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Lee v. State

United States District Court, D. Maryland, Southern Division

February 21, 2019

JEROME LEE, Petitioner
v.
STATE OF MARYLAND, Respondent

          MEMORANDUM OPINION

          GEORGE J. HAZEL, UNITED STATES DISTRICT JUDGE

         Petitioner Jerome Lee challenges the legality of his Maryland State conviction on charges of theft under one-thousand dollars, kidnapping, and false imprisonment pursuant to 28 U.S.C. §2254. ECF No. 1. Respondent seeks dismissal of the petition without a hearing on the basis that the petition does not raise a cognizable claim warranting federal habeas relief. ECF 9. The Court finds no need for a hearing in this matter. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2016); see also Fisher v. Petitioner, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C. §2254(e)(2)). For the reasons stated below, the Court denies the petition and declines to issue a certificate of appealability.

         I. BACKGROUND

         A. Petitioner's Trial

         Petitioner and his co-defendant Jamal Richards were indicted on charges of first degree rape, multiple sex offense charges, assault, robbery, theft under one-thousand dollars, false imprisonment, and kidnapping. The two received separate trials. Petitioner was acquitted on charges of rape, sex offense, assault and robbery, but was found guilty by a jury of the theft, false imprisonment and kidnapping counts. Richards was convicted of first-degree rape, three counts of first-degree sex offense, robbery, kidnapping, and false imprisonment; he was sentenced to an aggregate sentence of 55 years. See ECF No. 9 at 7, n. 2.[1] The evidence and testimony presented at trial are outlined below.

         The victim in this case, Barbara Lessio, is a resident of Italy and was temporarily residing in Towson, Maryland, working as an au pair. On the evening of May 21, 2010, she went to a bar in Baltimore, Maryland with three other friends including Elizabeth Dillard, who testified at trial. ECF No. 9-2 at 180-88 (direct testimony). Ms. Dillard explained that she and Lessio left a bar called “Gin Mill” at approximately 2 a.m. the following morning, after last call at the bar. Id. at 183. Dillard testified that she and Lessio took a cab back to Dillard's apartment in downtown Baltimore. Id. Dillard explained that once they arrived at her apartment building, Lessio indicated that she wanted to go back to her home in Towson, so Dillard left Lessio in the cab, went to her apartment, and promptly fell asleep. Id. at 190-2 (cross-examination). When Dillard awoke the next morning, she noticed numerous missed calls from Lessio on her cellphone. Id. at 193 (redirect).

         Lessio testified that after Dillard got out of the cab, she learned that the cab fare back to Towson would be fifty dollars or more. ECF No. 9-3 at 16. Lessio then exited the cab and unsuccessfully searched for Dillard and tried to contact both Dillard and another friend on the phone. Id. at 17. She explained that she saw a car parked on the street, walked over to it, and began talking to the two men inside: Richards and Petitioner. Id. at 17-18. Lessio recalled that Richards was in the driver's seat, and Petitioner was in the front passenger seat. Id. at 18. She asked the two men if they would be willing to give her a ride home, and they agreed. Id. Although Lessio gave them an address to put into the GPS on a cellphone, they claimed the GPS did not work; by this time, Lessio was in the backseat of the car. Id. at 19.

         Lessio testified that she was in the car a short while before Petitioner climbed into the backseat with her and began touching her thighs inappropriately and would not stop despite her requests. Id. at 20-21. She testified that Petitioner then pushed her down on the seat and vaginally raped her twice, then forced her to perform fellatio. Id. at 22-24. Lessio recalled that each time she attempted to raise her head and pull away, Petitioner slapped her in the face and on the head and kept his hands on her head. Id. at 25.

