Martin V. State (Ct. of Special Appeals)

Filed May 3, 2007--Opinion by Judge Arrie Davis.

Martin was convicted by a jury of robbery and sentenced to eight years imprisonment, all but eighteen months suspended, accompanied by three years of supervised probation. His appeal presented the following questions for review:

1. Was the evidence legally sufficient to sustain a conviction for robbery where the prosecution failed to show that [Martin] used threat of force to obtain property?
2. Did the trial court err when it refused to clarify and supplement a jury instruction upon a critical issue?
3. Did the trial court err in its jury instructions that excluded a defense at issue?
4. Did the trial court err when it substituted an erroneous statement of the law in the jury instructions?

The alleged victim ("Turner") testified that he stopped to speak with a neighbor while walking his dog when Martin accosted him with a baseball bat demanding that Turner return $150 to him from a botched drug buy. Demanding more than the $100 in Turner's pocket, Martin followed Turner home where he recovered the remaining $50. The encounter at Martin's home was accompanied by a 911 call for police assistance by Turner's wife. Conversely, Martin testified that Turner had stolen $150 from him in a sham drug transaction. He encountered Turner walking his pit bull and, afraid of the dog, broke off a branch from a nearby tree, approached Martin, and requested his money back. Turner gave him $100 from his pocket, and Martin accompanied him home to recover the remaining $50.

Martin's counsel contemplated raising as a defense that Martin lacked the intent to steal from Turner because he was recovering his own money, i.e., the claim of right defense. Defense counsel's proposed jury instructions to support this claim were summarily rejected by the court.

During deliberations, one of the notes sent by the jury asked, "Does it matter whether the victim felt threatened for there to be a threat of force?" Upon declining to answer the question, the court instructed the jury to rely on prior instructions.

Martin contends that the State failed to prove beyond a reasonable doubt that he intended to intimidate or intimidated Turner, which is a prerequisite of a robbery conviction. Further, in his brief, he attempted to rationalize the jury verdict and any implications arising therefrom by commenting on what testimony the jury found more credible. This Court disagreed.

Robbery has been defined as "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 . . . or, more succinctly, as larceny from the person, accompanied by violence or putting in fear . . .." The "putting in fear" aspect of that definition is of particular relevance to the instant case. The requisite level of fear, utilizing the objective standard, is "any attempt to apply the least force to the person of another constitutes an assault. The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another that the person engaged therein is about to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention." Martin admitted possessing an object -- whether a bat or a tree branch -- and also admitted that he threatened to hit Turner with the object if he did not produce the money. In the instant case, context is given to the incident in light of Turner's testimony, which indicated he was "scared."

The Court found no need to address Martin's position that the jury rejected Turner's testimony and only Martin's testimony informed the jury what had transpired. In performing a fact-finding role, the jury has authority to decide which evidence to accept and which to reject. Because the trial record demonstrated the applicable objective standard of fear was met, there was sufficient evidence to convince the jury of Martin's guilt beyond a reasonable doubt.

Next, Martin contended that the trial court erred by failing to answer the jury's question. Subsequent to the trial court's response to the jury note, the State filed a motion to reconsider. Martin's counsel did not object to the instruction. Maryland Rule 4-325(e), which sets forth:

No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.

Pursuant to this rule, the Court has consistently held that a party waives his rights when he fails to request an instruction or object to an instruction. Here, Martin did not object to the instruction given nor did he request that an amended instruction be given when the note was sent to the court. The State objected; however, the appellant must object himself to preserve the issue for appellate review. Accordingly, Martin is precluded from raising this issue.

Martin next argues that the claim of right defense has not been abrogated in Maryland and, accordingly, his request to propound a jury instruction should have been granted and that the instruction regarding possession versus title to the property misled the jury. The Court's analysis required determination of whether the requested instruction constituted a correct statement of the law: whether it was applicable under the facts and circumstances of the particular case; and whether it was fairly covered in the instructions given. In general, a party is entitled to have his theory of the case presented to the jury through a requested instruction provided that theory is a correct exposition of the law and it is supported by the evidence. Regardless of any testimony to the contrary, if the Court were to find merit in Martin's contentions and overturn his conviction, the decision would have the practical effect of condoning an otherwise illicit activity. Consequently, the trial court did not err by denying Martin's request for a claim of right jury instruction.

