Alexis v. State ( 2014 )

Jamaal Garvin Alexis v. State of Maryland, No. 45, September Term, 2013
CRIMINAL LAW — SIXTH AMENDMENT — RIGHT TO COUNSEL OF
CHOICE — DISQUALIFICATION OF COUNSEL: Although a criminal defendant is
afforded a presumption in favor of his or her counsel of choice under the Sixth
Amendment, this right is qualified in many important respects. In deciding whether to
disqualify a criminal defendant’s selection of counsel due to a conflict of interest, a trial
court is afforded wide discretion. In this case, the trial court conducted a hearing on the
matter and made evidentiary-based findings that the interests of fairness and maintenance
of ethical standards outweighed the defendant’s right to counsel of choice due to a
conflict of interest arising from the chosen counsel’s prior representation of one of the
State’s material witnesses. Such an exercise of discretion was not so far beyond the
fringe of the court’s discretionary range as to require reversal.
CRIMINAL LAW — RULE OF LENITY — SENTENCING MERGER —
SOLICITATIONS: Petitioner was convicted of violating Criminal Law Article § 9-302
(solicitation for the purpose of preventing future testimony) and § 9-303 (solicitation for
the purpose of retaliating for prior testimony). Both statutes have a subsection that
precludes merging the sentence for that offense with a contemporary other sentence for
conviction of “any crime.” Thus, because the plain language of the statutes indicates
explicitly that the General Assembly did not intend the sentences to merge, the rule of
lenity was inapplicable.
CRIMINAL LAW — “FUNDAMENTAL FAIRNESS” — SENTENCING
MERGER — SOLICITATIONS: Because the plain language of Criminal Law Article
§§ 9-302(d) and 9-303(d) indicated that the General Assembly did not intend the
sentences to merge with a contemporaneous conviction for any other crime, the principle
of “fundamental fairness” that, at times, require merger of sentences in cases where the
rule of lenity and the doctrine of merger are inapplicable, does not apply.
Circuit Court for Prince George’s County
Case Nos. CT08-0504X; CT09-1040B
Argued: 10 January 2014
IN THE COURT OF APPEALS OF
MARYLAND
No. 45
September Term, 2013
JAMAAL GARVIN ALEXIS
v.
STATE OF MARYLAND
Barbera, C.J.,
Harrell,
Battaglia,
Greene,
Adkins,
McDonald,
Cathell, Dale R. (Retired,
Specially Assigned),
JJ.
Opinion by Harrell, J.
Filed: March 24, 2014
Following a sixteen-day trial (4 – 29 October 2010) of consolidated cases, a jury
in the Circuit Court for Prince George’s County convicted Petitioner, Jamaal Garvin
Alexis (“Alexis”), in the first case (CT08-0504X), of second-degree murder and robbery
with a dangerous weapon of Raymond Brown, use of a handgun in the commission of a
crime of violence, common law conspiracy to commit theft over $500, and two counts of
theft over $500. In the second case (CT09-1040B), the jury convicted Alexis of
solicitation to obstruct justice by preventing Bobby Ennels, a purported witness to the
murder of Brown in the first case, from testifying at trial in that case, and solicitation to
obstruct justice by retaliating against Ennels for his prior testimony before the grand jury
in the first case. On 14 December 2010, Alexis was sentenced to a total of one hundred
and forty years of incarceration, twenty of which was for the first solicitation conviction
and another twenty of which was for the second solicitation conviction.
The cases were consolidated for appeal to the Court of Special Appeals, which
affirmed the Circuit Court’s judgment. Alexis v. State, 209 Md. App. 630, 61 A.3d 104
(2013). We shall affirm as well, holding first that the trial court exercised its discretion
properly in disqualifying one of Alexis’s defense counsel, who had represented
previously a key State’s witness in an unrelated and earlier criminal matter (which
conflict of interest the witness refused to waive) and, second, that merger is precluded for
convictions of the two counts of solicitation where the relevant statutes contained parallel
anti-merger provisions.
I. PERTINENT FACTS
A. The Background 1
1. The murder of Raymond Brown and related crimes.
On the morning of 13 October 2006, Danielle Steele Brown and her husband,
Raymond Brown, were awakened by the raucous sound of Mr. Brown’s car alarm. From
a window of their dwelling in the Largo area of Prince George’s County, Ms. Brown
observed a tow truck towing away Mr. Brown’s car, a black Chrysler 300. The Browns,
in an attempt to locate a sign in the community with the name of the company that
occasionally towed cars parked illegally in the area, drove in Ms. Brown’s car to the
entrance of their community, where they saw the tow truck with the Chrysler attached.
According to Ms. Brown’s testimony at trial, Mr. Brown got out of the car and, as Mr.
Brown approached the tow truck, a man standing next to the truck ran away. Gunfire
came from the driver’s side of the tow truck. Mr. Brown fell to the ground, injured. The
tow truck drove away with the Chrysler. Mr. Brown was taken to a local hospital where
he died as a result of a gunshot wound to his chest.
Later that day, law enforcement officers recovered the Chrysler, which had been
abandoned (sans tires and with a broken door window on the driver’s side), as well as an
abandoned, stolen Snatchman tow truck with a broken door window on the driver’s side
as well. Inside the cabin of the tow truck, the officers found a cartridge casing. When
1
The “facts” we report are those borne out by the State’s presentation of the case
and apparently believed by the jury. Alexis disputes much of these “facts.” For purposes
of the arguments on appeal, however, the details of this dispute do not add value and,
thus, are omitted.
-2-
the officers “dusted” the vehicles for fingerprints, they were able to “lift” a latent
fingerprint belonging to Neiman Marcus Edmonds from the hood of the Chrysler.
Corroborating Edmonds’s involvement in the events of October 13, approximately six
months after the shooting, Ms. Brown identified Edmonds from a photographic array as
the man who had been standing next to the tow truck on the night of her deceased
husband’s shooting and ran.
According to the testimonies of Edmonds and the other State’s witnesses at
Alexis’s trial, Alexis had a history of stealing cars using a Snatchman tow truck 2 for the
purpose of stripping the tires off the cars to sell the rims, and then abandoning the car.
Some of these witnesses claimed that Alexis admitted to shooting and killing Brown.
Edmonds testified that Alexis, Ennels, and he drove to Largo to steal a car in the late
evening of 12 October 2006. Alexis drove a stolen Snatchman tow truck. Bobby Ennels
drove his car, with Edmonds asleep in the back seat. Alexis backed the tow truck into the
Browns’ driveway, put the forks under the Chrysler 300 (which had 22-inch rims), and
picked it up. When Alexis picked up the Chrysler, the car’s alarm sounded. Alexis drove
the truck (with the car attached) to the front of the community, where Ennels broke the
Chrysler’s door window on the driver side and popped the hood so that Edmonds could
disable the alarm.
2
Testimony at trial established that, with a Snatchman tow truck, a driver is able
to attach to the tow truck (and take) another car by backing the truck up to the car, sliding
the forks under the car, and driving the truck away with the car attached. This towing
process permits the truck driver to tow the car away without getting out of the truck.
-3-
As Edmonds disabled the alarm, another car approached. When a man stepped out
of the second car, Edmonds ran to Ennels’s car. Edmonds testified that, as he ran to the
car, he heard a “slight pow” and glass breaking. Ennels and Edmonds drove to a
previously agreed upon meet-up location, where they found Alexis with the tow truck
(with a newly broken window) and the Chrysler attached. Edmonds asked Alexis if the
man in the second car shot at them; Alexis did not reply. The trio stripped the Chrysler
of its tires, “wiped down” the car and the tow truck, and abandoned both vehicles. The
next day, according to Edmonds’s testimony, Alexis, Edmonds, and Ennels were at the
house of Brian Barnes (a mutual acquaintance) when Alexis told Edmonds that he shot
Brown (the man in the second car) because he saw Brown get out of the car with
something in his hand.
