Ferrell v. State

536 A.2d 99, 73 Md. App. 627, 1988 Md. App. LEXIS 20
CourtCourt of Special Appeals of Maryland
DecidedJanuary 18, 1988
Docket213, September Term, 1987
StatusPublished
Cited by12 cases

This text of 536 A.2d 99 (Ferrell v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferrell v. State, 536 A.2d 99, 73 Md. App. 627, 1988 Md. App. LEXIS 20 (Md. Ct. App. 1988).

Opinions

WILNER, Judge.

Just after 7:00 on the morning of April 10, 1985, a man brandishing a handgun and wearing a three-quarter length gray coat, white tennis shoes, and a ski mask robbed three women and a child standing at a bus stop in Baltimore City. [629]*629He took a purse from each of the women and a school bag from the child. During the course of the robbery, a shot was fired. One of the victims—Mary Henderson—followed the robber as he made his escape and reported seeing him heading toward Swann Avenue, changing his clothes as he ran.

Police officers responded promptly. From the information obtained from the victims and from an anonymous call, several of them went looking for the assailant in the Uplands Apartment development, located on Swann Avenue about a block from the bus stop. Officer Wagner observed appellant emerging from the building at 405 Swann Avenue dressed in a blue-gray suit and carrying a gray jacket in one hand and a shopping bag in the other. Appellant walked away from the officer, at an increasingly brisk pace. When he got to a corner, he dropped the shopping bag and ran behind one of the buildings. Officer Wagner saw appellant cross Swann Avenue and go into the building at 400 Swann Avenue; he relayed that information by police radio to Officer Brown, who was also on the scene searching for the robber.

Officer Brown saw appellant go into 400 Swann Avenue carrying a gray coat; he followed him in and brought him back outside. Officer Garrity then arrived with the victims. Inside the shopping bag, picked up by Officer Wagner, were three purses, which the women, respectively, identified as their own, a ski mask, a glove, and a handgun containing five live rounds and one spent cartridge. Several of the victims identified the gray coat taken from appellant as looking like the coat worn by the robber. Also inside the shopping bag was a black vinyl case containing certain papers belonging to appellant.

None of the victims was able to identify appellant as the masked robber. Although the shopping bag certainly was full of incriminating evidence, appellant, directly disputing Officer Wagner’s testimony, contended that he never had the shopping bag. He claimed that he was on his way to the Westside Skill Center, that he had stopped at 400 Swann [630]*630Avenue to meet one Karen Lucas, a fellow student at that center, and that his school papers allegedly found inside the shopping bag, had been in his coat pocket.

As a result of this incident, the State’s Attorney filed four criminal informations against appellant (Nos. 28514739-28514742), each charging him with the following eight offenses:

Count 1—Robbery with a deadly weapon;
Count 2—Attempted robbery with a deadly weapon;
Count 3—Robbery;
Count 4—Assault with intent to rob;
Count 5—Assault;
Count 6—Theft of less than $300;
Count 7—Use of a handgun in the commission of a crime of violence; and
Count 8—Unlawful carrying of a handgun.

Appellant was first brought to trial on all of these charges in November, 1985. He was convicted on all four counts of robbery with a deadly weapon (Count 1 of each information) and apparently on Counts 3, 5, 6, 7, and 8 of each information as well. It is not clear what happened to Counts 2 and 4, except that there is no indication (and appellant makes no contention) that he was acquitted on those counts at that time.

On February 22, 1986, the court granted appellant’s motion for new trial on all counts set forth in the four informations.1 He was brought to trial again in June, 1986; on that occasion, the jury was unable to reach a verdict on any of the counts, and so a mistrial was declared.

Appellant’s third trial took place in August, 1986. Precisely what occurred at that trial is not altogether clear from the record before us—a matter we shall discuss in more detail later. It appears, however, that only five counts were submitted to the jury—the four flagship counts [631]*631of robbery with a deadly weapon and one count of use of a handgun in the commission of a felony. The jury acquitted of the latter offense2 but, once again, was unable to agree on Count 1.

Undaunted by its three false starts, and now down to only one count in each information, the State decided to try again. Prior to his fourth trial, appellant moved to dismiss Count 1 (of each information) on the related grounds of double jeopardy and collateral estoppel. His argument centered solely on the effect of his acquittal on Count 8. He posited that the only deadly weapon indicated by the evidence was a handgun, that his acquittal on Count 8 sufficed as a finding that he had not used a handgun, and that, ergo, a fact necessary to his prosecution on Count 1 had been decided in his favor and could not be re-litigated. That conclusion, he urged, was mandated by Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

The court denied his motion, whereupon he was brought to trial for the fourth time on Count 1 of each information. He was convicted on all four charges, given substantial sentences, and appeals. He raises six issues, to which, nostra sponte, we have added a seventh. In the end, we shall affirm.

(1), (2)

Double Jeopardy/Collateral Estoppel

In the “Statement Of The Case” section of his brief, appellant informed us that, at his third trial, the court [632]*632disposed of Counts 2 through 7 of each information by granting “judgments of acquittal” as to them. The State did not challenge that assertion in its brief, and indeed the docket entries for the third trial clearly indicate that disposition.3 Aware that Count 3 of each information charged simple robbery, a necessary included element in robbery with a deadly weapon, we questioned whether, in light of that disposition, retrial on Count 1 might be precluded under Wright v. State, 307 Md. 552, 515 A.2d 1157 (1986). Given the generally dismal state of the record,4 however, we directed the parties to address that issue and, if necessary, to supplement the record in order to address it.

In response to that order, the State filed certain excerpts from the transcript of proceedings at the third trial, which we have accepted as a supplement to the record. Md.Rule 1027.

At the conclusion of the State’s case at the third trial, defense counsel moved for judgment of acquittal, arguing briefly that the State had failed to show “that the evidence seized was in possession of my client and that he is, in fact, the robber that’s involved in this case.” The motion was denied. At the end of the entire case, counsel renewed the “motion for judgment of acquittal at this time for the same [633]

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Spencer v. State
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Ferrell v. State
536 A.2d 99 (Court of Special Appeals of Maryland, 1988)

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Bluebook (online)
536 A.2d 99, 73 Md. App. 627, 1988 Md. App. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferrell-v-state-mdctspecapp-1988.