         Lessio testified that Richards stopped the car near a park after Petitioner had finished. Id. at 25-26. Lessio testified that she, Richards, and Petitioner got out of the car and the two men led her down the hill at the park where Petitioner again forced her to perform oral sex while Richards raped her vaginally and anally. Id. at 26-27. Lessio recalled that one of the two men went through her purse, removing her camera, phone, wallet with credit cards, cash and debit card. Id. at 28-29. As they approached the road, Lessio saw a van driving down the street and ran towards it, trying to stop it so she could get assistance. Id. at 29-30. But the van only slowed down, and Lessio testified that Richards and Petitioner grabbed her and drug her back to the car. Id.

         Richards again took the driver's seat and drove the car to a gas station, where he used Lessio's debit card to put gas in the car. Id. at 31. Lessio testified that she did not give either man permission to use her debit card. Id. Lessio stated that she first gave the men the wrong PIN number. Id. at 32. After they discovered the PIN would not work, Lessio stated that Petitioner told her that if she wanted “to see the sun tomorrow, ” she would need to provide them with the correct number. Id. at 33. Lessio complied and Petitioner exited the car to use the debit card while Richards stayed in the car. Id. at 34. She testified that her debit card was used at least twice that evening. Id. Lessio stated that after he used the debit card, Petitioner got into the backseat with her and again forced her to perform fellatio. Id. at 35. Richards then moved to the back seat and forced Lessio to perform fellatio. Id. Lessio said that Petitioner was not wearing a condom during any of the times he forced her to perform oral sex. Id.

         Richards and Petitioner were both in the front seat when Richards drove the car to another area that was also unknown to Lessio and let her out of the car. Id. at 37. Lessio did not have her cellphone and testified that she asked Petitioner to give her camera back to her as it had been a birthday gift, but he refused. Id. at pp. 37-38. Lessio recalled walking to a car stopped at a red light and asking the man driving to call for help. Id. at p. 38.

         A Baltimore City Police Officer responded to a call made by the man Lessio had encountered at the stoplight and took Lessio to a police station and then to a hospital. Id. at 38-39, see also ECF No. 9-5 at 38-39 (cross-examination of Officer Roberto Cornejo). Lessio was examined at the hospital, where she met with Detective Mundy of the Baltimore City Police. ECF No. 9-3 at 40-41. Approximately one week later, Lessio found the ATM receipts in her purse which she provided to Detective Kerry Snead who had been assigned as the primary investigating officer in the case. Id. at 43. Lessio positively identified both Richards and Petitioner in two separate photographic arrays provided to her by Detective Snead. Id. at 45-48.

         Additional testimony from witnesses for the State established that Lessio's examination at Mercy Medical Center revealed lacerations on her labia, lacerations to the top of her anus, and bruising to the top of her thigh down toward the middle of her thigh and to her ankle. ECF No. 9-3 at 116-119 (direct testimony of Nira Mitchell, NP). Evidence collected during Lessio's exam included vaginal cultures, photographs of the bruising to her legs, and collection of her underwear and tights for testing. Id. at 113, 120. Additionally, oral swabs were taken from Richards and Petitioner, and swabs were taken from the backseat driver's side and the middle of the backseat of the 2009 Grand Marquis Richards was driving. Id. at 141-45. Because the presence of sperm was detected on the waistband of the tights Lessio was wearing, it was sent for DNA testing along with the swabs from the car. Id. at 144, 146.

         The DNA analysis of the physical evidence collected revealed that the stain from Lessio's tights matched the DNA sample provided by Petitioner. ECF No. 9-4 at 9-27. Through latent print analysis of the ATM receipts, and comparison with known fingerprints from Richards and Petitioner, it was established that both Richards' and Petitioner's fingerprints were on the receipts. Id. at 36-46. A Bank of America employee authenticated records of the multiple ATM transactions. ECF No. 9-5 at 6-19.

