Hoerauf v. State

941 A.2d 1161

178 Md. App. 292

Devin HOERAUF v. STATE of Maryland.

No. 195, Sept. Term, 2007.

Court of Special Appeals of Maryland.

February 8, 2008.

Rachel M. Kamins (Bennet & Bair, LLP, on the brief), Greenbelt, for appellant.

Sarah P. Pritzlaff (Douglas F. Gansler, Attorney General, "on the brief), Baltimore, for appellee.

Panel: JAMES R. EYLER, SHARER, and WOODWARD, JJ.

WOODWARD, J.

On November 22, 2006, a jury sitting in the Circuit Court for Montgomery. County found appellant, Devin Hoerauf, guilty of four counts of robbery. On appeal, appellant presents four questions for our review, which we have rephrased:

1. Did the trial court err in denying the motion to suppress appellant's statement to police?

2. Did the trial court abuse its discretion in removing juror number 8?

3. Did the trial court commit plain error by failing to take any action when the State commented on appellant's demeanor during rebuttal closing argument?

4. Did the trial court abuse its discretion in propounding the pattern jury instruction on flight?

We shall answer "yes" to question 4 and reverse and remand for a new trial. For the benefit of the trial court on remand, we will address question 1, because it relates to the admissibility of appellant's statement to the police. A new trial, however, obviates the necessity of answering questions 2 and 3.

BACKGROUND¹

This case arises out of an incident that took place on June 13, 2006. Kyle Phillips, who was sixteen years old at the time, testified at trial that in the early afternoon of June 13, 2006, he was at the MARC station in Germantown with his friends., Jonathon Bruff, Matthew Pedmonte, Thomas "Tony" Rouse, Gary Schneider, and Ryan Schneider. They were BMX biking, or "[t]rick riding." When another group of individuals Walked by, one of them turned around and asked Phillips and Pedmonte: "Do you have a dollar?" Phillips testified that he responded: "No, do you have a dollar?", after which members of the other group "started getting hostile," saying "so you want to fight us[?]"

Phillips recounted that the group of individuals left Phillips and his friends, but returned ten or fifteen minutes later in a larger group, now comprising about ten individuals. The group approached Phil: lips and walked up to the bikes, "say[ing] stuff like these are nice bikes, and start[ing] to pick them up." When someone picked up one of the more expensive bikes, Phillips "said something" and "then [] got hit." Phillips identified appellant as one of the individuals in the larger group.

According to Phillips, although appellant was with the others in the larger group, Phillips did not see appellant strike anyone directly. During the fight, however, when one of the victims picked up a wrench, appellant walked towards him, "like he was going to hurt him," and said, "you put that wrench down now" in a "very threatening way." The fight lasted for about five or ten minutes, after which the group of individuals started to walk away with the bikes belonging to Phillips and his friends. Phillips testified that appellant "was one without a bike." Gary Schneider, according to Phillips, asked appellant "Hey, can we get our bikes back[?]," to which appellant replied: "I don't know what I can do about it, but I'll see."² Appellant walked off towards the group and was seen talking to them. The bikes were not returned.

James Roberts testified that on June 13, 2006, he was with Maurice Graham and Steve Yax while they were on their way to 7-Eleven to meet appellant, after which they were going to take the bus to Lake Forest Mall. Roberts, who was fifteen years old at the time, was the individual who asked Phillips for a dollar, the cost of the bus fare to the mall. Phillips' response made Roberts angry, but all three proceeded to walk away from Phillips and his friends. When they got to 7-Eleven, Yax told appellant, who was with his girlfriend, what happened and all five individuals walked back to the MARC station. Roberts testified that he did not see appellant during the fight. When they left the fight, Roberts testified that he remembered looking behind him and seeing appellant walking with his girlfriend. According to Roberts, about, ten or fifteen minutes after the fight, the group was stopped by the police. In a statement to police, admitted into evidence at trial, Roberts stated that he and the others, including appellant, were involved in hitting the victims.³ Roberts also told police that the victims were ordered to empty their pockets.

The group took two bikes and threw Phillips' bike over a bridge onto the railroad tracks below. In addition to the damage to his bike, Phillips had his wallet, which contained $10, taken from his back pocket during the fight. When the wallet was recovered, the $10 was missing. Rouse's cell phone, MP3 player, and wallet, which did not contain any money, were taken from him. The group also took $15 in cash and a $50 Best Buy gift card from Pedmonte.

