Berger, Arthur, Kenney, James A., III (Retired, Specially Assigned), JJ.
Following a jury trial, appellant Nathaniel Adel Stewart-Bey ("Stewart-Bey") was convicted of thirty-two counts of criminal conduct involving counterfeiting checks, issuing counterfeit instruments, theft, and attempted theft by the Circuit Court for Charles County.Prior to trial, Stewart-Bey was referred for multiple competency evaluations and the circuit court ruled, on two separate occasions, that Stewart-Bey was competent to stand trial. The circuit court also determined that Stewart-Bey knowingly and voluntarily waived his right to counsel. At trial, Stewart-Bey represented himself.
On appeal, Stewart-Bey presents four issues for our review, which we have rephrased slightly as follows:
I. Whether the circuit court erred when it determined that Stewart-Bey was competent to stand trial.
II. Whether the circuit court erred when it determined that Stewart-Bey was competent to discharge counsel.
III. Whether the circuit court erred by overruling Stewart-Bey's objection to the State's opening statement.
IV. Whether the circuit court erred by failing to merge Stewart-Bey's convictions for counterfeiting and issuing counterfeit instruments with his convictions for theft and attempted theft.
For the reasons discussed below, we answer Questions I through III in the negative. We answer Question IV in the affirmative and hold that certain counts must merge for sentencing purposes. Accordingly, we shall vacate certain sentences as discussed in Part V. We shall otherwise affirm the judgments of the Circuit Court for Charles County.
FACTS AND PROCEEDINGS
The State adduced the following evidence at trial. On several instances, Stewart-Bey purchased or attempted to purchase goods using counterfeit checks at two different stores, Sam's West, Inc. (hereinafter "Sam's Club") and Lowe's Home Centers, Inc. (hereinafter "Lowe's"). The purchases and attempted purchases occurred between November 15 and November 27, 2009.
Events at Sam's Club
Stewart-Bey purchased or attempted to purchase goods at Sam's Club using counterfeit checks on November 15, 16, 17, and 27, 2009. On November 15, 2009, Stewart-Bey attempted to purchase cigarettes in an "amount [that] exceeded or was close to $10, 000." Joseph Barbour ("Barbour"), the general manager of Sam's Club at the time of the incidents, testified that he did not currently have access to the journals indicating the exact dollar amount of the items Stewart-Bey attempted to purchase. The sale was declined because the amount of the sale exceeded the store's purchase limit for non-wholesale cigarette purchases. Stewart-Bey did not attempt to make other purchases that day.
On the following day, Stewart-Bey returned to Sam's Club and again attempted to purchase cigarettes. The sale was divided into two separate transactions, for which Stewart-Bey presented two checks, one for $5, 697.03 and one for $2, 680.96, totaling $8, 377.99. The transaction was completed and Stewart-Bey left the store with the cigarettes.
On November 17, 2009, Stewart-Bey returned to Sam's Club and attempted to make another purchase. Stewart-Bey attempted to purchase electronics equipment, a flat screen television, computer printers, and "maybe a few other smaller items." The supervisor and manager on duty determined that the purchase amount exceeded the limit for a new Sam's Club member. After being informed that the purchase would not be allowed, Stewart-Bey retrieved his identification and exited the building. The transaction was not completed.
Stewart-Bey returned to Sam's Club again on November 27, 2009. By this point, managers were "on alert" because they had been informed that the "checks that [they had] already received . . . were fraudulent." When Stewart-Bey entered the store, the loss prevention supervisor manager was alerted. Stewart-Bey attempted to purchase $8, 442.96 worth of cigarettes with a counterfeit check, which was later recovered by Officer John Riffle. The police were called and Stewart-Bey was arrested.
Barbour testified that he "very clearly recall[ed] the checks" presented by Stewart-Bey due to their unusual characteristics. Specifically, Barbour explained that the checks included a "reference to Timothy Geithner or United States Treasurers; United States Treasurer." The checks included the term "United States, " but "United States" was not properly capitalized. Barbour further explained that he noticed that the routing number was fewer digits than a current routing number.
