Mungo v. State ( 2023 )

Malik Mungo v. State of Maryland, No. 1658, September Term, 2021. Opinion by
Graeff, J.
CRIMINAL VENUE — WAIVER OF MANDATORY MOTION — CRIMINAL
ORGANIZATION STATUTE — PARTICIPATION IN A CRIMINAL
ORGANIZATION THAT RESULTS IN DEATH — PLAIN ERROR REVIEW
A claim of improper venue is waived if it is not timely filed unless the court finds good
cause to excuse the late filing. In this case, defense counsel did not give any reason for
failing to file a timely motion, and counsel did not suggest there was good cause until oral
argument in this Court. Appellant has waived his improper venue argument.
Pursuant to Md. Code Ann., Crim. Law Art. (“CR”) § 9-804(a) (2021 Repl. Vol.), it is
unlawful for an individual to (1) “participate in a criminal organization knowing that the
members of the criminal organization engage in a pattern of organized crime activity,” and
(2) “knowingly and willfully direct or participate in an underlying crime . . . committed for
the benefit of, at the direction of, or in association with a criminal organization.” (Emphasis
added). Pursuant to CR § 9-804(e): “A person may not violate subsection (a) of this section
that results in the death of a victim.” To sustain a conviction under CR § 9-804(e),
participation in a criminal organization that results in death, the State must prove four
elements. First, an individual participated in a criminal organization knowing that the
members engage in a pattern of organized criminal activity. Second, the individual
knowingly and willfully directed or participated in an underlying crime. Third, the crime
was committed “for the benefit of, at the direction of, or in association with” a criminal
organization. Fourth, the crime resulted in the death of the victim.
A crime is committed “in association with” a criminal organization if it is committed either
with other gang members or with “the apparatus of the gang.” A weapon used to commit
a crime constitutes an apparatus. If a crime is committed with a weapon supplied by a
criminal organization, that fact supports a jury finding that the crime was committed “in
association with” a criminal organization. The use of a gang provided firearm to commit
the crime here, as well as the assistance of the gang after the shooting, was sufficient
evidence to support the jury’s conviction on this charge.
We decline to exercise our discretion to review for plain error appellant’s claim that the
court erred in asking a voir dire question that he requested.
Circuit Court for Baltimore County
Case No. 03-K-18-003647
REPORTED
IN THE APPELLATE COURT
OF MARYLAND*
No. 1658
September Term, 2021
______________________________________
MALIK MUNGO
v.
STATE OF MARYLAND
______________________________________
Graeff,
Albright,
Raker, Irma S.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Graeff, J.
______________________________________
Pursuant to the Maryland Uniform Electronic Legal Materials Filed: July 25, 2023
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic.
2023-07-25 14:59-04:00
Gregory Hilton, Clerk
*At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Special Appeals of Maryland
to the Appellate Court of Maryland. The name change took effect on December 14, 2022.
This case involves the shooting of Sebastian Dvorak on June 13, 2017, in Baltimore
City, as well as other gang associated activity. The police ultimately linked the murder to
a neighborhood gang called “500.” On August 20, 2018, a grand jury indicted Malik
Mungo, appellant, on multiple charges, including participation in a criminal organization
that resulted in death.1
After appellant’s first trial, which began on May 29, 2019, a jury in the Circuit Court
for Baltimore County convicted appellant of multiple drug and gun charges.2 The jury was
unable to reach a verdict on the other charges, including the murder and robbery of Mr.
Dvorak and the gang charges. The court declared a mistrial on those charges.
After appellant’s second trial, which began on October 6, 2021, a jury convicted
appellant of first-degree felony murder, robbery, knowingly participating in a criminal
organization, conspiring to participate in a criminal organization, and knowingly
participating in a criminal organization that resulted in death. It found appellant not guilty
of robbery with a dangerous weapon and use of a handgun during the commission of a
1
The statute appellant was charged under was subsequently amended by the
Maryland General Assembly during the 2020 legislative session, which made technical
changes to the statute not relevant to the issues on appeal. See 2020 Md. Laws ch. 422
(effective Oct. 1, 2020). The amendment replaced the word “gang” with “criminal
organization,” but otherwise, the statute was essentially unchanged. See Baires v. State,
249 Md. App. 62, 77 n.1 (2021). We shall refer to the current language of the statute in
this opinion. See Md. Code Ann., Crim. Law Art. (“CR”) § 9-804 (2021 Repl. Vol.).
2
Of the 19 charged offenses, the jury found appellant guilty of conspiring to
distribute controlled dangerous substances, three counts of prohibited possession of a
regulated firearm and ammunition, and three counts related to distribution and possession
of a substance falsely represented to be MDMA (also known as “Molly” or “ecstasy”). It
found appellant not guilty of three counts of burglary.
crime of violence. The court sentenced appellant to life imprisonment, all but 45 years
suspended, on the conviction for first-degree felony murder, and five years, consecutive,
on the conviction for participating in a criminal organization that resulted in death. The
conviction for robbery merged with the conviction for first-degree felony murder, and the
convictions for knowingly participating in a criminal organization and conspiracy to
participate in a criminal organization merged with the conviction for participation in a
criminal organization that resulted in death.
On appeal, appellant presents the following questions for this Court’s review, which
we have rephrased slightly, as follows:
1. Did the circuit court commit reversible error when it denied
appellant’s request to dismiss the charges related to the robbery and
murder of Mr. Dvorak for improper venue?
2. Did the circuit court commit reversible error when it denied
appellant’s motion for judgment of acquittal on the charge of
participation in a criminal organization that resulted in death?
3. Did the circuit court commit plain error when it asked a compound
strong feelings question during voir dire?
For the reasons set forth below, we shall affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Khalyll Hicks, appellant’s friend and co-defendant, testified that, on June 13, 2017,
appellant said that he was “gonna hit a lick,” which meant commit a robbery. At
approximately 2:40 a.m., appellant saw Mr. Dvorak, who was on his way home from a
night out with friends. An altercation ensued, and appellant shot Mr. Dvorak. Appellant
and Mr. Hicks then fled the scene.
2
Mr. Dvorak was found unresponsive in the roadway near the 2500 block of Boston
Street in Baltimore City. He suffered from a gunshot wound to the torso and had several
lacerations and contusions to the face and abdomen. He was transported to Johns Hopkins
Bayview Medical Center, where he later died from his injuries.
On August 20, 2018, after several months of covert investigation between the
Baltimore City Police Department and the FBI, appellant was charged in the Circuit Court
for Baltimore County with multiple counts, including conspiracy, drug distribution,
participation in a criminal organization that resulted in death, and murder. The State
charged multiple people in connection with crimes committed by the “500” gang, including
appellant, Clinton Davis, Joseph Flowers, Duwarn Holt, Robert Lewis, Vernon Miller,
Dante Neal, Gregory Randle, Harvey Turner, Keith Worthington, Lienell Young,
Markeece Jordan, and Timothy Zeller. Mr. Hicks was charged for crimes related to the
robbery and murder of Mr. Dvorak, but not for crimes related to the gang.3 He pleaded
guilty to two handgun charges and second-degree murder of Mr. Dvorak.
