Circuit Court for Montgomery County Case No. 000000118503
Woodward, C.J., Wright, Moylan, Charles E., Jr. (Senior
Judge, Specially Assigned), JJ.
revocation of probation can be ordered because of triggering
misbehavior that occurs not only during a period of active
probation (the far more common case) but also because of
misbehavior occurring before the active probationary period
has even begun (the rarer case). Because the overwhelming
majority of revocation cases, however, are based on
violations occurring while on active probation, there has
resulted the inevitable linguistic slippage of the name for
that most common instance of the phenomenon being casually
misused to denote the larger phenomenon itself, of which it
is but a part. "Violation of probation" is thus
being used as casual shorthand for "revocation of
probation." The specific usurps the generic. It is an
easy overgeneralization to lapse into, akin to referring to
all refrigerators as Frigidaires, to all tissue as Kleenex,
or to all soda pop as Coke. Such slack usage, fortunately, is
aggravating but seldom fatal.
case, we are dealing with a revocation of probation that was
not based on a violation of active probation. Because
"violation of probation" is a more chronologically
restrictive term than "revocation of probation," we
must steel ourselves against using so potentially confusing
and anachronistic a term. Revocation is our subject and our
only subject. The behavior that triggers revocation, as
happened here, may occur in jail as well as on the street.
Pattern Of Recurring Domestic Violence
November 18, 2011, the appellant, Derek McKinney, entered
guilty pleas to one count of first-degree assault and one
count of using a handgun in the commission of a crime of
violence before Judge Robert A. Greenberg in the Circuit
Court for Montgomery County. Pursuant to a plea agreement,
Judge Greenberg sentenced the appellant to a term of 25
years' imprisonment on the assault conviction with all
but 10 years suspended, to be followed by a period of
probation for three years. For the handgun conviction, the
sentence was a concurrent one of 20 years, five years without
the possibility of parole, and with all but 10 years
suspended. From the initial statement of facts offered in
support of the guilty plea and from the subsequent sentencing
procedure, it was evident that a heavy concern of both Judge
Greenberg and the State was the future safety of the assault
victim, Lily Mona Hakemian.
Hakemian's vehicle had been stopped in rural Montgomery
County at 1:30 on the morning of May 17, 2011, for a minor
traffic infraction. The appellant was the front-seat
passenger and Ms. Hakemian was driving. When asked for
identification, the appellant had none and gave his name as
Steve Johnson. A computer check informed the stopping officer
that Ms. Hakemian had an outstanding protective order against
the appellant. Ms. Hakemian, moreover, appeared to be upset
and to have been crying. The appellant was arrested for
having violated the protective order. He had a strong odor of
alcohol on his person and had watery bloodshot eyes. From the
passenger floorboard where the appellant had been sitting,
the police recovered a loaded .357 Magnum Taurus revolver.
The revolver was registered to Ms. Hakemian. Ms. Hakemian
informed the court that she had purchased the gun for the
appellant at his request because he was prohibited from doing
police learned from Ms. Hakemian that she had earlier gone to
the appellant's residence in Bethesda that evening. The
statement in support of the guilty plea recounted:
They went into the home. They went into his bedroom. The
defendant had possession of the 357 Magnum. He told her to
lie face down on the bed, placed the gun to her head and
pulled the trigger, cycling the cylinder in the revolver.
He then ordered her to do his laundry, and in the
laundry room, pointed the gun at her and instructed her
to place the barrel of the gun in her mouth. The State
would have presented in evidence that she believes she
observed several live rounds of ammunition in the cylinder.
A short time later, he and she both left the Southport Drive
residence together and went to the (unintelligible) Shed Ale
House (phonetic sp.) where they consumed alcohol and had some
food, and to Quincy's (phonetic sp.) where the defendant
consumed additional alcohol.
They then left the, left Quincy's and went
to the McDonald's restaurant in Gaithersburg at
Montgomery County. When they pulled into the parking lot, to
the rear of McDonald's, in the Vicinity of the Sport
Authority, he told her to get out of the vehicle. She
did, and he fired a round from the revolver into the
air. They got back in the car, went through the
drive-through, and while in the drive-through, while
ordering food, he pointed the gun at her and again directed
her to place the barrel of the gun in her open mouth.
