Brown v. State

720 A.2d 1270

124 Md. App. 183

Baron Keith BROWN v. STATE of Maryland.

No. 407, Sept. Term, 1998.

Court of Special Appeals of Maryland.

December 4, 1998.

Julia Doyle Bernhardt, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Devy Patterson Russell, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Jack B. Johnson, State's Atty. for Prince George's County, Upper Marlboro, on the brief), for Appellee.

Argued before EYLER, SONNER and BYRNES, JJ.

EYLER, Judge.

Appellant, Baron Keith Brown, was convicted by a jury sitting in the Circuit Court for Prince George's County of second degree murder and use of a handgun in the commission of a felony. Appellant was sentenced to 30 years imprisonment for murder and 20 years consecutive for use of a handgun in the commission of a felony. On appeal, appellant inquires (1) whether the trial court erred in denying his motion to suppress, (2) whether the trial court erred in admitting the testimony of a non-sequestered witness for the State whose name had not been included in voir dire, and (3) whether the trial court erred in its instructions to the jury. Finding no error, we affirm the judgments of the trial court.

Facts

The relevant basic facts are as follows. On September 16, 1996, a police officer found the body of Ivan Hamilton, who had died as a result of a gunshot wound. Detective Bernard Nelson interviewed appellant after his arrest for the homicide. Detective Nelson testified that appellant gave him a written statement, in which appellant said that the victim was unknown to him prior to the shooting, that the victim had approached appellant and demanded money, and that during the ensuing struggle, the victim reached for his waistband, and, fearing for his life, appellant shot him.

The victim's sister, Marlene Johnson, and the mother of the victim's child, Cassandra Bennett, testified that they had seen the victim and appellant together on one occasion each prior to the shooting.

The victim's mother, Mildred Hamilton, testified that, after appellant had been charged with the murder, Detective Nelson came to her house and brought photographs of appellant. Ms. Johnson noticed the photographs on a table in Mrs. Hamilton's house and recognized appellant in the photographs. Mrs. Hamilton mailed the photographs to Ms. Bennett, who then lived in North Carolina. Subsequently, Ms. Bennett called and stated that she recognized appellant in the photographs. Charles Berry testified that on September 16, 1996, he was in a "drug area" near where the victim's body was found. Appellant approached him and said that he was in the mood to shoot somebody and pulled a gun "halfway" out of his jacket. Shortly afterward, Mr. Berry heard gunshots.

Discussion

I.

Appellant moved to suppress the statement he gave to the police. The motion was denied by the trial court.

In reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing, extend deference to the fact finding of the suppression judge, and accept those findings as to disputed issues of fact unless clearly erroneous. See Jones v. State, 343 Md. 448, 457-58, 682 A.2d 248 (1996); Pryor v. State, 122 Md.App. 671, 677 n. 4, 716 A.2d 338 (1998); Partee v. State, 121 Md.App. 237, 244, 708 A.2d 1113 (1998). We also consider those facts that are most favorable to the State as the prevailing party on the motion. Jones, 343 Md. at 458, 682 A.2d 248; Partee, 121 Md.App. at 244, 708 A.2d 1113. We make our own independent constitutional appraisal based on a review of the law as it applies to the facts of the case. Jones, 343 Md. at 457, 682 A.2d 248.

Detective Nelson testified that he obtained an arrest warrant for appellant on March 11, 1997. On March 20, 1997, at approximately 5:50 p.m., Officer Eldrick Creamer was on patrol in the District of Columbia with his partner, Officer Joseph Trainor, in an area known to have high drug activity. Officer Creamer testified that he saw appellant make "a motion with his hand to conceal something, went from his hand to his waist area and turned away, walked the other way." He stated that the actions led him "to believe that [appellant] might have been concealing a possible weapon, possible narcotics." He did not see appellant involved in a drug transaction. Officer Creamer approached appellant, asked him to step over to the marked police car, placed appellant's hands on the car, and conducted a protective pat-down search of appellant's outer clothing. Officer Creamer did not discover any weapons or contraband. During the pat-down, Officer Creamer obtained appellant's name, social security number, and date of birth. Immediately after the pat-down, Officer Creamer radioed his dispatcher and requested a check for outstanding warrants. Approximately five minutes after making the request, he learned that there was an outstanding warrant with respect to the homicide. He placed appellant under arrest and took him to the police station. Officer Creamer testified at the suppression hearing that, during both the pat-down of appellant's outer clothing and the check for open warrants, appellant was not free to leave. Detective Nelson arrived at the station at approximately 9:45 p.m. and, during his interview, obtained a statement regarding the homicide.

