Clayton v. State

NORTEL MAURICE CLAYTON v. STATE OF MARYLAND

No. 2191

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

January 9, 2020

Circuit Court for Howard County

Case No. 13-K-18-058567

UNREPORTED

Arthur, Shaw Geter, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ.

Opinion by Shaw Geter, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Nortel Clayton, appellant, was arrested and charged, in the Circuit Court for Howard County, with various crimes following a robbery that occurred at a Dollar Plus Store. Prior to trial, appellant filed a motion to suppress statements he made during an interview with the police. That motion was denied. A jury ultimately convicted appellant of robbery and second-degree assault. The court sentenced appellant to a total term of ten years' imprisonment. In this appeal, appellant presents five questions for our review:

1. Did the motions court err by denying appellant's motion to suppress his statements made during a police interrogation after he unambiguously invoked his right against self-incrimination?

2. Did the trial court err by admitting inadmissible hearsay?

3. Did the trial court abuse its discretion by admitting irrelevant and prejudicial prior bad acts evidence?

4. Did the trial court commit plain error by instructing the jury that the intent-to-frighten modality of second-degree assault was a lesser-included offense of robbery?

5. Is the evidence insufficient to sustain appellant's convictions of robbery and assault?

Finding no error and the evidence sufficient, we affirm the judgments of the circuit court.

BACKGROUND

At approximately 8:00 p.m. on October 23, 2017, an individual wearing a mask walked into the Dollar Plus Store on Whiskey Bottom Road in Laurel, approached the checkout counter, and told a store employee to open the cash register. After the store's employee complied, the individual grabbed some cash from the register, put the cash in hispocket, and left the store. Appellant was ultimately arrested and charged with having committed the robbery.

Suppression Hearing

Prior to trial, appellant filed a motion to suppress statements he made to the police during an interview that was conducted following his arrest. At the hearing on that motion, the motions court accepted into evidence an audio recording of appellant's interview. During that interview, the police confronted appellant with some of the evidence implicating him in the robbery:

[DETECTIVE]: Between the fingerprint and -

[APPELLANT]: I'm saying that -

[DETECTIVE]: - finding the hoodies, the Urban Market -

[APPELLANT]: Right

[DETECTIVE]: - hoodie, the clerk's, the witnesses, them seeing you running back across the street to - towards your house. Like, putting all that together and then showing the photographs of a picture of you -

[APPELLANT]: All right.

[DETECTIVE]: - your mom even said it was -

[APPELLANT]: Okay.

[DETECTIVE]: - you. So I'm not -

[APPELLANT]: Well, see - I understand exactly what you're saying -

[DETECTIVE]: You know what I'm saying? I'm just - it's -[APPELLANT]: - man, but I don't want to just say nothing like that. You know what I'm saying?

[DETECTIVE]: No, I get it. I get it.

[APPELLANT]: That's some clown ass shit.

[DETECTIVE]: I get it. It's just sometimes I just try to understand the mind set -

[APPELLANT]: I can't just -

[DETECTIVE]: - of some people that -

[APPELLANT]: I just, you know what I'm saying -

[DETECTIVE]: Okay.

[APPELLANT]: I got to plead the fifth, but I'm saying -

[DETECTIVE]: Okay.

[APPELLANT]: - I can't just tell you no clown ass - no shit like that. But I'm just saying, my mother, she do be trying to give the charges that aren't even me, man.

[DETECTIVE]: Uh-huh.

[APPELLANT]: My mother, she being doing that. But I'm saying I don't know. All right.

[DETECTIVE]: You think your mom would do that to you?

[APPELLANT]: It's the thing - man, she has done it before.

[DETECTIVE]: Uh-huh.

[APPELLANT]: She has done it in the past. See what I'm saying?

Appellant argued that his statement, "I got to plead the fifth," should have alerted the interviewing officer that appellant was asserting either his right to remain silent or his right to an attorney. Appellant maintained, therefore, that any statements he made following that statement should be suppressed. The motions court ultimately denied appellant's motion, finding that appellant's purported invocation of his right to remain silent and right to an attorney was "very ambiguous" and that "it was clear that he was just talking and rambling."