Police linked appellant to a gang called “500,” also known as “500 L,” which
operated on the 500 block of North Rose Street in Baltimore City.4 The gang was formed
in 2014, and its primary objective was to sell drugs and make money. The gang often sold
drugs such as fentanyl, heroin, cocaine, marijuana, and MDMA (also known as “Molly” or
“ecstasy”). Members of the gang would flash the letter “L” or display a “5” to signify their
3
Mr. Hicks was not a member of “500.”
4
The “L” stands for love or loyalty.
3
membership in the gang. Although “500” is commonly referred to as a neighborhood gang,
leaders of the gang are affiliated with the Bloods. Mr. Lewis, Mr. Randle, Mr. Turner, and
Mr. Worthington are the leaders of “500.”
Trial began on May 29, 2019. After a 16-day trial, the jury found appellant guilty
on several drug and firearm charges, but it was unable to come to a verdict on the robbery
and murder charges, or the gang charges. The court declared a mistrial on these charges
and ordered a new trial.
A second trial began on October 6, 2021. The charges before the jury were
first-degree felony murder, second-degree murder, robbery with a dangerous weapon,
robbery, using a handgun during the commission of a crime of violence, knowingly
participating in a criminal organization, conspiring to participate in a criminal organization,
and knowingly participating in a criminal organization that resulted in death. Thirty-three
witnesses testified for the State, including multiple co-defendants, detectives, and experts.
For purposes of this appeal, we set forth only the underlying facts and testimony necessary
to address the issues brought on appeal.
In opening statement, the State presented three main points with respect to the crime
of participation in a criminal organization that resulted in death. First, it asserted that the
gang had a hierarchy structure, where members of a lower rank could move up in the ranks
if they put in the work. Second, there was a traceable path that the firearm used by appellant
took through the gang. Third, members of the gang assisted appellant in covering up the
murder and avoiding getting caught to protect their own interests and the interests of
the gang.
4
Mr. Zeller, a co-defendant who testified pursuant to a plea agreement he entered in
exchange for a mitigated sentence, stated that, in February 2017, he moved near the 500
block of North Rose Street, where he met Mr. Lewis. Mr. Lewis was in a wheelchair and
needed assistance traveling from the assisted living facility where he lived to the place
where he sold drugs. Mr. Zeller had lost his job, and he agreed to drive Mr. Lewis as a
way to make money. Mr. Lewis introduced Mr. Zeller to appellant, a member of “500”
who sold drugs for the gang. The gang would use Mr. Zeller’s house to store drugs and
guns because of its location on the block.
On April 17, 2017, Mr. Zeller’s wife, Crystal Defreitas, traveled to South Carolina
and purchased several handguns, including a gray Kel-Tec .38 caliber firearm with the
serial number JND23. Mr. Zeller sold the Kel-Tec .38 to Mr. Lewis a few weeks prior to
the June 13, 2017 shooting.
A few days after the shooting, Mr. Zeller overheard a conversation between
appellant, Mr. Lewis, and other members of “500,” who advised that appellant had been
seen running from the crime scene on multiple cameras, and he needed to change his
appearance. Mr. Lewis was angry because the murder was committed with the gray Kel-
Tec .38 he purchased from Mr. Zeller. Mr. Zeller recorded Mr. Lewis telling someone on
the phone that this firearm was “gone never to be found.”
Mr. Miller, a co-defendant who pleaded guilty in exchange for a mitigated sentence,
testified that he and appellant were members of “500.” His primary role was to hold drugs
and guns for the gang. He kept a communal gun in his house that the gang called “Big
Bitch.” This was a Kel-Tec 9 millimeter semi-automatic gun given to him by Mr. Randle.
5
Members of the gang, including appellant, would use this gun when needed or when Mr.
Randle instructed them to do so.
Several detectives, including Detective Shivdayal Bawa, Detective Ivan Bell,
Detective Cedric Booth, Detective Stephon White, and Detective Gregory Price, testified
that they conducted surveillance and made undercover purchases from the members of
“500” between the months of August 2017 and March 2018. During this time, the police
made several controlled purchases of drugs and firearms from the gang. Many of these
purchases were captured on audio and video recording, which were admitted into evidence.
Detective Price testified that he was the co-affiant on several different wiretaps and
search warrants in connection with the “500” investigation. He testified as an expert in
“how drugs are packaged and distributed on the street,” and “how groups work together to
distribute drugs.” During the course of the undercover investigation, he received
information that the individual responsible for the June 13, 2017 shooting sold drugs in the
area of North Rose Street and Jefferson Street.
On September 12, 2017, after a member of the undercover team purchased drugs
from appellant, Detective Price conducted a field interview. Appellant identified himself
and stated that he lived in the 400 block of North Luzerne Avenue.
In December 2017, Detective Price received wiretap authorizations for the cell
phones of Mr. Worthington, Mr. Turner, Mr. Randle, and Mr. Holt. Appellant occasionally
was intercepted on this wiretap but not very often because he did not have a steady phone.
On one such interception between appellant and Mr. Holt, appellant indicated that he
worked for Mr. Holt selling drugs. During a call between appellant and Mr. Randle, Mr.
6
Randle said that he needed more consistency from appellant, which Detective Price
testified meant that Mr. Randle wanted appellant on a more permanent basis and “not just
temporary.” Detective Price also obtained search warrants for appellant’s and other
co-defendants’ social media accounts, the contents of which were admitted as evidence.5
On April 20, 2018, Detective Price participated in the execution of warrants in both
Baltimore City and Baltimore County. Various drugs, firearms, ammunition, and drug
distribution evidence were recovered in each jurisdiction. The gang’s communal firearm
also was recovered from Mr. Miller’s house in Baltimore City during the execution of
these warrants.
On July 18, 2018, Detective Price executed another search warrant on Mr. Davis’
house in Baltimore County after receiving information from Mr. Randle that the weapon
used in the murder of Mr. Dvorak was at this location. A gray Kel-Tec .38 registered to
Ms. Defriedas with a serial number of JND23 was found in a dresser drawer in the second-
floor bedroom.
Detective Price concluded that, based on his investigation, “500” was a group of
people who worked together to sell drugs and protect the 500 block of North Rose Street.
There was a hierarchal structure within the group, where the lower-level members would
sell drugs and return the money to the higher-level members. Appellant was among the
lower-level members.
5
Several of the social media posts depict appellant and other members of the gang
flashing the “500” gang hand signs.
7
On-cross examination, Detective Price testified that the undercover investigation
was not about gangs; it was about finding “the person who was responsible for the shooting,
as well as the individuals he was working with.” They focused on this group because of
the information that the person responsible sold drugs in this location. Mr. Hicks was not
a member of the gang, and no one else from the gang was involved in the actual shooting.
Members of the gang helped cover up the murder afterwards by getting rid of the gun and
advising appellant to change his appearance to avoid detection by law enforcement. They
did this “[b]ecause they didn’t want attention being brought back to the group or the area.”
Mr. Young, a co-defendant who pleaded guilty and testified in exchange for a
mitigated sentence, testified that he and appellant were both members of “500.” Appellant
was the youngest member of the gang, and leaders would give the drugs to lower members
to sell on the streets. Appellant was the “upcoming guy,” and everyone liked him.
