Johnson v. State

ERIC D. JOHNSON v. STATE OF MARYLAND

No. 2811

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

February 27, 2017

UNREPORTED

Graeff, Wright, Eyler, James, R., (Senior Judge, Specially Assigned), JJ.

Opinion by Graeff, 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.

Appellant, Eric D. Johnson, was found guilty by a jury in the Circuit Court for Prince George's County of first and second-degree felony murder, second-degree "specific intent" murder, first and second-degree assault, first-degree burglary, robbery with a deadly or dangerous weapon, use of a handgun in the commission of a felony or crime of violence, transportation of a handgun in a motor vehicle, and three counts of conspiracy. The court sentenced appellant to life imprisonment, all but 50 years suspended for the first-degree murder conviction, 20 years, consecutive, with the first 5 years without the possibility of parole, for the conviction of use of a handgun in the commission of a felony or crime of violence, and 25 years, suspended, for the conviction of conspiracy to commit first-degree assault. The court merged the remaining convictions for sentencing purposes.

On appeal, appellant presents the following questions for our review:

1. Did the circuit court err in denying the motion to suppress because appellant did not validly waive his Miranda¹ rights?

2. Did the trial court abuse its discretion in refusing to ask a voir dire question proposed by the defense?

3. Did the trial court err in refusing to admit a prior inconsistent statement made by a State's witness?

4. Did the trial court err in not admitting evidence that the scene of the incident previously had been burglarized?

5. Did the sentencing court impermissibly consider appellant's decision to plead not guilty and exercise his constitutional right to a jury trial?

For the reasons that follow, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant's convictions arise from the robbery and killing of a longtime family friend, Alphonso ("Al") Drew. The crimes were carried out with the assistance of appellant's twin sister, Erica Johnson, their half-brother, Antonio Johnson, and a friend, Moshawn Magruder.

Woody Johnson, appellant's father, had been friends with the victim for decades. The victim was "like family," and they "did everything together." The victim was in the business of buying and selling automobiles at auction.

Antonio and Erica testified for the State pursuant to guilty plea agreements.² They implicated themselves, appellant, and Mr. Magruder in the crime. In addition, appellant gave a hand-written and video-recorded statement to the police, both of which were shown to the jury, and both of which implicated appellant and the others in the crime.

From those sources, the jury heard that, on Friday, May 10, 2013, appellant, his two siblings, and Mr. Magruder were present in the Johnson family home when they devised a plan to steal money from the victim, who was "known to keep money" at his home in Brandywine.

Appellant admitted to the police that he was the leader of the scheme. The plan was to lure the victim from his home and then "strong-arm" thousands of dollars from him. Erica drove to the victim's home. When they got there, Mr. Magruder, pursuant to the plan to lure the victim from his home by calling to buy a vehicle tag, dialed "*67" to call thevictim anonymously.³ Mr. Magruder and appellant covered their faces with masks. When they saw the victim leave his home, they ambushed him by hitting, kicking, choking and pistol-whipping him. They then stripped the victim of his clothes and left him lying bleeding by a shed. While the victim was being beaten, Antonio was searching the house for money. Appellant subsequently assisted in the search. They did not find the thousands of dollars they sought, but they did take approximately $600, which the group divided after they left.

When appellant spoke with the police, he told them that he had hidden the handgun used to pistol whip the victim in Mr. Magruder's closet. The police later searched that closet and found a loaded handgun. In addition, bloody shoes, a black mask and latex gloves were recovered from Mr. Magruder's home. Later testing would reveal the victim's DNA on the firearm and bloody shoes.

On Sunday afternoon, nearly two days after the attack, Jean Drew, the victim's sister, went to the victim's home after she had been unable to reach him by phone. The two previously had planned to go to the cemetery that day, Mother's Day, to place flowers on their mother's grave. She found her dead brother and called 911.

A post-mortem examination revealed that the victim's death had been caused by blunt force injuries.

DISCUSSION

I.

