Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 645

September Term, 2009

KENNETH KELLY A/K/A KENNETH MAURICE KELLY, JR.

v.

STATE OF MARYLAND

Zarnoch, Graeff, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.

Opinion by Graeff, J.

Filed: October 4, 2010

A jury sitting in the Circuit Court for Baltimore City convicted appellant, Kenneth Kelly, of robbery and conspiracy to commit robbery. consecutive sentences of 15 years for each conviction. Appellant presents four questions for our review, which we quote: 1. Did the trial court err by denying a motion for mistrial after it was discovered that a sheriff's officer had closed the courtroom to the public, including members of Appellant's family, during jury selection? Did the trial court err by asking the jury on voir dire whether they could convict the defendants in the absence of "scientific" evidence? Did the trial court err by denying defense counsel's request to continue sentencing? Were separate sentences for robbery and conspiracy to commit robbery illegal under the circumstances in this case? The court imposed

2.

3.

4.

For the reasons that follow, we shall affirm the judgments of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On September 4, 2008, at approximately 11:30 p.m., two men robbed Ronald Bennett as he walked home from work. Appellant was charged with the following crimes: (1) robbery with a dangerous weapon; (2) robbery; (3) first degree assault; (4) second degree assault; (5) theft of property under $500; (6) wear, carry, and transport a handgun; (7) use of a handgun in a crime of violence; and (8) conspiracy to commit armed robbery.1

On the first day of trial, because the weapon used in the robbery was "a toy plastic pistol," the State nol prossed the following charges: robbery with a deadly weapon; first degree assault; wear, carry, and transport a handgun; and use of a handgun in the commission of a crime of violence. With respect to the charge of conspiracy to commit an armed robbery, the prosecutor stated that the State intended to proceed on the lesser included offense of conspiracy to commit robbery.

1

On April 27, 2009, trial commenced against appellant and his co-defendant, Donald Bland. Mr. Bennett testified that, as he walked home from work, two men yelled "Tommy" and told him to stop. Mr. Bennett began walking faster, away from the two men. One of the men pointed a gun at Mr. Bennett, advising him not to run. The men caught up with him, and the other man searched Mr. Bennett and took his identification, cell phone, and duffel bag. The gunman continued to call Mr. Bennett "Tommy," but the other man corrected him, stating that Mr. Bennett "wasn't the guy." Mr. Bennett testified that the gunman indicated that, if Mr. Bennett had been Tommy, he would have "cut my dreads and then he was going to shoot me." The men let Mr. Bennett go, and when he was a block away from them, they asked Mr. Bennett if he wanted his bag back, but Mr. Bennett continued walking. Mr. Bennett testified that the robbery occurred by a street light, and he could see both of the perpetrators' faces. Both men were wearing white t-shirts and "denim shorts, like capris." Mr. Bennett identified appellant as the person who "went in my pockets" and Mr. Bland as the gunman. When Mr. Bennett arrived at his brother's home, he called 911. An officer responded and took Mr. Bennett to the police precinct. At the precinct, the police advised him that they had located two suspects. They transported Mr. Bennett to the place where the suspects were being held, and Mr. Bennett identified both suspects as the men who had robbed him earlier that night. Mr. Bennett subsequently identified appellant and Mr. Bland in photo arrays presented to him. In the first array, Mr. Bennett identified appellant, writing that he "was

-2-

the guy that went through my pockets, took my wallet and cell phone." In the second photo array, Mr. Bennett identified Mr. Bland as the one "with the gun." Officer Carmine Vignola testified that, in the early morning hours of September 5, 2008, he responded to a report of a robbery. He transported Mr. Bennett to the police station and then to the location where the suspects had been detained. Mr. Bennett identified the suspects as "the individuals that had robbed him." Officer James Howard saw appellant while on patrol on September 5, 2008. Appellant, who matched the description of one of the suspects, was "trotting" out of an alley. Officer Howard made eye contact with appellant, who "took off in a full-fled[ge] run." Appellant tossed "a sack" over a fence and continued running. Officer Howard stopped appellant, handcuffed him, and called for backup. When other officers arrived, Officer Howard canvassed the area and recovered a gray backpack. When Officer Howard returned to the area where he had detained the suspect, he observed a second suspect, but he did not know how the police located the other man.2 Officer Howard transported appellant to the police station. Afterward, he checked the backseat of his vehicle and discovered a cell phone, which he turned over to the detectives.