Police caught up with appellant, Roberts, Yax, and Graham as they were walking through a nearby neighborhood to Lake Forest Mall. Other officers arrived with the victims to conduct a showup identification. The victims positively identified appellant and the three other individuals. A MP3 player, apparently belonging to Rouse, was found in Yax's pants pocket.

At the police station, appellant provided the following statement, which was introduced at trial:

I called Steve Yax, a black Spanish male, long hair, braids, on my phone. He told me to meet. him at the 7-Eleven in Germantown. I took the bus and met him. He wasn't at the 7-Eleven.

I went to the train station and met Steve Yax. Steve asked me if I wanted to wreck⁴

* * *

Steve told me he asked some young dude on the bike for a dollar. The dude got smart with Steve so Steve wanted to fight. I walked up to the 7-Eleven with Steve and saw the kids Steve was talking about. They were on bikes.

Steve and the other guys I was with started fighting. I walked off. I walked up to the Rolling Hills with Steve. I don't know the other two kids I was with. They were black males. I guess they were friends of Steve's. One girl was with us. I don't know her name.

Steve was talking about robbing people. He talks about robbing Hispanics because they have money and get drunk.

We will set forth additional facts and proceedings below as necessary to discuss the questions presented.

DISCUSSION

I. Suppression Hearing

At the suppression hearing, Detective Mike Sofelkanik of the Montgomery County Police Department testified that on June 13, 2006, he met with appellant, who was seated in an interrogation room in the office of the Germantown Investigative Station.⁵ During his testimony, Detective Sofelkanik was questioned about what took place when he entered the room:

[THE PROSECUTOR]: Okay. When you initially identified yourself, what did you tell him with regard to why you were there and why he was there?

[WITNESS]: I identified myself as a detective with the Montgomery County Police and that I wanted to discuss why he was there. He understood that he was under arrest and I wanted to—I told him I was a finder of facts and I just wanted to hear if he had anything to say, and if he wanted to talk to me.

[THE PROSECUTOR]: And how did he respond to that?

[WITNESS]: He agreed to speak to me, and then I advised him that prior to giving me any specifics on the case, I needed to advise him of his constitutional rights.⁶

* * *

[THE PROSECUTOR]: Can you walk us through—you've introduced yourself, you told him he was under arrest, that you were going to try to find some facts and then you begin to do what?

[WITNESS]: After he was aware of who I was and he felt, what I thought felt, comfortable and he knew who I was and kind of an ice breaker. Just to let him know that I was not the arresting officer. That he was there, that I would like to speak" to him, and he felt comfortable. It seemed like he was comfortable. I then advised him that I could not ask him any questions in reference to the case prior to reading him his Advice of Rights form.

[THE PROSECUTOR]: Okay, and how did he respond to you at that point in time?

[WITNESS]: He said—basically I read the rights to him and he responded in a normal—

[THE PROSECUTOR]: Okay, would you—

[WITNESS]:—fashion. Nothing out of the ordinary.

* * *

[DEFENSE COUNSEL]: All right. Now when—you testified on direct examination, number one that you told him that you were a "fact finder"?

[WITNESS]: Yes.

[DEFENSE COUNSEL]: Okay, and that was before you read him the rights. Is that correct?

[WITNESS]: Yes.

* * *

[DEFENSE COUNSEL]: Didn't you tell [the prosecutor], on direct examination, "I said I was a fact finder. I asked him if he wanted to speak to me. He said yes. And then I read him his rights." Didn't you say that on direct examination?

[WITNESS]: I asked him why—I asked him that [sic] I was there, I was a "fact finder" and that my job was a detective and I had to read him these rights prior to asking him any questions about the event. Now as far as talking to him and asking if he wanted to talk to us prior to reading him that? It's very possible I said that, yes.

[DEFENSE COUNSEL]: Okay, all right, and he said, "Yes" when you asked him if he wanted to talk to you. That's what you said to [the prosecutor] on direct right?

[WITNESS]: Okay.

Detective Sofelkanik also testified as to the rights he read appellant:

[THE PROSECUTOR]: Detective, would you demonstrate for the Court how it is you advised [appellant] of his rights on June 13, 2006.

[WITNESS]: Yes. . . . He's sitting across from me at a table and I advised him prior to me questioning him. I was required to advise him of his constitutional rights. That basically that I'm not allowed to ask you any questions until I advise you of the following directions.

And I asked him if he understood that. He verbally stated that he did and then I proceeded to—and we have a form, it's...