On 27 March 2008, the State charged Petitioner, Jamaal Garvin Alexis, with
murder, carjacking, and related crimes with respect to Brown.
2. The murder of Bobby Ennels.
Also, according to Edmonds’s testimony, Ennels was present at Barnes’s house on
14 October 2006 during the conversation in which Alexis admitted to shooting Brown the
previous day. According to Edmonds, this conversation led Ennels to “freak[] out,”
which, in turn, caused Alexis to worry that Ennels might “snitch.” Edmonds asserted to
Alexis that Ennels would not do that. Approximately one month later, Alexis asked
Edmonds if he thought Alexis should kill Ennels if Ennels tried to snitch. Edmonds re-
affirmed his confidence in Ennels. Nevertheless, Alexis suggested that Edmonds get
-4-
Ennels drunk one night and in a car, pull up to a stop light, and let Alexis “do the rest.”
Edmonds refused.
On 3 October 2008, Alexis, while detained at the Prince George’s County
Detention Center, called Deaundrey Shropshire, who was raised with the Alexis family
and was the current roommate of Alexis’s brother, Rashadd. Alexis asked him, “What’s
going on with my M?” Shropshire responded, “You still haven’t told me what you want
me to do with that [guy].” 3
Three days later, on 6 October 2008, according to the State’s witness, Ms. Frances
Lammons, Ennels, Anthony Cash, III, and Lammons drove to a location on Nalley Road
in the County. Upon arrival, Ennels called someone and stated, “You all can come on
down . . . .” Approximately two minutes later, two men approached the car. Lammons
testified that one man was “brown skin[ned with a] short haircut,” and the second man
was “brown skin[ned] with dreads.” According to Lammons, Ennels told the men, “You
all don’t have to worry about nothing[;] It’s okay. It’s cool.” Whereupon, the man with
the short haircut shot Ennels. Upon being shot, Ennels put the car into reverse and
crashed into a tree. Lammons and Cash got out of the car and ran. Lammons was shot in
the elbow while fleeing.
Ennels was found dead in the driver’s seat of the car. Cash was found dead, as a
result of gunshot wounds to the back, forearm, and knee, in the driveway of a nearby
home at 406 Nalley Road. In a neighboring house at 404 Nalley Road, law enforcement
3
At trial, the State introduced an audiotape of this call.
-5-
officers found a black skull cap, which contained a mixed DNA profile. Analysts
determined later that Alexis’s brother, Rashadd Alexis, was the major contributor to the
DNA on the skullcap.
Officer Juan Nolasco testified that, on the morning of the Ennels-Cash murders,
around 1:00 AM, he observed two vehicles speeding from the area of Nalley Road where
the bodies of Ennels and Cash were found later. The Officer stopped one of the vehicles,
a Buick Regal, registered to Shropshire. The driver of the stopped vehicle was Rashadd
Alexis, who, according to Officer Nolasco, was very nervous and appeared to have blood
on his shirt. Rashadd Alexis was released at that time, pursuant to an order from a
detective at the scene of the shooting. Shortly thereafter, while Lammons was in
hospital, the Prince George’s County Police Department showed her a photographic
array. She selected a picture of Barnes as someone who looked familiar to her and as a
person that “resembled” a man present at the Nalley Road shootings. Lammons was
shown a picture of Rashadd also, but could not identify or recognize him.
As part of the investigation of Cash’s and Ennels’s murders, law enforcement
officers discovered that the last call to Ennels’s cellular telephone before his murder was
from a telephone number associated with a prepaid telephone purchased in Landover,
approximately a mile from Rashadd Alexis’s house. Phone records disclosed that only
thirteen telephone calls were made from this particular number. All thirteen calls were
made to Ennels’s cellular telephone between 23 September 2008 and 7 October 2008, the
day of Ennels’s murder. Additionally, law enforcement officers discovered that the calls
-6-
utilized cellular telephone towers located near Swan Terrace, where Rashadd Alexis’s
and Petitioner’s aunt lived and a half mile from where Rashadd’s girlfriend lived.
3. Jalloh, the jailhouse informant.
Amadu Sulamon Jalloh, an inmate with pending criminal charges, was
incarcerated with Jamaal Alexis and Donnell Hunter (a/k/a “Fat Rat”) at the Prince
George’s County Detention Center. Jalloh informed his attorney that he overheard
conversations between Alexis and Fat Rat regarding the murder of Brown and the
potential killing of a witness. Jalloh’s attorney arranged a meeting between Jalloh and an
Assistant State’s Attorney. According to Jalloh’s ultimate grand jury testimony, 4 Alexis
confessed to him in jail that he murdered Brown. Moreover, Jalloh stated that, on one
occasion, he heard Fat Rat tell Alexis that “the only way you can go home is to kill the
witness.” Jalloh testified also that, at some point after Jalloh’s meeting with the Assistant
State’s Attorney, Alexis told Jalloh that he was going home because “[his] brother got rid
of the witness.” According to Jalloh, Alexis told him that three people had been shot:
two men were killed and a girl was injured.
On 30 July 2009, the State charged Alexis with the murder of Bobby Ennels, a
purported witness to the Raymond Brown murder, as well as with attempted murder,
conspiracy to commit murder, solicitation to obstruct justice by preventing Ennels’s
future testimony, and solicitation to obstruct justice by retailiating against Ennels for his
grand jury testimony.
4
When Jalloh refused to testify at trial, the trial judge permitted the State to read
his grand jury testimony aloud to the jury.
-7-
B. Pre-Trial Events Relating to the Disqualification of Alexis’s Lead
Defense Counsel.
On 13 October 2006, when Petitioner was charged initially with the first degree
murder of Raymond Brown, and related charges, attorney Luis J. Martucci represented
Alexis. Subsequent to the indictment on 1 April 2008, an additional attorney, John
McKenna, entered an appearance on behalf of Alexis. The case against Alexis was
scheduled initially for a motions hearing on 1 July 2008 and for trial on 6 August 2008.
After several continuances, Messrs. Martucci and McKenna withdrew the pending
motions and the case was set for trial on 9 March 2009. On 18 December 2008, Harry
Tun, Esquire, filed a Motion for Substitution of Counsel (replacing Martucci and
McKenna), which the Circuit Court granted on 29 December 2008. Tun filed
additionally a motion to continue the trial date to 13 April 2009, which the Circuit Court
granted as well.
Several months later, on 1 April 2009, the State filed a Motion to Strike the
Appearance of Defense Counsel Tun. In their Memorandum of Law in support of their
motion, the State explained that Jalloh was a material witness in its case because he
agreed to testify about Alexis’s confession to murdering Brown and other related
conversations. The State sought to strike the appearance of Tun as defense counsel for
Alexis because of a conflict of interest arising from Tun’s prior representation of Jalloh
with respect to charges pending against Jalloh in State of Maryland v. John Doe, aka
Kamara Mohamed, CT07-2450X, in the Circuit Court (apparently Jalloh was known also
as Kamara Mohamed).