Matthew Drechsler, Mr. Dvorak’s friend, testified that he and a few friends were
together celebrating Mr. Dvorak’s birthday on the night of the murder. Mr. Dvorak had a
Nintendo Switch with him, as well as his wallet and cell phone, which had died earlier in
the night. Mari Jo Paterniti, Mr. Dvorak’s girlfriend, testified that she was also with him
on the night of the murder, and Mr. Dvorak had only $7 and his bank card in his wallet.
Dennis Tinker testified that, during the early morning hours of June 13, 2017, he
heard a gunshot outside. When he went outside, he saw Mr. Dvorak lying in the middle of
the roadway. Danny Loudermik, Jr., a delivery driver who also saw Mr. Dvorak lying in
the road, called 911.
8
Officers William Berardi and Andre Hibler, members of the Baltimore City Police
Department, responded to Boston Street for a call regarding an injured person at
approximately 2:45 a.m. Officer Berardi, the first officer on the scene, called for
paramedics and secured the scene. Neither officer recovered a wallet, cell phone, or
Nintendo Switch from Mr. Dvorak. Both officers had body-worn cameras, and recordings
from that morning were played for the jury.
Dr. John Stash, a member of the Office of Chief Medical Examiner, testified as an
expert in forensic pathology that a bullet was recovered from Mr. Dvorak’s lower back
during the autopsy. He opined that Mr. Dvorak’s cause of death was a gunshot wound to
the torso, and the manner of death was homicide.
Detective Lee Brandt, Jr., recovered surveillance footage from different areas
around Boston Street on the morning of the shooting. He compiled the raw footage into
one streaming video, which was admitted into evidence. The video initially showed two
suspects, but only one towards the end. The police suspected the two split up, and the other
suspect was in an area with no cameras.
Daniel Lamont, a forensic scientist in the Baltimore City Police Department
Firearms Lab, examined the bullet recovered from Mr. Dvorak’s autopsy. He examined
the Kel-Tec .38 alleged to have been used in the shooting and performed a comparison
between a test bullet fired from the Kel-Tec, and the bullet recovered from Mr. Dvorak’s
autopsy. The test came back inconclusive, and he was not “able to identify the autopsy
bullet to the bullet from that test-fired gun, but [he] was also not able to exclude it as having
come from that gun.”
9
Special Agent Mathew Wilde, a member of the FBI Cellular Analysis Survey Team
(“CAST”), used a phone number for appellant to show mapping details for his and Mr.
Dvorak’s cell phones. On June 12, 2017, at 11:26 p.m., appellant’s phone was pinging a
tower just north of Patterson Park. No other activity was reported from appellant’s phone
until 9:42 a.m. on June 13, 2017, where it pinged a tower in the area of North Rose Street.
Mr. Dvorak’s phone reported using a tower in the area of Canton Square between 8:00 p.m.
and 10:58 p.m. The phone did not ping again until 1:00 p.m. on June 13, 2017, almost
eleven hours after the shooting, when it pinged a tower located on the intersection of North
Luzerne Avenue and Jefferson Street.6 The phone remained active in this area
until 9:47 p.m.
Mr. Hicks testified pursuant to a plea agreement in which he pleaded guilty to the
murder of Mr. Dvorak. On June 12, 2017, Mr. Hicks and his brother went to the 500 block
of North Rose Street and met with appellant. Mr. Hicks purchased some cannabis from
appellant, they hung out, and appellant showed Mr. Hicks a small handgun he had in his
waistband. Later that evening, appellant told Mr. Hicks that he wanted to steal a car for
his birthday and go for a joyride. The three men began “free-roaming,” i.e., looking for
vehicles left unlocked. Appellant gave Mr. Hicks the gun because it was too heavy, and
his pants were falling down. They eventually ended up in the Canton area of Baltimore
City. Mr. Hicks’ brother went home, and after the other two were unsuccessful in finding
a car, Mr. Hicks returned the gun to appellant.
6
This intersection is located near the 500 block of North Rose Street where the gang
sold drugs.
10
Appellant told Mr. Hicks that he was tired of looking for a car to steal, so he was
“gonna hit a lick,” meaning commit a robbery. Appellant then saw Mr. Dvorak holding an
electronic device. The two men ran up to him, with appellant taking the lead. Mr. Dvorak
attempted to fight off the robbery, and appellant took out the gun, pointed it at Mr. Dvorak,
and said: “Kick that shit out,” meaning give me all your possessions. Appellant then hit
Mr. Dvorak in the face with the gun. Mr. Dvorak said that he did not have anything, and
appellant said: “If you don’t kick it out, I’m gonna shoot you.” Mr. Hicks patted down Mr.
Dvorak and found his wallet, which was empty, so he tossed it. Appellant then fired one
shot at Mr. Dvorak. Mr. Hicks and appellant then fled and eventually split up. Mr. Hicks
saw appellant a week or two after the shooting, and they had a “heated conversation,”
during which appellant asked if Mr. Hicks had told anyone what happened.
Sergeant Joseph Landsman, a member of the Baltimore City Police Department
Anti-Crime Section, testified as an expert in gangs. He reviewed the files relating to the
“500” investigation, including witness statements, surveillance videos, social media
records, photographs, cell phone downloads, and wiretap calls. On March 15, 2018,
Sergeant Landsman interviewed Mr. Lewis. He then immediately intercepted a call
between Mr. Lewis and Mr. Randle discussing the interview and how the police questioned
Mr. Lewis about the gun used in the murder.
Sergeant Landsman testified that, in his expert opinion, “500” was a neighborhood
gang led by Mr. Lewis and Mr. Randle. The gang’s territory included the 400 and 500
blocks of North Rose Street. In his opinion, appellant was a member of the gang. He
explained that appellant
11
operated during the drug distribution for the gang in the territory of the gang,
reported and took instructions from the leaders of the gang, as well as shared
the stash houses, had the gun that was provided by the gang members,
reported daily to the members and took instructions on how he was gonna
operate.
The gang had constant communication among members on issues related to “bringing in
proceeds,” how and when the drug sales were going to take place, “where a firearm was,
whether or not police were in the area, were there buyers in the area, [and] whether or not
there was a threat that was suspected in the area.” Members of the gang would pool their
money to help other members get out of jail. Sergeant Landsman also testified to a social
media post made by Mr. Randle, where he exposed a cooperating witness and stated, “a rat
is a rat.”
Sergeant Landsman testified that communal guns were used by the gang for
“protection, intimidation, and to commit crimes.” If a higher-ranking gang member gives
a lower ranking member a gun, he conveys authorization to use it to commit crimes, with
the expectation that it will be returned. He opined that, if a member of the gang used a
gang gun to commit a robbery, “[i]tems taken in that robbery are gonna come back to the
benefit and furtherance of the gang for the gang to make use of and proceed from, and that
gun is gonna come back to the gang.” If a gang gun was used in a crime, members of the
gang would act to get rid of the gun because it could “bring attention to the gang’s territory”
and “lead law enforcement to that area where they operate.” If a member of the gang was
involved in a crime, the gang would “come up with a plan on how to avoid that person
being identified any further.” This would not be done for someone who was not a member
of the gang.