Events at Lowe's
Stewart-Bey submitted counterfeit checks to Lowe's on November 12, 13, 19, 21, and 22, 2009. Jeremiah Porter, a Lowe's employee who worked as a department manager as well as in loss prevention, testified on behalf of his employer. Mr. Porter explained that on November 12, 2009, Stewart-Bey opened a "LAR" account at Lowe's. Stewart-Bey presented a check made out in the amount of $9, 357.62 for deposit into the LAR account. After depositing funds into the LAR account, Stewart-Bey placed an order for various merchandise, including a covered trailer, fish tape, cable, a staple gun, insulated staples, and other home improvement supplies. The total value of the items ordered on November 12, 2009 was $9, 357.62. Some items from the order were picked up on November 16, 2009.
On November 13, 2009, Stewart-Bey returned to Lowe's and attempted to deposit a second check into the LAR account. Stewart-Bey presented a check in the amount of $6, 519.74 and the store added $6, 519.74 to Stewart-Bey's LAR account balance.
On November 19, 2009, Stewart-Bey again returned to Lowe's. He presented a check in the amount of $9, 700, which was received by Lowe's. The store added $9, 700 to Stewart-Bey's LAR account balance.
On November 21, 2009, Stewart-Bey presented a fourth check, made out in the amount of $9, 500.00, to Lowe's for deposit into the LAR account. The store added $9, 500 to Stewart-Bey's LAR account balance.
On November 22, 2009, Stewart-Bey returned to Lowe's again. He presented a fifth check, made out in the amount of $9, 500.00, for deposit into the LAR account. The store added $9, 500.00 to Stewart-Bey's LAR account balance.
On November 27, 2009, after Sam's Club employees contacted the police, Officer John Riffle of the Charles County Sheriff's Office arrested Stewart-Bey at Sam's Club. Stewart-Bey told Officer Riffle that there was a large amount of money that he wanted the officer to retrieve out of his glove-box. Officer Riffle and Stewart-Bey went to Stewart-Bey's car and Stewart-Bey showed Officer Riffle which key to use to unlock the door. Officer Riffle opened the passenger side door of Stewart-Bey's car and retrieved approximately $4, 000.00 from the glove-box. Officer Riffle took the money along with Stewart-Bey to the detention center.
When Officer Riffle opened the car at Stewart-Bey's request, he observed "a lot of other items, receipts from other businesses, gift cards, other checks and a electronic device." Officer Riffle thought the electronic device might be "a skimming device." Officer Riffle contacted Detective Terrell Hemsley, who had the car towed to a secure police lot. Detective Hemsley obtained a search warrant for the vehicle and subsequently searched it on December 2, 2009. The search recovered several counterfeit checks, some of which were partially made out to certain businesses and some of which were blank.
Stewart-Bey was charged with thirty-six counts of criminal conduct involving counterfeiting checks, issuing counterfeit instruments, theft, and attempted theft. The State nol prossed four counts at the conclusion of its case. The jury found Stewart-Bey guilty of the remaining thirty-two counts. Stewart-Bey was sentenced to a total of sixty years' imprisonment. This appeal followed.
Additional facts shall be set forth as necessitated by our discussion of the issues.
This case involves a defendant who utilized a defense colloquially referred to as the "flesh and blood" defense, which is based upon an assertion that the courts lack jurisdiction over a defendant. See James Erickson Evans, The "Flesh and Blood" Defense, 53 Wm. & Mary L. Rev. 1361, 1365-74 (2012). Generally, individuals invoking the "flesh and blood" defense claim that they are "sovereign citizens, " which they distinguish from "federal citizens" or "corporate citizens" under the Fourteenth Amendment. Id. at 1371. Such defendants claim that "American citizenship granted by the Fourteenth Amendment is a ploy by corporations to financially enslave the masses and destroy the republican union." Id. (internal quotation and citation omitted). "Flesh and blood" defendants "theorize that this citizenship is grounded in a contract between each citizen and the federal government - a contract that may be cancelled by renouncing citizenship." Id.