Finally, Martin argues that the final portion of the instruction misled the jury into believing that [Turner's] theft was immaterial and to ascribe it no weight, contending that such instruction was not a proper statement of the law in light of the circumstances. The Court held the disputed portion of the instruction is a correct statement of the law, is applicable based on the facts of the instant case, and was not covered by other instructions.

The full opinion is available in PDF.

Flores v. Bell, et al. (Ct. of Appeals)

Filed March 20, 2007–Opinion by Judge Irma Raker.

Mr. and Mrs. Bell filed an action for negligence against Mr. Flores, alleging that Flores negligently caused injury to Mr. Bell in an automobile accident. The issue concerns a stipulation entered into by the parties before the trial began and the impact this stipulation had on questions submitted by the trial court for consideration by the jury. After a seven-day jury trial, the Bells were awarded $5,329 in damages, from which they appealed. The Court of Special Appeals vacated the judgment and remanded for a new trial.

Prior to the original trial, counsel for both sides orally agreed to stipulate that Flores was liable for the automobile accident. The stipulation was neither reduced to writing nor formally placed on the record. At the close of the Bell's case, after the jury had been excused from the room and after Flores’ counsel announced his intention to make a motion, the court, sua sponte, raised the issue of whether the Bells had proven Flores was driving the vehicle that hit the Bells. The Bells’ counsel raised the issue of the stipulation, while Flores’ counsel clarified that they only admitted responsibility for the damages if the damages were causally proven to have related from the accident. The court reserved ruling on Flores’ Motion for Judgment and informed counsel that a question would be included on the verdict sheet asking the jury to determine whether Flores was the driver of the vehicle that collided with the Bells.

This Court granted Flores’ petition for a writ of certiorari to primarily address the following question (the second question was not addressed in light of the Court’s holding on the first question):

"On review of the trial court’s decision to reserve ruling on a motion for judgment and submit an issue to the jury, can the Court of Special Appeals vacate a jury’s verdict when, if it was error, it was harmless?"

The Court noted that the special verdict sheet required that the jury provide a separate answer to the driver-identification question. The jury's verdict to this question was in favor of the Bells and, even if submitting the question to the jury was error because the issue had been resolved by stipulation, there is nothing in the record, other than the verdict itself, to suggest that the question distracted the jury from reaching a fair and proper verdict on the question of damages. The question did not prejudice the Bells, and the Court of Special Appeals judgment vacating jury verdict was reversed.

The full opinion is available in PDF.

Baby v. State (Ct. of Special Appeals)

Filed February 9, 2007–Opinion by Judge Arrie Davis

Baby was convicted of first-degree rape, first-degree sexual offense and two counts of third-degree sexual offense, and sentenced to a term of fifteen years imprisonment with all but five years suspended and five years probation upon his release.

Baby's appeal presented the following three issues:

I. Whether the circuit court erred by refusing appellant's request to instruct the jury that it should return a verdict of not guilty of rape if it was persuaded by the evidence that the complaining witness consented to sexual intercourse but withdrew her consent after penetration;

II. Whether the circuit court erred by denying appellant's request to remove a juror who indicated that he had read a newspaper article about the case; and

III. Whether the circuit court erred in denying appellant's motion in limine to exclude expert testimony in reference to "rape trauma syndrome."

At the conclusion of the evidence, the trial judge instructed the jury as follows regarding evidence of "consent" to negate a charge of sexual assault and the force required to sustain a conviction of rape:

The amount of force necessary depends upon the circumstances, and no particular amount of force is required but it must be sufficient to overcome the resistance of the victim. You must be satisfied that the victim either resisted and that this resistance was overcome by force or treat of force or that the victim was prevented from resisting by force or threat of force. The victim must have resisted to the extent of her ability at the time unless her resistence or will to resist was overcome by force or fear that was reasonable under the circumstances. Finally, "consent" means actually agreeing to the sexual act rather than merely submitting as a result of force or threat of force.

After the jury began its deliberations, it submitted several notes, one of which read, "If a female consents to sex initially and, during the course of the sex act to which she consented, for whatever reason, she changes her mind . . . and the man continues until climax, does the result constitute rape?" The trial judge responded to that note as a factual question as opposed to a legal question and responded that "[he] was unable to answer this question as posed. Please reread the instructions as to each element and apply the law to the facts as you find them." The next morning, another note was submitted by the jury which read, "If at any time the woman says stop, is that rape?" The judge responded, "This is a question that you as a jury must decide. I have given you the legal definition of rape which includes the definition of consent."

