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Marquardt v. State9/8/2005
Salmon, Kenney, Eyler, Deborah S., JJ.
A jury sitting in the Circuit Court for Talbot County convicted Joseph William Marquardt, Jr., appellant, of two counts of second degree assault, two counts of fourth degree burglary, three counts of malicious destruction of property, and one count of false imprisonment. Appellant was sentenced to a total of twenty-three years and four months' incarceration and ordered to pay restitution in the amount of $490.75. He presents four questions on appeal, which we have slightly rephrased as follows:
1. Did the circuit court err in admitting hearsay in violation of appellant's right to confrontation?
2. Did the circuit court err in refusing to instruct the jury on the defenses of necessity, self-defense, and mistake of fact?
3. Did the circuit court err in refusing to propound appellant's requested voir dire questions?
4. Did the circuit court err by not merging appellant's sentences for malicious destruction of property into his sentences for burglary?
We agree that, under the facts of this case, separate sentences for malicious destruction of property and fourth degree burglary should not have been imposed. In all other respects, we affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL HISTORY
Appellant met his wife, Catherine Burns, about three years prior to the night of March 16, 2003. When they met, they both abused alcohol and drugs. Appellant entered a treatment program in September 2002, and testified that he had not used drugs since that time. Appellant also attempted unsuccessfully to obtain help for Burns, calling her parole officer, his parole officer, his rehabilitation counselor, the Family Assistance Network, Social Services, Memorial Hospital at Easton, the State's Attorney's Office, and Burns' parents. He asked clerks at the District Court of Maryland for Talbot County and the Circuit Court for Talbot County about an emergency petition, but was told such an order could not be issued unless Burns had been suicidal in the last 48 hours. Appellant was told to stay away from Burns and to "worry about own self."
In the weeks leading up to March 16, 2003, appellant decided to stop calling Burns and would not take phone calls from her. On March 12, 2003, Burns left a message on appellant's cell phone saying she was at the hospital. Appellant originally "wasn't going to return the call and then . . . said no, I got to call her at the hospital. I've got to see what's wrong with her." He went to the hospital and learned that Burns was pregnant. Appellant was initially unhappy about the pregnancy because he thought Burns was a "crack addict." He had a prior experience with a girlfriend's grandson who was a "crack baby" who was "almost eight years old and never walked, talked . . . [and was] fed through a tube in his stomach." But, appellant reconciled with Burns, and the two made plans to celebrate the pregnancy on March 14, 2003. When appellant returned from work that night, Burns was missing and would not return his phone calls. He searched for two days, and on March 16, 2003, he called a number that Burns had stored in his cell phone for the residence of Robert Lambert. When the man who answered denied knowing Burns, appellant told him: "I'm the last person that you want to get riled up right now. I'm not in no mood for it. I've been looking for her for two days."
Appellant offered $100 to anyone who could provide him with the location of his wife. Shortly thereafter, he was told he could find Burns at an apartment building on Bay Street in Easton, Maryland. At around 9:30 p.m. on the night of March 16, 2003, appellant brok
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