Trial

At trial, Gemechis Gudina, the owner of the Dollar Plus Store, testified that he was working behind the store's checkout counter on the night of the robbery. Mr. Gudina testified that, at approximately 8:00 p.m., "someone entered the store," walked up to the counter, and "told" Mr. Gudina to "open the cash register." Mr. Gudina, testified that he was "confused and scared." When Mr. Gudina asked the assailant to repeat himself, the assailant told him to "open the cash register and back off." Mr. Gudina testified that the assailant used "a command voice." After Mr. Gudina opened the cash register, the assailant took money from the register, some of which fell to the floor. The assailant then told Mr. Gudina to collect the fallen money and "hand it to him," and Mr. Gudina complied. The assailant then put the money in his pocket and fled the scene.

Video surveillance footage taken from the Dollar Plus Store at the time of the robbery was then shown to the jury. In that video, the assailant can be seen entering the store wearing a mask and a striped sweatshirt with the hood pulled up over his head. Afterthe assailant browses the store's merchandise for approximately one minute, he approaches the checkout counter where Mr. Gudina is standing. With both hands concealed in the front pocket of his sweatshirt, the assailant appears to say something to Mr. Gudina, who then opens the cash register. With his left hand still in the pocket of his sweatshirt, the assailant reaches into the register and removes some cash, and some of the cash falls to the floor. The assailant, with his hand still in his pocket, then motions toward Mr. Gudina, who picks up the fallen cash and hands it to the assailant. The assailant then puts the cash in his pants pocket and leaves the store.

Mr. Gudina testified that, after the assailant left the store, he called the police. Mr. Gudina's 911 call was played for the jury. In that recording, the 911 operator asked Mr. Gudina if the suspect had "any weapons," and Mr. Gudina responded that he thought the assailant "had something in his pocket."

Rashid Mahmood, a cashier at the All Saints liquor store located in the same shopping center as the Dollar Plus Store, testified that, following the robbery, he was shown a photographic array by the police and that he identified appellant as having been in the liquor store on the day of the robbery. Mr. Mahmood stated that appellant came into the liquor store to purchase a beer but that he left before doing so because he did not have any money.

The State, over objection, then introduced two surveillance videos. In the first video, which depicted the interior of the All Saints Liquor store, appellant can be seen walking into the liquor store a few hours before the robbery wearing clothing that wasvirtually identical to the clothing worn by the person who committed the robbery at the Dollar Plus Store. The second video depicted the interior of another store, Urban Market, which was also located in the same shopping center as the Dollar Plus Store. In that video, which was taken approximately one hour before the robbery, an individual wearing a mask and a striped sweatshirt similar to the one worn by the robber can be seen entering the Urban Market store, browsing for a moment, and then leaving without purchasing anything.

Howard County Police Detective Danielle Ramsdell testified that, after appellant was developed as a suspect in the robbery, a search warrant was obtained and executed at appellant's residence, which was located a short distance away from the Dollar Plus Store. A striped sweatshirt matching the one worn by the assailant during the robbery was found at appellant's residence.

Howard County Police Detective Jose Marichal testified that, during his investigation into the robbery, he interviewed appellant. During that interview, which was the subject of appellant's motion to suppress, appellant stated that he was concerned about the level of crime near where he lived and that "he wished for more police presence in the area." When Detective Marichal asked appellant if the robbery at the Dollar Plus Store was "his way of bringing attention to the area," appellant told the detective "to come to the shopping center, sit, and see what's going on."

Appellant was ultimately convicted, as noted. Additional facts will be supplied below.

DISCUSSION

I.

Appellant first contends that the motions court erred in denying his motion to suppress. Appellant maintains that his statement, "I got to plead the fifth," was an unambiguous invocation of his right to remain silent and/or his right to an attorney. Appellant maintains, therefore, that any statements he made after that "invocation" should have been suppressed.

"In reviewing the denial of a motion to suppress evidence, 'we confine ourselves to what occurred at the suppression hearing,' which we view 'in a light most favorable to the prevailing party on the motion.'" Ford v. State, 235 Md. App. 175, 185 (2017) (quoting Lee v. State, 418 Md. 136, 148 (2011)), aff'd 462 Md. 3 (2018). Moreover, "[w]e extend great deference to the findings of the hearing court with respect to first-level findings of fact and the credibility of witnesses unless it is shown that the court's findings are clearly erroneous." Daniels v....