Aрpellant, Jose Garcia-Perlera, appeared before the Circuit Court for Montgomery County on one count of felony murder, four counts of first degree burglary, one count of robbery with a dangerous weapon, four counts of false imprisonment, one count of first degree assault, and one count of use of a handgun in the commission of a felony. After a five-day trial from May 11 to 15, 2009, a jury acquitted appellant of the use of a handgun in the commission of a felony and convicted him of all remaining charges. On August 13, 2009, the court sentenced appellant to incarceration for life, without parole, for the crime of felony murder, and to three concurrent sentences of life, plus thirty-five years, for the remaining crimes.
In his timely appeal, appellant raises four questions for our consideration:
I. Did thе trial court err in denying appellant’s motion to sever?
II. Did the trial court err in denying appellant’s motion to suppress evidence seized as a result of two search warrants?
III. Did the trial court err in failing to merge the sentences for false imprisonment into the sentences for robbery?
IV. Did the trial court err in failing to merge the sentence for first degree assault into the sentence for robbery?
For the reasons set forth below, we affirm the judgments of the circuit court.
Facts and Proceedings
Appellant’s convictions arise from four burglaries perpetrated in Montgomery County between September, 2007, and September, 2008.
Margaret Arnold was ninety-four years old at the time of appellant’s trial and resided alone in Bethesda, Maryland, along the “River Road corridor.” On September 17, 2007, at approximately 10:45 p.m., Mrs. Arnold was accosted in the basement of her home by an unknown assailant. The assailant was wearing a mask, gloves, and black clothing, was approximately twenty years of age, a little taller than her height of 5' 4/&", and described as male with a Hispanic accent. Using a piece of clothesline taken from her yard, the assailant tied Mrs. Arnold’s wrists to her ankles and then gagged her. The intruder ransacked Mrs. Arnold’s home, stealing her
watch, wedding and engagement rings, and other pieces of jewelry. Mrs. Arnold was discovered later that night by a family member.
Betty Tubbs resided alone in Chevy Chase, Maryland, also along the River Road corridor. On the night of November 27, 2007, the seventy-seven year old Mrs. Tubbs was accosted in the basement of her home by an unknown assailant wearing a baseball cap and a piece of beige cloth across his nose and mouth. Mrs. Tubbs described her assailant as approximately her height of 5' 5
1
//, wearing dark clothing
Ann Wolfe was seventy-nine years old and resided alone, along the River Road corridor of Potomac, Maryland. On the morning of February 27, 2008, Mrs. Wolfe was outside her home retrieving the newspaper when she was accosted by a Hispanic man, approximately twenty-five years of age, between 5'6" and 5'8" tall, wearing a theatrical costume. 1 Mrs. Wolfe’s attacker spoke to her in Spanish. Her assailant dragged her into the basement of her home, hitting her on the head with a pistol three times. Using rope and duct tape, the intruder tied Mrs. Wolfe’s hands to her feet. He then taped her mouth shut with duct tape and put a sheet over her head, which he tied with rope. Mrs. Wolfe’s home was ransacked and her car stolen, along with cash, bottles of wine, and jewelry from a wall safe in her bedroom. After her attacker left, Mrs. Wolfe was able to chew through the duct tape so that she could breathe through her mouth. She was found by her daughter, two days later. Mrs. Wolfe was hospitalized for five days and suffered permanent damage to her hands.
Mary Francis Havenstein was sixty-three years old when she died in her home along the River Road corridor. Mrs. Havenstein was last seen alive by her neighbor on September 2, 2008. On September 4, 2008, Mrs. Hаvenstein’s niece arrived to take her to a doctor’s appointment and found her corpse. Mrs. Havenstein was on the floor in her bedroom with her hands tied to her feet. There were numerous abrasions and binding injuries to Mrs. Havenstein’s body, but the fatal wound was an injury to her head consistent with blunt-force trauma. Mrs. Havenstein’s car was missing from her'garage, and jewelry was missing from her home.