Appellant acknowledges that the initial stop was justified pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellant argues, however, that his subsequent detention was illegal because once the purpose of the stop had been fulfilled, i.e., to determine if he had illegal drugs or weapons, there was no justification to detain him pending a check for open warrants. Appellant concludes that the arrest flowed from the illegal detention, that his statement was a fruit of the arrest and, consequently, should have been suppressed.

Appellee argues that there was (1) a single stop for a reasonable period of time, or (2) that appellant's statement was too attenuated to be the fruit of an illegal act. We disagree with the State's first point, but agree that there is no legal connection between appellant's initial detention and his statement.

A. Justification for Detention

Appellant was subjected to an extended detention, or "second stop," that was not justified by the articulated reasons for his initial detention or by any other reason. The extended portion of the detention was therefore unreasonable under the Fourth Amendment to the Constitution, which is made applicable to the states through the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The legality of Officer Creamer's actions in stopping appellant and conducting the pat-down search for evidence of concealed weapons or contraband is not at issue. With respect to the justification and scope of an officer's actions pursuant to a "Terry stop," we note that the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21,88 S.Ct. 1868. While the Court's opinion in Terry did not explore in detail the permissible length of such a stop, the Court discussed the subject in greater detail in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality).¹ Drawing on the jurisprudence of searches pursuant to lawful Terry stops, the plurality wrote:

"The scope of the search must be `strictly tied to and justified by' the circumstances which rendered its initiation permissible." [Terry,] 392 U.S., at 19 [88 S.Ct. 1868], quoting Warden v. Hayden, 387 U.S. 294, 310 [87 S.Ct. 1642, 18 L.Ed.2d 782] (1967) (Fortas, J., concurring). The reasonableness requirement of the Fourth Amendment requires no less when the police action is a seizure permitted on less than probable cause because of legitimate law enforcement interests. The scope of the detention must be carefully tailored to its underlying justification.

... The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.

Royer, 460 U.S. at 500, 103 S.Ct. 1319.

In ascertaining the permissible length of investigative stops under Terry, we have reasoned that once the purpose of an initial stop has been satisfied, the stop is ended; a continued detention beyond that point comprises a "second stop" that requires additional justification. See Pryor, 122 Md.App. at 682, 716 A.2d 338; Munafo v. State, 105 Md.App. 662, 669-70, 660 A.2d 1068 (1995); Snow v. State, 84 Md.App. 243, 267, 578 A.2d 816 (1990). Of course, during a valid Terry stop, law enforcement officers may take contemporaneous investigative steps that would not independently justify the detention of the suspect, so long as those steps do not add additional time to the stop, i.e., are completed within the period of time defined by the legitimate purposes for the stop. See In re Montrail M., 87 Md.App. 420, 436-37, 589 A.2d 1318 (1991), aff'd, 325 Md. 527, 601 A.2d 1102 (1992). But whether courts perceive distinct "stops" or simply test the entire period of detention for underlying constitutional justification, it is clear that the full extent of any seizure under Terry must be justified by "a reasonable, articulable suspicion that a crime is being or is about to be committed."² Snow, 84 Md.App. at 265, 578 A.2d 816. See also Royer, 460 U.S. at 498, 103 S.Ct. 1319; Terry, 392 U.S. at 21-22, 88 S.Ct. 1868; Munafo, 105 Md.App. at 673, 660 A.2d 1068.

Snow and Munafo both involved valid stops for suspected traffic violations. The drivers were detained slightly longer than the period justified by the articulated purposes for the stops, based on each officer's "hunch" that other...