Simms v. State

240 Md.App. 606

207 A.3d 661

Roland E. SIMMS

v.STATE of Maryland

No. 410, Sept. Term, 2018

Court of Special Appeals of Maryland.

May 1, 2019

Submitted by: Brian L. Zavin (Paul DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.

Submitted by: Zoe Gillen White (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD, for Appellee.

Panel: Wright, Kehoe, Irma S. Raker (Senior Judge, Specially Assigned), JJ.

Wright, J. Appellant, Roland E. Simms, was indicted in the Circuit Court for Prince George's County and charged with attempted first-degree murder, attempted second-degree murder and related counts. Following a jury trial, he was acquitted of the two attempted murder counts and convicted of: first and second-degree assault; reckless endangerment; use of a firearm in the commission of a crime of violence; illegal possession of a firearm; wearing, carrying, or transporting a handgun; and violation of a protective order. Appellant was sentenced to an aggregate sentence of 50 years with all but 30 years suspended in favor of five years' supervised probation, plus credit for time served, as follows: 25 years, with all but 20 suspended, for first degree assault; 20 years consecutive, with all but five suspended, for use of a firearm; five years consecutive for illegal possession of a regulated firearm; three years concurrent for wearing, carrying, or transporting a handgun; and 90 days concurrent for violating a protective order. Appellant timely appealed and presents the following questions for our review:

1. Did the trial court err when it failed to consider taking a partial verdict on the ground that in order to take a partial verdict, both sides must agree?

2. Did the court err in imposing separate sentences for first degree assault, use of a firearm in the commission of a crime of violence, illegal possession of a firearm, wearing, carrying, or transporting a handgun, and violation of a protective order?

For the following reasons, we shall vacate appellant's sentences for wearing, carrying, or transporting a firearm and violating a protective order and, otherwise, shall affirm.

BACKGROUND

Although we have reviewed the record as a whole, "[i]t is unnecessary to recite the underlying facts in any but a summary fashion because for the most part they [otherwise] do not bear on the issues we are asked to consider." Teixeira v. State , 213 Md. App. 664, 666, 75 A.3d 371 (2013) (citations and quotations omitted); accord Kennedy v. State , 436 Md. 686, 688, 85 A.3d 106 (2014). Appellant was charged with shooting Christina Warrick, the mother of his three children, at a bus stop located in Oxon Hill, Maryland, on the morning of January 24, 2017. Warrick survived and testified against appellant at trial. She informed the jury that she was standing at a bus stop with three of her daughters when appellant approached her with "the look of death on his face," stated "bitch, you tell him everything," and then punched her in the face.

Warrick told her daughters to run and tried to fight back, but appellant pushed her to the ground and pulled out a handgun. He then fired one shot at Warrick's face, however, Warrick turned her head and the shot only grazed her nose. Warrick managed to get up off the ground momentarily, but appellant pushed her back down to the ground and fired another shot and that second shot struck Warrick in the chest.

Warrick also testified that she previously had obtained a final protective order against appellant on August 8, 2016. The protective order was good for one year and required that appellant have no contact with Warrick or her children. Warrick's account of the shooting was corroborated by her daughters, A.S., S.W., and A.W., as well as Koffi Soedje, who were all present at the bus stop and witnessed the shooting.

We shall include additional detail in the following discussion.

DISCUSSION

I.

Appellant contends that the circuit court erred by not considering taking a partial verdict because it thought both sides had to agree in order to do so. The State responds that appellant waived this issue by acquiescing to the court's decision and foregoing any suggestion of a partial verdict in lieu of a requested modified Allen charge.¹ The State also argues the court properly exercised its discretion on the merits of the original request for a partial verdict.

After deliberations began, the jury sent out several notes seeking clarification about the elements of the charged offenses.² The jury then sent out a note, which read: "We are not able to reach a unanimous decision on one charge yet." This note was addressed in court as follows:

THE COURT: So what do you want me to say? You must keep deliberating, correct? What other answer is there? I'm not taking a partial verdict. I'm not letting them go home when they only went out at – what was that? 1:30?

THE DEPUTY CLERK: 1:30, 1:45.

THE COURT: It hasn't even been – unless you think there's another option.

[DEFENSE COUNSEL]: We could talk about taking a partial verdict.

[PROSECUTOR]: I'd prefer further deliberations. Perhaps the Allen charge, and then after – you know.

THE COURT: Not an Allen charge now.

