In re Southern

IN RE: HECTOR S.

No. 1228

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

July 12, 2016

UNREPORTED

Eyler, Deborah S., Wright, Thieme, Raymond G., Jr. (Retired, Specially Assigned), JJ.

Opinion by Thieme, 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.

The State filed a petition in the Circuit Court for Wicomico County alleging that Hector S., a 13-year-old juvenile, was involved in the delinquent acts of second degree assault, reckless endangerment, and discharging an airgun within the city limits of Salisbury, Maryland. At an adjudicatory hearing, the court denied Hector S.'s motion to suppress and found him to be involved on all counts. After he was placed on supervised probation, he timely appealed, asking us to address the following questions:

1. Did the juvenile court err in denying Hector S.'s motion to suppress?

2. Does the record fail to establish that the juvenile court had jurisdiction to conduct the adjudicatory hearing?

For the following reasons, we shall affirm.

BACKGROUND

At around 3:00 p.m. on May 15, 2015, Sharon Cockerline was sitting outside at an event in a residential area near 707 East Church Street in Salisbury, Maryland, when she was shot in the side with a BB gun. She was uncertain where the shot came from, but did call 911 and spoke to the police.

Officer Lisa Perdue, of the Salisbury City Police, responded to the call, spoke to the victim, and then canvassed the area with other officers. Officer Perdue noticed a nearby duplex with several apartments. The window to one of the apartments, namely 713 East Church Street, Apartment Number 5, was cracked open, and Perdue decided to perform a"knock and talk" at that residence. Officer Perdue knocked on the door and appellant answered. The officer testified as follows:

THE WITNESS: And I asked him if there was anyone else at his residence with him. He advised me that his sister was in the shower. I was at the door at that time. I told him I needed to speak with his sister along with him. And he went and got his sister. It took her a few minutes, I'm standing at the doorway. It took her a few minutes, then she came out after she dressed.

Q. What, if any, observations did you make while you're standing at the door?

A. While I was standing there I smelled a strong odor of marijuana.

When appellant's adult sister, Azumelia Pomales-Alvira, came to the door, Officer Perdue informed her "I have reason to be here but what we're talking about as far as the marijuana it's bigger than that right now. And I told her what occurred. And then we talked about the issue at hand, what occurred with the gun and the victim."

Perdue also testified that "[t]his is all taking place right in the living room, right at the door." She clarified that it was "just inside. Standing by the sofa talking to [appellant's] sister and [appellant]." Neither appellant nor his sister objected to Officer Perdue's presence or the discussion.

Officer Perdue testified that she told appellant's sister that she was there because there had been a shooting, and that the window to their apartment was open. Officer Perdue then asked appellant's sister if anyone had a gun. The sister replied that an older brother owned a BB gun, and that no one normally touched the gun. At that point, and without anydirection from the officer, the appellant's sister then retrieved the BB gun, a Powerline 66.17 seven caliber air rifle, from a nearby bedroom and handed it over to Officer Perdue.¹

After obtaining the BB gun from appellant's sister, Officer Perdue then read appellant his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). The officer testified that appellant's sister, who appeared to be 20-years-old, was standing nearby while the rights were read to appellant. And, appellant replied that he understood his rights.

On cross-examination, Officer Perdue agreed that she and Major David Meienschein, also from the Salisbury City Police, were both "at the doorway" to the apartment when she performed the knock and talk. Officer Perdue testified as follows:

Q. However, you did not have sufficient information, as I recall your testimony, that you decided that you need to just enter the apartment yourself, correct? You didn't run up the stairs and just barge into the apartment, right?

A. There were no stairs.

Q. Or walk into the apartment.

A. I was at the doorway.

Q. So you decided to knock?

A. I did a knock and talk, as I said.

Q. Knock and talk, let's talk about knock and talk. So knock and talk, you knock on the door and by your testimony Mr. S. answers the door, is that correct?

A. He did.

Q. And then you told Mr. S. I need to speak to an adult, correct?

A. With the juvenile present, yes, I did.

Q. Okay. You didn't say to Mr. S. hi, I'm here because we're investigating this.

A. I did not, he's a juvenile.

Q. Right. You didn't tell Mr. S., oh, by the way, you don't have to let me into your house or even talk to me, you didn't tell him that, did you?

