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Middleton v. State

Court of Special Appeals of Maryland

August 28, 2018

DAQUAN MIDDLETON
v.
STATE OF MARYLAND

          Kehoe, Shaw Geter, Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.

          OPINION

          BATTAGLIA, J.

         Following a bench trial in the Circuit Court for Baltimore City, Daquan Middleton, appellant, was found guilty of robbery, conspiracy to commit robbery, and first-degree assault. The court imposed a sentence of thirteen years' imprisonment for first-degree assault; a four-year suspended sentence for robbery, consecutive to that for the assault; and a four-year suspended sentence for conspiracy to commit robbery, concur rent with that for the assault.

         First-degree assault was not expressly charged in the indictment. Middleton asserts that it is also not a lesser-included offense of any charge that was expressly charged, and he therefore claims, citing Johnson v. State, 427 Md. 356 (2012), [1] that his conviction of and sentence for first-degree assault must be vacated. Under the circumstances of this case, we conclude that Middleton was, as he contends, convicted of an uncharged offense. Accordingly, we vacate the judgment of conviction for first-degree assault, and, applying Twigg v. State, 447 Md. 1 (2016), we shall vacate the remaining sentences and remand for resentencing.

         BACKGROUND

         Robert Ponsi was a server at The James Joyce Irish Pub and Restaurant at the Inner Harbor in Baltimore City. On a Saturday evening in January of 2016, Ponsi was riding home from work on his bicycle. At approximately 9:00 p.m., as he rode through the Waverly section of Baltimore, near the intersection of Old York Road and Venable Avenue, he was accosted by a group of "between five and eight" juveniles.[2] That group included, among others, Middleton, Antwan Eldridge, and fifteen-year-old P.G.

         A passerby, Craig Pearly, observed the attack. He was subsequently interviewed by Baltimore City Police Detective Eric T. Ragland of the Homicide Unit, and a transcript of that interview was admitted into evidence in lieu of Pearly's testimony.[3]Much of the ensuing factual recitation is derived from that transcript.

         Pearly, accompanied by "a best friend," had just gotten off a Mass. Transit Administration ("MTA") bus when he encountered the attack in progress. As he started walking along Old York Road towards his residence, he saw the victim, later identified as Ponsi, surrounded by "eight" youths, whom he recognized as "guys that I see all the time."[4] Ponsi was "swinging the bike," defensively, while the youths demanded his wallet. As he retreated from the encroaching attackers, Ponsi fell and was immediately set upon by all the youths. It was later determined that one of the attackers, P.G., had produced a knife and stabbed Ponsi eleven times and inadvertently stabbed Middleton twice in the leg in the process.

         As Ponsi lay on the ground, screaming, Pearly heard several of the youths calling out, "take his f--king wallet," "take his phone." The attackers took Ponsi's phone and bicycle and "ran up the street."[5] Middleton and Eldridge made off with Ponsi's bicycle, heading east in the direction of the Weinberg Y in Waverly.[6]

         After the attackers fled, and it was safe to approach, Pearly rendered aid to Ponsi, who was bleeding profusely. Pearly called 911, and emergency responders converged on the scene. Ponsi was transported to The Johns Hopkins Hospital for trauma care, but he died later that evening of his stab wounds.

         Middleton initially rode the stolen bicycle because he had difficulty walking, given his stab wounds. He soon abandoned that idea and left the bicycle behind. Upon reaching the Weinberg Y, Middleton could no longer continue. Eldridge, unwilling to abandon Middleton, decided to call 911, claiming that they had been "attacked" by a "light skinned guy" and that Middleton had been stabbed in that fictitious attack. Emergency responders transported Middleton to The Johns Hopkins Hospital for treatment of his stab wounds.

         Sergeant Robert Cherry of the Northeastern District responded to Eldridge's 911 call. In the words of Detective Raymond Hunter, the lead investigator in the case, Sergeant Cherry "put two and two together" and realized that there might be a connection between Eldridge's 911 call and Pearly's 911 call, just minutes earlier and within one-half mile of one another.

         Police soon determined that both Middleton and Eldridge had been involved in the attack on Ponsi. They quizzed Eldridge about the victim's stolen bicycle, which he initially denied having. After police informed him, however, that a witness had seen him and Middleton with the bicycle, he "agreed to get into" Cherry's police cruiser and take the police to where Middleton had abandoned the bike.

         Middleton and Eldridge both gave statements to police that were subsequently admitted into evidence at their joint trial. Eldridge acknowledged that the group had intended to rob Ponsi but not to hurt him. Middleton ultimately made a similar acknowledgement. Both defendants also admitted to having either "kicked" or "stomped" Ponsi as he lay on the ground.

         An eight-count indictment was subsequently returned, in the Circuit Court for Baltimore City, charging Middleton with first-degree murder, conspiracy to commit first-degree murder, armed robbery, conspiracy to commit armed robbery, robbery, conspiracy to commit robbery, theft, and wearing and carrying a dangerous weapon openly and with the intent to injure. A similar indictment was returned against Eldridge. Middleton and Eldridge were tried together in a bench trial.

         Middleton was acquitted of first- and second-degree specific-intent murder, first-degree felony-murder, conspiracy to commit first-degree murder, and wearing and carrying a dangerous weapon openly and with the intent to injure. As for first- and second-degree specific-intent murder, the court reasoned that there was no evidence of either premeditation or deliberation, nor was there proof beyond a reasonable doubt that Middleton had formed a specific intent to kill or to inflict such serious bodily injury that death would be the likely result.