[PROSECUTOR]: I'm fine with continue deliberating.

THE COURT: Please continue deliberating.

[PROSECUTOR]: Because the Allen charge, I mean, we all agree that it doesn't say much.

THE COURT: So do you object to me telling them please continue deliberating?

[DEFENSE COUNSEL]: Might as well. I think it says only one is left.

[PROSECUTOR]: That's the same reading that I have. (Whereupon, the Court and counsel signed the Court's response to the jury's note.)

THE COURT: Your signature is fine. What else?

[DEFENSE COUNSEL]: I don't want it to be imputed that I'm agreeing. That's all.

THE COURT: It does mean you're agreeing. You object to that? Because I wouldn't have written it down if you were objecting to my saying, "Please continue to deliberate."

[DEFENSE COUNSEL]: Okay.

THE COURT: If they don't deliberate and they don't agree – in order to take a partial verdict, both sides must agree. They are not agreeing to it now. The only other option is to continue deliberating, because I am not going to declare a mistrial.

[DEFENSE COUNSEL]: Okay.

THE COURT: What else is there?

[DEFENSE COUNSEL]: All right.

THE COURT: You know that they have to agree.

[DEFENSE COUNSEL]: I know that we all have to agree.

THE COURT: Right.

[DEFENSE COUNSEL]: That's true. And if I request a mistrial at this point?

THE COURT: I would not grant it. It's way too early. I'll make them come back and stay all day tomorrow before I do that.

The circuit court then wrote on the jury note: "Please continue to deliberate." The note was signed by the court and counsel for both parties. The jury then sent a short note asking for a brief recess and requesting water. The court granted both requests after a discussion on the record.

After that short break, the circuit court reconvened the parties and informed them that it was going to direct the bailiff to ask the jurors if they wanted to keep deliberating or go home. Although defense counsel proposed a sort of modified Allen charge, that apparently differed from the pattern instructions, neither party objected to the court's chosen course of action.³ The jurors then responded, with 5 jurors indicating they wanted to stay and 7 jurors indicating they wanted to go home. Both parties agreed that the jury should stay. After defense counsel queried whether the court should give the Allen instruction, the court replied, "it's not time for an Allen charge. Absolutely not. That would be tomorrow if anything." The court then wrote a note, which was agreed to and signed by both attorneys instructing the jury, to "[k]eep [d]eliberating."

However, as this response was being sent to the jury room, the bailiff informed the court that the jury sent out another note, which read: "If we can't come to a consensus, what's next?" The following then ensued:

THE COURT: All right. How do you want me to respond to this note? State first.

[PROSECUTOR]: I think it's the response that you wrote down on here, on the note that just went back, which is keep deliberating. Should we end deliberations today without a verdict? I think the Allen charge would be appropriate to begin tomorrow morning as opposed to giving it this evening.

THE COURT: I'll hear from you.

[DEFENSE COUNSEL]: Well, my overriding concern is that the jurors don't feel as though it is required for people to start changing votes to reach unanimity. That's why I proposed –

THE COURT: We have no idea what the discussions are back there.

[DEFENSE COUNSEL]: Well, we have an idea that they are not agreeing.

THE COURT: As to one.

[DEFENSE COUNSEL]: They've sent one note saying that they can't agree. And now, this one is saying, what are we to do if we can't reach a consensus? What's next?

THE COURT: There is no next. They have to keep deliberating until I give the Allen charge. I agree with [the prosecutor]. It's not appropriate to give it at this time and send it back at quarter to 7:00. No. It makes no sense to do it now.

[DEFENSE COUNSEL]: But I am not asking for an Allen charge. I'm asking for a very specific instruction.

THE COURT: I will give nothing but the Allen charge because Maryland law instructs me to give the Allen charge, which is essentially the same thing you're asking. I wouldn't give this until tomorrow, but I won't give it at all. I'm going to put that on the record. That's not happening. No. I will give this Allen charge because it's clear by Maryland law.

[DEFENSE COUNSEL]: I'm not asking for that.

THE COURT: Well, you don't want this now?

[DEFENSE COUNSEL]: (Shakes head.)

THE COURT: So then I have to say to them, "Keep deliberating until." I'll give them again until 7:30. I'll give them another 45 minutes. It's way too early. They didn't start until 1:40. It's not even a second day of deliberations, so I will not do it. No.

[DEFENSE COUNSEL]: Okay.

THE COURT: All right. Keep deliberating.

The circuit court then sent...