Argued January 10, 2014.
Circuit Court for Prince George's County. Case Nos. CT08-0504X; CT09-1040B.
Deborah S. Richardson, Assistant Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD) on brief FOR PETITIONER.
Gary E. O'Connor, Assistant Attorney General (Douglas F. Gansler, Attorney General of Maryland, Baltimore, MD) on brief FOR RESPONDENT.
Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Cathell, Dale R. (Retired, Specially Assigned), JJ. Opinion by Harrell, J.
[437 Md. 462] Harrell, J.
Following a sixteen-day trial (4 - 29 October 2010) of consolidated cases, a jury in the Circuit Court for Prince George's County convicted Petitioner, Jamaal Garvin Alexis (" Alexis" ), in the first case (CT08-0504X), of second-degree murder and robbery with a dangerous weapon of Raymond Brown, use of a handgun in the commission of a crime of violence, common law conspiracy to commit theft over $500, and two counts of theft over $500. In the second case (CT09-1040B), the jury convicted Alexis of solicitation to obstruct justice by preventing Bobby Ennels, a purported witness to the murder of Brown in the first case, from testifying at trial in that case, and solicitation to obstruct justice by retaliating against Ennels for his prior testimony before the grand jury in the first case. On 14 December 2010, Alexis was sentenced to a total of one hundred and forty years of incarceration, twenty of which was for the first solicitation conviction and another twenty of which was for the second solicitation conviction.
The cases were consolidated for appeal to the Court of Special Appeals, which affirmed the Circuit Court's judgment. Alexis v. State, 209 Md.App. 630, 61 A.3d 104 (2013). We shall affirm as well, holding first that the trial court exercised its discretion properly in disqualifying one of Alexis's defense counsel, who had represented previously a key State's witness in an unrelated and earlier criminal matter (which conflict of interest the witness refused
to waive) and, second, that merger [437 Md. 463] is precluded for convictions of the two counts of solicitation where the relevant statutes contained parallel anti-merger provisions.
I. PERTINENT FACTS
A. The Background
1. The murder of Raymond Brown and related crimes.
On the morning of 13 October 2006, Danielle Steele Brown and her husband, Raymond Brown, were awakened by the raucous sound of Mr. Brown's car alarm. From a window of their dwelling in the Largo area of Prince George's County, Ms. Brown observed a tow truck towing away Mr. Brown's car, a black Chrysler 300. The Browns, in an attempt to locate a sign in the community with the name of the company that occasionally towed cars parked illegally in the area, drove in Ms. Brown's car to the entrance of their community, where they saw the tow truck with the Chrysler attached. According to Ms. Brown's testimony at trial, Mr. Brown got out of the car and, as Mr. Brown approached the tow truck, a man standing next to the truck ran away. Gunfire came from the driver's side of the tow truck. Mr. Brown fell to the ground, injured. The tow truck drove away with the Chrysler. Mr. Brown was taken to a local hospital where he died as a result of a gunshot wound to his chest.
Later that day, law enforcement officers recovered the Chrysler, which had been abandoned (sans tires and with a broken door window on the driver's side), as well as an abandoned, stolen Snatchman tow truck with a broken door window on the driver's side as well. Inside the cabin of the tow truck, the officers found a cartridge casing. When the officers " dusted" the vehicles for fingerprints, they were able to " lift" a latent fingerprint belonging to Neiman Marcus Edmonds from the hood of the Chrysler. Corroborating [437 Md. 464] Edmonds's involvement in the events of October 13, approximately six months after the shooting, Ms. Brown identified Edmonds from a photographic array as the man who had been standing next to the tow truck on the night of her deceased husband's shooting and ran.
According to the testimonies of Edmonds and the other State's witnesses at Alexis's trial, Alexis had a history of stealing cars using a Snatchman tow truck for the purpose of stripping the tires off the cars to sell the rims, and then abandoning the car. Some of these witnesses claimed that Alexis admitted to shooting and killing Brown. Edmonds testified that Alexis, Ennels, and he drove to Largo to steal a car in the late evening of 12 October 2006. Alexis drove a stolen Snatchman tow truck. Bobby Ennels drove his car, with Edmonds asleep in the back seat. Alexis backed the tow truck into the Browns' driveway, put the forks under the Chrysler 300 (which had 22-inch rims), and picked it up. When Alexis picked up the Chrysler, the car's alarm sounded. Alexis drove the truck (with the car attached) to the front of the community, where Ennels broke the Chrysler's door window on the driver side and popped the hood so that Edmonds could disable the alarm.
As Edmonds disabled the alarm, another car approached. When a man stepped out of the second car, Edmonds ran to Ennels's car. Edmonds testified that, as he ran to the car, he heard a " slight pow" and glass breaking. Ennels and Edmonds drove to a previously agreed upon meet-up location, where they found Alexis with the tow truck (with a newly broken window) and the Chrysler attached. Edmonds asked Alexis if the man in the second car shot at them; Alexis did not reply. The trio stripped the Chrysler of its tires, " wiped down" the car and the tow truck, and abandoned both vehicles. [437 Md. 465] The next day, according to Edmonds's testimony, Alexis, Edmonds, and Ennels were at the house of Brian Barnes (a mutual acquaintance) when Alexis told Edmonds that he shot Brown (the man in the second car) because he saw Brown get out of the car with something in his hand.