Judge Greenberg asked if Ms. Hakemian did so, the prosecutor
[THE PROSECUTOR]: Yes, sir. The weapon was placed in her
mouth on both occasions, making contact with her person.
The State would have - and from the McDonald's
restaurant, then, the vehicle went on to Route 355 north,
where it was, Sergeant Lubson observed it at that
intersection, Your Honor.
Greenberg then accepted the guilty plea. As the court then
turned to the actual sentencing, Judge Greenberg set out in
meticulous detail every aspect of the sentence in all
regards. His final words to the appellant were unequivocally
are to have no contact with Lily Hakemian."
before that pronouncement, Ms. Hakemian had informed the
court that she had visited the appellant while the charges
were pending on a weekly basis and had spoken to him by
telephone on numerous occasions. It was precisely to curtail
such contacts that the prosecutor had requested of the jail
authorities that the appellant be placed on administrative
segregation for a period of 60 days. There was, moreover, a
significant exchange between Judge Greenberg and Ms. Hakemian
as to whether she wished to be permitted to have contact with
the appellant while he was in jail. It was clear that
pre-probationary contact between the appellant and Ms.
Hakemian was a subject of serious consideration. Indeed, even
before announcing an absolute prohibition on any contact with
Ms. Hakemian, Judge Greenberg had engaged in a lengthy
dialogue with the appellant about that very subject.
THE COURT: Let me first say that these cases pose particular
difficulties to the Court because we have two people who
obviously had some degree of affection for one another, and
it sounds like still do. But I've come to learn, both
from hearing these cases and from some training judges get
about this problem that we call domestic abuse, and this is
the kind of case, frankly, that bears all the earmarks of an
extremely volatile situation. When you love someone, you
don't ask them to put a loaded handgun in their mouth,
nor do you put one in your own mouth in their presence.
So, I'm, with all respect to Ms. Hakemian, I'm not
really so concerned with whether she wants to see you or talk
to you or not, because I wasn't born yesterday, you know,
I didn't just fall off the turnip truck, as they
say; I'll be very surprised if Ms. Hakemian doesn't
make some effort to contact you, but it isn't going
to happen on my watch, if you know what I mean. You two
have a relationship that is going to result in severe injury
or death of one or both of you.
I can't tell Ms. Hakemian what she should do with her
life. Those are choices that she needs to make, and to some
extent, they're choices that you're going to need to
make; but to suggest that it would be appropriate for me
to pass a probationary order here that allows her to
contact you, and more significantly, allows you to
contact her, is something I'm just not going to do.
THE DEFENDANT: Yes, sir.
THE COURT: I think Mr. Helfand does have a good point with
regard to the probation and the condition and the terms of
it, and we'll get to that in a second.
But this is a very frightening case from a number of
standpoints. And as I said, if Ms. Hakemian decides that she
wants to contact you in prohibition of this Court's
order, that's something that I would encourage her not to
do, but she's not the subject of the probation order; you
are. So, I just want to tell you that I'm going
to prohibit her, prohibit you from having contact
with her. But understand that even in spite of her
misguided intentions, if she calls you, even though
she's the one that did it, like she's the one that
wrote the letters, and I have no doubt she did, she is the
one that comes to see you, I have no doubt she did,
she's getting you in trouble.
THE DEFENDANT: Uh-huh.
THE COURT: So, if someone finds out about it, frankly,
I'm not going to really care too much whether she
called you or not. If she tries to get hold of you or
whatever, you need to tell her, "No." I'm sorry
to break up the relationship you have, but that happened back
in May of 2011.