-8-
To summarize the facts regarding this prior representation, as presented to the
Circuit Court at the hearing on the motion to disqualify counsel, Tun’s representation of
Jalloh against the then still pending charges of attempted murder and associated charges
in a matter unrelated to the case against Alexis lasted from 18 December 2007 until 5
February 2008. During that time, according to Tun, he met with Jalloh “at least five
times going over [ ] the case that he was involved [in].” As part of Tun’s representation
of Jalloh, he received from the State discovery in Jalloh’s case on 2 January 2008,
represented Jalloh at a bond hearing on 18 January 2008, and filed a motion to sever
Jalloh’s case from that of a co-defendant on 25 January 2008. After Tun’s representation
of Jalloh was terminated, Jalloh filed a complaint on 19 February 2008 against Tun with
the Attorney Grievance Commission of Maryland.
In light of this prior representation, the State moved to strike the appearance of
Tun. The State averred that a conflict of interest existed between Tun’s representation of
Alexis and his prior representation of Jalloh, a State material witness, because “Tun was
provided with confidential privileged attorney-client information concerning Mr. Jalloh’s
background and the facts and circumstances of Mr. Jalloh’s case.” In support of this
assertion, the State attached an affidavit by Jalloh indicating that he provided
“confidential information pertaining to [his] case” to Tun. Particularly because the State
predicted that Jalloh’s credibility would be a “center-point of both the State’s
examination and the Defense’s cross-examination,” the State asserted that the conflict of
interest would violate the Maryland Lawyers Rules of Professional Conduct, see Md.
Rules of Professional Conduct 1.7 & 1.8, because Jalloh refused to waive his attorney-
-9-
client privilege. Additionally, the State argued that the court should strike defense
counsel’s appearance because any conviction of Alexis obtained with Tun as Alexis’s
counsel would be overturned on appeal or during collateral review on the basis of
ineffective assistance of counsel if Tun were permitted to continue representing Alexis in
view of the conflict of interest with Jalloh.
On 9 April 2009, Tun filed, on behalf of Alexis, a Memorandum of Law in
Opposition to the State’s motion. Tun acknowledged that he had represented Jalloh,
whom he knew at the time as Kamara Mohamed, but argued that the representation was
for “a brief and limited period of time,” less than two months. Tun stated that, during the
representation, he had “focused chiefly on procedural matters” and had not prepared for
trial at that time. “[Tun] estimate[d] that he spent less than 20 hours working on Mr.
Mohamed’s case altogether.” Moreover, Tun stated that, when he was retained by Alexis
on 18 December 2008, “[he] was unaware that Jalloh had any involvement or personal
stake in [] Alexis’s matter.”
Tun maintained that the Circuit Court should not strike his appearance for several
reasons. First, Tun averred that the information that Tun gained about Jalloh during his
representation of him was not privileged because it had become known generally to the
State (the opposing party) through Jalloh’s voluntary divulgements and through Jalloh
detailing his case in his complaint filed against Tun with the Attorney Grievance
Commission of Maryland. Second, Tun argued that he should not be disqualified
because effective safeguards in the trial of Alexis could eliminate any conflicts associated
with his prior representation of Jalloh. Specifically, Tun proffered that “the limited
-10-
appearance of attorney Antonio Jones for the purpose of cross-examining [ ] Jalloh at trial
will create a ‘Chinese wall’ that will effectively serve to isolate any conflict of interest [ ]
Tun’s previous limited representation of [ ] Jalloh might have upon the Defendant.” Tun
believed that “this screen will address any concerns that a conflict of interest in [ ] Tun
representing [ ] Alexis while maintaining any privileged communications from [ ] Jalloh”
because Tun screened effectively himself from any conflict associated with Jalloh.
Lastly, Tun argued that Alexis would suffer less prejudice if he is permitted to retain his
current counsel.
Also on 9 April 2009, defense co-counsel, Ross D. Hecht, filed a motion to
exclude Jalloh’s statements. In that motion, Hecht made several statements indicating
that it was his understanding that Jalloh had a history of serving as a jail house snitch:
It is undersigned counsel’s understanding that Mr. Jalloh has cooperated
with the State as an informant in several criminal matters in an effort to
benefit his own circumstances. . . . It is undersigned counsel’s
understanding that Mr. Jalloh has been cooperating with the law
enforcement for some time. . . . It is submitted that throughout the tenure of
Mr. Jalloh’s cooperation, Mr. Jalloh has been actively seeking information
and trying to gain details from other inmates to help himself. . . . At the
time that Mr. Jalloh obtained such information, he was working as a
criminal informant for law enforcement in several different criminal cases
in an effort to compel the prosecution to pursue a more lenient sentence in
his own pending criminal matters.
On 10 April 2009, the Circuit Court held a hearing to address the various motions,
including the motion to disqualify defense counsel and the motion to exclude Jalloh’s
statements. The court stated that it would allow each side a chance to make an opening
and “then we’ll call witnesses as necessary” on the motions. After hearing the parties’
arguments on the motion to disqualify counsel, the hearing judge stated:
-11-
THE COURT: Anything else?
MR. TUN: No, your Honor.
THE COURT: All right. On the State’s motion to strike Mr. Tun as
attorney for the Defendant, for some reason, I don’t know what the
statistical likelihood of this happening is, the Defendant in this case and Mr.
Tun’s former client, Mr. Amadu Jalloh, were placed in the same jail cell at
the County Correctional Center and apparently have some conversations
which I believe the State intends to use, if I’m not mistaken.
[ASSISTANT STATE’S ATTORNEY]: Yes, Your Honor.
THE COURT: While Mr. Alexis has waived whatever conflict Mr. Tun
might have, . . . Jalloh . . . has not and, in fact, takes significant exception to
Mr. Tun continuing to participate in this case when he [Jalloh], in fact, is
going to be a witness for the State. The conflict is a significant one and I
think we all agree there is, in fact, conflict. There is conflict with the duty
of loyalty. I appreciate Mr. Tun represented him [Jalloh] for a short period
of time but, I think, that duty of loyalty continues and, in fact, there is really
is truly a conflict were this case to go to trial with Mr. Tun at the table.
To say that we can create a Chinese wall, a masonry wall, a brick or a block
wall that solves this problem I think is folly. I just don’t believe that we
can do that. Having said all that, accordingly, I’m going to direct the Clerk
to strike Mr. Tun’s appearance.
During a recess in the court proceedings, Hecht approached the court in chambers (which
was recounted on the record after the recess concluded) to ask whether the court would
reconsider its ruling striking Tun’s appearance if Tun was not present in the courtroom
during any examination of Jalloh. The Circuit Court replied on the record: “I’m really
not inclined to reconsider that ruling. I just think if I do, I’ll be doing this case twice.”
-12-
C. Trial: Jury Instructions, Jury Verdict, & Sentencing.
The cases against Alexis were tried together in a sixteen-day trial in October of
2010. Prior to closing arguments, the Circuit Court instructed the jury as to the
solicitation charges as follows:
The defendant is charged with two separate counts of the crime of
Solicitation to Commit Obstruction of Justice. That is preventing witness
testimony or retaliation for testimony. A criminal solicitation is an effort to
persuade another person to commit a crime. In order to convict the
defendant of Solicitation, the State must prove, one, that the defendant
urged, advised, induced, encouraged, requested, or commanded another
person to commit Obstruction of Justice by Preventing Witness Testimony
and/or Obstruction of Justice in Retaliation for Testimony; and two, that at
the time the defendant made the oral or written efforts to persuade another
person to commit Obstruction of Justice by Preventing Witness Testimony
and/or Obstruction of Justice by Retaliation for Testimony, the defendant
intended that the Obstruction of Justice Preventing the Witness Testimony
and/or Obstruction of Justice for Retaliation for Testimony be committed.