12
Sergeant Landsman opined that the murder of Mr. Dvorak was gang-related because
appellant: (1) got access to the firearm through the gang; (2) took items back to the gang’s
territory; (3) returned the firearm to the members of the gang; and (4) sought advice on
how to avoid police detection. All of these acts were things that would not have been done
unless appellant was a member of the gang. Sergeant Landsman stated that none of Mr.
Dvorak’s items were ever recovered, but the phone was in gang territory after the shooting.
He testified that the murder was gang-related because the gun “was supplied to the member
of the gang, and the individual went out and used it during a robbery that resulted in
a murder.”
Mr. Randle, one of the leaders of “500,” pleaded guilty in exchange for his
testimony and a lower sentence. He testified that he started the “500” gang in 2014, with
the goal to make money selling drugs. They brought people in, including appellant, to
package and sell the drugs.
Mr. Randle and Mr. Lewis both had personal guns, and Mr. Lewis would give his
gun to whomever was left outside when he left the area. Mr. Randle stated that giving
someone a personal gun did not authorize them to use it, but “[w]hat they do with it, they
do with it.”
Mr. Randle and other members of the gang saw a video on social media regarding
the shooting and observed appellant “walking away trying to put his glasses on, ducking
and stuff.” Shortly after the shooting, appellant approached Mr. Randle and told him that
a guy had been following him, so he shot him. Appellant later told him that “he was looking
to rob somebody, and the guy bucked on him, and he shot him.” Leaders of “500” met
13
with appellant and said that he needed “to do something. Like, stop wearing the same stuff,
stop wearing them glasses, cut your hair.” Everyone was offering advice because they
were all “invested in him,” and they were trying to cover themselves because he used one
of their guns.
Mr. Randle testified that, after high-ranking members of “500” discussed the
incident, Mr. Lewis told Mr. Randle that he wanted to get the gun back from appellant
because “[i]t was his,” and “he wanted to get rid of it” because it was “hot,” i.e., it was
used in the murder. Mr. Lewis and Mr. Davis traded firearms in a gun-swap. When asked
about the call intercepted by Sergeant Landsman between him and Mr. Lewis, Mr. Randle
confirmed that they were talking about the Kel-Tec .38 that Mr. Lewis bought from Mr.
Zeller, which was used in the murder.
At the conclusion of the State’s case, appellant’s counsel asked the court to grant a
motion for judgment of acquittal on the charge of first-degree murder, arguing that the
murder took place in Baltimore City, and Baltimore County did not have jurisdiction to
prosecute the homicide charge via the criminal organization statute. He argued that there
was no connection between the gang activity and the murder, asserting that “[t]he mere
incident that allegedly the gun that was used to shoot Mr. Dvorak came from a gang, and
the gun is then subsequently returned to the gang is not any gang contact which allows that
charge to be enveloped within . . . the [criminal organization] statute.” The court denied
the motion. The defense rested its case without calling any witnesses or producing any
evidence. Counsel then renewed his motion for judgment of acquittal, which was denied.
14
At the conclusion of the evidence in the second trial, the jury found appellant guilty
of first-degree felony murder, robbery, knowingly participating in a criminal organization,
conspiring to participate in a criminal organization, and knowingly participating in a
criminal organization that resulted in death. He was found not guilty of robbery with a
dangerous weapon and using a handgun during the commission of a crime of violence.
Appellant filed a motion for a new trial, arguing, among other things, that there was
no evidence that appellant participated in a criminal organization that resulted in death. He
asserted that there was insufficient evidence supporting this verdict because there was no
nexus between the shooting and the gang. He argued that the only evidence that might
create a nexus was the handgun, “which was not evidenced as the murder weapon,” by any
forensics or ballistics evidence.
The State argued that the evidence was sufficient to convict on this charge. With
respect to the requirement that the shooting was done “for the benefit of, at the direction
of, or in association with” the gang, this was shown by the following evidence:
• Appellant was a member of the gang who worked for and sold drugs for
the benefit of the gang;
• Gang leaders frequently communicated with him and directed “his daily
drug-dealing for the gang”;
• He used the gang’s communal firearm and returned it at the direction of
and on behalf of one of the gang leaders;
• Mr. Lewis, a gang leader, sometimes would instruct appellant to take his
gun home with him;
• Mr. Lewis gave appellant the Kel-Tec .38 prior to the murder and robbery
of Mr. Dvorak on the condition that it would be returned;
15
• Appellant and Mr. Hicks robbed and killed Mr. Dvorak on June 13, 2017,
using the same Kel-Tec firearm provided by the gang;
• Following the shooting, appellant returned to the gang for refuge and
advice on concealing his identity, and they “counseled and directed [him]
to change his appearance, lay low, cut his hair, and get rid of his glasses”;
• Appellant returned the Kel-Tec .38 to Mr. Lewis after the murder;
• Mr. Dvorak’s stolen phone began sending cell tower pings from a location
inside the gang’s territory where appellant’s phone also was located just
two hours before the murder;
• Mr. Lewis was motivated to get rid of the Kel-Tec .38 to protect appellant
and the gang following the shooting;
• Mr. Lewis disposed of the Kel-Tec .38 for the benefit of appellant in a gun
swap with Mr. Davis, a known associate of the gang; and
• “[T]he weapon found in [Mr.] Davis’ [dresser] drawer on July 18, 2018,
was the same weapon that had been used in the robbery and murder of
[Mr.] Dvorak.”
The court denied the motion.
This appeal followed.
DISCUSSION
I.
Improper Venue
Appellant contends that the circuit court erred in denying his request to dismiss
counts six through thirteen of the indictment.7 He asserts that Baltimore County was not
7
Counts six through thirteen charged the following offenses: (6) first-degree
murder; (7) second-degree murder; (8) robbery with a dangerous weapon; (9) use of a
handgun in the commission of a crime of violence; (10) illegal possession of a regulated
firearm; (11) possessing a regulated firearm, while being under 21; (12) illegal possession
16
the proper venue for these counts, which pertained to the robbery and the murder of Mr.
Dvorak in Baltimore City.
The State contends that appellant waived the issue of venue by failing to file a timely
motion pursuant to Maryland Rule 4-252(b). It asserts that, pursuant to this rule, a motion
raising improper venue must be filed within 30 days of the earlier of the appearance of
counsel or the first appearance of the defendant before the court, which appellant did not
do. In any event, the State argues that the court properly denied the motion arguing
improper venue, asserting that Md. Code Ann., Crim. Law Art. (“CR”) § 9-807 (2021 Repl.
Vol.) provides that “venue may lie in multiple counties.” It contends that the General
Assembly, by “providing for multiple methods of establishing venue in a county,”
demonstrated an “intent to furnish prosecutors with flexibility in presenting gang-related
cases that involve activity that touches upon more than one county.”
In a reply brief, appellant contends that he did not waive this issue because he made
a timely objection to the improper venue. He argues that a motion to dismiss for improper
venue is not a mandatory motion required to be filed within the requisite 30-day time period
set out in Maryland Rule 4-252(b). Appellant asserts that the State had “plenty of time” to
address the argument prior to trial.
of ammunition; and (13) wearing, carrying, and transporting a handgun. The motion to
dismiss for improper venue did not challenge venue in Baltimore County for counts one
through five and fourteen through nineteen, which included the drug charges and the
charges related to the gang.
17
A.