On 27 March 2008, the State charged Petitioner, Jamaal Garvin Alexis, with murder, carjacking, and related crimes with respect to Brown.
2. The murder of Bobby Ennels.
Also, according to Edmonds's testimony, Ennels was present at Barnes's house on 14 October 2006 during the conversation in which Alexis admitted to shooting Brown the previous day. According to Edmonds, this conversation led Ennels to " freak out," which, in turn, caused Alexis to worry that Ennels might " snitch." Edmonds asserted to Alexis that Ennels would not do that. Approximately one month later, Alexis asked Edmonds if he thought Alexis should kill Ennels if Ennels tried to snitch. Edmonds re-affirmed his confidence in Ennels. Nevertheless, Alexis suggested that Edmonds get Ennels drunk one night and in a car, pull up to a stop light, and let Alexis " do the rest." Edmonds refused.
On 3 October 2008, Alexis, while detained at the Prince George's County Detention Center, called Deaundrey Shropshire, who was raised with the Alexis family and was the current roommate of Alexis's brother, Rashadd. Alexis asked him, " What's going on with my M?" Shropshire responded, " You still haven't told me what you want me to do with that [guy]." 
Three days later, on 6 October 2008, according to the State's witness, Ms. Frances Lammons, Ennels, Anthony Cash, III, and Lammons drove to a location on Nalley Road in the County. Upon arrival, Ennels called someone and stated, " You all can come on down . . . ." Approximately two minutes later, two men approached the car. Lammons testified that [437 Md. 466] one man was " brown skin[ned with a] short haircut," and the second man was " brown skin[ned] with dreads." According to Lammons, Ennels told the men, " You all don't have to worry about nothing[; ] It's okay. It's cool." Whereupon, the man with the short haircut shot Ennels. Upon being shot, Ennels put the car into reverse and crashed into a tree. Lammons and Cash got out of the car and ran. Lammons was shot in the elbow while fleeing.
Ennels was found dead in the driver's seat of the car. Cash was found dead, as a result of gunshot wounds to the back, forearm, and knee, in the driveway of a nearby home at 406 Nalley Road. In a neighboring house at 404 Nalley Road, law enforcement officers found a black skull cap, which contained a mixed DNA profile. Analysts determined later that Alexis's brother, Rashadd Alexis, was the major contributor to the DNA on the skullcap.
Officer Juan Nolasco testified that, on the morning of the Ennels-Cash murders, around 1:00 AM, he observed two vehicles
speeding from the area of Nalley Road where the bodies of Ennels and Cash were found later. The Officer stopped one of the vehicles, a Buick Regal, registered to Shropshire. The driver of the stopped vehicle was Rashadd Alexis, who, according to Officer Nolasco, was very nervous and appeared to have blood on his shirt. Rashadd Alexis was released at that time, pursuant to an order from a detective at the scene of the shooting. Shortly thereafter, while Lammons was in hospital, the Prince George's County Police Department showed her a photographic array. She selected a picture of Barnes as someone who looked familiar to her and as a person that " resembled" a man present at the Nalley Road shootings. Lammons was shown a picture of Rashadd also, but could not identify or recognize him.
As part of the investigation of Cash's and Ennels's murders, law enforcement officers discovered that the last call to Ennels's cellular telephone before his murder was from a telephone number associated with a prepaid telephone purchased in Landover, approximately a mile from Rashadd Alexis's [437 Md. 467] house. Phone records disclosed that only thirteen telephone calls were made from this particular number. All thirteen calls were made to Ennels's cellular telephone between 23 September 2008 and 7 October 2008, the day of Ennels's murder. Additionally, law enforcement officers discovered that the calls utilized cellular telephone towers located near Swan Terrace, where Rashadd Alexis's and Petitioner's aunt lived and a half mile from where Rashadd's girlfriend lived.
3. Jalloh, the jailhouse informant.
Amadu Sulamon Jalloh, an inmate with pending criminal charges, was incarcerated with Jamaal Alexis and Donnell Hunter (a/k/a " Fat Rat" ) at the Prince George's County Detention Center. Jalloh informed his attorney that he overheard conversations between Alexis and Fat Rat regarding the murder of Brown and the potential killing of a witness. Jalloh's attorney arranged a meeting between Jalloh and an Assistant State's Attorney. According to Jalloh's ultimate grand jury testimony, Alexis confessed to him in jail that he murdered Brown. Moreover, Jalloh stated that, on one occasion, he heard Fat Rat tell Alexis that " the only way you can go home is to kill the witness." Jalloh testified also that, at some point after Jalloh's meeting with the Assistant State's Attorney, Alexis told Jalloh that he was going home because " [his] brother got rid of the witness." According to Jalloh, Alexis told him that three people had been shot: two men were killed and a girl was injured.
