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Thompson v. State

Court of Special Appeals of Maryland

August 31, 2016


          Eyler, Deborah S., Wright, Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ.[*]


          WRIGHT, J.

         A jury in the Circuit Court for Kent County convicted Norvel B. Thompson, appellant, of second-degree assault, reckless endangerment, and possession of a shotgun by a prohibited person. The sentencing court imposed a prison term of ten years, with two years suspended, for second-degree assault and concurrent sentences of five years for reckless endangerment and three years for possession of a shotgun, to be followed by a five-year period of probation. Appellant noted this appeal and raises six issues for our review, which we have re-ordered for the sake of clarity:

1.Whether the trial court erred by failing to grant Mr. Thompson's motion to dismiss based upon a Hicks violation?
2.Whether the conviction for possession of a shotgun by a prohibited person violated the retroactive restrictions clause of the Maryland Declaration of Rights?
3.Whether the trial court erred by refusing to propound two voir dire questions requested by the defense?
4.Whether the evidence was sufficient to sustain Mr. Thompson's convictions for the crimes with which he was charged?
5.Whether the trial judge erred in responding to a jury note?
6.Whether Mr. Thompson's commitment record must be amended to reflect that he is not required to serve 50% of his sentence before he is eligible for parole inasmuch as he was not convicted of a crime of violence?

         For the reasons that follow, we answer the first two questions in the negative. As to the third question, we conclude that the circuit court abused its discretion in failing to ask one of the requested voir dire questions, and, therefore, we vacate appellant's convictions and remand for a new trial. We shall address appellant's fourth question, but appellant's final two issues are moot.


         In the spring of 2014, Karen Somerville and appellant lived at Somerville's residence in Worton, Maryland, as a married couple. On the afternoon of April 2, 2014, Somerville met appellant at a rental car facility to assist appellant in renting a vehicle. Somerville suspected that appellant had been drinking, and she drove to her home, while appellant drove to Philadelphia to pick up a friend. Later that evening, appellant called Somerville and informed her that he had been stopped by police for driving under the influence ("DUI"). When appellant arrived home, he was "in a rage, " according to Somerville, and he wanted to drive Somerville's vehicle. Somerville refused, and appellant accused her of calling the police to get him in trouble.

         Appellant left the residence for approximately one hour. When he returned, he was complaining about the DUI charge and told Somerville that she did not care. Somerville responded that appellant needed to take responsibility for his actions. Suddenly, appellant rushed at Somerville and shoved her against the wall while choking her. After appellant quickly let go of her, she ran into the bedroom to call the police. Maryland State Police Trooper First Class Mark Kendall responded and removed appellant, but no arrest was made.

         Appellant returned to his house the next day. Somerville urged appellant to seek counseling and treatment for his anger management and alcohol problems. Somerville also informed appellant that if he did not seek treatment, "as far as [she] was concerned . . . the marriage was over[.]"[1]

         Approximately a month later, on May 3, 2014, Somerville drove to Dover, Delaware, to spend the day with her daughter - Nicole Smith - and grandchildren. Somerville thought appellant would accompany her, but on that morning, he refused to go. Somerville communicated with appellant throughout the day, however. Around 9:00 p.m., Somerville left for home after calling appellant to let him know she was on her way. Somerville also called appellant when she stopped for gas.

         Sometime after Somerville departed Delaware, appellant called Smith to ask if Somerville had left. Smith thought this was strange, as appellant had spoken with Somerville just prior to her leaving. Smith called Somerville to advise her about the call and also that appellant did "not sound like himself." Smith was on the phone with Somerville when Somerville pulled up to the house and observed appellant standing outside on the steps. Smith cautioned her mother that "[s]omething's not right with" appellant and that "[h]e's off."

         As Somerville exited her vehicle, she asked appellant why he had called Smith and upset her. Appellant, without a word, turned around and went inside the house. Somerville told Smith that she would call back. Approximately ten minutes later, Smith called and asked Somerville to send her some pictures from that day that Somerville had taken with her cell phone. Somerville testified that she had difficulty sending the pictures, and Smith was giving her instructions. Eventually, Somerville said she would hang up to send the pictures, and Smith should call her when she received them. As Somerville transmitted the pictures, appellant asked her why she was not talking to him. Somerville informed appellant that his "attitude's not right, " and she would speak with him when he was ready to have a reasonable conversation.

