Lynch v. State

DIRK DEVON LYNCH v. STATE OF MARYLAND

ROBERT FRANCIS CONNOR v. STATE OF MARYLAND

DEION MARCUS STEVENSON v. STATE OF MARYLAND

No. 1081

No. 1604

No. 1770

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

July 26, 2016

UNREPORTED

Eyler, Deborah S., Graeff, White, Pamela J. (Specially Assigned), JJ.

Opinion by Eyler, Deborah S., J.

*This is an unreported opinion and therefore may not be cited either as precedent or as persuasive authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court. Md. Rule 1-104.

A jury in the Circuit Court for Prince George's County convicted Dirk Devon Lynch, Robert Francis Connor, and Deion Marcus Stevenson, the appellants, of robbery with a dangerous weapon, robbery, first-degree assault, second-degree assault, use of a handgun in a crime of violence, theft of property valued between $1,000 and $10,000, motor vehicle theft, false imprisonment, and conspiracy to commit robbery with a dangerous weapon, robbery, assault, and theft. Stevenson also was convicted of being a felon in possession of a firearm.

The court sentenced Lynch to an aggregate term of 58 years in prison with all but 35 years suspended, and five years' supervised probation upon release. Two months later, it sentenced Connor to an aggregate term of 60 years in prison with all but 20 years suspended, and five years' supervised probation upon release; and Stevenson to an aggregate term of 70 years in prison with all but 30 years suspended, and five years' supervised probation upon release. The three noted appeals, which were consolidated in this Court.

Lynch, Connor, and Stevenson pose several questions, some overlapping. In its brief, the State has rephrased, reorganized, and consolidated these questions. With some minor rewording, we shall adopt the questions as restated by the State. They are:

Question Presented By Connor and Lynch:

I. Did the trial court err by denying Connor's and Lynch's requested jury instruction modification that for certain of the offenses the State had to prove that they had advance knowledge that one of their co-defendants would use a firearm in the robbery?

Question Presented By Connor and Stevenson:

II. Did the trial court abuse its discretion by admitting into evidence the surveillance video from the hotel where the robbery and assault took place?

Questions Presented Only By Connor:

III. Did the trial court abuse its discretion in denying Connor's requested additional jury instruction on conspiracy?

IV. Was the evidence legally sufficient to support Connor's conviction for use of a handgun in the commission of a crime of violence?

V. Did the trial court abuse its discretion in denying Connor's motion for mistrial based on the prosecutor's closing argument?

Question Presented Only By Stevenson:

VI. Did the trial court properly impose separate sentences for Stevenson's convictions of robbery with a dangerous weapon and first-degree assault, and if not, should the sentences be remanded under Twigg v. State, 447 Md. 1 (2016), for reconsideration of the sentence package in light of the merger?

Questions Presented Only By Lynch:

VII. Should Lynch's sentences for second-degree assault merge into first-degree assault and should the sentences be remanded under Twigg for reconsideration of the sentence package in light of the merger?

VIII. Does Lynch's commitment record properly reflect 35 years of executed incarceration?

For the following reasons, we shall vacate Lynch's sentence for second-degree assault and remand his case for the clerk to amend his commitment record accordingly. Otherwise, we shall affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS

In the early morning hours of April 23, 2014, Kevin Mitchell was robbed at gunpoint and assaulted by three masked men in his hotel room at the Comfort Inn, in Capital Heights. The evidence at trial showed the following.

Mitchell was a frequent patron of the Ebony Inn, a so-called gentlemen's club in Fairmount Heights. On the evening of April 22, 2014, he and a friend went to the Ebony Inn. There, Mitchell talked throughout the night with a dancer he knew as "Knock Out," whose real name is Kadija Clifton. For about a month, Mitchell had been involved with Clifton, who performed dances for him at the club. She did the same on the night in question, and then suggested that they go to a nearby Motel 6 to have sex. Mitchell agreed but said he would rather go to the Comfort Inn, which also was nearby. Before leaving with Clifton, Mitchell drove his friend home and drove back to the club, which took about 30 minutes.

At around 1:45 a.m. (by now April 23), Mitchell and Clifton drove to the Comfort Inn in Mitchell's silver BMW 740. During the drive, Clifton performed fellatio on Mitchell. She also was texting frequently. Upon arriving at the Comfort Inn, Mitchell parked his car, entered the hotel, and paid for a room. He was assigned Room 201. He and Clifton walked to a 7-Eleven across the street. According to Mitchell, throughout this time Clifton was texting "[a] lot" and her texting "kind of made [him] think a little funny," like "something ain't right."

