Offutt v. State

LARRY PHILLIP OFFUTT v. STATE OF MARYLAND

No. 2344

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2013

October 19, 2015

UNREPORTED

Krauser, C.J., Berger, Reed, JJ.

Opinion by Berger, 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.

Following a jury trial in the Circuit Court for Prince George's County, Larry Offutt ("Offutt"), appellant, was convicted of robbery with a dangerous weapon, attempted robbery with a dangerous weapon, and other related offenses. On appeal, Offutt presents three questions for our review,¹ which we have rephrased as follows:

1. Whether the trial court erred by limiting cross-examination of a State's witness regarding her involvement in an unrelated offense.

2. Whether the trial court erred in overruling an objection to the prosecutor's statements on the grounds that the statements impermissibly shift the burden of proof to the defense.

3. Whether the trial court erred in imposing two enhanced sentences.

For the reasons that follow, we answer questions one and two in the negative. The State concedes, and we agree, that it was error for the trial court to impose two enhanced sentences here. Accordingly, we shall affirm Offutt's convictions, but we vacate his sentence for him to be resentenced on remand.

FACTS AND PROCEDURAL BACKGROUND

On January 23, 2013, Jenny Cruz ("Cruz") was working as a sales representative at a Boost Mobile store located in Oxon Hill, Maryland. At or around 7:15 p.m., Cruz was alone working in the front of the store when a man entered the store, pointed a silver revolver at her, and told her to give him the money. When confronted by the assailant, Cruz briefly stuttered, and initially refused to surrender the money. Video of the robbery confirms that Cruz paused briefly when confronted by the robber. Cruz's manager, Mariano Fernandez ("Fernandez"), then emerged from the restroom in the rear of the store. The assailant similarly threatened Fernandez and demanded money. Fernandez physically handed the man the entire cash register, whereupon the man instructed Cruz and Fernandez to go to the back of the store while he fled.

After the robbery, on January 23, 2013, David Vastag, a corporal with the Prince George's County Police Department, recovered fingerprints from the door the assailant used to enter the Boost Mobile store. The parties stipulated that the fingerprints were Offutt's. Detective John Hamer, with the Metropolitan Police Department, subsequently came into contact with Offutt on January 31, 2013, in Washington, D.C., where he was taken into custody and interviewed by members of the Metropolitan Police Department, the Prince George's County Police Department, and the Federal Bureau of Investigation. During the interview, Offutt denied having gone to Oxon Hill, Maryland, stated that he "had never been to any other store phone store, besides a Cricket," or that he had any involvement in theJanuary 23, 2013 robbery. Cell phone records, however, showed that Offutt's cell phone was used near the scene of the crime at approximately 7:15 p.m. the evening of the robbery.

Subsequent to the robbery that occurred on January 23, 2013, but prior to May 7, 2013, Cruz learned that another crime was going to occur at the Boost Mobile store with which she was employed. Approximately two weeks prior to May 7, 2013, Cruz contacted law enforcement and informed them of the possible future crime. On May 7, 2013, the Boost Mobile store was, again, robbed. Furthermore, on May 7, 2013, Cruz indicated to law enforcement that she knew the second robbery was planned, she knew the perpetrators of that robbery, and she knew that the cashier working at the time of the second robbery "was supposed to go along with it."

On May 9, 2013, two days after the second robbery, police presented Cruz with a photo array. Cruz identified Offutt as the culprit of the January 23, 2013 robbery that occurred approximately four months prior. Four days after having identified Offutt, on May 13, 2013, Cruz admitted to being involved in the May 7, 2013, robbery. On October 11, 2013, the week prior to Offutt's trial, Cruz pled guilty to two counts of being an accessory after the fact to the May 7, 2013, robbery. The facts that gave rise to that plea were that Cruz counseled the two robbers as to how to "cover their tracks" by "throwing away their phones and leaving the [S]tate of Maryland." At the time of Offutt's trial, Cruz had yet to be sentenced.

