cousins v. State, 277 Md. 383, 388, 354 A.2d 825, 829 (1976). The required evidence test provides that, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; Thomas v. State, 277 Md. 257, 265, 353 A.2d 240, 245–46 (1976). Thus, if each offense requires proof of a fact which the other does not, then “neither multiple prosecutions nor multiple punishments are barred by the prohibition against double jeopardy even though each offense may arise from the same act or criminal episode.” Cousins, 277 Md. at 388–89, 354 A.2d at 829.

Turning to the case sub judice, appellant maintains that his charges of aggravated robbery and making a false statement concerning a destructive device merge under the required evidence test. Pursuant to Maryland Code (2002, Repl.Vol.2012) § 3–403(a) of the Criminal Law Article,³ appellant was charged in Count 1 of the indictment with aggravated robbery. The indictment states that appellant “unlawfully and feloniously, by displaying a written instrument claiming that [he] had a dangerous weapon, rob[bed] Christina Dawson....” Section 3–403(a) provides as follows:

“(a) A person may not commit or attempt to commit robbery under § 3–402 of this subtitle:

(1) with a dangerous weapon; or

(2) by displaying a written instrument claiming that the person has possession of a dangerous weapon.”

The offense of robbery requires “the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or putting in fear....” West v. State, 312 Md. 197, 202, 539 A.2d 231, 233 (1988). Section 9–504 provides for the requirements constituting the offense of making a false statement concerning a destructive device. Section 9–504 states, in pertinent part, as follows:

“(b) A person may not circulate or transmit to another, with intent that it be acted on, a statement or rumor that the person knows to be false about the location or possible detonation of a destructive device or the location or possible release of toxic material, as those terms are defined in § 4–501 of this article.”

Appellant...