Proceedings Below
On September 18, 2018, appellant’s counsel filed a notice of appearance. 8 On
November 8, 2018, 51 days later, appellant filed a motion to dismiss for improper venue,
arguing that Baltimore County lacked authority to preside over the charges related to the
shooting, which “unquestionably took place in Baltimore City, Maryland.”9 Appellant
argued that there was no allegation that the homicide was connected to gang-related
activity, as there was only a factual allegation that members of a gang helped appellant
conceal his identity after the killing, “which would be a separate offense entirely.”
Appellant also filed a motion for severance, arguing that “[i]t would be highly prejudicial
to force [appellant] to trial on a defense of a homicide charge when there is a multitude of
other separate distinct actions which have nothing whatsoever to do with the homicide
charge and are allegedly gang related.”
8
That same day, appellant also filed an omnibus motion under Maryland
Rule 4-252, which included only conclusory statements, including that “the
indictment/information is defective.” The motion did not raise the issue of improper venue,
nor did it otherwise comply with the Rule. See Sinclair v. State, 444 Md. 16, 31 (2015)
(noting that, although an omnibus motion may have been timely filed, it did not specifically
seek suppression of evidence derived from a cell phone, nor did it “provide factual
allegations or legal authority to support such an action”). The circuit court stated at a
hearing relating to the joinder of defendants that “an omnibus motion doesn’t preserve
anything,” and appellant has not argued on appeal that this motion satisfied Maryland
Rule 4-252.
9
Although the motion was titled as one to transfer jurisdiction, appellant later
clarified at the motions hearing that this was a motion to dismiss for improper venue, not
jurisdiction.
18
On December 3, 2018, the State filed an opposition to appellant’s motion regarding
improper venue. The State argued that the challenge to venue was untimely because
appellant failed to file his motion within 30 days of the initial appearance by counsel, as
required by Maryland Rule 4-252. It noted that the only way appellant could raise the issue
at that point was if he provided, and the court found, good cause. The State noted that
appellant had not asserted good cause and argued that good cause did not exist. On the
merits, the State argued that venue was proper in Baltimore County pursuant to CR § 9-807,
and it opposed the motion for severance.
On April 23, 2019, the circuit court held a hearing on both motions. Appellant
argued that Baltimore County was an improper venue for the murder and related crimes
that occurred in Baltimore City because there was no nexus between the crimes and any
alleged gang activity. He asserted that, at the very most, there was evidence that he had
contacts with gang members, and that the weapon used might be connected to the gang,
but that did not show that he was a part of the gang.
The State addressed the severance issue first, and it then moved to the merits of the
venue motion. It argued that the murder and robbery of Mr. Dvorak were connected to
appellant’s association with the gang, and therefore, venue was permitted in Baltimore
County under CR § 9-807.
Following the hearing, the circuit court issued its ruling. It denied the motion for
severance, finding that the evidence in the homicide and gang prosecutions would be
“mutually admissible,” that trying the charges together would not unfairly prejudice
appellant, and that a single trial on all charges promoted judicial economy. The court
19
denied the motion to dismiss for improper venue, stating that it was “persuaded that venue
is appropriate in Baltimore County.”
B.
Analysis
Before addressing the parties’ specific contentions, we note that
[t]here are two facets to the jurisdiction of a court–jurisdiction over the
subject matter and venue. With respect to the subject matter, within its
county, a circuit court of this State has full common law jurisdiction in all
criminal cases committed in Maryland except where limited by law. . . .
Venue, however, is the place of trial, or where a criminal trial may
properly occur.
McBurney v. State, 280 Md. 21, 31 (1977). Accord State v. Butler, 353 Md. 67, 73 (1999)
(“Venue . . . pertains to the county in which a case can be tried; territorial jurisdiction
concerns whether the offense was committed within the boundaries of the State.”). Venue
is not a fundamental right, and it “may be altered by the legislature and may be waived,
either expressly or by failure to make a timely objection.” Smith v. State, 116 Md. App.
43, 57, cert. denied, 347 Md. 254 (1997). Accord Kisner v. State, 209 Md. 524, 527 (1956)
(“[A]lthough jurisdiction of the subject matter cannot be conferred by consent, venue or
jurisdiction of the person may be waived in a criminal case.”).
We begin with the State’s waiver argument. As the State notes, Maryland Rule
4-252(b) provides that a mandatory motion “shall be filed within 30 days after the earlier
of the appearance of counsel or the first appearance of the defendant before the court.”
Because counsel filed the motion relating to improper venue on November 8, 2018, 51 days
20
after counsel filed a notice of appearance on September 18, 2018, the State argues that the
issue of improper venue has been waived.
Maryland Rule 4-252(a) sets forth the mandatory motions in criminal cases that
must be filed within the 30-day requirement, as follows:
(1) A defect in the institution of the prosecution;
(2) A defect in the charging document other than its failure to show
jurisdiction in the court or its failure to charge an offense;
(3) An unlawful search, seizure, interception of wire or oral communication,
or pretrial identification;
(4) An unlawfully obtained admission, statement, or confession; and
(5) A request for joint or separate trial of defendants or offenses.
Maryland Rule 4-252(d) states that “[a]ny other defense, objection, or request capable of
determination before trial without trial of the general issue, shall be raised by motion filed
at any time before trial.” “The Rule is designed to facilitate the fair consideration of a
[mandatory] motion in advance of trial.” Sinclair v. State, 444 Md. 16, 29 (2015).
Appellant does not dispute that the motion for improper venue was not filed within
the requisite 30-day time period. He contends, however, that a motion relating to improper
venue is not a mandatory motion encompassed by Maryland Rule 4-252(a). We disagree.
Appellant notes that, in Smith, 116 Md. App. at 53, this Court stated that “[i]mproper
venue is a ‘defense or objection’ which, under Md. Rule 4–252, must be raised by motion
before trial.” (Emphasis added). “If the issue is not raised in a timely motion it is
waived.” Id.
21
The State points us to another case from this Court, in which we held: “A motion
objecting to venue is one of those mandatory motions that must be raised before trial,
pursuant to Maryland Rule 4–252.” Spencer v. State, 76 Md. App. 71, 81 (1988) (emphasis
added). In Spencer, this Court held that a challenge to venue was waived where Spencer
“interposed no objection either to the jurisdiction of the court or to the venue until the close
of the State’s case when [he] moved for judgment of acquittal on both of those grounds.”
Id. This Court noted that an objection to venue is waivable “expressly or by failure to make
a timely objection.” Id. (quoting McBurney, 280 Md. at 32–33).
In interpreting Maryland Rule 4-252, we note that it “was drafted ‘as a matter of
judicial policy,’ to be parallel to Fed. R. Crim. P. 12.” Carroll v. State, 202 Md. App. 487,
513 (2011) (quoting Kohr v. State, 40 Md. App. 92, 98 (1978)), aff’d, 428 Md. 679 (2012).
The federal rule includes, in the category of “a defect in instituting the prosecution,” the
following:
(i) improper venue;
(ii) preindictment delay;
(iii) a violation of the constitutional right to a speedy trial;
(iv) selective or vindictive prosecution; and
(v) an error in the grand-jury proceeding or preliminary hearing[.]
