NORVEL B. THOMPSON
STATE OF MARYLAND
Deborah S., Wright, Rodowsky, Lawrence F. (Retired, Specially
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
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
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?
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.
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
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.
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
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.
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."
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.
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. 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.
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
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. 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.
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.
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.
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. The court effectively denied this motion.
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.
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.
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
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,
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. 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." 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."
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.
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).
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.
The Constitutional Argument
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.
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
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 ...