         As for first-degree felony-murder, the court opined that there must have been "a common scheme, or an attempt to commit [an enumerated] felony, and that the murder was a natural consequence of the felony that was committed" but that proof of such a common scheme was lacking. The court found that Middleton's taking of Ponsi's bicycle had been a "post facto robbery," which did not indicate "a robbery in contemplation at the very beginning." The court also found that "the group [did not have] a common scheme to commit robbery" or even "a common design or scheme to commit a crime." Moreover, the court found that neither Middleton nor Eldridge "knew that [murder] was going to be the result, or that [P.G.] had this in mind" and, crucially, found that P.G, the juvenile who had stabbed both Ponsi and Middleton, had separately formed a homicidal intent that none of the other perpetrators had shared and that the stabbing had been "an intervening independent act," which absolved the others of responsibility for the murder.

         The court found Middleton guilty of first-degree assault based upon the intent to "cause or attempt to cause serious physical injury to another," as well as robbery and conspiracy to commit robbery. The assaultive acts underlying Middleton's first-degree assault conviction included the intent to frighten as well as the "stomping," committed as part of a group assault upon the victim, but not the stabbing.

         The court thereafter sentenced Middleton to thirteen years' imprisonment for first-degree assault, a concurrent term of four years' imprisonment for conspiracy to commit robbery, and a consecutive term of four years' imprisonment for robbery, all suspended, to be followed by five years' probation. Middleton noted this timely appeal.

         DISCUSSION

         The Parties' Contentions

         Middleton contends that he was convicted of an offense that was not expressly or impliedly charged in the indictment such that, under Johnson v. State, supra, 427 Md. 356, his conviction and its attendant sentence are illegal and must be vacated. He presents a legal argument and a factual argument in support of that contention, both of which are predicated upon the fact that the indictment did not expressly allege an assault in the first degree.

         First, he asserts that assault in the first degree, under Criminal Law Article ("CL"), § 3-202(a)(1), [7] is not a lesser-included offense of murder (which was alleged in the indictment), under the required evidence test, because it is possible to commit murder without committing an assault. In support, he cites Simpkins v. State, 88 Md.App. 607 (1991), cert. denied, 328 Md. 91 (1992). In that case, a two-year-old girl had died from malnutrition and dehydration caused by her parents' gross neglect, and we held that the evidence was sufficient to sustain the parents' convictions of second-degree depraved-heart murder. Id. at 609, 620-21.[8]

         Middleton also asserts that, even were we to reject his legal argument, it was nonetheless true that the court found that the first-degree assault and the murder of the victim were not based upon the same act. In other words, even assuming that the State is correct that first-degree assault is impliedly charged by the count of the indictment alleging murder, the court nonetheless found that the first-degree assault committed by Middleton was not that first-degree assault but was, instead, a different, stand-alone assault, based upon a separate act, which was neither expressly nor impliedly charged in the indictment. The court's factual finding thus necessarily implies that Middleton was convicted of an uncharged first-degree assault.

         The State counters with a number of arguments, including that Middleton received adequate notice that he had been charged with an assault; that authority concerning the merger of offenses, relied upon by Middleton, should not necessarily be applied here, where the issue is whether the indictment impliedly contained an otherwise uncharged offense; that "Middleton's assaultive conduct aided and abett[ed] the stabbing of the victim"; and that, since Middleton had been charged with, among other offenses, first-degree felony murder based upon robbery as well as robbery, he necessarily had also been charged with assault. If, however, we were to agree with Middleton that his conviction of first-degree assault must be vacated, the State, relying upon Twigg v. State, supra, 447 Md. 1, requests that we vacate the remaining sentences and remand for resentencing.

         Standard of Review

         Appellate review of a judgment entered following a bench trial is governed by Maryland Rule 8-131(c).[9] We review the trial court's factual findings for clear error, giving "due regard to the opportunity of the trial court to judge the credibility of the witnesses." Id. Factual findings "cannot be held to be clearly erroneous" if "there is any competent evidence to support" them. Goff v. State, 387 Md. 327, 338 (2005) (quoting Solomon v. Solomon, 383 Md. 176, 202 (2004)).

         "The deference shown to the trial court's factual findings under the clearly erroneous standard does not, of course, apply to legal conclusions." Id. (quoting Nesbit v. Government Employees Insurance Co., 382 Md. 65, 72 (2004)). We review a trial court's legal conclusions to determine whether they are "legally correct." Id.

         Analysis

         As noted earlier, the indictment charged Middleton with murder in the first degree, conspiracy to commit murder in the first degree, armed robbery, conspiracy to commit armed robbery, robbery, conspiracy to commit robbery, theft, and wearing and carrying a dangerous weapon openly and with the intent to injure. It did not expressly charge Middleton with assault in the first degree, the conviction of which Middleton challenges.

         The Court of Appeals has held that, in a jury trial, "a defendant may only be convicted of an uncharged lesser included offense if it meets the elements [i.e., required evidence] test," Hagans v. State, 316 Md. 429, 450 (1989), and it extended that holding to bench trials in Smith v. State, 412 Md. 150 (2009), under the condition that the parties be "given an opportunity to present arguments on that offense in the trial ...


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