Lovelace v. State

214 Md.App. 512

78 A.3d 449

Demetrius D. LOVELACE

v.STATE of Maryland

No. 2842, Sept. Term, 2009.

Court of Special Appeals of Maryland.

Oct. 30, 2013.

Shea L. Hoxie (Bruce A. Johnson, Jr., LLC, on the brief), Bowie, MD, for appellant.

Ryan Dietrich (Douglas Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellant.

Panel: WOODWARD, ZARNOCH, RAYMOND G. THIEME, JR. (Retired, Specially Assigned), JJ.

WOODWARD, J.

Demetrius D. Lovelace, appellant, was arrested on April 1, 2008, in connection with the death of Alan Zurita. On November 12, 2008, appellant was indicted on fourteen counts, including first degree murder. Beginning on November 2, 2009, a jury trial was held in the Circuit Court for Harford County. At the close of the State's case-in-chief on November 9, 2009, the court granted defense counsel's Motion for Judgment of Acquittal as to first degree premeditated murder, which limited that charge to first degree felony murder. On November 12, 2009, the jury found appellant guilty of the following charges: (1) first degree felony murder; (2) robbery with a dangerous weapon; (3) robbery; (4) attempted robbery; (5) conspiracy to commit robbery; (6) possession of a firearm by a person convicted of a felony; (7) possession of a firearm by a person convicted of a crime of violence; and (8) possession of a firearm by a person convicted of a disqualifying crime.

On January 25, 2010, the trial court merged for sentencing purposes the convictions for robbery and attempted robbery into robbery with a dangerous weapon, and merged the convictions for possession of a firearm by a person convicted of a crime of violence and possession of a firearm by a person convicted of a disqualifying crime into possession of a firearm by a person convicted of a felony. The trial court sentenced appellant to life imprisonment without parole for the first degree felony murder conviction, twenty years for robbery with a dangerous weapon, fifteen years for conspiracy to commit robbery, and five years for possession of a firearm by a person convicted of a felony. The sentences for robbery with a dangerous weapon, conspiracy to commit robbery, and possession of a firearm were to be served consecutively to each other, but concurrently with the sentence for first degree felony murder. Appellant was also ordered to pay restitution in the amount of $10,408.00 for Zurita's hospital and funeral bills.

On appeal, appellant presents four questions for our review, which we have rephrased:

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

2. Did the trial court err in failing to merge the conviction for robbery with a dangerous weapon into the first degree felony murder conviction for the purpose of sentencing?

3. Did the trial court err in failing to follow up on a question answered in the affirmative during voir dire of the venire?

4. Did the trial court err by admitting a photograph of the victim with a family member?

For the reasons set forth herein, we answer questions 1, 3, and 4 in the negative, and answer question 2 in the affirmative. Accordingly, we shall vacate the sentence for robbery with a dangerous weapon and otherwise affirm all of the remaining judgments of the circuit court.

BACKGROUND¹

On April 1, 2008 at approximately 1:45 a.m., a red Mitsubishi Galant, driven by appellant, with Damon Jackson and Zurita as passengers, entered southbound on I–95 near Havre de Grace, Maryland. There was a plan between appellant and Jackson to rob Zurita. While appellant was driving, Jackson and Zurita got into a fight, and Jackson was shot. Appellant then stopped the car on the shoulder of southbound I–95; Zurita exited the vehicle followed by Jackson. Jackson shot and killed Zurita. Appellant then drove Jackson to the hospital, dropped him off in front of the emergency room, and left. The police found Zurita's body on the shoulder of southbound I–95 at 2:30 a.m. the same day.

At approximately 12:00 p.m. on April 1, 2008, appellant was arrested and taken to the Maryland State Police Forestville Barracks. At the barracks, appellant made statements to three officers, Sergeant Christina Becker, Corporal Richard Bachtell, and Corporal Michael Mann, over the course of two separate interviews. At the conclusion of the second interview, appellant gave a recorded statement and described the fight between Jackson and Zurita as a “robbery gone bad.” Additional facts will be set forth herein to resolve the questions presented.