Fed. R. Crim. P. 12(3)(A) (emphasis added). See also State v. Haines, 620 A.2d 875,
877 n.6 (Me. 1993) (claims of improper venue are included in the category of defects in
the institution of the prosecution).
22
Accordingly, as this Court stated in Spencer, 76 Md. App. at 81, a motion for
improper venue is a mandatory motion, and pursuant to Maryland Rule 4-252(a), it must
be filed “within 30 days after the earlier of the appearance of counsel or the first appearance
of the defendant before the court.” There is no question that this was not done in this case.
There are, however, situations where a court can exercise its discretion to consider
an untimely motion. Maryland Rule 4-252(a) provides that a matter required to be made
by a mandatory motion, if not raised in conformity with the Rule, is “waived unless the
court, for good cause shown, orders otherwise.” The defendant bears the burden of
showing good cause. Davis v. State, 100 Md. App. 369, 385 (1994).
Here, counsel for appellant raised the issue of good cause for the first time during
oral argument in this Court. She asserted that, given the extensive evidence involved in
this case, defense counsel, a solo practitioner, did not have enough time to be prepared to
file the motion earlier than it was filed, and therefore, there was good cause to consider the
motion. Counsel argued that this Court could conclude that the circuit court implicitly
found good cause to consider the untimely motion because the court addressed the motion
on the merits.
The case of Sinclair v. State, 214 Md. App. 309, 324 (2013), aff’d, 444 Md. 16(2015), is instructive on this issue. In that case, the prosecutor objected to an untimely
suppression motion, stating that “time has been passed [sic].” Id. The trial court then
addressed the motion on the merits. Id. On appeal, this Court held that the circuit court
“must have found either that the appellant had not waived his right to raise the issue or, if
it understood that the State was objecting on a failure to comply with the time requirements
23
of Maryland Rule 4–252, that there was good cause to hear the motion.” Id. at 324–25.
We stated that, “[a]lthough the court did not articulate its reasoning for considering and
ruling on the motion, silence on the issue [did] not imply an abuse of discretion,” noting
that “[w]e presume judges to know the law and apply it, even in the absence of a verbal
indication of having considered it.” Id. at 325 (citation omitted).
The Supreme Court of Maryland disagreed. Sinclair, 444 Md. at 30.10 It agreed
that a circuit court had discretion “to hear noncompliant motions ‘for good cause shown,’”
and that it generally would not disturb the exercise of such discretion, “‘at least where the
State is not unduly prejudiced.’” Id. (quoting Denicolis v. State, 378 Md. 646, 660 (2003)).
The Court noted, however, that defense counsel had not given any reason for failing to
comply with the Rule, and that court did not make a finding of good cause. Id. at 32. Under
these circumstances, the Court disagreed that the circuit court implicitly found good cause
to hear the belated motion, stating that “there must be a basis for such a finding and none
is evident in this record.” Id. at 33. Because there was no showing or finding of good
cause, the defense waived the issue. Id. at 33, 36.
Similarly, here, defense counsel below did not argue to the circuit court any reason
for failing to comply with the Rule, and the court did not make a finding of good cause on
the record. Thus, following the reasoning in Sinclair, the issue of improper venue is
waived. Moreover, in this case, appellant did not raise good cause on appeal until oral
10
At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Appeals of Maryland to the
Supreme Court of Maryland. The name change took effect on December 14, 2022.
24
argument, despite filing an original brief and a reply brief. See Ruiz v. Kinoshita, 239 Md.
App. 395, 435 n.15 (2018) (declining to consider an argument raised for the first time at
oral argument); Uninsured Employers’ Fund v. Danner, 388 Md. 649, 664 n.15 (2005)
(the Court need not address arguments raised at oral argument that were not briefed on
appeal). Under these circumstances, the issue of improper venue is waived, and we will
not address it on the merits.
II.
Motion for Judgment of Acquittal
Appellant’s next claim is that the court erred in denying his motion for judgment of
acquittal on the charge of participation in a criminal organization that resulted in death.
Pursuant to CR § 9-804(a), it is unlawful for an individual to (1) “participate in a criminal
organization knowing that the members of the criminal organization engage in a pattern of
organized crime activity,” and (2) “knowingly and willfully direct or participate in an
underlying crime . . . committed for the benefit of, at the direction of, or in association with
a criminal organization.”11 Pursuant to CR § 9-804(e): “A person may not violate
subsection (a) of this section that results in the death of a victim.”
11
CR § 9-801(c) defines a criminal organization as an enterprise whose members:
(1) individually or collectively engage in a pattern of organized
crime activity;
(2) have as one of their primary objectives or activities the
commission of one or more underlying crimes, including
acts by juveniles that would be underlying crimes if
committed by adults; and
25
To sustain a conviction under CR § 9-804(e), participation in a criminal organization
that results in death, the State must prove four elements. First, an individual participated
in a criminal organization knowing that the members engage in a pattern of organized
criminal activity. Second, the individual knowingly and willfully directed or participated
in an underlying crime. Third, the crime was committed “for the benefit of, at the direction
of, or in association with” a criminal organization. Fourth, the crime resulted in the death
of the victim.
Appellant does not challenge the first, second, or fourth elements of the crime, i.e.,
that he was a member of “500,” that he participated in the robbery, and that this act resulted
in the death of Mr. Dvorak. Appellant challenges only the third requirement. He argues
that the circuit court “committed reversible error by denying his motion for judgment of
acquittal on the charge of participation in [a criminal organization that resulted] in death”
because “[t]he [S]tate failed to present any evidence, direct or circumstantial, that the
robbery and murder of [Mr.] Dvorak were committed for the benefit of, at the direction of
or in association with the group ‘500.’” In support, he states that “the shooting was
committed with an individual who had no association with the group, that the shooting was
committed outside the area where the group conducted their ‘criminal activity,’ and that
the offenses were committed without the permission or knowledge of the ‘500’ group
members and leaders.”
(3) have in common an overt or covert organizational or
command structure.
26
The State contends that the evidence was sufficient to support appellant’s conviction
for knowingly participating in a crime, which was committed for the benefit of or in
association with a criminal organization and resulted in the death of Mr. Dvorak. It argues
that there was evidence that the crime was committed “in association with the gang”
because appellant used a gun provided by a gang leader and he sought help from the gang
afterwards. It asserts that the jury could infer from the evidence that appellant “had tacit
permission to use the gun and commit other crimes for the benefit of the gang,” and that
appellant gave the “proceeds” of the robbery, i.e., Mr. Dvorak’s cell phone and Nintendo
Switch, to the gang.
Initially, we note that appellate review of the sufficiency of the evidence “is
available only when the defendant moves for judgment of acquittal at the close of all the
evidence and argues precisely the ways in which the evidence is lacking.” Anthony v. State,
117 Md. App. 119, 126, cert. denied, 348 Md. 205 (1997). Accord Howard v. State, 232
Md. App. 125, 169 (claim not preserved where appellant failed to first raise it on motion
for judgment of acquittal), cert. denied, 453 Md. 366 (2017). A criminal defendant “is not
entitled to appellate review of reasons stated for the first time on appeal.” Starr v. State,
405 Md. 293, 302 (2008).
Here, appellant moved for judgment of acquittal on “the charge of murder in the
first-degree,” asserting that venue was improper because the homicide took place in
Baltimore City. Discussions then ensued about venue, and the court said, “it’s a little late
for that.” At no time in the motion for judgment did appellant specifically mention the
charge of participation in a criminal organization that resulted in a death.