The crime of Solicitation is in the asking. It is not necessary that the
Obstruction of Justice Preventing the Witness Testimony and/or
Obstruction of Justice Retaliation for Testimony actually be committed.
With respect to the first case, the jury convicted Alexis of second degree murder
of Brown, robbery with a dangerous weapon of Brown, use of a handgun in the
commission of a crime of violence, conspiracy to commit theft over $500, and two counts
of theft over $500. With respect to the second case, the jury convicted Alexis of
solicitation of Rashadd Alexis to obstruct justice and murder Ennels to prevent his future
testimony and solicitation of Rashadd Alexis to obstruct justice by retaliating against
Ennels for his grand jury testimony.
At the sentencing hearing on 14 December 2010, defense counsel argued that
Alexis was “found guilty of two offenses which the lesser charge would merge with the
-13-
second” and, thus, the solicitation to obstruct justice by retaliation for the testimony of
Ennels before the grand jury would merge with the solicitation to obstruct justice by
preventing Ennels’s testimony at trial. The State responded, arguing that the solicitation
sentences should not merge for several reasons. First, the solicitation convictions are two
separate offenses (C.L. §§ 9-302 and 9-303) that “refer to two separate aspects. One is
retaliation for testifying against the grand jury. The other is an inducement to not testify
at trial.” Moreover, because “the solicitation is in the asking[,] . . . it has to be asked two
separate times, to retaliate and to prevent.” Lastly, “they refer to two separate dates; one
being March of #08 for the grand jury and the second being the October 2010 eventual
trial.” The Circuit Court rejected defense counsel’s merger argument and sentenced
Alexis to two consecutive sentences of twenty years for the solicitation convictions.
The two cases were consolidated on appeal. The Court of Special Appeals
affirmed, in Alexis v. State, 209 Md. App. 630, 61 A.3d 104 (2013), the Circuit Court’s
judgment. On 20 June 2013, this Court issued a writ of certiorari, in response to Alexis’s
petition, to consider the following questions:
(1) Did the trial court err by disqualifying petitioner's attorney, who had
previously represented a State's witness, when the witness refused to
waive the conflict of interest and appellant's counsel had arranged for
co-counsel to cross-examine the witness?
(2) Are consecutive sentences appropriate where petitioner was convicted
of two counts of solicitation where both counts were predicated on the
same evidence?
-14-
II. TRIAL COURT’S DISQUALIFICATION OF DEFENSE COUNSEL.
The Sixth Amendment to the United States Constitution and Article 21 of the
Maryland Declaration of Rights guarantee that, in all criminal prosecutions, the accused
has the right to assistance of counsel for his defense. 5 The Supreme Court recognizes
that “this right was designed to assure fairness in the adversary criminal process,” Wheat,
486 U.S. 153, 159, 108 S. Ct. 1692, 1697, 100 L. Ed. 2d 140 (1988) (citing United States v.
Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 667, 66 L. Ed. 2d 564 (1981)), and that “the
purpose of providing assistance of counsel ‘is simply to ensure that criminal defendants
receive a fair trial.’” Id. (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct.
2052, 2065, 80 L. Ed. 2d 674 (1984)). Additionally, included as part of the right to
assistance of counsel, is the qualified right of a defendant to select and be represented by
one’s preferred attorney. See Wheat, 486 U.S. at 159, 108 S.Ct. at 1697, 100 L. Ed. 2d
140; State v. Goldsberry, 419 Md. 100, 117-18, 18 A.3d 836, 847 (2011); McCleary v.
State, 122 Md. 394, 400, 89 A. 1100, 1103 (1914).
As the Supreme Court observes, “[i]n evaluating Sixth Amendment claims, ‘the
appropriate inquiry focuses on the adversarial process, not on the accused's relationship
with his lawyer as such.’” Id. (quoting United States v. Cronic, 466 U.S. 648, 657, n. 21,
104 S. Ct. 2039, 2046 n. 21, 80 L. Ed. 2d 657 (1984)). Thus, “while the right to select and
5
The Sixth Amendment to the United State Constitution guarantees that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.” Similarly, Article 21 of the Maryland Declaration of Rights
provides “[t]hat in all criminal prosecutions, every man hath a right . . . to be allowed
counsel . . . .”
-15-
be represented by one's preferred attorney is comprehended by the Sixth Amendment, the
essential aim of the Amendment is to guarantee an effective advocate for each criminal
defendant rather than to ensure that a defendant will inexorably be represented by the
lawyer whom he prefers.” Id. (citing Morris v. Slappy, 461 U.S. 1, 13–14, 103 S. Ct.
1610, 1617–1618, 75 L. Ed. 2d 610 (1983); Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308,
77 L. Ed. 2d 987 (1983)). Accordingly, the right of a defendant to counsel of choice is
“circumscribed in several important respects.” Wheat, 486 U.S. at 159, 108 S.Ct. at
1697, 100 L. Ed. 2d 140. See also Goldsberry, 419 Md. at 118, 18 A.3d at 847 (“The right
to counsel of choice . . . is qualified.”). For example, a defendant may not “insist on the
counsel of an attorney who has a previous or ongoing relationship with an opposing
party, even when the opposing party is the Government.” Id. The question raised in the
present case is the extent to which a defendant’s Sixth Amendment right to choice of
counsel is qualified by the fact that the chosen attorney has a previous attorney-client
relationship with a material witness of the opposing party.
A. Standard of Review
In multiple cases involving requests for disqualification of counsel due to alleged
conflicts of interest, the Supreme Court and this Court applied the abuse of discretion
standard of review. See, e.g., Wheat, 486 U.S. at 163, 108 S.Ct. at 1699, 100 L. Ed. 2d 140
(stating that “[w]e do not think it can be said that the court exceeded the broad latitude
which must be accorded it in making this decision” on the motion for substitution of
counsel due to an alleged conflict of interest); Gatewood, 388 Md. at 538-40, 880 A.2d at
329-30 (concluding, after review of prior case law, the appropriate standard of review in
-16-
such cases is abuse of discretion) (citing Lykins v. State, 288 Md. 71, 415 A.2d 1113
(1980); Young v. State, 297 Md. 286, 465 A.2d 1149 (1983)). In Wheat, the leading
Supreme Court case on the disqualification of counsel due to a conflict of interest, the
Court held that “the district court must be allowed substantial latitude in refusing waivers
of conflicts of interest not only in those rare cases where an actual conflict may be
demonstrated before trial, but in the more common cases where a potential for conflict
exists which may or may not burgeon into an actual conflict as the trial progresses.” Id.,
486 U.S. at 163, 108 S. Ct. at 1699. The Court explained that wide latitude was necessary
for the following reasons:
[A] district court must pass on the issue whether or not to allow a waiver of
a conflict of interest by a criminal defendant not with the wisdom of
hindsight after the trial has taken place, but in the murkier pre-trial context
when relationships between parties are seen through a glass, darkly. The
likelihood and dimensions of nascent conflicts of interest are notoriously
hard to predict, even for those thoroughly familiar with criminal trials. It is a
rare attorney who will be fortunate enough to learn the entire truth from his
own client, much less be fully apprised before trial of what each of the
Government's witnesses will say on the stand. A few bits of unforeseen
testimony or a single previously unknown or unnoticed document may
significantly shift the relationship between multiple defendants. These
imponderables are difficult enough for a lawyer to assess, and even more
difficult to convey by way of explanation to a criminal defendant untutored
in the niceties of legal ethics. Nor is it amiss to observe that the willingness
of an attorney to obtain such waivers from his clients may bear an inverse
relation to the care with which he conveys all the necessary information to
them.