In proceedings before the trial court, Stewart-Bey conducted himself in a manner characteristic of the "flesh and blood" defense. When the court attempted to ask Stewart-Bey whether he wanted a jury or court trial, Stewart-Bey asked the court if it was "attempting to force [him] into some type of commercial contract, against [his] will." Throughout the proceedings, Stewart-Bey repeatedly stated that he was "not accepting any benefits from this [c]ourt" and emphasized that he "reserve[d] [his] rights . . . not to be forced or compelled into any type of agreement that I did not knowingly, willingly, or voluntarily enter into." Stewart-Bey stated that he did "not consent to this hearing" and repeatedly said, in the third person, "Mr. Stewart doesn't understand the proceedings" and further stated, "I do not understand the charges." Stewart-Bey explicitly challenged the court's jurisdiction, stating the following:
Also, for and on the record, let the Court take judicial notice of the fact that I am not here in reference to this trial. I'm here in reference to challenging subject matter jurisdiction, as I indicated previously. Because I am here by way of special visitation and/or special appearance, and not by a gentle [sic] appearance.
Ma'am, your offer of contract for subject matter jurisdiction is hereby rejected and returned to you in full accord with the truth in lending. You are order to proof up, prove up your claim and produce and release the bond to me. Or cease and desist in all of your actions under the color of law.
Stewart-Bey referred to himself as "a free sovereign living flesh and blood inhabitant on the land and undiminished capacity" and argued that the case against him should be "dismissed with prejudice for lack of jurisdiction." Stewart-Bey made similar such references throughout the proceedings.
Stewart-Bey also refused to receive various documents handed to him by the State or by the court. Stewart-Bey refused to take a copy of his indictment, a copy of an order to participate in a competency evaluation, and a copy of the State's proposed voir dire questions, asserting that he did "not receive any benefits from the State." Stewart-Bey also declined to dress in civilian clothing, which were provided to him by a correctional officer, explaining that he "d[id] not accept benefits from this [c]ourt or any other - agency of government." Instead, Stewart-Bey remained dressed in prison attire throughout the trial. Throughout the trial, Stewart-Bey's behavior was consistent with the "flesh and blood" defense strategy.
Having set forth the background regarding Stewart-Bey's defense strategy and conduct before the trial court, we turn to his first contention on appeal. Stewart-Bey asserts that the circuit court erred by failing to make a proper determination of his competency to stand trial.
The issue of Stewart-Bey's competency was first raised at his initial appearance on June 22, 2012. When defense counsel announced that he was appearing on behalf of Stewart-Bey, Stewart-Bey objected, saying, "I have not appointed counsel or requested counsel . . . . I object to anybody standing beside me claiming to be my counsel . . . ." Defense counsel entered the appearance of the Public Defender's Office, and stated, "We'll raise competency." Stewart-Bey replied, "Objection, " and said following: "[The defense attorney] is not going to represent me. In fact, you're fired." Because the issue of competency was raised, the circuit court explained that it would order a competency evaluation. The court also advised Stewart-Bey of the thirty-six charges against him and the maximum penalty for each charge. A hearing was scheduled for August 6, 2012.
At the August 6, 2012 hearing, the circuit court considered the issues of Stewart-Bey's competency as well as his request to waive counsel. The State called licensed psychologist Dr. Andrew Good as a witness. The court accepted Dr. Good as an expert in forensic psychology. Dr. Good testified that because Stewart-Bey "was unwilling to participate in the competency . . . evaluation[, ]" he "couldn't actually provide an opinion with regard to [Stewart-Bey's] competence to stand trial." Dr. Good continued:
What I can say is that [Stewart-Bey] does have a history of criminal involvement, thereby him having prior courtroom experiences, and he is familiar with the courtroom process.
What I did note was that there was a, an absence of any overt symptoms of mental illness. And also, while he was at the Charles County Detention Center there w[ere] no records of him as presenting with any mental health issues, or need for mental health services. And there also was not any documentation noted in the transfer, the brief transfer report that I saw from the D.C. jail.
Essentially, I didn't see anything that indicated the presence of a mental illness. And there was no documentation to support the presence of a mental illness.
[A]s such, I could not provide [Stewart-Bey] with a psychiatric diagnosis.
And because I could not comment on his competence to stand trail, I also could not comment on dangerousness, if in fact he was incompetent to stand trial.
Based upon Dr. Good's testimony, the court found "there is no evidence that Mr. Stewart[-Bey] suffers from any mental illness." The court further found that Stewart-Bey was competent. The court provided Stewart-Bey with a copy of the indictment and, for a second time, explained the thirty-six charges against him and the maximum penalties for each. As we shall ...