Appellant was arrested in connection with multiple crimes on October 15, 2008. When police arrived at appellant’s home to execute a search warrant, appellant said, “You’re here for me.” Items recovered from appellant’s home were identified as having been stolen from the homes of each of the four victims. DNA specimens recovered from the Tubbs, Wolfe, and Havenstein crime scenes were consistеnt with appellant’s DNA.
Additional facts will be provided as necessary to support our analysis of the issues.
Discussion
I. Motion to Sever
A. Background
Prior to trial, appellant moved for separate trials, contending that the counts related to each of the four incidents should be tried separately from the others to avoid prejudice. The State opposed, and after hearing arguments, the trial court ruled:
Before the Court is the defendant’s motion to sever the counts in the indictment; from 1 and 4; from 6 through 8; from 9 through 11; from 12 through 17; and by agreement 18 and 19 have been and will be severed, but are to be tried each with the other.
Clearly, based upon the evidence presented to the Court, as in a number of the cases as cited by counsel, the identity of the assailant is the primary issue in this indictment, and in the counts referred to. The Court further finds, based upon the proffer of facts, that the facts of each case in this particular matter are so distinctive that they do constitute what is occasionally referred to as a “signature crime,” and that without trying to be exhaustive of the facts, the Court notes that each involves a home invasion; it is represented that each is within close proximity to the other. At one point there was reference to being almost within walking distance; each occurred on days, Monday—between Monday and Wednesday; but most significant for the Court each involved a victim being hog-tied, which is described as hands together, feet together, and feet to hands; each was tied up using ropes with knots that had been described as complex, but not identical; in each instance, the victim was gagged; and in each instance, the victim was—I don’t know if “elderly” is appropriate given my own advanced years, but they were middle-aged victims, let me say but of similar age; and that each—if I didn’t already mention it, obviously each was a woman. Based upon those facts, the Court finds there is, at the very least, a reasonable inference that the same person committed the four remaining offenses, which would make them relevant to the issues of identity and admissible in the other cases.
With respect to the issue of prejudice, as discussed already, all probative evidence is, to some degree, prejudicial, and the question is whether it is unfairly so. As I have mentioned, each—in each of these four cases, standing alone, there is some evidence that tends to suggest that the defendant might have been involved; but, in each instance, the State is relying upon circumstantial evidence as to the issue of identity.
And in the final case, the fourth case, which is Ms. Arnold’s case, property stolen from her residence is recovered from the defendant’s apartment, but it’s recovered approximately 13 years—sorry—13 months after the theft took place.
Now, no one would question that if in fact, for instance, in Ms. Wolfe’s case, in addition to the evidence of the DNA on the gag, that there was a stick recovered from her bedroom that had the defendant’s DNA on it; that there was a hat recovered from another room, even if it was in а bag presumably that she would say was not hers; and that the hat and the bag had the DNA, the defendant’s DNA on it; and that assume in Ms. Wolfe’s case, the property stolen from her was recovered from the defendant’s apartment 13 months later, no one would question that all of that evidence would be probative—would be admissible and probative of the issue of identity. In this case, because the Court finds it’s reasonable to infer that the same person committed all four of these, then that evidence has the same probative value.
However, if instead you looked at each of these cases in isolation, the evidence would not nearly be as probative. So, while the Court cannot dispute the fact that joining them is prejudicial to the defendant, the Court does not find that it is unfairly prejudicial. And mindful
And I have given that a great deal of thought, but I have considered—if memory serves me correct, my understanding of the theory of murder in Ms. Havenstein’s cаse is that she, like the other victims, was of, you know, elder years— or, not elder years, but was older; that she was hog-tied and gagged; and that it is not that the assailant intended her murder, as a murder in the first degree that was premeditated and deliberated; but rather, that this is a circumstance where the person who burglarized the home tied her up, as he had tied up other victims, and in this case, very unfortunately, she expired because she was not discovered for some period of time; that, assuming that is a correct analysis of those facts, then the case really is very similar to the other cases, but in that one there was a very unfortunate outcome, which frankly could have happened at any one of the others. So I don’t think the prejudice from that, because although it doesn’t affect the culpability of the person whо did it, in terms of whether it is liable to inflame the jury or cause them to be unduly prejudiced against the defendant, I think that the chances of that are significantly lessened by the fact that it is not an intentional murder; it is rather a felony murder. And clearly the evidence in that case is as probative of the issue of identity, as is the evidence in any of the other three cases.