Wheat, 486 U.S. at 162-63, 108 S. Ct. at 1699, 100 L. Ed. 2d 140. 6
6
Alexis points out that these cases involved conflicts of interest arising from
multiple representation (an attorney with a conflict or potential conflict between two or
more current clients) and not successive representation (an attorney with a conflict or
(continued…)
-17-
In applying the abuse of discretion standard in Wheat, the Supreme Court
concluded that the trial judge “relied on instinct and judgment based on experience in
making its decision” on the motion for substitution of counsel due to alleged conflict of
interest and, thus, the decision should be given wide deference. Wheat, 486 U.S. at 163,
108 S.Ct. at 1699, 100 L. Ed. 2d 140. See also Gatewood, 388 Md. at 540, 880 A.2d at 330
(acknowledging similarly that, in reviewing a circuit court’s decision regarding the
disqualification of counsel request for alleged conflicts of interest created by past client
representation, “the trial judge is in a unique position to ‘sense the nuances’ of the
situation before him or her.”) (quoting Lykins, 288 Md. at 85, 415 A.2d at 1121). The
Supreme Court acknowledged that “[o]ther district courts might have reached differing or
opposite conclusions with equal justification,” but emphasized “that does not mean that
one conclusion was ‘right’ and the other ‘wrong.’” Id., 486 U.S. at 164, 108 S. Ct. at
1700, 100 L. Ed. 2d 140.
Similarly, we apply the abuse of discretion standard of review in this case.
Consequently, we pause to review the contours of this standard of review. “Abuse of
discretion,” although used and applied with great frequency by appellate courts, has been
(…continued)
potential conflict with at least one former client), as is present in this case. Alexis
suggests in his brief that, because multiple representation and successive representation
pose different dangers, different standards may apply. At oral argument, however,
Alexis’s counsel conceded that the appropriate standard of review was abuse of
discretion. Such a concession was proper because, even were we to acknowledge that
conflict of interests may pose different dangers depending on the source of the conflict,
the reasoning for our wide deference to the trial court’s determinations remains
applicable regardless of the source of conflict.
-18-
described aptly as a “very general, amorphous term[] . . . .” North v. North, 102 Md.
App. 1, 648 A.2d 1025 (1994). This perception is due, in large part, to the multitude of
definitions for the term and, in some other part, to the necessity for its nature to change
according to the legal context at issue.
In regards to the multitude of varying definitions of “abuse of discretion,” as we
recognized previously, “[o]ne of the more helpful pronouncements on the contours of the
abuse of discretion standard comes from Judge . . . Wilner’s opinion in North v. North,
102 Md. App. 1, 648 A.2d 1025 (1994),” when he was the Chief Judge of the Court of
Special Appeals. King v. State, 407 Md. 682, 697, 967 A.2d 790, 798 (2009). In North,
Judge Wilner explained:
“Abuse of discretion” . . . has been said to occur “where no reasonable
person would take the view adopted by the [trial] court,” or when the court
acts “without reference to any guiding rules or principles.” It has also been
said to exist when the ruling under consideration “appears to have been
made on untenable grounds,” when the ruling is “clearly against the logic
and effect of facts and inferences before the court,” when the ruling is
“clearly untenable, unfairly depriving a litigant of a substantial right and
denying a just result,” when the ruling is “violative of fact and logic,” or
when it constitutes an “untenable judicial act that defies reason and works
an injustice.”
North, 102 Md. App. at 13–14, 648 A.2d at 1031–32 (alterations in original) (emphasis
added) (internal citations omitted). Judge Wilner observed that a “certain commonality
[exists] in all these definitions”: “the notion that a ruling reviewed under an abuse of
discretion standard will not be reversed simply because the appellate court would
not have made the same ruling.” Id., 102 Md. App. at 14, 648 A.2d at 1032 (emphasis
added). Rather, “[a] court's decision is an abuse of discretion when it is ‘well removed
-19-
from any center mark imagined by the reviewing court and beyond the fringe of what that
court deems minimally acceptable.’” Gray v. State, 388 Md. 366, 383, 879 A.2d 1064
(2005) (quoting Dehn v. Edgecombe, 384 Md. 606, 628, 865 A.2d 603 (2005)) (some
internal quotation marks omitted).
As Judge Wilner explained, “That kind of distance can arise in a number of ways.”
North, 102 Md. App. at 14, 648 A.2d at 1032. For example, the circuit court’s ruling is
“beyond the fringe” if it “either does not logically follow from the findings upon which it
supposedly rests or has no reasonable relationship to its announced objective.” Id.
Because we give such deference to a trial court’s decision under the abuse of discretion
standard of review, it is well established that “[t]he exercise of discretion ordinarily will
not be disturbed by an appellate court.” Gatewood, 388 Md. at 540-41, 880 A.2d at 330
(citing Tierco Maryland, Inc. v. Williams, 381 Md. 378, 413, 849 A.2d 504, 525 (2004)).
In our cases elaborating on the definition of abuse of discretion, the notion that
this term of art “connotes, by definition, some range within which discretion may be
legitimately exercised one way or the other without constituting an abuse” is repeated
frequently. We must remember:
The notion of a range of discretion, however, is not an immutable and
invariable criterion in all of its myriad applications. The range of discretion
frequently changes with the subject matter calling for the exercise of
discretion. In handling the progress of a trial, for instance, as where the
judge rules on a leading question, permits a continuance, or assesses the
need for a mistrial, the range of discretion is very broad and the exercise of
discretion will rarely be reversed. On the issue now before us [referring to
a trial judge’s ruling that the suit was filed within the applicable statute of
limitation and that there was no justifiable reason for the delay], by way of
contrast, the discretionary range is far more narrow. It is circumscribed by
strong policy considerations and well-articulated guidelines.
-20-
Canterbury Riding Condo. v. Chesapeake Investors, Inc., 66 Md. App. 635, 648, 505
A.2d 858, 864 (1986).
In this case, the discretionary range is governed by strong policy considerations
that underlie the Sixth Amendment constitutional rights, as well as (potentially) by
guidelines articulated recently in State v. Goldsberry, 419 Md. 100, 18 A.3d 836 (2011).
Thus, we explore now the picket lines of the constitutional right and the applicable
guidelines to understand better the limits of the range within which a trial court may act
properly.
B. The Constitutional Right to Counsel
This Court addressed recently in Goldsberry what is “require[d] of a trial court in
making the important and weighty assessment presented by a choice of counsel issue.”
We recognized that the baseline considerations for this assessment are founded on the
Supreme Court’s pronouncement “that the proper balance is struck when ‘the district
court [ ] recognize[s] a presumption in favor of [the defendant’s] counsel of choice,’
which ‘may be overcome not only by a demonstration of actual conflict but by a showing
of a serious potential for conflict.’” Goldsberry, 419 Md. at 120, 18 A.3d at 848
(emphasis added in Goldsberry) (quoting Wheat, 486 U.S. at 164, 108 S. Ct. at 1700, 100
L. Ed. 2d 140). Goldsberry provided guidance how this “important and weighty
assessment” is made:
[B]efore a trial court is permitted to disqualify a criminal defendant's
privately obtained counsel (regardless of whether counsel is the defendant's
only attorney or one of several on the defense team), the court must
conduct a hearing on the matter, “scrutinize closely the basis for the
-21-
claim,” and make evidence-based findings to determine . . . whether
there is “actual or serious potential for conflict” that overcomes the
presumption the defendant has to his or her counsel of choice.
Goldsberry, 419 Md. at 123, 18 A.3d at 850 (internal citation omitted) (emphasis added).