27
An argument could be made that the issue of sufficiency of the evidence of the
charge of participation in a criminal organization that resulted in a death is not preserved
for this Court’s review. The State, however, did not make this argument in its brief or at
oral argument on appeal.12 Moreover, appellant did assert below, as he does on appeal,
that there was no evidence that the shooting was related to the gang or “enveloped within
the gang charge,” and the trial court said that the argument “with regard to the homicide as
a connection to the gang” was something counsel could argue “in closing.” Accordingly,
we will consider the issue on its merits.
When assessing a challenge to the sufficiency of the evidence, we assess “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
State v. McGagh, 472 Md. 168, 184 (2021). “We do not measure the weight of the
evidence; rather, our concern is only whether the verdict was supported by sufficient
evidence, direct or circumstantial, which could fairly convince a trier of fact of the
defendant’s guilt of the offenses charged beyond a reasonable doubt.” Taylor v. State, 346
Md. 452, 457 (1997). A valid conviction may be based solely on circumstantial evidence.
Wilson v. State, 319 Md. 530, 536 (1990). Thus, the limited question for our review is “not
whether the evidence should have or probably would have persuaded the majority of fact
12
The State did note, in response to the motion for a new trial on this ground, that
the motion for judgment of acquittal did not mention the charge for participation in a
criminal organization that resulted in death. It did not, however, raise preservation as an
issue in this appeal.
28
finders but only whether it possibly could have persuaded any rational fact finder.” Allen
v. State, 158 Md. App. 194, 249 (2004) (emphasis in original).
In determining whether the evidence was sufficient for the jury to find that appellant
committed the murder “for the benefit of, at the direction of, or in association with” the
gang, we make a couple of preliminary observations. Initially, we note that the phrase “for
the benefit of, at the direction of, or in association with” uses the disjunctive word “or,”
and therefore, only one of these elements must be shown. See Stancil v. State, 78 Md. App.
376, 385 (Where the “kidnapping statute sets forth in the disjunctive more than one means
to accomplish the crime, proof of any one of them is sufficient to sustain the charge.”),
cert. denied, 315 Md. 692 (1989). Additionally, there is no argument, and no evidence to
the support an argument, that the murder and robbery were committed “at the direction of”
the gang.
We thus turn to address whether there was sufficient evidence that the crime was
committed “for the benefit of” or “in association with” the gang. In doing so, we must
assess the meaning of those terms.
In construing the specific terms of the statute at issue here, our goal is to ascertain
the intent of the General Assembly in enacting the statute. See Shivers v. State, 256 Md.
App. 639, 658 (2023) (“‘When undertaking an exercise in statutory interpretation, we start
with the cardinal rule of statutory interpretation—to ascertain and effectuate the General
Assembly’s purpose and intent when it enacted the statute.’”) (quoting Wheeling v. Selene
Fin. LP, 473 Md. 356, 376 (2021)). “Statutory construction begins with the plain language
of the statute, and ordinary, popular understanding of the English language dictates
29
interpretation of its terminology.” Schreyer v. Chaplain, 416 Md. 94, 101 (2010). “When
the words of the statute are ambiguous, we resolve the ambiguity using a wider range of
interpretive aids, including legislative history, prior case law, statutory purpose and
statutory structure.” Fisher v. E. Corr. Inst., 425 Md. 699, 707 (2012).
We note that CR § 9-804 does not define the terms “for the benefit of” or “in
association with” a criminal organization, and the Maryland appellate courts have not
previously addressed the meaning of these terms. California, however, has a statute using
similar terms. California Penal Code § 186.22(b)(1) provides an enhanced sentence for “a
person who is convicted of a felony committed for the benefit of, at the direction of, or in
association with a criminal street gang, with the specific intent to promote, further, or assist
in criminal conduct by gang members.” (Emphasis added).13 The Supreme Court of
California has explained that this language was included to make it clear that the crime
must be “gang related.” People v. Albillar, 244 P.3d 1062, 1071 (Cal. 2010). “Not every
crime committed by gang members is related to a gang.” Id.We begin with the term “in association with” because the State argues most
strenuously that the evidence showed that the crime was committed “in association with”
the gang. “In determining the plain meaning of statutory language, reference to dictionaries
is appropriate.” In re Abhishek I., 255 Md. App. 464, 473 (2022). Merriam-Webster
Dictionary defines the term “in association with” as “in connection with or together with.”
13
CR § 9-804 does not include the requirement in California Penal Code § 186.22
that the person commit the crime “with the specific intent to promote, further, or assist in
criminal conduct by gang members.”
30
MERRIAM-WEBSTER.COM, https://www.merriam-webster.com/dictionary (last updated
June 21, 2023).
California courts similarly have construed the term “in association with” to mean “a
connection or an association between the crime and the gang.” People v. Soriano, 279 Cal.
Rptr. 3d 569, 575 (Cal. Ct. App. 2021). “Committing a crime in concert with known gang
members can be substantial evidence that the crime was committed in ‘association’ with a
gang.” People v. Garcia, 199 Cal. Rptr. 3d 399, 413 (Cal. Ct. App. 2016). A crime is
committed “in association with” the gang if the “‘defendants relied on their common gang
membership and the apparatus of the gang in committing’ the charged felonies.” Id.(quoting Albillar, 244 P.3d at 1071).
In Albillar, 244 P.3d at 1071, the Supreme Court of California held that, when gang
members acted in concert to commit a sex offense against a victim, they “relied on their
common gang membership and the apparatus of the gang in committing” the crimes. The
court held:
Defendants not only actively assisted each other in committing these crimes,
but their common gang membership ensured that they could rely on each
other’s cooperation in committing these crimes and that they would benefit
from committing them together. They relied on the gang’s internal code to
ensure that none of them would cooperate with the police and on the gang’s
reputation to ensure that the victim did not contact the police. We therefore
find substantial evidence that defendants came together as gang members to
attack [the victim] and, thus, that they committed these crimes in association
with the gang.
Id. at 1072.
Other California cases have noted that, “where multiple gang members were
involved in the charged offense, the fact of their joint involvement in a crime often provides
31
sufficient evidence of association.” People v. Renteria, 515 P.3d 77, 85 (Cal. 2022). At
least one other court similarly has held that evidence that a gang member acts “in concert”
with another gang member in committing a crime permits an inference that the act was
committed “in association with the gang.” Morris v. Commonwealth, 716 S.E.2d 139, 141–
42 (Va. Ct. App. 2011).
Here, appellant did not commit the robbery and murder “in concert” with another
gang member. Although the robbery and murder involved two people, Mr. Hicks was not
a member of “500.”
The State contends, however, that there was evidence that appellant committed the
robbery and murder “in association with” the gang because he obtained the gun used to rob
and kill Mr. Dvorak from a gang leader, based on his association with the gang, and this
gang gun facilitated the commission of the crime. Moreover, after the crime, the gang gave
protection to appellant by helping him dispose of the gun in a gun swap and advised him
on how to avoid apprehension.