On 30 July 2009, the State charged Alexis with the murder of Bobby Ennels, a purported witness to the Raymond Brown murder, as well as with attempted murder, conspiracy to commit murder, solicitation to obstruct justice by preventing Ennels's future testimony, and solicitation to obstruct justice by retailiating against Ennels for his grand jury testimony.
[437 Md. 468] B. Pre-Trial Events Relating to the Disqualification of Alexis's Lead Defense Counsel.
On 13 October 2006, when Petitioner was charged initially with the first degree murder of Raymond Brown, and related charges, attorney Luis J. Martucci represented Alexis. Subsequent to the indictment on 1 April 2008, an additional attorney, John McKenna, entered an appearance on behalf of Alexis. The case
against Alexis was scheduled initially for a motions hearing on 1 July 2008 and for trial on 6 August 2008. After several continuances, Messrs. Martucci and McKenna withdrew the pending motions and the case was set for trial on 9 March 2009. On 18 December 2008, Harry Tun, Esquire, filed a Motion for Substitution of Counsel (replacing Martucci and McKenna), which the Circuit Court granted on 29 December 2008. Tun filed additionally a motion to continue the trial date to 13 April 2009, which the Circuit Court granted as well.
Several months later, on 1 April 2009, the State filed a Motion to Strike the Appearance of Defense Counsel Tun. In their Memorandum of Law in support of their motion, the State explained that Jalloh was a material witness in its case because he agreed to testify about Alexis's confession to murdering Brown and other related conversations. The State sought to strike the appearance of Tun as defense counsel for Alexis because of a conflict of interest arising from Tun's prior representation of Jalloh with respect to charges pending against Jalloh in State of Maryland v. John Doe, aka Kamara Mohamed, CT07-2450X, in the Circuit Court (apparently Jalloh was known also as Kamara Mohamed).
To summarize the facts regarding this prior representation, as presented to the Circuit Court at the hearing on the motion to disqualify counsel, Tun's representation of Jalloh against the then still pending charges of attempted murder and associated charges in a matter unrelated to the case against Alexis lasted from 18 December 2007 until 5 February 2008. During that time, according to Tun, he met with Jalloh " at least five times going over [ ] the case that he was involved [in]." As part of Tun's representation of Jalloh, he received [437 Md. 469] from the State discovery in Jalloh's case on 2 January 2008, represented Jalloh at a bond hearing on 18 January 2008, and filed a motion to sever Jalloh's case from that of a co-defendant on 25 January 2008. After Tun's representation of Jalloh was terminated, Jalloh filed a complaint on 19 February 2008 against Tun with the Attorney Grievance Commission of Maryland.
In light of this prior representation, the State moved to strike the appearance of Tun. The State averred that a conflict of interest existed between Tun's representation of Alexis and his prior representation of Jalloh, a State material witness, because " Tun was provided with confidential privileged attorney-client information concerning Mr. Jalloh's background and the facts and circumstances of Mr. Jalloh's case." In support of this assertion, the State attached an affidavit by Jalloh indicating that he provided " confidential information pertaining to [his] case" to Tun. Particularly because the State predicted that Jalloh's credibility would be a " center-point of both the State's examination and the Defense's cross-examination," the State asserted that the conflict of interest would violate the Maryland Lawyers Rules of Professional Conduct, see Md. Rules of Professional Conduct 1.7 & 1.8, because Jalloh refused to waive his attorney-client privilege. Additionally, the State argued that the court should strike defense counsel's appearance because any conviction of Alexis obtained with Tun as Alexis's counsel would be overturned on appeal or during collateral review on the basis of ineffective assistance of counsel if Tun were permitted to continue representing Alexis in view of the conflict of interest with Jalloh.
On 9 April 2009, Tun filed, on behalf of Alexis, a Memorandum of Law in Opposition to the State's motion. Tun acknowledged that he had represented Jalloh, whom he knew at the time as Kamara Mohamed, but argued that the representation was for " a brief and limited period of
time," less than two months. Tun stated that, during the representation, he had " focused chiefly on procedural matters" and had not prepared for trial at that time. " [Tun] estimate[d] that he spent less than 20 hours working on Mr. Mohamed's case [437 Md. 470] altogether." Moreover, Tun stated that, when he was retained by Alexis on 18 December 2008, " [he] was unaware that Jalloh had any involvement or personal stake in  Alexis's matter."
Tun maintained that the Circuit Court should not strike his appearance for several reasons. First, Tun averred that the information that Tun gained about Jalloh during his representation of him was not privileged because it had become known generally to the State (the opposing party) through Jalloh's voluntary divulgements and through Jalloh detailing his case in his complaint filed against Tun with the Attorney Grievance Commission of Maryland. Second, Tun argued that he should not be disqualified because effective safeguards in the trial of Alexis could eliminate any conflicts associated with his prior representation of Jalloh. Specifically, Tun proffered that " the limited appearance of attorney Antonio Jones for the purpose of cross-examining [ ] Jalloh at trial will create a 'Chinese wall' that will effectively serve to isolate any conflict of interest [ ] Tun's previous limited representation of [ ] Jalloh might have upon the Defendant." Tun believed that " this screen will address any concerns that a conflict of interest in [ ] Tun representing [ ] Alexis ...