In other words, “‘the trial court cannot vitiate [the right to counsel of choice] without first
scrutinizing closely the basis for the claim.’” Goldsberry, 419 Md. at 123, 18 A.3d at
850 (alteration in original) (quoting State v. Peeler, 828 A.2d 1216, 1225 (Conn. 2003)).
In Goldsberry, we required additionally that “[t]he record must reflect that the trial
court contemplated relevant factors in conducting the test that balances the right to one’s
counsel of choice against the necessity to uphold ‘the ethical standards of the profession’
that ensure that ‘legal proceedings appear fair to all who observe them.’” Goldsberry,
419 Md. at 124, 18 A.3d at 850 (emphasis added) (citing Wheat, 486 U.S. at 160, 108
S.Ct. at 1698; Fuller v. Diesslin, 868 F.2d 604, 608, 611 (3d Cir.), cert. denied sub nom.
Perretti v. Fuller, 493 U.S. 873, 110 S. Ct. 203, 107 L. Ed. 2d 156 (1989)). The findings
should be based on factors such as (1) “the likelihood that defense counsel will have
divided loyalties;” (2) “the State’s right to a fair trial;” (3) “the appearance of impropriety
should the jury learn of the conflict;” and (4) the likelihood that permitting defense
counsel’s continued representation “will provide grounds for overturning the conviction.”
Id. (quoting Illinois v. Ortega, 808 N.E.2d 496, 502 (Ill. 2004)).
-22-
Alexis argues that the trial court “did not properly contemplate and apply the
relevant factors [as required by Goldsberry] when denying [ ] his counsel of choice.” 7
According to Alexis, the trial court should have stated on the record its consideration of
each of the factors. We do not hold the trial court to such a high standard. It is apt to
note that we have announced many times that “‘[t]here is no requirement that the trial
court's exercise of discretion be detailed for the record, so long as the record reflects that
the discretion was in fact exercised.’” Gray v. State, 388 Md. 366, 384, 879 A.2d 1064,
1074 (2005) (brackets in Gray) (quoting Williams v. State, 344 Md. 358, 371, 686 A.2d
1096, 1102–03 (1996)). Thus, so long as the record as a whole reflects expressly or
implicitly that the Circuit Court contemplated the relevant factors and reaches a decision
that does not constitute an “untenable judicial act that defies reason and works an
injustice,” North, 102 Md. App. at 14, 648 A.2d at 1032, we may conclude that the
exercise of discretion is within the proper range. 8
7
In response, the State argues that this argument is not before this Court properly
because Alexis did not raise it in his Petition for Certiorari. Moreover, the State points
out that “Alexis does not claim that he raised any of those ‘factors’ in his trial court
pleading[s] or at the hearing on the motion to disqualify.” Thus, the State argues, “[t]he
trial court should not be faulted for failing to address an argument Alexis did not raise.”
We do not fault the trial court. Rather, we shall dispose of Alexis’s argument.
8
The State argues additionally that the Goldsberry decision is inapplicable to this
case. The Court of Special Appeals rejected this argument somewhat summarily in its
decision. See Alexis v. State, 209 Md. App. 630, 659-60, 61 A.3d 104, 121 (2013)
(stating that “[the court] need not explore the Zenobia principles to conclude that
Goldsberry is applicable to the case”). Because we resolve the issue in the State’s favor,
even assuming that Goldsberry applies, we do not address whether the case has a
prospective reach to cases pending at the time of its decision.
-23-
In the present case, we conclude that the record reflects satisfactorily consideration
of these requirements. The trial judge held a hearing on the matter. At the close of the
hearing, the trial judge found that all involved parties agreed that “there is, in fact,
conflict.” He described “[t]he conflict [as] a significant one” and, even though Tun’s
prior representation of Jalloh was for a short period of time, the “duty of loyalty
continues . . . .” Moreover, the trial judge rejected explicitly Tun’s proffered “Chinese
wall” remedy: “To say that we can create a Chinese wall, a masonry wall, a brick or a
block wall that solves this problem I think is folly. I just don’t believe that we can do
that.” Thus, the judge concluded “there is really is [sic] truly a conflict were this case to
go to trial with Mr. Tun at the table” and struck Tun’s appearance.
The Court of Special Appeals summarized the Circuit Court’s findings on this
matter as follows: “In sum, the [C]ircuit [C]ourt found that there was a conflict of interest
that could not be cured. . . . In the [C]ircuit [C]ourt's view, the risk of conflict outweighed
appellant's right to counsel of choice.” Alexis, 209 Md. App. at 660, 61 A.3d at 121. The
intermediate appellate court panel agreed with that determination, see id., and concluded
that it was “not persuaded that the circuit court erred or abused its discretion by refusing
to accept appellant’s waiver of Tun’s personal conflict of interest.” Id., 209 Md. App. at
661, 61 A.3d at 121.
Without reaching necessarily a determination whether we would have decided the
motions as did the Circuit Court, we conclude that such an exercise of discretion was
proper; there was no abuse of discretion here. Contrary to Alexis’s contention, “a
defendant’s waiver of the conflict is not always sufficient to cure the conflict.” Alexis,
-24-
209 Md. App. at 661, 61 A.3d at 121. That the trial judge held a hearing and articulated
his reasoning for his ruling indicates that he recognized the severity of the issues at stake
and we assume he considered all relevant arguments tendered. Moreover, the trial judge
“was not required to adopt use of co-counsel as a solution where the court perceived that
the risk of conflict would persist.” Id., 209 Md. App. at 661, 61 A.3d at 121. See also id.
(citing United States v. Agosto, 675 F.2d 965, 974 (8th Cir. 1982), as “explain[ing] why
appointment of co-counsel [for the purpose of cross-examination of a witness] is not
always a cure-all”). Even if we were to admit that, in light of the weighty and important
constitutional right to counsel of choice, the trial judge’s decision may be close to the
edge of the continuum of the proper exercise of discretion, it is our view that the decision
does not venture into the far fringes of impropriety that require reversal. The Circuit
Court’s rulings were not violative of fact or logic, or beyond the fringe of what is
minimally acceptable, but rather were evidentiary-based as Goldsberry requires.
As explained earlier in this opinion, “the trial judge is in a unique position to
‘sense the nuances’ of the situation before him or her.” Gatewood, 388 Md. at 540, 880
A.2d at 330 (quoting Lykins, 288 Md. at 85, 415 A.2d at 1121). This statement is true
especially in a circuit court’s decision regarding the disqualification of counsel for
alleged conflicts of interest created by prior representation of a key witness for the State.
As such, we conclude that “[t]he trial court, whose ‘finger [is] on the pulse of the trial,’
State v. Hawkins, 326 Md. 270, 278, 604 A.2d 489, 493 (1992), had a sound basis to
decide . . .” that a waiver of the conflict of interest was improper and that the proffered
cure was not adequate. See Dehn, 384 Md. at 628-29, 865 A.2d at 616 (holding the trial
-25-
court’s evidentiary rulings was not an abuse of discretion). Thus, we affirm the Circuit
Court’s ruling to strike defense counsel Tun’s appearance.