Although we have not been directed to, nor have we found, a case involving similar
facts, we agree that the evidence permitted the jury to find that appellant committed the
robbery and murder of Mr. Dvorak “in association with” the gang. Sergeant Landsman, an
expert in gangs, testified that Mr. Dvorak’s murder was gang-related because: (1) appellant
got access to the firearm through the gang; (2) he took items back to the gang’s territory;
(3) he returned the gang firearm to the members of the gang; and (4) he sought advice on
how to avoid police detection. He stated that none of these events would have occurred
unless appellant was a member of the gang. Sergeant Landsman also testified that
32
communal guns were used by the gang for “protection, intimidation, and to commit
crimes.” If a higher-ranking gang member gave a lower ranking member a gun, that
conveyed authorization to use it to commit crimes, with the expectation that it would be
returned.
Other evidence corroborated Sergeant Landsman’s testimony that the crime was
gang-related. Mr. Randle testified that higher ranking members of the gang would give
their gun to a lower ranking member to protect themselves while they sold drugs. He stated
that giving someone a personal gun did not authorize them to use it, but “[w]hat they do
with it, they do with it.”
The Supreme Court of California has concluded that conduct is gang-related and
committed “in association with” the gang if the defendants relied on other gang members
or “the apparatus of the gang” in committing the act. Albillar, 244 P.3d at 1071. We agree
with the California Supreme Court’s interpretation of the term “in association with,” and
we similarly hold that a crime is committed “in association with” a criminal organization
if it is committed either with other gang members or with “the apparatus of the gang.”
The court in Albillar did not define the word “apparatus.” Dictionaries, however,
define the word as a machine, device, materials, instrument, or equipment. See BLACK’S
LAW DICTIONARY 120 (11th ed. 2019) (defining “apparatus” as a machine or device);
MERRIAM-WEBSTER.COM, https://www.merriam-webster.com/dictionary (last updated
June 18, 2023) (defining “apparatus” as an instrument or “a set of materials or equipment”).
Based on this definition, a weapon used to commit a crime constitutes an apparatus. We
hold that, if a crime is committed with a weapon supplied by a criminal organization, that
33
fact supports a jury finding that the crime was committed “in association with” a criminal
organization.14
Here, there was evidence that appellant used a gun provided by the gang to rob and
murder Mr. Dvorak. Sergeant Landsman gave his expert opinion that this fact, as well as
the assistance of the gang after the shooting, indicated that the robbery and murder were
gang-related. The evidence was sufficient to support appellant’s conviction of participation
in a criminal organization that resulted in the death of Mr. Dvorak.15
III.
Voir Dire Question
Appellant’s final argument is that the circuit court committed plain error in asking
prospective jurors during voir dire the following compound question: “Is there any member
of the panel who is so prejudiced concerning firearms that you would be unable to render
a fair and impartial verdict?” He asserts that asking the question in this way affected his
right to a fair and impartial trial. Appellant concedes that this issue is not preserved for
review because he did not object below, but he urges this Court to “exercise its discretion
to review [the] unpreserved allegations through the doctrine of ‘plain error.’”
14
We need not address in this case whether that fact alone is sufficient to support a
finding that the crime was committed “in association with” a criminal organization
because, as discussed, there was additional evidence of gang assistance after the shooting.
15
Because we conclude that the evidence was sufficient to support a finding that the
crime was committed “in association with” the gang, we will not address whether it was
committed “for the benefit of” the gang.
34
The State contends that appellant’s “claim is ineligible for plain error review
because the error was intentionally relinquished or abandoned.” It asserts that appellant
not only failed to object to the question, but he “affirmatively waived the issue by
requesting the allegedly improper question.” Because he “invited the error,” he cannot
seek plain error review. The State argues that this Court “should decline to review the voir
dire for plain error.”
Ordinarily, an appellate court will not decide any issue “unless it plainly appears by
the record to have been raised in or decided by the trial court.” Md. Rule 8-131(a). Accord
Reyes v. State, 257 Md. App. 596, 636 n.23 (2023). “To preserve successfully a ‘claim
involving a trial court’s decision about whether to propound a voir dire question, a
defendant must object to the court’s ruling.’” Robson v. State, 257 Md. App. 421, 459
(quoting Foster v. State, 247 Md. App. 642, 647 (2020)), cert. denied, ___ Md. ___ (2023).
As this Court has explained: “The purpose of the preservation requirement is to preserve
the integrity and the efficiency of the trial itself,” and eliminate any necessity for
appellate review. Id. at 460. The purpose of the preservation rule is to avoid error because,
if counsel alerts the court to an error, the court typically has the opportunity to remedy it.
Id. at 460–61.
Although this Court has discretion to review unpreserved errors, “appellate courts
should rarely exercise” this discretion. Chaney v. State, 397 Md. 460, 468 (2007). Accord
Kelly v. State, 195 Md. App. 403, 431 (2010), cert. denied, 417 Md. 502, cert. denied, 563
U.S. 947 (2011). Plain error review should not be employed except in those instances when
an unobjected-to error can be characterized as “compelling, extraordinary, exceptional or
35
fundamental to assure the defendant a fair trial.” Stone v. State, 178 Md. App. 428, 451
(2008) (cleaned up). Accord Morris v. State, 153 Md. App. 480, 507 (2003) (appellate
review based on plain error is “a rare, rare, phenomenon.”), cert. denied, 380 Md. 618(2004); Steward v. State, 218 Md. App. 550, 566–67, cert. denied, 441 Md. 63 (2014).
For an error to be eligible for plain error review, it must meet three conditions: (1)
the error must not have been “intentionally relinquished or abandoned, i.e., affirmatively
waived”; (2) the error must be “clear or obvious rather than subject to a reasonable
dispute”; and (3) the error must have affected the “substantial rights” of the appellant,
which means “he must demonstrate that it affected the outcome of the district court
proceedings.” State v. Rich, 415 Md. 567, 578 (2010) (cleaned up). Even if these three
requirements are met, this Court should exercise its discretion to review the error only if it
“seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id.Accord Beckwitt v. State, 477 Md. 398, 464, cert. denied, 143 S. Ct. 216 (2022).
Plain error review is not warranted in this case. Appellant not only failed to object
to the question, he invited the error by asking the court to give the voir dire question at
issue.16 “‘[W]here a party invites the trial court to commit error, he cannot later cry foul
on appeal.’” Hayes v. State, 217 Md. App. 159, 172 (2014) (quoting Rich, 415 Md. at 575).
16
Appellant requested the following question: “There will be testimony about the
possession and/or use of firearms. Is there any [prospective] juror who is so prejudiced
concerning firearms that they would be unable to render a fair and impartial verdict?” The
question that the circuit court asked during voir dire was almost identical: “There will be
testimony about the possession and/or use of firearms. Is there any member of the panel
who is so prejudiced concerning firearms that you would be unable to render a fair and
impartial verdict?”
36
Accord In re Jeannette L., 71 Md. App. 70, 81 (“It is with ill grace that they now complain
they should not have gotten that for which they asked.”), cert denied, 310 Md. 491 (1987).
We decline to exercise our discretion to review this claim for plain error.
JUDGMENTS OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY AFFIRMED,
COSTS TO BE PAID BY APPELLANT.
37