So, in trying to exercise my discretion as wisely and as fairly as I can, I find that it is not unduly or unfairly prejudicial in this case to allow the consolidation of the four cases, or to allow the four cases to be tried together; and accordingly, I deny the motion to sever those four cases into separate trials, and will direct that Counts 1 through 17 be tried together.
B. Analysis
Appellant asserts that the court incorrectly concluded that evidence from the separate incidеnts was mutually admissible to prove their assailant’s identity, in both senses of that word: first, that they were all perpetrated by an identical assailant; and second, that the assailant’s identity is appellant. Appellant argues that the crimes were not sufficiently unique or so distinctive as to establish a modus operandi of a single perpetrator. Alternatively, appellant contends that the judicial economy gained by consolidating all of the charges against him into a single trial was outweighed by the unfair prejudice he suffered as a result of the joinder. He concludes that his motion to sever should have been granted and that reversal is required.
The State responds that the court properly denied appellant’s motion to sever. Specifically, it counters that the court properly found that the crimes alleged were sufficiеntly distinctive to establish a
modus operandi
and, therefore, were mutually admissible as “other crimes evidence” of identity. The State concludes that having properly applied the mutual admissibility test, the court then appropriately
Maryland Rule 4-253(c) addresses the prospect of prejudicial joinder and provides, as follows:
If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires.
The seminal Maryland case on joinder—and its complement, severance—is
McKnight v. State,
First, he may become embarrassed, or confounded in presenting separate defenses. Secondly, the jury may cumu-late the evidence of the various crimes charged and find guilt when, if the offenses were considered separately, it would not do so. At the very least, the joinder of multiple charges may produce a latent hоstility, which by itself may cause prejudice to the defendant’s case. Thirdly, the jury may use the evidence of one of the crimes charged, or a connected group of them, to infer a criminal disposition on the part of the defendant from which he may also be found guilty of other crimes charged.
Id. (internal citations omitted).
After examining how other jurisdictions reconcile the competing considerations of prejudice to the defendant and judicial economy, the
McKnight
Court held that “a defendant charged with similar but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials.”
Id.
at 612,
This Court addressed joinder and severance in
Solomon v. State,
In light of this precedent, the court undertakes a two-step process when severance is framed as a question of mutual admissibility, and we review the process for abuse of discretion.
See Conyers v. State,
Appellant argues that the crimes in this case vary so much that they cannot establish any common elements. Specifically, appellant argues that “burglaries are not uncommon,” the knots used to hog-tie the victims were different, the ages of the victims spanned twenty-nine years, and the crimes occurred over a period of one year.
While there are slight differences between the crimes in this case, the record evidence also reveals overwhelming similarities among them. Each incident involved the confrontational home invasion of аn elderly woman living alone, accosted by a man the three surviving victims consistently described as Hispanic. The victims all resided along the River Road corridor in houses that were within walking distance of each other. All of the home invasions occurred on a weekday between Monday and Wednesday. All of the victims were “hog-tied” with their hands and feet bound together, and gagged. Three of the victims were detained in their basements. Police found items stolen from each victim during a search of appellant’s apartment, and in three of the incidents recovered DNA consistent with appellant’s DNA.
Considering the totality of the circumstances, the numerous similarities between the cases are more than sufficient to
establish a distinctive
modus operandi,
and the common facts could prove the alleged identity.