         A short time later, Smith called to say that she had received the pictures. Smith and Somerville continued to chat while Somerville sat on her bed. Then, appellant burst into the room holding a gun. Somerville described the gun as a double-barrel shotgun that she had not seen before.[2] Appellant demanded that Somerville "[p]ut the goddamn phone down, " which she did. Smith could still hear the conversation, however. Appellant pointed the shotgun at Somerville and said "I'll blow your f'ing brains out." Somerville told appellant to "[g]et the f'ing gun out of my face." Appellant told Somerville: "You once told me that you feared that a man would take your life. Then I'm gonna be the mf'er that's gonna do it, because I'm gonna blow your brains out." Appellant then stepped closer to Somerville, and she heard the gun make a noise, which she described as a "chhh, " which she "perceived [] as a barrel engaging before you take a shot." Somerville asked appellant why he was doing this and pleaded with him not to kill her. Appellant accused her of cheating on him and ignoring him. Somerville stated that she continued to stare at the "two black eyes" of the shotgun as she prayed. When appellant stepped forward again, Somerville was no longer looking down the barrels of the shotgun because they were below her chin.

         Then, suddenly, appellant set the shotgun down and laughed. He told Somerville, "[t]his is your word against mine, " and he turned and walked out of the bedroom. Somerville grabbed her phone, ran into the bathroom, and locked the door.

         Meanwhile, at some point during this event, Somerville's phone dropped the call with Smith. Concerned, Smith called 911. As Smith is a Delaware resident, however, she reached Delaware emergency dispatchers, who gave her the number for their Maryland counterparts. Smith called the Maryland 911 dispatchers and told them about the conversation she overheard. She then called Somerville and told her to call 911; Somerville complied.[3] At a later point, while Somerville spoke with emergency responders, appellant knocked on the bathroom door and asked her to open it, saying he would not do anything to her. Somerville refused.

         A short time later, Kent County Police Department Corporal Benjamin Hicks arrived at the residence. Corporal Hicks testified that appellant was surprised to see the officers, and Somerville was "hysterical" and crying. Corporal Hicks recovered Somerville's single-barrel shotgun, but Somerville did not inform officers of the double-barrel shotgun. Appellant left with Corporal Hicks, and Somerville pressed charges the next day. Somerville also filed for a protective order against appellant.

         The State charged appellant with second-degree assault for the April 2, 2014 shoving and choking incident, and first-degree assault, second-degree assault, reckless endangerment, and possession of a shotgun by a prohibited person for the May 3, 2014 event. The jury was unable to reach a verdict as to first-degree assault, and the circuit court declared a mistrial as to that count. The court then took a partial verdict as to the remaining charges, and the jury acquitted appellant of second-degree assault as to the April 2, 2014 incident but convicted him of the remaining offenses.


         I. Hicks Violation

         Prior to trial, appellant's counsel moved for a competency evaluation, which the circuit court granted on August 18, 2014. At a pretrial hearing on September 2, 2014, the court rescheduled appellant's trial for January 26 and 27, 2015, as the parties awaited the results of the evaluation. The evaluation was completed on September 23, 2014. At a subsequent proceeding on October 3, 2014, appellant's counsel raised a motion to dismiss for a Hicks violation.[4] The court effectively denied this motion.

         Appellant contends that the circuit court erred in denying his motion to dismiss based on Hicks. Appellant argues that a competency evaluation is not, as a matter of law, a good cause to delay a trial, and the court was not required to wait five weeks for the results of the examination and/or mandate that the evaluation be completed by a psychiatrist. Appellant concedes, however, that once he raised the issue of his own competency, the court was required to determine whether he was competent to stand trial.

         The State argues that waiting for the results of a competency evaluation - especially one that appellant requested - constitutes good cause to delay a trial. The State contends, moreover, that appellant ought not be allowed to benefit from a delay that he, himself, requested.

         In Maryland, a criminal defendant has a statutory right to have a trial within 180 days of the earlier of the appearance of counsel or the first appearance in the circuit court. Crim. Pro. § 6-103(a); Md. Rule 4-271(a)(1). "For good cause shown, " however, "the county administrative judge or a designee of the judge may grant a change of the trial date[.]" Crim. Pro. § 6-103(b). See also Md. Rule 4-271(a)(1). The Court of Appeals has held that "the time limitation prescribed by the statute and the rule is 'mandatory, ' and that 'dismissal of the criminal charges is the appropriate sanction where the State fails to bring the case to trial' within the 180-day period, absent 'extraordinary cause justifying a trial postponement.'" State v. Huntley, 411 Md. 288, 290-91 (2009) (quoting Hicks, 285 Md. at 318).