After spending about ten minutes at the 7-Eleven, Mitchell and Clifton returned to the hotel and went to Room 201. Mitchell started smoking marijuana, but stopped whenhe noticed that Clifton was not joining in. Someone knocked on the door and asked if they wanted to buy marijuana. Clifton told Mitchell to open the door but he said no. She began to perform fellatio on him again, but stopped to answer a ring or other alert from her cell phone. Clifton then told Mitchell she was going to get a soda from the vending machine. She took the room key, but left the door to the room slightly ajar. Mitchell noticed that and closed the door. He began to think "[s]he was trying to set [him] up."

Moments later, Mitchell heard someone put a key in the door. He was standing near the door, next to the bathroom, when the door opened and Clifton entered, followed by three men dressed in black and wearing masks. Clifton quickly retrieved her handbag and left the room without saying anything. One of the men hit Mitchell in the jaw with a gun, knocking him to the ground. A man then struck Mitchell repeatedly in the forehead with a gun. Another man took his wallet from the pocket of his pants, which were lying nearby. The wallet held approximately $600 in cash, his ATM card, and his ID. One of the men told Mitchell that if he called the police they would go to the address on his ID and hurt his mother. That man demanded that Mitchell provide the Personal Identification Number ("PIN") for his ATM card. Mitchell complied. Two of the men left and one stayed, placing Mitchell in a chair in the bathroom and tying him up with bedsheets. In addition to the wallet and its contents, the men took Mitchell's cell phone and the keys to his BMW.

Mitchell untied himself, put on some clothes, and went to the hotel lobby. From there, he looked outside and saw that his car was gone. Anna Branch, the front deskagent on duty, saw that Mitchell was bleeding and asked him what had happened. Mitchell insisted that she call his mother. Branch called an ambulance and hotel security. Mitchell was taken to the Prince George's County Hospital Center ("PGC Hospital") where he was found to have a fractured jaw. He was hospitalized for three days.

The Comfort Inn had surveillance cameras in the lobby, hallways, and parking lot. From her position at the front desk, Branch could see some of the camera surveillance. Before Mitchell and Clifton went to their room, she saw on one of the cameras three men standing in the area of Room 201. She didn't think anything of it because "there is a lot of drug traffic through the hotel and prostitution." It was not until Mitchell appeared in the lobby, bleeding, that she realized something was wrong and called 911.¹

Officers with the Prince George's County Police Department ("PGCPD") responded. They collected evidence from Room 201 and interviewed the hotel staff. Later that day, Cheryl Gover, a video analyst with the PGCPD, retrieved surveillance videos from the hotel's security system. Detective Jonathan Sanders of the PGCPD robbery unit, the lead investigator on the case, reviewed the surveillance videos Gover recovered. Video recordings of the hotel parking lot showed three men arriving in a burgundy colored Mitsubishi Endeavor, and Mitchell and Clifton arriving shortly thereafter. Using stills from the surveillance videos, Detective Sanders created a wanted poster for Clifton and the three men. He posted it online and e-mailed it to all local law enforcement.

At 2:55 a.m. on April 23, PGCPD Detective Michael Praytor was leaving his secondary job as a security guard at a Motel 6 across the street from the Comfort Inn when he saw two vehicles driving in tandem on Hampton Park Boulevard. The second vehicle, a silver BMW, was "following the first vehicle very closely" and did not have its headlights on. Detective Praytor activated the emergency lights on his unmarked vehicle and pulled the BMW over. He drove along side the driver's window and told him to turn his headlights on. The driver searched for the headlight switch but could not find it. A female passenger turned on the dome light and assisted him. Detective Praytor assumed the BMW belonged to the female passenger and drove away. When Detective Praytor reported to work the next morning, he saw the wanted poster Detective Sanders had created and recognized Clifton as the female passenger. He positively identified her from additional photographs and also identified the BMW.

At 4:24 p.m. that same day, Mitchell's BMW was found in Washington D.C., less than a five minute walk from where it was later determined Lynch lived. It had sustained damage to the passenger's side.

On April 24, 2014, Detective Shaniece Singh interviewed Mitchell at PGC Hospital. Mitchell identified Clifton from a photo array.

Four days later, on April...