See State v. Faulkner,
Appellant argues that even if the “other crimes” evidence is relevant, it is outweighed by the danger that Mrs. Havenstein’s murder would taint the jury’s consideration of the other crimes. While we cannot refute that this possibility exists, we also cannot say that the trial court abused its discretion in holding that the danger of that occurrence is outweighed by the relevance and probative value of mutual admission, particularly in light of the aforementioned precedent set by State v. Faulkner and McGrier v. State.
Appellant’s only other argument is that in light of “the оverwhelming evidence the State had in its arsenal against appellant, including DNA evidence from three of the four crime scenes, it was hardly necessary to add three additional crimes to each individual one in order to establish identity and obtain a conviction.” In other words, appellant argues that each charge should not only be separated
by incident
but
by the charges themselves.
Appellant’s argument is not without merit, because it could be that multiple charges would lead to some confusion even if the incidents were tried separately, and that this confusion is made worse by the fact that they were all joined. But even if we accept appellant’s argument, appellant’s suggestion that it was “hardly necessary” to add the additional charges would not leave a viable
It is clear from the trial court’s extensive comments in the record that the court carefully analyzed the competing interests of proof and prejudice and did not abuse its discretion when it concluded that the evidence of each incident was mutually admissible. That being the case, and because appellant has not disputed that there was at least some judicial economy in proceeding with the charges jointly, we cannot say that the court erred when it denied appellant’s motion to sever.
II. Motion to Suppress Evidence
The police utilized two warrants to search appellant’s apartment, in which he lived alone. The first warrant was issued upon probable cause to believe appellant had stolen personal property during a series of car break-ins. Among other things, the first warrant authorized the seizure of:
-Women’s jewelry to include a gold watch, a gold ring, a second gold ring with yellow stones, and a yellow/white ring with six (6) small diamonds.
When the police executed the first warrant, they discovered that appellant had a large collection of “old-fashioned” women’s jewelry in his apartment. During the search, one of the officer’s found a bronze medallion commemorating the NASA Mercury astronauts on appellant’s coffee table. The officer brought the medallion to the attention of the detective supervising the execution of the warrant who immediately suspected that it was related to the Havenstein home invasion. The police immediately suspended the search and subsequently obtained a second search warrant authorizing the seizure of items related to the four home invasion burglaries including “ladies’ costume jewelry.”
Prior to trial, appellant moved to suppress evidence recovered from his apartment pursuant to the two search warrants arguing that items recovered under the first warrant, specifically two “talking” watches and the NASA medallion, were not within the scope of the warrant, and that the second warrant was impermissibly broad in its description of “costume jewelry” without further elaboration. After hearing contrary assertions from the State, the court determined that the “talking” watches were within the scope of the warrant’s reference to “women’s jewelry, to include a gold watch.” As to the NASA medallion, the court concluded that the item was not jewelry within the scope of the first warrant, but that it was admissible under either the plain view or the inevitable discovery exceptions. Regarding the permissible scope of the second warrant’s specification that the police were empowered to seize “costume jewelry,” the court concluded:
I think under the circumstances that, again, you’re dealing with elderly victims. It’s unlikely that even they could, from memory, describe to the officers in details all of the items in personal jewelry that they had that possibly were taken. Whereas, after the fact, when they looked at an item they would potentially be able to say, “That is mine. That isn’t mine.” So I don’t think the fact thаt they use what might, might be a generic term, “lady’s costume jewelry” in any way, shape, or form makes the warrant a general warrant.
Appellant asserts on appeal that the circuit court erred in denying his motion to suppress the seized evidence. Specifically, appellant argues that the talking watches recovered under the first warrant were unique, and thus they were outside
In response, the State argues that the circuit court properly-exercised its discretion in permitting the admission of the challenged evidence. Specifically, the State argues that the second warrant was as particular as possible under the circumstances of the case. The State further contends that the “talking” watches were properly seized under the first warrant, and that the NASA medallion was properly seized under the plain view doctrine. In the alternative, the State suggests that even if the warrants or searches at issue were unconstitutional, the challenged evidence would still be admitted under the good faith exception to the exclusionary rule.
“In reviewing the ruling on a motion to suppress evidence, we consider only the evidence contained in the record of the suppression hearing.”