A. I did not because I wanted to talk to him and his sister.

Q. So you told him to go and get somebody, correct?

A. Yes, I did.

Q. And then you stood in the doorway of the house.

A. Yes, I did.

Q. Let me ask you where you stood in the doorway.

A. Right at the doorway.

Q. But right at the doorway outside or right at the doorway inside? Can they shut the door?

A. No, he couldn't shut the door.

Q. So he couldn't shut the door, so you entered his apartment, correct?

A. If you want to call it actually entering, I was at the doorway.

When asked whether appellant could have left, Officer Perdue agreed that he could, testifying "[i]f he wanted to leave he could have left, but I wanted to talk to his sister." Appellant was not being detained at that point, according to the officer, and the officer also agreed there were no exigent circumstances that required her to go further into the apartment to secure it for safety reasons. The officer also agreed that she was armed and in uniform, and that she asked appellant to go get his sister. Appellant was only not allowed to leave after he admitted that he shot the BB gun.

Officer Perdue then agreed that she smelled marijuana and did not read the Miranda rights to either appellant or his sister at that point. Appellant was read those rights after the officer and his sister discussed the BB gun.

On further cross-examination, after being asked about her own notes, Officer Perdue agreed that appellant was asked about the gun before he was read the Miranda rights. Officer Perdue maintained that appellant understood those rights and did not object to answering her questions.

Officer Perdue then testified as follows on redirect examination:

Q. To clarify, when you asked the question about are there any weapons or guns in the house, was Hector being detained at that time?

A. No, he was not.

Q. And I believe you testified he would have been free to walk out the door at that point if he had chosen to do so.

A. Yes, he would have. Yes.

At this point during the adjudicatory hearing, pertinent to our discussion, defense counsel argued that Officer Perdue, accompanied by another armed, uniformed officer, illegally entered the appellant's home. Further, counsel argued that appellant was in custody at that point, that the police then began ordering appellant to go get his sister, and that, under the circumstances, appellant's statement was not voluntary. After the State responded that the encounter between Officer Perdue, appellant, and his sister began as an investigatory stop, was consensual and that the detention and statement that followed were lawful. The court agreed:

All right. The Court, in considering the motion request by [Defense Counsel], I'm going to deny the motion. I find the officer, I believe, has acted in a reasonable manner in going to the apartment. I don't think the testimony is, as defense counsel asserts, that she, in effect, was ordering anyone to do anything or entering the residence in a way that it violated their constitutional rights. And further, before any questioning of Respondent or the juvenile in this case, he was properly Mirandized with his sister present, and therefore the motion is denied.

Officer Perdue then continued her testimony during the hearing, testifying that, after waiving his Miranda rights, appellant admitted he shot Cockerline with the BB gun. The officer testified that appellant stated that "he shot the gun and did not intentionally want to shoot Cockerline, the victim, with the BB gun." Appellant did not shoot her through the window, but went outside into his yard, and shot her at the table, which was located around thirty to forty feet away. After making this statement, appellant was placed under arrest.

After the court denied a motion for judgment of acquittal, appellant's sister, Pomales-Alvira, testified that, when the police came to their apartment on the day in question, that, after she came out of the shower, she found Officer Perdue standing, by herself, in the kitchen waiting for her. Officer Perdue was standing about five feet inside the apartment at that time.

Pomales-Alvira testified that, after Officer Perdue told her that someone was shot with a BB gun, she asked appellant if he did it, and appellant denied his involvement. Pomales-Alvira told the officer the gun belonged to another brother, and then, after the officer told her to retrieve it, that she went and got the gun and gave it to Officer Perdue. Pomales-Alvira testified that neither she, nor appellant, were told they had a right to remain silent and that anything they said could be used against them.

The State then called Colonel David Meienschein in rebuttal, and the officer confirmed that he overheard Officer Perdue read appellant his Miranda rights. Appellant's sister, Pomales-Alvira, was present in the room at the same time....