Appellant contends that the circuit court erred in not suppressing his confession because he did not expressly waive his Miranda rights. The State contends that no written or otherwise explicit waiver of Miranda rights is required, and under the totality of the circumstances, appellant validly waived his Miranda rights.

In reviewing a circuit court's decision on a motion to suppress, we are limited to the facts developed at the hearing, Hill v. State, 418 Md. 62, 67 n.1 (2011), viewing the evidence in the light most favorable to the prevailing party on the motion. Robinson v. State, 419 Md. 602, 611-12 (2011). Accord Gonzalez v. State, 429 Md. 632, 647 (2012). We review the motions court's factual findings for clear error, but we make our own independent constitutional appraisal, "reviewing the relevant law and applying it to the facts and circumstances of this case." State v. Luckett, 413 Md. 360, 375 n.3 (2010). Accord Moore v. State, 422 Md. 516, 528 (2011). The issue of whether a confession is voluntary presents a mixed question of law and fact, subject to de novo review, with deference given to the suppression court's factual findings. Winder v. State, 362 Md. 275, 310-11 (2001).

"The Fifth Amendment to the United States Constitution, which applies to the States through the Fourteenth Amendment, provides in relevant part that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself.'" Luckett, 413 Md. at 376-377 (citations omitted). "To give force to the Constitution's protection against compelled self-incrimination, the [United States Supreme] Court established in Miranda [v. Arizona,384 U.S. 436, 478-79 (1966)], 'certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.'" Luckett, 413 Md. at 377 (quoting Florida v. Powell, 559 U.S. 50, 59 (2010)).

"The warnings mandated by [the Miranda] decision are well known and require that when an individual is taken into custody, in order to protect the privilege against self-incrimination, procedural safeguards must be employed." State v. Tolbert, 381 Md. 539, 549, cert. denied, 543 U.S. 852 (2004). "The police must warn any person subjected to custodial interrogation that he has a right to remain silent, that any statement he does make may be used in evidence against him, and that he has the right to the presence of an attorney, either retained or appointed." Id. at 549. "In the absence of these warnings, or their substantial equivalent, the prosecution is barred from using in its case-in-chief any statements obtained during that interrogation." Id.

An individual may waive his or her Miranda rights, "provided the waiver is made voluntarily, knowingly and intelligently." Moran v. Burbine, 475 U.S. 412, 421 (1986). In North Carolina v. Butler, 441 U.S. 369, 372-373 (1979), the United States Supreme Court noted that a "'heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.'" (quoting Miranda, 384 U.S. at 475.).

When the State intends to use a defendant's confession to the police during custodial interrogation, the prosecution must "establish by a preponderance of the evidence that the statement satisfies the mandates of Miranda v. Arizona, and that the statement is voluntary.The test for voluntariness is whether, under the totality of all of the attendant circumstances, the statement was given freely and voluntarily." Tolbert, 381 Md. at 557.

There is, however, no requirement of an express, written waiver of Miranda rights. A waiver of Miranda may be implicit, as long as the waiver remains voluntary, knowing and intelligent. Berghuis v. Thompkins, 560 U.S. 370, 375-76 (2010). In Berghuis, the United States Supreme Court held that the defendant had, by his actions, implicitly waived his Miranda right to silence when, after nearly three hours of interrogation in which he mostly kept silent, he answered "yes" when asked if he prayed to God to forgive him for the shooting.

In Warren v. State, 205 Md. App. 93, 118, cert. denied, 427 Md. 611 (2012), this Court summarized the holding in Berghuis as follows:

In [Berghuis,] the Supreme Court stated: "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." In Berghuis, the Supreme Court held that the defendant knowingly and voluntarily waived his Miranda rights even though the defendant declined to sign a waiver and there was "conflicting evidence" of whether the defendant "verbally confirmed that he understood the rights listed on the form." Id. at 2256. The defendant was "[l]argely silent" during the interrogation before he responded "yes" to the question: "Do you pray to God to forgive you for shooting that boy down?" Id. at 2256-57. The

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