Appeal from the Circuit Court for Baltimore City, Wanda Heard, Judge.
Submitted by: Juan P. Reyes (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.
Submitted by: Douglas Wink (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD, for Appellee.
Berger, Nazarian, Leahy, JJ.
[222 Md.App. 194] Berger, J.
Following a four-day jury trial in the Circuit Court for Baltimore City concluding on July 31, 2013, Devin Paige, appellant, was convicted by the jury of first-degree rape, third-degree sexual offense, second-degree assault, and third-degree burglary. On December 3, 2013, the circuit court sentenced appellant to serve a life term in prison, all but fifty years suspended, for his rape conviction. The court imposed additional concurrent sentences of ten years for third-degree sexual offense, ten years for second-degree assault, and five years for third-degree burglary. In his timely filed appeal, appellant presents three questions for our review:
1. Did the trial court err in propounding coercive jury instructions?
2. Did the trial court err in failing to merge appellant's convictions?
3. Did the trial court err in allowing the State to make improper and prejudicial statements at closing argument?
Because we conclude that the circuit court erred by failing to merge the offenses of second-degree assault and first-degree [222 Md.App. 195] rape for the purposes of sentencing, we shall vacate the ten-year concurrent sentence imposed by the court for appellant's assault conviction. Discerning no other
legal error or abuse of discretion, we shall affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL HISTORY
On the night of June 16, 2006, the victim was at home with her sons in their residence at 718 Wharton Court, Baltimore, Maryland. Some time after she went to bed at around 11:00 p.m., the victim was awakened by an unknown intruder who threatened her with a gun, then sexually assaulted and raped her before leaving her residence. The victim was taken to the hospital, where a sexual assault forensic examination was conducted.
Several years later, the police developed appellant as a suspect in the rape. On December 21, 2010, the police obtained and executed a search warrant to collect DNA evidence from appellant. DNA from appellant was compared to DNA that was obtained during the hospital examination of the victim following her assault. Appellant's DNA was consistent with the DNA of the unknown male who attacked the victim on June 17, 2006. Appellant had previously resided with his mother at 718 Wharton Court, the same address at which the victim was living at the time she was attacked.
I. Jury Instructions
Following the jury instructions and the parties' closing arguments, the trial court turned the case over to the jury for its deliberations. In the course of informing the jurors regarding the administrative processes and procedures in place during their deliberations, the court stated, in pertinent part:
We will at this time collect all of the evidence and bring it into the jury room for you. I note that it's 20 minutes of four. We will deliberate as long as you would like. If at some point in time you want to stop for the evening and return in the morning, you need only let us know that. And we will give you a note and you can tell us what time [222 Md.App. 196] you would like us to convict - - to resume your deliberations in the morning. But for right now, I am now doing what I said I would do. I'm handing the case over to you. And that means we are at your disposal; you tell us what to do.
After the court concluded its comments, defense counsel requested a bench conference and informed the court of the misstatement made during the court's comments, indicating that both he and his client had heard the court instruct the jurors to inform the court when they were ready to " convict."
To remedy any confusion, the court immediately provided the following curative instruction to the jury:
Ladies and gentlemen, I'm being told that I said the word convict. I said reconvene. Reconvene means you . . .
* * *
[222 Md.App. 197] Now, ladies and gentlemen, you are the jury. And you are the determiners of the facts and the evidence. And I'm giving you the verdict sheet. Reconvene means when you stop for the day and you come back another day and continue your deliberations. The word is reconvene, reconvene. Not convict, but reconvene.
And so you have the right to sit here and deliberate as long as you want. We have to wait for you. If you get hungry or tired, we stop. We take all the evidence, we lock it away. You tell us what time you're going to come back. And when all 12 of you are back, ...