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Wallace v. State

Court of Special Appeals of Maryland

August 27, 2014

BRANDON WALLACE
v.
STATE OF MARYLAND

Wright, Nazarian, Davis, Arrie. W. (Retired, Specially Assigned), JJ.

OPINION

Nazarian, J.

Matthew Womack was beaten and robbed by two men in the early morning hours of November 4, 2011. Minutes before, he had engaged in a brief discussion with Brandon Bernard Wallace. Shortly after the robbery, Mr. Wallace was seen at two convenience stores where Mr. Womack's stolen credit card was used. After Mr. Womack identified Mr. Wallace as one of his assailants from a photo array, Mr. Wallace was arrested, charged, and convicted in the Circuit Court for Prince George's County of robbery and related crimes, but was ultimately acquitted of second-degree assault. Mr. Wallace appeals his conviction, contending that insufficient evidence supported the robbery conviction and that the circuit court erred by failing to suppress an impermissibly suggestive extrajudicial identification, by allowing an improper prosecutorial comment, and by accepting inconsistent jury verdicts. We find no merit in his first three contentions and affirm his convictions for theft under $1, 000 and credit card theft. Because we conclude that the circuit court erred by accepting legally inconsistent jury verdicts, however, we vacate Mr. Wallace's robbery conviction and remand for further proceedings consistent with this opinion, and in the process fill a gap in the evolving jurisprudence of legally inconsistent verdicts.

I. BACKGROUND

Mr. Womack caught a bus from work at 11:30 p.m. on November 3, 2011, and arrived at the Oxon Hill Road bus stop in Prince George's County between midnight and 1:00 a.m. on November 4. Upon his arrival, he was approached by Mr. Wallace. This was not, however, their first meeting—they had met and spoken two weeks before at that same bus stop, after Mr. Wallace tried to sell Mr. Womack a head set for three dollars.

Their discussion on November 4 lasted only a few minutes. While they spoke, two of Mr. Wallace's friends approached, and Mr. Womack became uneasy when one friend "made a look towards" him. He decided it was best that he leave, and as he left, Mr. Wallace inquired about the direction he was headed. Mr. Womack told him he was going north on Livingston Road, but instead went south, toward his home.

The lighting on Livingston Road dwindled as Mr. Womack traveled toward Stratwood Avenue, so he attempted to cross the street to a better-lit area. But as he looked for oncoming cars, two men came up behind him, each wearing dark hooded sweatshirts and ski masks that covered their mouths and noses but left their eyes exposed.[1] The two assailants first hit Mr. Womack from behind, then punched him in the face and knocked him to the ground. Then they flashed what appeared to be a shotgun and demanded Mr. Womack's money and possessions in urgently vulgar terms. In all, they took his cell phone and charger, security license, an ATM card, an ID holder, a pair of gloves, and a Baltimore Ravens jacket.

Mr. Womack phoned the police and accompanied them to the police station to provide an initial statement. Upon returning home, he contacted his bank to cancel his card, but was told that somebody used it that morning at several locations.

On November 22, 2011, Mr. Womack was contacted by Detective Jeffrey Konya, who requested a meeting to show Mr. Womack a photo array prepared by Detective Paul Schweinsburg. The two detectives visited Mr. Womack's home later that day and, before showing him the array, informed him that they had found the culprit. Mr. Womack covered the lower halves of the faces to see the men as if they were wearing the half-mask his assailants wore and selected picture number five—the photo of Mr. Wallace. When asked why he selected this photo, he explained:

Because when I was getting off the Metro bus, I was stopped and . . . the guy starting talking to me for at least five minutes. Then I walked away. Dude asked me which way I was going to go home. So I remember that. I had some type of feeling that something was going to happen to me that night because why would somebody ask you which way you was going to go home. And I felt some type of way about it. Then five minutes later, bam, I get robbed. And I remember that conversation I had with him a couple weeks ago when he had said something to me prior to that.

The State obtained Mr. Womack's bank records, which showed that his stolen card was used multiple times shortly after the robbery. The bank records showed that the card was used first for a $30.98 purchase at 5:01 a.m. at an Exxon on Old Branch Avenue in Camp Springs, but a corresponding receipt indicated that his card had been used there to make a $30.98 purchase at 1:01 a.m. The records also showed that the card was used at 5:09 a.m. at the 7-Eleven adjacent to the Exxon, but no receipt was produced. Surveillance stills produced by the State showed Mr. Wallace at the 7-Eleven that morning from 1:07 through 1:10 a.m., however. These stills, along with stills from the Exxon, [2] showed Mr. Wallace wearing a dark hooded sweatshirt at each establishment in the early morning hours of November 4.[3]

Before trial, Mr. Wallace moved to suppress the extrajudicial identification provided by Mr. Womack. The circuit court held a suppression hearing on April 13, 2012, and denied the motion. Following a jury trial on August 23 and 27, 2012, Mr. Wallace was convicted of robbery, theft under $1, 000, and credit card theft. The jury acquitted him of robbery with a deadly weapon and second-degree assault. The trial court sentenced Mr. Wallace on the robbery charge to fifteen years, with all but eight years suspended, to be followed by five years of supervised probation. The remaining offenses were merged for sentencing purposes.

II. DISCUSSION

Mr. Wallace's brief lists five questions that we have revised to four: [4]

1. Did the suppression hearing court err by denying [Mr. Wallace's] motion to suppress evidence of an out-of-court identification of him from a photo array?
2. Did the trial court err by denying a motion for mistrial made during the prosecutor's rebuttal closing argument?
3. Did the trial court err by accepting an inconsistent jury verdict?
4. Is the evidence legally insufficient to sustain [Mr. Wallace's] convictions?

We hold that sufficient evidence supported Mr. Wallace's convictions and that the circuit court properly denied his motion to suppress. We hold as well, though, that the circuit court erred in accepting inconsistent jury ...


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