Court for Prince George's County Case No. CT150858X
Graeff, Kehoe, Rodowsky, Lawrence F. (Senior Judge, Specially
Deodatus Ndunguru, appellant, was convicted by a jury in the
Circuit Court for Prince George's County of robbery,
assault in the second degree, and theft of property having a
value of less than $100. The court imposed a sentence of ten
years' imprisonment, all but three years suspended, for
the robbery conviction, to be followed by five years'
probation. The court merged the other convictions for
appeal, appellant presents two questions for this Court's
1. Did the circuit court err in sustaining the State's
objection to appellant's testimony about a police
officer's statement of intent?
2. Did the circuit court err in asking the jury to resolve
its inconsistent verdict sua sponte?
reasons set forth below, we shall affirm the judgments of the
AND PROCEDURAL BACKGROUND
April 25, 2015, members of the Tanzanian community held a
party at "Signature Blue, " an event venue in
Beltsville, Maryland. Among the attendees were Andrew Ngatena
and his friend, David Mwimanzi, who had been hired as the
"disc jockey" ("DJ") for the party.
the party, Mr. Ngatena stood near Mr. Mwimanzi so he could
observe him at work and learn "how to [DJ] the
music." At some point, Mr. Ngatena left "to grab a
drink." When he returned, appellant, whom he did not
know, was standing near the DJ booth, impeding his path. Mr.
Ngatena asked appellant to move, but appellant refused to do
so. Mr. Ngatena then decided to go "outside to grab a
smoke." Although Mr. Ngatena was unable to recall
precisely when he went outside to smoke, he estimated that
the time was between 9:00 and 11:00 p.m.
followed Mr. Ngatena outside. At first, the two men engaged
in conversation, but at some point, appellant "took
offense" to something that Mr. Ngatena said and punched
Mr. Ngatena in the face. Both men began throwing punches at
each other. A second unknown man, who was standing behind Mr.
Ngatena, then knocked Mr. Ngatena to the ground. A third man,
whom Mr. Ngatena also did not know, joined the fight, and the
three men kicked Mr. Ngatena repeatedly.
assailants eventually stopped kicking Mr. Ngatena and began
to walk away. At that point, Mr. Ngatena "started
throwing the words at them, " prompting them to return
and resume punching him. By then, Mr. Ngatena was struggling
to retain consciousness, but he was able to "sense"
that the three assailants began to rifle through his pockets,
taking his cell phone, wallet, passport, and gold necklace.
Finally, appellant and the two unknown assailants fled.
after appellant and his accomplices fled, Mr. Mwimanzi was
notified that his friend had been beaten and robbed. For the
next few hours, Mr. Mwimanzi and others at the party
attempted to contact appellant to recover the property taken
from Mr. Ngatena and resolve the dispute without police
involvement. Mr. Mwimanzi ultimately called the police, and
Detective Ben Leach, a member of the Prince George's
County Police Department, responded to Signature Blue at
approximately 2:46 a.m. on April 26.
Mwimanzi was acquainted with appellant because the two men
had attended several events held by the tightly-knit
Tanzanian community, where Mr. Mwimanzi had been a DJ and
appellant had performed as a member of a three-man rap
ensemble. Mr. Mwimanzi identified appellant to Detective
Leach as one of the assailants. Detective Leach obtained a
photograph of appellant and showed it to Mr. Ngatena, who
identified appellant as the man who robbed him. An arrest
warrant was issued for appellant.
to appellant's arrest on June 1, 2015, Mr. Ngatena
contacted appellant via Facebook and telephone, attempting to
obtain his stolen property. When Detective Leach learned of
those attempts at communication with appellant, he advised
Mr. Ngatena "not to contact" appellant, and Mr.
Ngatena thereafter took that advice. Mr. Ngatena testified
that, at one point, appellant called him. Mr. Ngatena's
property eventually was given to Mr. Mwimanzi, who returned
it to Mr. Ngatena.
testified that he did not know Mr. Ngatena, did not see him
the night of the incident, and he did not assault Mr. Ngatena
or take his property. He denied that he ever called Mr.
jury initially returned an inconsistent verdict, convicting
appellant of second-degree assault and robbery but acquitting
him of theft. As discussed in more detail, infra,
the circuit court re-instructed the jury, advising it to
continue its deliberations. The jury then convicted appellant
of all three charges.
contends that the circuit court erred in sustaining the
State's objection to his testimony that a police officer
told him that they were going to search his cell phone to
determine if he called Mr. Ngatena. Appellant concedes that
this testimony was hearsay, but he argues that it was
admissible pursuant to Maryland Rule 5-803(b)(3), a hearsay
exception addressing, among other things, a "statement
of the declarant's then existing state of mind, . . .
offered to prove the declarant's then existing condition
or the declarant's future action." Appellant argues
that the "police officer's statement to [a]ppellant
- that he or she intended or planned to examine his phone to
determine whether he or she had called [Mr.] Ngatena - was
admissible to prove that the officer had acted in conformity
with that plan." He contends that excluding this
testimony prejudiced his defense because testimony regarding
the police officer's intent to search his cell phone
would have cast doubt on the victim's testimony, as well
as bolstered his testimony.
State argues that this claim is not preserved for this
Court's review because appellant failed to proffer below
the relevance of the excluded testimony. In any event, it
argues that appellant answered the question and the State did
not move to strike the testimony from the record, and
therefore, appellant suffered no prejudice as a result of the
begin our analysis by setting forth the relevant factual
background. During appellant's testimony, the following
[DEFENSE COUNSEL]: Okay. So is it your testimony that at no
time did you assault Mr. Ngatena?
[DEFENSE COUNSEL]: Okay. And did you at any time take
possession of any of his property?
[DEFENSE COUNSEL]: Okay. And at any time have you assisted or
been asked to assist in the return retrieval of his property?
[DEFENSE COUNSEL]: Did you ever ...