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Simms v. State

Court of Special Appeals of Maryland

May 1, 2019

ROLAND E. SIMMS
v.
STATE OF MARYLAND

          Circuit Court for Prince George's County Case No. 17-0277X

          Wright, Kehoe, Raker, Irma S., (Senior Judge, Specially Assigned), JJ.

          OPINION

          WRIGHT, J.

         Appellant, Roland E. Simms, was indicted in the Circuit Court for Prince George's County and charged with attempted first-degree murder, attempted second-degree murder and related counts. Following a jury trial, he was acquitted of the two attempted murder counts and convicted of: first and second-degree assault; reckless endangerment; use of a firearm in the commission of a crime of violence; illegal possession of a firearm; wearing, carrying, or transporting a handgun; and violation of a protective order. Appellant was sentenced to an aggregate sentence of 50 years with all but 30 years suspended in favor of five years' supervised probation, plus credit for time served, as follows: 25 years, with all but 20 suspended, for first degree assault; 20 years consecutive, with all but five suspended, for use of a firearm; five years consecutive for illegal possession of a regulated firearm; three years concurrent for wearing, carrying, or transporting a handgun; and 90 days concurrent for violating a protective order. Appellant timely appealed and presents the following questions for our review:

1. Did the trial court err when it failed to consider taking a partial verdict on the ground that in order to take a partial verdict, both sides must agree?
2. Did the court err in imposing separate sentences for first degree assault, use of a firearm in the commission of a crime of violence, illegal possession of a firearm, wearing, carrying, or transporting a handgun, and violation of a protective order?

         For the following reasons, we shall vacate appellant's sentences for wearing, carrying, or transporting a firearm and violating a protective order and, otherwise, shall affirm.

         BACKGROUND

         Although we have reviewed the record as a whole, "[i]t is unnecessary to recite the underlying facts in any but a summary fashion because for the most part they [otherwise] do not bear on the issues we are asked to consider." Teixeira v. State, 213 Md.App. 664, 666 (2013) (citations and quotations omitted); accord Kennedy v. State, 436 Md. 686, 688 (2014). Appellant was charged with shooting Christina Warrick, the mother of his three children, at a bus stop located in Oxon Hill, Maryland, on the morning of January 24, 2017. Warrick survived and testified against appellant at trial. She informed the jury that she was standing at a bus stop with three of her daughters when appellant approached her with "the look of death on his face," stated "bitch, you tell him everything," and then punched her in the face.

         Warrick told her daughters to run and tried to fight back, but appellant pushed her to the ground and pulled out a handgun. He then fired one shot at Warrick's face, however, Warrick turned her head and the shot only grazed her nose. Warrick managed to get up off the ground momentarily, but appellant pushed her back down to the ground and fired another shot and that second shot struck Warrick in the chest.

         Warrick also testified that she previously had obtained a final protective order against appellant on August 8, 2016. The protective order was good for one year and required that appellant have no contact with Warrick or her children. Warrick's account of the shooting was corroborated by her daughters, A.S., S.W., and A.W., as well as Koffi Soedje, who were all present at the bus stop and witnessed the shooting.

         We shall include additional detail in the following discussion.

         DISCUSSION

         I.

         Appellant contends that the circuit court erred by not considering taking a partial verdict because it thought both sides had to agree in order to do so. The State responds that appellant waived this issue by acquiescing to the court's decision and foregoing any suggestion of a partial verdict in lieu of a requested modified Allen charge.[1] The State also argues the court properly exercised its discretion on the merits of the original request for a partial verdict.

         After deliberations began, the jury sent out several notes seeking clarification about the elements of the charged offenses.[2] The jury then sent out a note, which read:

         "We are not able to reach a unanimous decision on one charge yet." This note was addressed in court as follows:

THE COURT: So what do you want me to say? You must keep deliberating, correct? What other answer is there? I'm not taking a partial verdict. I'm not letting them go home when they only went out at - what was that? 1:30?
THE DEPUTY CLERK: 1:30, 1:45.
THE COURT: It hasn't even been - unless you think there's another option.
[DEFENSE COUNSEL]: We could talk about taking a partial verdict.
[PROSECUTOR]: I'd prefer further deliberations. Perhaps the Allen charge, and then after - you know.
THE COURT: Not an Allen charge now.
[PROSECUTOR]: I'm fine with continue deliberating.
THE COURT: Please continue deliberating.
[PROSECUTOR]: Because the Allen charge, I mean, we all agree that it doesn't say much.
THE COURT: So do you object to me telling them please continue deliberating?
[DEFENSE COUNSEL]: Might as well. I think it says only one is left.
[PROSECUTOR]: That's the same reading that I have.
(Whereupon, the Court and counsel signed the Court's response to the jury's note.)
THE COURT: Your signature is fine. What else?
[DEFENSE COUNSEL]: I don't want it to be imputed that I'm agreeing. That's all.
THE COURT: It does mean you're agreeing. You object to that? Because I wouldn't have written it down if you were objecting to my saying, "Please ...

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