Bost v. State,
The Fourth Amendment to the United States Constitution, applied to the States through the Fourteenth Amendment, states that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Constitution, Amend. IV;
Waters v. State,
First we shall consider appellant’s challenge to the admission of two gold “talking” watches belonging to Mrs. Arnold under the first warrant’s direction to seize
The plain language of the first warrant particularly constrained the police to seizing only gold women’s watches. As the circuit court noted, both of the watches seized were gold. Appellant cites no authority for the proposition that a watch that “talks” is sufficiently unique and distinguishable from a non-talking watch to require its exclusion under a warrant authorizing the seizure of a wоman’s watch. We find no error in the circuit court’s conclusion that Mrs. Arnold’s talking watches were properly seized under the first warrant.
See, e.g., United States v. Hill,
As to appellant’s contention that the bronze NASA medallion was improperly seized, we accept the circuit court’s finding that it was unlikely to be worn as jewelry. We further agree with the court that the medallion does not otherwise fall into any of the categories specified in the first warrant. Therefore, we must conclude that the medallion was outside the scope of the first warrant, and so was not legally seized unless it fell within one of the established exceptions to the warrant requirement. The circuit court concluded that the medallion was admissible under either the “plain view” or the “inevitable discovery” doctrine. On appeal, appellant challenges only the court’s conclusion that the medallion was found in plain view.
In order to seize legally an item that is in plain view: (1) the police officer’s initial intrusion must be lawful or the officer must otherwise properly be in a position from which he or she can view a particular area; (2) the incriminating character of the evidence must be “immediately apparent;” and (8) the officer must have a lawful right of access to the object itself.
Wengert v. State,
Appellant argues that the incriminating nature of the medallion was not “immediately apparent” to the officers conducting the search; and therefore, the pоlice did not have probable cause to seize the medallion. In support of his argument, appellant points out that the medallion was not identified by Mrs. Havenstein’s family until after it was illegally seized by the police.
We agree with the State, however, that appellant’s argument confuses what is sufficient knowledge to support probable cause to seize a suspicious item, and what constitutes confirmation of that probable cause, which in this case did not
occur until the Havenstein family’s identification of the medallion after it was seized. Probable cause requires only facts that would support an officer of reasonable caution in the belief that items may be stolen property; “it does not demand any showing that such belief be correct or more likely true than false.”
Daniels v. State,
Finally, we shall address appellant’s arguments regarding the scope of the language contained in the second warrant authorizing police to seize “costume jewelry” from appellant’s apartment. Appellant argues that “costume jewelry” was too vague a term to provide guidance to the officers, who were essentially empowered to seize any piece of jewelry.
Appellant further asserts that the officers should have sought more detailed descriptions of the items from the victims of the home invasions and then utilized more restrictive language in the second search warrant. Appellant cites several cases in support of his contentions wherein courts ruled that the term “jewelry” was too broad when police officers had additional information regarding specific items that were missing.
United States v. Blakeney,
In the instant case, however, there is no indication that at the time the police applied for the second warrant, they had specific information about particular items of costume jewelry that were missing from the home invasion victims. The instant case involved several elderly victims, all of whom were robbed of various items of jewelry. The second warrant included specific descriptions of several items of fine jewelry taken from the victims. The more general category of “costume jewelry” was presumably included to cover those less valuable items that were not specifically inventoried. During the initial search of appellant’s apartment, police observed large amounts of “old-fashioned” women’s jewelry that was uncharacteristic of the home of a thirty year-old man who lived alone. Under all the circumstances, we conclude that the warrant authorizing the search and seizure of “costume jewelry” was sufficiently particulаr, and we decline to reverse appellant’s convictions on the asserted grounds.