         This Court has noted that "'[t]he critical order by the administrative judge, for purposes of the dismissal sanction, is the order having the effect of extending the trial date beyond 180 days.'" State v. Barber, 119 Md.App. 654, 659 (1998) (quoting State v. Parker, 347 Md. 533, 539 (1995)). "'The determination as to what constitutes a good cause, warranting an extension of the trial date beyond the [180-day] limit, is a discretionary one, which . . . carries a presumption of validity.'" Id. (quoting Marks v. State, 84 Md.App. 269, 277 (1990)). Notably, the appellant has the burden to demonstrate "'either a clear abuse of discretion or a lack of good cause as a matter of law.'" Moody v. State, 209 Md.App. 366, 374 (2013) (quoting State v. Frazier, 298 Md. 422, 454 (1984)).

         In this case, the critical order occurred at the September 2, 2014 hearing. Neither party disputes that the rescheduling of the trial date to January 26, 2015, moved the trial date beyond the Hicks time limit.[5] The circuit court implicitly found good cause to move the trial date beyond the Hicks limit, stating: "So, given all the different issues, none of which is the State's fault, I think we're stuck with January."[6] The court added at the October 3, 2014 hearing: "[G]iven the fact that the delay we have is through no fault of the State, I'm going to say that's still within Hicks."

          The Court of Appeals has held that "[o]nce the issue of a defendant's competency has been raised, the proceedings cannot continue until the trial judge determines that the defendant is competent to stand trial beyond a reasonable doubt." Kennedy v. State, 436 Md. 686, 692 (2014) (citing Peaks v. State, 419 Md. 239, 252 (2011)). See also Crim. Pro. § 3-104. Accordingly, then, once appellant's counsel filed the motion for a competency evaluation, the case could not continue until the circuit court determined that appellant was competent to stand trial.

         We agree with the State that complying with Crim. Pro. § 3-104 constitutes good cause to delay the trial beyond the Hicks time limit. Although appellant is correct that a determination of competency need not be based on a medical or psychiatric examination, see Sangster v. State, 70 Md.App. 456, 464 n.2 (1987), aff'd, 312 Md. 560 (1988), a judge may certainly feel that a medical or psychiatric evaluation is helpful to that determination. See Crim. Pro. § 3-105(a)(1). Appellant contends that good cause was "lacking" because a competency evaluation was unnecessary. This appears to us to be a baseless argument, given that appellant requested the competency evaluation. See also Lewis v. State, 79 Md.App. 1, 17 (1989) (noting that delay in proceedings caused by competency evaluation charged to defendant).

         Appellant also contends that there was no good cause to wait five weeks for the completion of the evaluation. Appellant is correct that the circuit court "shall set and may change the conditions under which the examination" is conducted. Crim. Pro. § 3-105(a)(2). We find five weeks, however, to be a reasonable time period to wait for the results of a competency evaluation. Accordingly, dismissal of the charges for a Hicks violation would have been inappropriate in this case, and we perceive no error in the court's effective denial of appellant's motion.

         II. The Constitutional Argument

         As part of his motion for a judgment of acquittal, appellant argued that the possession of a shotgun charge was unconstitutional as applied to him because it violated the "retroactive restriction" clause of Article 17 of the Maryland Declaration of Rights. Specifically, appellant contends that the conviction that disqualified him from possessing a shotgun occurred prior to the enactment of Maryland Code (2003, 2011 Repl. Vol., 2014 Suppl.), Public Safety Article ("P.S.A."), § 5-205(b), meaning that the enactment of that statute imposed a retroactive restriction on his previous criminal conduct.

         The State argued that appellant had failed to adequately present a claim in that he cites no authority for his argument that Article 17 of the Maryland Declaration of Rights differs in application from Article I of the United States Constitution. Alternatively, the State contended that this Court and the Court of Appeals have construed Article 17 of the Maryland Declaration of Rights to have the same application as the Ex Post Facto Clause of the United States Constitution, and there has been no ex post facto violation in this instance. In short, the State asserted that appellant was fairly convicted of possession of a shotgun after enactment of P.S.A. § 5-205 for post-enactment conduct.

         Preliminarily, we find that appellant had complied with Md. Rule 8-504, which required litigants to include argument in support of a position. The State is correct that "'[a]rguments not presented in a brief or not presented with particularity will not be considered on appeal.'" Wallace v. State, 142 Md.App. 673, 684 n.5 (2002) (quoting Klauenberg v. State, 355 Md. 528, 552 (1999)), aff'd, 372 Md. 137 (2002). The State contended that appellant merely referred to the argument he made at trial, which is insufficient to present the argument to this Court. See Monumental Life Ins. Co. v. U.S. Fidelity & Guar. Co., 94 Md.App. 505, 544 (1993) (noting that issue is not sufficiently presented where party merely refers to argument made elsewhere, with one ...

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