III. THE TRIAL COURT’S IMPOSITION OF SEPARATE SENTENCES.
Alexis was charged with and convicted of two counts of solicitation. First, he was
charged with and convicted of soliciting his brother Rashadd for the purpose of
preventing future testimony, in violation of Maryland Code (2002, 2012 Repl. Vol.),
Criminal Law Art., § 9-302(b)(ii). Secondly, Alexis was charged with and convicted of
soliciting Rashadd for the purpose of retaliating for prior testimony, in violation of
Maryland Code (2002, 2012 Repl. Vol.), Criminal Law Art., § 9-303(b). At sentencing,
defense counsel argued that “solicitation to obstruct justice by retaliation for testimony of
Bobby Ennels would merge with solicitation to obstruct justice [in the] murder of Bobby
Ennels.” The trial court rejected Alexis’s merger argument, and imposed two 20-year
separate and consecutive sentences. The Court of Special Appeals agreed with the trial
court, finding that the separate sentences were warranted. 9
9
It appears that Alexis adds an insufficiency of the evidence question to his appeal
before us: “The only remaining question is whether there was factual support for two
separate solicitation convictions.” Alexis argues that “there is no concrete evidence that
the jury could have found two solicitations based on different acts.” Specifically, Alexis
avers that (1) the jury instruction did not distinguish between the two solicitation counts,
and (2) the prosecution never argued that “there were in fact two separate solicitations.”
We resolve that, to the extent that Alexis raises an insufficiency of the evidence
argument, it was not preserved properly for our consideration. Because the proposition
raised to and addressed by the trial court was limited to merger of the sentences, and did
not address insufficiency of the evidence, we limit our review to Alexis’s actual merger
argument.
-26-
Under Maryland law, the doctrine of merger is examined under three distinct tests:
(1) the required evidence test; (2) the rule of lenity; and (3) the principle of fundamental
fairness. Petitioner does not argue that merger applies here based on the required
evidence test. See, e.g., Miles v. State, 349 Md. 215, 227, 707 A.2d 841, 847-48 (1998)
(“‘When two offenses do not merge under the required evidence test, we have applied as
a principle of statutory construction the ‘rule of lenity’ . . . .’”) (quoting Williams v. State,
323 Md. 312, 321, 593 A.2d 671, 675 (1991)); Monoker v. State, 321 Md. 214, 222, 582
A.2d 525, 529 (1990) (noting that, in cases where two offenses do not merge under the
required evidence test, “there are nevertheless times when the offenses will not be
punished separately”).
A. Rule of Lenity
The rule of lenity is a common law doctrine that directs courts to construe
ambiguous criminal statutes in favor of criminal defendants. In the context of whether
two offenses may be punished separately, it is well-understood that “[t]wo crimes created
by legislative enactment may not be punished separately if the legislature intended the
offenses to be punished by one sentence.” White, 318 Md. at 744, 569 A.2d 1271. The
rule of lenity provides that, “if we are unsure of the legislative intent in punishing
offenses as a single merged crime or as distinct offenses, we, in effect, give the defendant
the benefit of the doubt and hold that the crimes do merge.” Monoker, 321 Md. at 222,
582 A.2d at 529 (citations omitted). See also Miles, 349 Md. at 227, 707 A.2d at 847
(stating that the rule of lenity “‘provides that doubt or ambiguity as to whether the
legislature intended that there be multiple punishments for the same act or transaction
-27-
will be resolved against turning a single transaction into multiple offenses.’”) (quoting
White, 318 Md. at 744, 569 A.2d at 1273) (some internal quotation marks omitted). The
driving engine behind the rule is “‘that the Court will not interpret a . . . criminal statute
so as to increase the penalty that it places on an individual when such an interpretation
can be based on no more than a guess as to what [the legislature] intended.’” White, 318
Md. at 744, 569 A.2d at 1273 (quoting Simpson v. United States, 435 U.S. 6, 15, 98 S. Ct.
909, 914, 55 L. Ed. 2d 70 (1978)). This statutory construction principle applies, however,
only when the statute is ambiguous as to whether the Legislature intended to impose
multiple punishments. Id.
In evaluating the legality of the imposition of separate sentences from the same
act, the Court of Special Appeals explained the proper approach in Morris v. State, 192
Md. App. 1, 993 A.2d 716 (2010):
To evaluate the legality of the imposition of separate sentences for the same
act, we look first to whether the charges “arose out of the same act or
transaction,” then to whether “the crimes charged are the same offense,”
[Jones v. State, 357 Md. 141,] 157, 742 A.2d 493 [(1999)], and then, if the
offenses are separate, to whether “the Legislature intended multiple
punishment for conduct arising out of a single act or transaction which
violates two or more statutes....” Id. at 163, 742 A.2d 493.
Id., 192 Md. App. at 39, 993 A.2d at 738.
With regard to the first step of this analysis—whether the charges arose out of the
same act or transaction—the Morris court explained further:
The “same act or transaction” inquiry often turns on whether the
defendant's conduct was “one single and continuous course of conduct,”
without a “break in conduct” or “time between the acts.” The burden of
proving distinct acts or transactions for purposes of separate units of
prosecution falls on the State. Accordingly, when the indictment or jury's
-28-
verdict reflects ambiguity as to whether the jury based its convictions on
distinct acts, the ambiguity must be resolved in favor of the defendant.
Id. (internal citations omitted). Our intermediate appellate court brethren found in the
present case that the conduct underlying the solicitation convictions “was not predicated
on a single act or harm”:
Appellant spoke with multiple people on different dates about the intent to
murder Ennels. Edmonds testified that approximately one month after the
October 13, 2006, murder of Brown, appellant spoke to him about “killing
Ennels.” On October 3, 2007, four days before Ennels's murder, appellant
talked to Shropshire about what to do. According to Jalloh, while in
custody awaiting trial, appellant told him he was trying to locate the
witness and he heard appellant say killing the witness was the only way he
could go home. The evidence demonstrated that appellant's intent to murder
Ennels formed shortly after the murder of Brown and resulted in Ennels's
death approximately two years later.
Alexis, 209 Md. App. at 682 n.13, 61 A.3d at 134 n.13.
We disagree with this characterization of the relevant events. The evidence at trial
indicated that Alexis solicited Edmonds to assist in the murder of Ennels in November of
2006. The charges in the indictment did not depend on, however, events occurring in
2006. Specifically, the indictment charged that Alexis solicited “Rashadd . . . and
unknown others” for the purpose of retaliating against Ennels for prior testimony and of
preventing his future testimony “between the 21st day of May, two thousand and eight,
and the 7th day of October, two thousand and eight.” (Emphasis added.)
Examining the jury instruction and the jury verdict sheet, it appears that the main
distinction between the two solicitation charges and convictions were described solely in
terms of the purpose or motivation for the solicitation. As such, there may be ambiguity
as to whether the jury based its convictions on distinct and separate acts, particularly in
-29-
light of the fact that the prosecutor did not distinguish separate acts clearly. Thus,
because we resolve any ambiguity in favor of the defendant, we proceed here on the
assumption that the convictions were based on the same act (even if conducted with
multiple objectives).
We look next to whether the crimes charged constitute the same offense. In this
case, the crimes charged are two separate offenses: (1) solicitation for the purpose of
retaliation for prior testimony under § 9-303; and (2) solicitation for the purpose of
preventing future testimony under § 9-302. As the Court of Special Appeals explained:
Although involving the same victim, appellant was charged under two
distinct laws prohibiting retaliation for former testimony and preclusion of
future testimony. By the murder of Ennels, appellant punished or retaliated
against him for testifying before the grand jury. By the murder of Ennels,
appellant also achieved the goal of insulating himself from Ennels's
anticipated testimony at trial. Although the case involves a single victim,
two separate and distinct goals or harms were caused by appellant's conduct,
and one offense was not necessarily the overt act of the other. The second
offense required separate and distinct intent.
Alexis, 209 Md. App. at 682-83, 61 A.3d at 134. We agree.