For The Revocation Of Probation
appellant failed, however, to heed Judge Greenberg's
order and to discontinue any contact with Ms. Hakemian. It
was four years later, on September 20, 2015, that the State
filed its Motion to Prevent Intimidation of Victim/Witness
Pursuant to Section 9-304 of the Criminal Law Article. A
hearing date on the motion was set for November 4, 2015. On
that date, the appellant appeared without counsel. Judge
Greenberg postponed the case so that the appellant could
obtain the services of the Office of the Public Defender. On
February 3, 2016, the State filed, pursuant to Maryland Rule
4-347, a Petition for Revocation of Probation. A joint motion
by the State and the appellant requested that both motions be
considered at the same hearing. There were then numerous
postponements of the hearing date on what became entitled as
the State's Motion for Appropriate Relief.
27, 2016, the appellant's Consent Motion to Continue
represented that he needed time to listen to all of the
telephone recordings that the State had provided him in
discovery. The recordings were of threatening phone calls the
appellant had made to Ms. Hakemian from jail. By letter on
December 29, 2016, Judge Greenberg requested updated
information on the possible parole/early release date of the
appellant. The judge rescheduled the postponed hearing for
February 21, 2017, and expressed his concern "for the
victim's safety at the present time should [the
appellant] be released before the February hearing."
From Judge Greenberg's expression of concern for Ms.
Hakemian's safety, it was clear that he did not want the
appellant's probation even to begin. He was obviously
looking for a way to secure Ms. Hakemian's safety against
any risk posed by the appellant's even being on the
street. It was clear that probation had not yet even begun.
appellant now to claim, therefore, that he had no idea that
Judge Greenberg's final order at the sentencing hearing
that he was to have "no contact with Lily Hakemian"
had any applicability at any time before his probation
actually began is disingenuous. At the aborted hearing on
November 4, 2015, when the appellant showed up without
counsel, the State explained to the appellant that it had
filed its motion to prevent him from intimidating Ms.
Hakemian. It also explained that the appellant could be
subject to the revocation of his probation if it were found
that he had committed a criminal offense even before his
probation began. Judge Greenberg, moreover, stressed the
importance for the appellant to retain counsel and he
cautioned the appellant not to say anything at that time. He
further warned the appellant that he would be at risk if he
had contact with Ms. Hakemian. This was pre-probationary
behavior that was being discussed.
ultimate hearing on the State's motion to revoke
probation took place on February 21, 2017. The State produced
evidence of five collect phone calls that the appellant had
made from jail to Ms. Hakemian. In the course of those calls,
the appellant blamed Ms. Hakemian for ruining his life by
"snitching" to the police about his putting the gun
in her mouth. The appellant blamed her for his incarceration.
He threatened, "If you want me to kill [you], keep
running your mouth." The appellant characterized himself
as "a sociopath" and threatened to make her
"pay for the 10 years [she] put him in jail." He
cautioned her to enjoy the next couple of years because they
were going to be her last. He threatened to
"murder" her, to "burn [her] ass up until
[her] fucking heart stops," and to dump her body
"in the river." The appellant ordered Ms. Hakemian
to answer his phone calls and he told her, "I'm
going to wind up beating your fucking brains in, when I get
home I will take care of your ass. I'm not only abusive,
I'm going to murder you."
Greenberg found that the calls placed by the appellant were
not simply threatening in nature to the assault victim with
whom the appellant had been cautioned and admonished by the
court to discontinue contact, but were also literal
violations of two criminal statutes. One was Section 32-19 of
the Montgomery County Code of Ordinances, dealing with
"Obscene, indecent or threatening language over
telephone." That ordinance provides in pertinent part:
If any person shall use obscene or indecent language or
shall threaten any person with physical harm or shall
make indecent proposals to any person by means of the
telephone he shall be subject to punishment for a class A
violation as set forth in section 1-19 of chapter 1 of the
other violation was of a Maryland statute, Criminal Law
Article, Sect. 3-804, which provides in pertinent part:
(a) A person may not use telephone facilities or equipment to
(2) repeated calls with the intent to annoy, abuse, torment,
harass, or embarrass another[.]
appellant was, moreover, in violation of two earlier
protective orders. Judge Greenberg then reimposed the
original sentences of November 18, 2011, with no portion of
the sentences being suspended and with no probationary period