Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Alston v. State

Alston v. State

Procedural History:

Defendant was charged with first degree murder, second degree murder, conspiracy to murder, use of a handgun in the commission of a felony or crime of violence, and wearing, carrying or transporting a handgun.  The trial court belatedly administered the oath to the jury and determined that none of the jurors were prejudiced by the delay after questioning them individually.  The trial court then concluded that a conviction for conspiracy to murder must necessarily be in the first degree because of the planning and forethought required for a conspiracy.

Defendant was convicted by the trial court of conspiracy to commit murder and was sentenced to life in prison.  Defendant appealed and the Court of Special Appeals affirmed the trial court’s decision.  The Court of Appeals granted Defendant’s petition for a writ of certiorari and affirmed the Court of Special Appeals’ decision on the grounds that the delay in administering the jury’s oath was harmless, and conspiracy of which the defendant was convicted was necessarily one to commit murder in the first degree.


  1. Did the trial court err in denying the defendant’s motions for a mistrial and for a new trial where the jury was not sworn until after the essential conclusion of the State’s case?
  2. Did the trial court err in sentencing the defendant to life for conspiracy to murder where under the instructions given the jury could have found the defendant was guilty only of conspiracy to commit second degree murder?


Defendant and two others drove into Baltimore intending purchase cocaine and/or heroin.  On their first attempt, two of the three men, including the defendant, were robbed by a small man (ostensibly the victim) with a shotgun in an ally.  After purchasing heroin from another part of the city, the three men subsequently returned with a .380 Taurus pistol to search for the small man who robbed them.  One of the three remained in the car while the other two (the defendant and the man who previously remained behind) searched with the gun.  After 15 or 20 minutes, the individual in the car heard several gun shots and observed the defendant and the other man returning to the car at a fast jog.

The police responded to a call for a shooting and found the victim lying on the sidewalk bleeding from multiple gunshot wounds.  The victim was pronounced dead at the hospital.  The police located one of the men’s cell phones on the victim and subsequently brought him in for questioning.  The man agreed to testify against the defendant in exchange for immunity and the State agreed.

At trial the defense attorney notified the court that the jury had not been placed under oath on the fourth day, after all of the State’s evidence had been introduced, and made a motion for mistrial.  The trial judge denied the motion, stating that defense counsel should make the same argument at a motion for new trial.  The trial court placed the jury under oath and asked each member individually if any of the preceding events would impair their ability to perform under oath.  All 12 jurors indicated they would be able to function unimpaired.  The jury returned a verdict of guilty as to conspiracy to commit murder, and not guilty as to the other charges.  The trial court then observed that the verdict sheet did not specify to which degree of attempted murder the conspiracy charge referred.  The trial court instructed counsel to “deal with it” in ten days at oral argument on the motion for a new trial.

At oral argument on the motion for a new trial the trial court observed that conspiracy required planning and forethought, and that these requirements necessitated conspiracy to commit 1st degree murder because they amounted to premeditation.  The trial court also noted that the belated jury instruction was harmless.  The trial court then denied the motion for a new trial and the defendant appealed.  The Court of Special Appeals affirmed.