         Police recovered Lessio's camera at a pawn shop during their investigation. The owner of the pawn shop testified that the camera was pawned by Petitioner. ECF No. 9-4 at 61-69. Petitioner testified at trial and provided a much different description of his interaction with Lessio. ECF No. 9-5 at 42-68 (direct testimony). Petitioner stated that when Lessio got into the car, he was in the front passenger seat of the car, wearing sunglasses, and sleeping with the seat reclined because he had a headache. Id. at 49. He testified that he spoke to Lessio from the front seat and did not move to the backseat until he asked her if it was okay to do so and she confirmed it was okay. Id. at 52. He also testified that Lessio had an accent but that he did not have any trouble understanding what she was saying, and that after talking for five to ten minutes, Petitioner asked Lessio for oral sex. Id. at 54-55. According to Petitioner, Lessio agreed to perform oral sex but asked him to wear a condom, which she provided. Id. Petitioner testified that after he had ejaculated, Lessio threw the condom out of the window of the car. Id. at 56. Petitioner then testified that he gave her 25 dollars, which she used to pay Richards to drive her wherever she wanted to go. Id. at 57. Petitioner recalled that he then returned to the front seat where he went back to sleep. Id.

         Petitioner claims that when he awoke, the car was parked one block behind the Alameda Shopping Center in East Baltimore at Belvedere and Loch Raven and he was the only one in the car. Id. at 58. He saw that the keys were still in the ignition, sat in the car for a few minutes, lit a cigarette, and got out of the car. Id. at 59. Petitioner recalled that he saw Richards and Lessio walking out of an apartment complex, but stated that he knew nothing else about where they had gone or what they had done. Id. He claimed that Richards and Lessio walked to the car and both got into the car voluntarily. Id. at 60.

         Petitioner also testified that Lessio provided her ATM card to Richards voluntarily so that he could put gas in the car. Id. Petitioner explained that he believed the subsequent ATM transactions using Lessio's debit card were made pursuant to an agreement between Richards and Lessio. Id. at 62. He also stated that he got no money from any of the transactions and that his fingerprints were only on the ATM receipts because Richards had handed him a pack of cigarettes with the receipts on top of the cigarette pack. Id. at 63. Petitioner also testified that he did not steal Lessio's camera, but that she had left it in the car; he later pawned it because he did not want to be in possession of the camera, as he was unaware of what had occurred between Lessio and Richards. Id. at 63-65. Petitioner stated that they left Lessio at the intersection of Loch Raven and Cold Spring because she had asked to get out of the car there. Id. at 65.

         The jury found Petitioner not guilty on all charges related to the sexual assault on Lessio, as well as the robbery and assault charges, but found Petitioner guilty of theft under one thousand dollars, kidnapping, and false imprisonment. ECF No. 9-7 at 10-14. At the sentencing proceeding, counsel for the State and the defense engaged in lengthy argument regarding whether the false imprisonment count should merge with the kidnapping count and what effect, if any, non-merger would have on sentencing. ECF No. 9-8 at 5-19 (State's argument); id. at 20-30 (Defense argument). The trial court resolved the issue in favor of the State, holding that the false imprisonment count related to the initial period of time Lessio was in the car and was not allowed to leave. Id. at 38. The kidnapping charge, on the other hand, related to the period of time when she managed to run away from the two men in the park, and Petitioner and Richards had forcibly put her back into the car. Id. at p. 38. The trial court then expressed its belief that “Mr. Lee's involvement in this case made it possible for the horrific sexual offenses to occur for which the co-defendant was found guilty” and that he had “altered the nature of the interaction and transformed it into a sexual interaction or nightmare.” Id. Based on the court's view that “the circumstances accompanying this crime are of such unusual aggravation the punishment ought to be unusually severe, ” Petitioner was sentenced to an aggregate term of 85 years. Id. at 39.

         B. Direct Appeal

         On appeal to the Maryland Court of Special Appeals, Petitioner presented the following questions for the appellate court's review:

Should the offenses of false imprisonment and kidnapping merge pursuant to the required evidence test, thereby capping Appellant's sentence to thirty years for the greater offense?
Did the trial court consider impermissible sentencing criteria when it determined ...

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