At trial, Cruz testified that the assailant was a tall African-American man with glasses and a mustache who looked to be in his fifties. She further testified that although there was nothing covering the man's face during the incident, she was not able to see his face clearly. Finally, Cruz testified that on May 9, 2013, she successfully identified Offutt as the assailant in the January 23, 2013 robbery. Fernandez averred that the man had a mustache and was in his forties. Fernandez further testified that he remembered the assailants mustache, but otherwise could not recall any other identifying characteristics.

Offutt testified at trial that on January 23, 2013, he was at a Home Depot near Oxon Hill, where he dropped and broke his Cricket cell phone. Offutt further averred that, upon the advice of a man at the Home Depot, he took this Cricket phone to the Boost Mobile store that afternoon in an effort to have his phone repaired. Aside from Offutt's visiting the Boost Mobile store in the afternoon, Offutt presented an alibi defense where he claimed either to be at home, walking his dog, sleeping, or picking up his prescriptions around the time the robbery was committed.

After the presentation of evidence, Offutt was found guilty of twelve offenses emanating from this conduct. Of the five sentences Offutt received, two of them were enhanced sentences of 25 years' incarceration without parole.

We shall recite additional facts as we address the issues before us.

DISCUSSION

I. Allegations of Trial Error

Offutt presents two allegations of trial error. Offutt argues the trial court improperly limited the defense from pursuing a line of questioning with regard to Cruz's pending criminal case involving another robbery at the same store, and the prosecutor made improper statements during closing agreements that impermissibly shifted the burden of proof to the defendant. For the reasons that follow, we reject Offutt's arguments and affirm his convictions. We explain.

A. Limiting Cross-Examination

Offutt argues that by prohibiting him from questioning Cruz about her involvement in the May 7, 2013, robbery, he was denied his right to confront witnesses against him as guaranteed by the Fourteenth Amendment to the United States Constitution.² The Sixth Amendment to the U.S. Constitution provides, "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . to be confronted with the witnesses against him[.]" U.S. Const. Amend. VI. "The right of confrontation includes the opportunity to cross-examine witnesses about matters relating to their biases, interests, or motives to testify falsely." Martinez v. State, 416 Md. 418, 428 (2010) (citing Davis v. Alaska, 415 U.S. 308, 316-17 (1974)). Thisprovision of the Sixth Amendment has been incorporated against the States through the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 405 (1965) ("[T]o deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment's guarantee of due process of law."). "This same right is guaranteed to a criminal defendant by Article 21 of the Maryland Declaration of Rights." Marshall v. State, 346 Md. 186, 192 (1997).

"To comply with the Confrontation Clause, a trial court must allow a defendant a 'threshold level of inquiry' that 'expose[s] to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witnesses.'" Peterson v. State, 444 Md. 105, 122-23 (2015) (alteration in original) (quoting Martinez, supra, 416 Md. at 427). Indeed, the defense must be "'permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness[.]'" Martinez, supra, 416 Md. at 428 (quoting Davis, supra, 415 U.S. at 318). Thereafter, so long as this constitutional threshold is satisfied, a trial court may impose limitations on a witness's testimony "when necessary for witness safety or to prevent harassment, prejudice, confusion of the issues, and inquiry that is repetitive or only marginally relevant." Martinez, supra, 416 Md. at 428. The question here, then, is whether Offutt was afforded a sufficient opportunity to present facts to the jury that may suggest a State's witness is unreliable.

The Court of Appeals was recently called upon to decide a similar issue regarding whether limitations on cross-examination offended a defendant's rights under the Confrontation Clause in the case of Peterson v. State, 444 Md. 105 (2015). In Peterson, supra, the defendant, Peterson, was on trial for a homicide resulting from a foiled drug deal. 444 Md. at 113. One of multiple witnesses against Peterson, Rose, gave testimony incriminating Peterson, including Rose's direct observations at the time of the killing. Id. at 117-18. In an effort to impeach the testimony of Rose, Peterson sought to question Rose about at least three charges pending against Rose in Maryland and Virginia, and whether he expected to receive a benefit in exchange for his testimony. Id. at 127. The trial judge, however, refused to permit that line of inquiry, citing Md. Rule 5-616(b)(6). Id. at 131-32.

In affirming Peterson's conviction, the Court of Appeals drew a...