This Court reasoned that the plain meaning of the jury’s words, "during the sex act," leads one to conclude that the reference was to the act of intercourse. By contrast, a much broader connotation is conveyed by "during the course of the action." Any initial confusion by the trial court as to whether the question was legal or factual should have been cleared up when the jury submitted the second note the following morning. Stripped of any hypertechnical interpretation, the jury simply wanted to know if consent could be withdrawn after commencement of the sex act, i.e., penetration. The fact that there was testimony that appellant had ceased his attempt to penetrate the prosecutrix within seconds after she told him to stop leaves little doubt that the jury sought to determine when, in point in time, a withdrawal of consent would sustain a conviction for rape. The jury, in the discharge of its responsibilities to apply the law to the facts as it found them to be, was entitled to a proper response to its inquiries.

Secondly, appellant contends the circuit court erred by refusing to remove a juror at the point when the juror admitted that he had read a newspaper article about appellant’s case. The article in question appeared on the third day of appellant’s trial and was found in the Weekly Gazette, a copy of which was in the courthouse lobby. In addition to the facts that appellant had previously been tried on the same charges and was facing life imprisonment, the article disclosed that his co-defendant had entered a plea of guilty. Upon inquisition by the trial court, and outside the presence of the jury, juror No. 100 indicated his reading the article would not affect his ability to be fair and impartial and that, although he had mentioned the article to two fellow members of the jury, he did not tell them what was in the article and, to his knowledge, they did not read it. The court then ruled that it would grant the appellant’s motion to strike the juror. In consideration of the State’s assurances that it had not decided whether to call appellant’s co-defendant, the trial judge reversed herself and decided not to excuse the juror but, rather, wait until the end of the trial to see whether the co-defendant testified and how many jurors were left, indicating that juror No. 100 may end up as an alternate that would be excused.

The decision to remove a juror is discretionary and will not be reversed on appeal absent a clear abuse of discretion or a showing of prejudice to the defendant. The burden is on the party alleging prejudice to prove (1) that the publicity is prejudicial, (2) that a juror has been exposed to the prejudicial material, and (3) that the juror’s decision was influenced by the prejudicial material. The injured party’s remedy is a mistrial or a reversal on appeal. In the instant case, only one juror was found to have read the article. Except where prejudice is manifest, a trial court is entitled to rely on the assurances of jurors that they would be able to reach a verdict based only on the evidence at trial even in cases where jurors possessed knowledge of extraneous extrajudicial information about the case being tried. It logically follows that a trial judge may rely on assurances where, as here, such assurances relate to whether juror No. 100 told the other jurors about the contents of the article and his assurance that the other jurors did not read the article. The Court held that appellant’s claim of prejudice failed because there was no evidence that information contained in the article was ever imparted to the members of the jury who ultimately deliberated and found appellant guilty, and in light of the fact that the court did ultimately excuse juror No. 100.

Finally, the appellant argues that testimony offered by a professor of psychiatric nursing as an expert witness to explain how aberrant behavior of victims of sexual assault can be attributed to the "rape trauma syndrome" - asserted to be a subset of post-traumatic stress disorder - was reversible error because she had not interviewed or examined the prosecutrix and that a "general explanation of PTSD, and how the psychological symptoms are manifested in their reactions, were not specific to the case." The State’s expert testified prior to trial that she had reviewed the police statement, the indictment, the forensic nurse examiner report and an audio cassette. When presented with a hypothetical based on testimony in this case, she attributed the victim’s failure to resist, her failure to immediately report the incident and her voluntarily giving her home telephone number to the assailant to the rape trauma syndrome. This Court held that the facts presented are quintessentially the circumstances contemplated by Maryland authorities which have considered the rape trauma syndrome. The evidence [expert testimony] was neither employed to establish the happening of the criminal event or the victim’s credibility, nor did it invade the province of the jury. The expert properly relied on material supplied by the court and statements as part of the hypothetical foundation upon which she based her opinion. As such, the court properly denied appellant’s motion in limine to exclude the testimony of the State’s expert.

The full opinion is available in PDF.