III. Merger of False Imprisonment and Robbery
The doctrine of merger of offenses for sentencing purposes is premised in part on the “double jeopardy” clause of the Fifth Amendment to the United States
The Court of Appeals summarized the required evidence test in
State v. Lancaster,
The required evidence test focuses upon the elements of each offense; if all of the elements of one offense are included in the other offense, so that only the latter offense contains a distinct element or distinct elements, the former merges into the latter. Stated another way, the required evidence is that which is minimally necessary to secure a conviction for each offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, there is no merger under the required evidence test even though both offenses are based upon the same act or acts. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, and where both offenses are based on the same act or acts, merger follows.
Accord, McGrath v. State,
When merger is required, separаte sentences are normally precluded; instead, a sentence may be imposed only for the offense having the additional element or elements.
See Dixon,
“False imprisonment, a common law offense, is the ‘unlawful detention of another person against his [or her] will.’ ”
Marquardt v. State,
Robbery is defined as “the felonious taking and carrying away of the personal property of another from his person by the use of violence of by putting in fear.”
Metheny v. State,
In the instant case, the circuit court declined to merge the sentences for appellant’s convictions of false imprisonment and robbery. Appellant relies upon this Court’s decision in
Hawkins v. State,
In
Hawkins,
utilizing the required evidence test, this Court concluded that it was necessary to merge a false imprisonment conviction into a rape conviction because the evidence established that “the victim was detained only a sufficient time to accomplish the rape,” and therefore, “[a]ll of the facts neces
sary to prove the lesser offense were essential to proving the greater one.”
Id.
at 92,
In the instant case, each of appellant’s elderly female victims was tied up and detained even after appellant left her home, much longer than was necessary to accomplish the intended robbery. Under these circumstances, our decision in Jones-Harris trumps the rule from Hawkins and leaves appellant without a viable argument that the trial court erred; we therefore will not disturb the separate sentences imposed for those convictions.
IV. Merger of Assault and Robbery
In the instant case, the circuit court declined to merge appellant’s conviction for first-degree assault and robbery with a dangerous weapon of Mrs. Wolfe for sentencing purposes. Appellant argues that merger follows from the doctrine of lenity,
3
for which appellant cites
Abeokuto v. State,
The rule of lenity was originally formulated by the United States Supreme Court as a principle of statutory construction. The policy behind the rule is that the Court will not interpret a criminal statute so as to increase the рenalty that it places on an individual when such an interpretation can be based on no more than a guess as to what the legislature intended.
(Internal citations and quotations omitted.)
In
Wooten-Bey v. State,
Appellant’s argument is considerably lacking in substance, however, and its analysis is only:
In this case both offenses are aggravated offenses—“aggravated” assault and“aggravated” robbery. Further, both offenses were the product of the same conduct. Under these circumstances there is no bаsis for concluding that the Legislature intended multiple convictions and sentences.
In response, the State argues that the charges, in fact, arise out of two different criminal acts perpetrated by appellant against Mrs. Wolfe. Specifically, the State contends that appellant committed a robbery with a dangerous weapon when he accosted Mrs. Wolfe with a handgun. Appellant then separately committed a first-degree assault upon Mrs. Wolfe when he tied her limbs together in such a way as to cause permanent injury to her hands.
Appellant presents us with no reason that those two acts could not be considered separately, other than the single and broad assertion that “both offenses were the product of the same conduct.” Furthermore, appellant has not explained how the similarly broad term “aggravated” establishes that our Legislature did not intend them to address different criminal behavior or impose separate sentences. Therefore, we conclude that the rule of lenity is not applicable to these charges, and the circuit court did not err in declining to merge appellant’s sentences for robbery and assault of Mrs. Wolfe.
JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Notes
. Ms. Wolfe described her attacker's outfit as brown pants tucked into boots, a military jacket, and a hat without a brim.
. Appellant briefly argues that the initial disturbance of the medallion by the officer was an illegal seizure. But there is well-established authority that officers executing a warrant may inspect and disturb items to determine whether they fall within the warrant.
See United States v. Menon,
. Appellant argues that the rule of lenity applies "[e]ven if the charges do not merge under the required evidence test,” but appellant never addresses how the required evidence test should apply to these charges. We will not, therefore, consider this argument.