The State did not introduce any evidence explaining how Mr. Bland came into police custody. Outside the presence of the jury, however, the circuit court noted that it was "puzzled" why the prosecutor "didn't put on a police officer to say that while they're investigating Kelly . . . that Bland walked towards the scene and inquired why his cousin was stopped." -3-

2

Detective Arnold Pitman interviewed Mr. Bennett in the early morning hours of September 5, 2008. Mr. Bennett advised him that the assailants robbed him of his wallet, cell phone, and backpack, and he provided a description of both men. Detective Pitman instructed Officer Vignola to broadcast a description of the two suspects via radio to other police officers. When Detective Pitman learned that the police had located two suspects, he prepared two photo arrays, one for each of the suspects. Mr. Bennett viewed the photo arrays and positively identified appellant and Mr. Bland as the men who committed the robbery. Detective Pitman returned Mr. Bennett's property, including a gray backpack, a cell phone, and an earnings statement. At the conclusion of the State's case, counsel for appellant moved for judgment of acquittal on all counts. The court denied the motion. The defense rested without introducing any additional evidence. As indicated, the jury convicted appellant of robbery and

conspiracy to commit robbery.3 This timely appeal followed.

DISCUSSION I.

The jury convicted appellant's co-defendant, Mr. Bland, of second degree assault and conspiracy to commit robbery. Mr. Bland's appeal also is pending before this Court. See Bland v. State, No. 621, Sept. Term, 2009. Appellant and Mr. Bland filed a joint motion to consolidate appeals. This Court denied the motion, but argument was heard in both cases the same day. Mr. Bland's appeal will be resolved in a separate opinion. -4-

3

Right to a Public Trial Appellant's first contention is that "the trial court erred by denying a motion for a mistrial after it was discovered that a sheriff's officer had closed the courtroom to the public, including members of appellant's family, during jury selection." He argues that, "[w]hile the court had a legitimate interest in maintaining order in the courtroom and looking after the comfort of its occupants, it did not adequately balance those interests with [appellant's] constitutional right to a public trial." Appellant asserts that, "because the officer's actions were not brought to light until after the fact, [he] never had the opportunity to suggest, and the court never had the opportunity to consider," whether there were other alternatives to excluding his family from the courtroom, "such as breaking the group of prospective jurors into smaller groups" or "directing [appellant's] family to remain silent during jury selection." The State contends that "the trial court properly refused to declare a mistrial after learning that, without the knowledge of the court or the parties, [appellant's] family members had been excluded from the courtroom for a limited part of the jury selection proceedings, during which there were not enough seats for all of the prospective jurors." The State argues that "the temporary, limited, and inadvertent exclusion of [appellant's] family during a portion of jury selection" was "de minimus" and "too trivial to implicate [appellant's] Sixth Amendment right to a public trial." It further contends that, "even if a Sixth Amendment analysis is appropriate, there were compelling, or at least substantial, interests justifying the exclusion and . . . it was narrowly tailored to those interests." A. -5-

Proceedings Below On the morning of the first day of trial, at 10:12 a.m., a large number of prospective jurors entered the courtroom.4 The court stated: "Fill in every available seat, please folks. We've got a full house." The voir dire process then began. After the court clerk completed roll call, the court asked the venire panel a series of questions. The court then called to the bench the prospective jurors who had indicated an affirmative response to a question and asked further questions. Prior to completing the voir dire process, the court took a break for lunch, instructing the prospective jurors to return at 2:00 p.m. When proceedings resumed in the afternoon, at 2:05 p.m., the clerk read off the numbers of the prospective jurors remaining, and the court prepared to continue with the individual questioning of the jurors. Prior to doing so, however, counsel approached the bench. Although not entirely clear, the record indicates that counsel approached to discuss the issue of the court closure, an issue to which it appears the court previously had been alerted, and counsel then handed the court a case, presumably Watters v. State, 328 Md. 38 (1992), cert. denied, 507 U.S. 1024 (1993).5 After counsel gave the judge the case, the court

During the court's questioning of a prospective juror at the bench, the judge noted that there were "150 people" in the courtroom. After the clerk asked prospective juror No. 245 to approach the bench, the following occurred: THE COURT: Why don't you keep them there for just a second? Would you (continued...) -65

4

commented about the small size of the courtroom and the security problems, stating that every seat was filled and jurors were standing. Counsel for Mr. Bland then stated that he wanted to wait to discuss the issue until his client arrived. The court and counsel then appeared to discuss other issues,6 and they then proceeded with the questioning of the individual jurors. After completing the strikes of prospective jurors for cause, counsel for appellant returned to the issue of the right to a public trial. Counsel moved for a mistrial, stating: [COUNSEL FOR APPELLANT]: Your Honor, if we could just very briefly deal with that mistrial issue because I want to put that on the record now that Mr. Kelly is here. And I don't know if we need the Sheriff's input or not, but when I spoke to Mr. Kelly's father, he was here this morning. He was in the courtroom before we started the proceedings. And when I spoke to him over lunch, he indicated to me that he was asked by the Sheriff's office to leave, that there was

Download Kelly v. State.pdf

Maryland Law