To resolve the sole remaining question—whether the Legislature intended
multiple punishments for conduct arising out of a single act or transaction which violates
two or more statutes—we embark on an exercise in statutory analysis. Each solicitation
statute contains the following identical sentencing clause:
Sentence.—A sentence imposed under this section may be separate from
and consecutive to or concurrent with a sentence for any crime based on
the act establishing the violation of this section.
C.L. § 9-302(d); § 9-303(d) (emphasis added). The plain language of these subsections
indicates that the General Assembly intended punishment for convictions under either
-30-
statute not to merge with a conviction for any other offense, including a conviction
under the other statute. Moreover, the legislative history of this subsection does not
indicate to the contrary of the plain meaning of these provisions.
Alexis argues that, even though the plain language states “any crime” and the
legislative histories of these statutes do not indicate an intent to the contrary, that we
should adopt the legislative intent from other statutes that contain language nearly
identical to subsection (d) in §§ 9-302 and 9-303. For example, in Fisher v. State, 367
Md. 218, 786 A.2d 706 (2001), we analyzed the legislative history of § 35C(b)(3), the
sentencing clause of the statute criminalizing child abuse at that time. This subsection
provided, as of 25 June 1997:
The sentence imposed under this section may be imposed separate from and
consecutive to or concurrent with a sentence for any offense based upon the
act or acts establishing the abuse.
Md. Code (1957, 1996 Repl. Vol.), Art. 27, § 35C(b)(3). In Fisher, we summarized the
legislative history on this subsection as follows:
What is now § 35C(b)(3) was enacted by Chapter 604 of the Acts of 1990
for the express purpose of overruling the holdings in Nightingale v. State,
312 Md. 699, 542 A.2d 373 (1988), and in White v. State, 318 Md. 740, 569
A.2d 1271 (1990), which had applied the rule of lenity to multiple
sentences in child abuse cases. In Nightingale, this Court treated a
conviction of second degree sexual offense under § 464A(a)(3) as a lesser
included offense of sexual child abuse, and we struck the additional
sentence that had been imposed by the trial court for the sexual offense
violation. In White, consecutive sentences had been imposed for murder in
the first degree and for child abuse. Applying the rule of lenity we merged
the child abuse conviction into the murder conviction.
The purpose clause of Chapter 604 of the Acts of 1990 declares that the
Legislature intended to allow the imposition of multiple sentences “if a
conviction is entered against an individual for murder, rape, sexual offense,
-31-
any sex crime, or any crime of physical violence, and a conviction is also
entered for child abuse.” The philosophy underlying present § 35C(b)(3) is
articulated in a letter from an Assistant Attorney General to the Chairman
of the House Judiciary Committee urging adoption of the bill that enacted §
35C(b)(3). In part the letter reads:
“Child abuse and the underlying crimes involve separate societal
evils. The underlying crime is one of violence against a member of
society. Child abuse is a breach of custodial or familial trust. The
two crimes should be punished separately and the person who
violates both laws should be exposed to a greater possible penalty.”
Fisher, 367 Md. at 242-43, 786 A.2d at 720-21.
According to Alexis, grafting this legislative history onto the solicitation statutes’
sentencing clauses, it is apparent that the clauses were intended as anti-merger provisions,
but only for the narrow purpose of the underlying crime that is solicited by the defendant.
In support of his assertion, Alexis points-out that the language in the sentencing clauses
of the solicitation statutes is found only in statutes for criminal offenses typically
interrelated with other criminal offenses. See, e.g., Md. Code, Crim. Law Art. § 3-601(e)
(child abuse and any crime); § 4-204(b)(1)(i) (use of a handgun and a felony or crime of
violence); § 5-613(d) (use of a weapon in drug trafficking crime and the drug trafficking
crime); § 5-627(d) (distribution of a controlled dangerous substance near a school and
distribution of the controlled dangerous substance).
We do not find Alexis’s argument so persuasive as to cloak in ambiguity the
meaning of the solicitation statutes. The plain language of these anti-merger provisions is
clear: “A sentence imposed under this section may be separate from and consecutive to or
concurrent with a sentence for any crime based on the act establishing the violation of
this section.” C.L. § 9-302(d); § 9-303(d) (emphasis added). If the Legislature intended
-32-
that the anti-merger provision be limited narrowly to the underlying crime, the
Legislature would have stated so. Accordingly, abiding by the direction of the
Legislature in this case, we conclude that the sentences should not merge under the rule
of lenity.
B. Merger Under the Principle of Fundamental Fairness
Even where two offenses do not merge under the rule of lenity, this Court has
“looked to other considerations in deciding whether two offenses, when based on the
same conduct, should be deemed the same.” Williams v. State, 323 Md. 312, 321, 593
A.2d 671, 675 (1991). In Monoker, we explained that “[o]ne of the most basic
considerations in all our decisions is the principle of fundamental fairness in meting out
punishment for a crime.” Monoker, 321 Md. at 223, 582 A.2d at 529 (citing White, 318
Md. at 746, 569 A.2d 1271; Whack v. State, 288 Md. at 142, 416 A.2d 265; Brooks v.
State, 284 Md. 416, 423, 397 A.2d 596 (1979); Cousins v. State, 277 Md. 383, 397, 354
A.2d 825). The Monoker Court concluded first that the common law doctrine of merger
was inapplicable. Additionally, the Court found that the rule of lenity was inapplicable
because the rule applies only to statutory offenses and the two offenses at issue in that
case were common law offenses. Despite the inapplicability of these two doctrines, the
Court held that the sentences should merge on the basis of “fundamental fairness”:
While solicitation and conspiracy do not merge under the required evidence
test, we find it unfair to uphold convictions and sentences for both crimes.
Although solicitation is not always a lesser included offense of conspiracy,
in Monoker's case the conspiracy to burglarize the Dubin home certainly
did ripen from the solicitation of Almony to commit that same crime. See
White v. State, 318 Md. at 748, 569 A.2d 1271 (statutory offense of child
abuse does not merge into common law crime of murder under strict
-33-
application of the required evidence test, but the offenses still merge
because the abuse and subsequent death of the child are so closely
connected as to constitute an integral part of the homicide; the child abuse
offense is therefore very much like a traditional included offense of
murder). Similarly, here, we conclude that because the solicitation was part
and parcel of the ultimate conspiracy and thereby an integral component of
it, it would be fundamentally unfair to Monoker for us to require him to
suffer twice, once for the greater crime and once for a lesser included
offense of that crime. For that reason his sentences should merge.
Monoker, 321 Md. at 223-24, 582 A.2d at 529.
In this case, Alexis argues that Monoker should control because the principles of
fairness require that his solicitation sentences merge. We disagree. In Monoker, there
was no evidence that the Legislature (or the common law) intended for Monoker to suffer
twice for his crimes. As such, if the crimes were statutory offenses, rather than common
law offenses as they were at that time, the rule of lenity would have applied. In contrast,
in the solicitation statutes at issue in the present case, the plain language of the sentencing
clauses of the statutes indicate that the Legislature intended to preclude merger of
sentences for a person convicted of violating either solicitation prohibition, as well as of
another crime (which could include violating the other solicitation statute). Thus,
although we acknowledge the spirit of fundamental fairness, we do not believe it should
rule the day here where the clear and plain language of the relevant statutes indicates that
merger is precluded.
We hold that the Circuit Court imposed properly separate sentences for the
conviction of solicitation for the purpose of preventing future testimony (C.L. § 9-302)
and the conviction of solicitation for the purpose of retaliation (C.L. § 9-303).
-34-
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED. COSTS
TO BE PAID BY PETITIONER.
-35-