DISCUSSION

I.StatementsFirst Interview

At approximately 1:15 p.m., Sgt. Becker and Cpl. Bachtell advised appellant of his Miranda rights, and appellant subsequently invoked his right to remain silent. According to Sgt. Becker, appellant “continued to speak” after invoking his right to remain silent, which prompted Sgt. Becker and Cpl. Bachtell to “cut [appellant] off” and explain that they could not speak with him unless he waived his Miranda rights. Approximately ten minutes after appellant's initial advice of Miranda rights, at 1:25 p.m., Sgt. Becker re-advised appellant of his Miranda rights, and appellant signed a form waiving his rights.

Thereafter, appellant told Sgt. Becker and Cpl. Bachtell that he had gone to Aberdeen to see a friend and while he was there, he saw Jackson. Later, according to appellant, when he was driving home, appellant received a call from Jackson to come back and pick Jackson up at his home. Appellant said that he made a U-turn, went back to where Jackson was residing and saw him “standing on the side of the building bleeding and gagging and sweating.” Appellant stated further that Jackson got into his car, and appellant drove him to the hospital, where appellant dropped him off in front of the emergency room and left.

At some point during the interview, Sgt. Becker played for appellant a ten-second portion of a recorded interview in which Jackson claimed that appellant shot Zurita and Jackson. The interview with appellant concluded shortly thereafter at approximately 2:55 p.m.

Second Interview

At approximately 5:30 p.m., appellant was removed from his holding cell and interviewed by Sgt. Becker and Cpl. Mann in the same room as the first interview. Sgt. Becker did not re-advise appellant of his Miranda rights, but “remind[ed] [appellant] that, in fact, his Miranda [r]ights that [she] read to [appellant] earlier, in fact, were still in effect.” In addition, at appellant's request, the officers replayed approximately one minute of Jackson's recorded interview. Appellant then provided a statement in which he stated that “there was a plan and talk between [Jackson] and [appellant] that they were going to rob [Zurita],” and that it was “a robbery gone bad.” Appellant also stated that, as he was driving, Zurita and Jackson began fighting and Jackson was shot “apparently accidentally.” Thereafter, according to appellant, Zurita exited the vehicle, followed by Jackson, who shot and killed Zurita.

In addition to detailing the planned robbery and the fight between Jackson and Zurita, Cpl. Mann testified that appellant described the gun that was used to kill Zurita and offered to show him where he had thrown the gun into a river in Harford County

Recorded Statement

At approximately 7:00 p.m., following his statements to Cpl. Mann and Sgt. Becker during the second interview, appellant provided a twenty-one minute recorded statement in which he described the fight between Jackson and Zurita as a “robbery gone bad.”

Motions Hearing

On February 2, 2009, appellant filed a motion to suppress “any and all statements allegedly made by [appellant] to police” on April 1, 2008 at the Maryland State Police Forestville Barracks, on the ground that the statements were not voluntarily provided by appellant. In particular, appellant sought to suppress the statements made during the first and second interviews, as well as the recorded statement.

The circuit court held a hearing on appellant's motion to suppress on March 11, 2009. Sgt. Becker testified at length during the suppression hearing regarding the first interview with appellant, and her testimony is excerpted below:

[PROSECUTOR]: Prior to interviewing the [appellant], what, if anything, did you do?

[WITNESS]: Just had a very brief conversation, basically to determine who was going to go in to do the interview. And it was decided that myself and [Cpl.] Batchell would go[.]

* * *

[PROSECUTOR]: So it was decided that you and [Cpl.] Batchell would go in and interview [appellant]. When you first went in and met with [appellant], what was the first thing that you did?

[WITNESS]: The first thing I did was introduce myself and [Cpl.] Batchell to [appellant] explaining to him that we were from the Maryland State Police Homicide Unit.

[PROSECUTOR]: What was the next thing you did?

[WITNESS]: The next thing was we began to read [appellant's] Advice of Miranda Rights, utilizing the MSP Form # 180.

* * *

[PROSECUTOR]: Sergeant, I show you what's marked for identification as State's 1, and ask if you can identify that for the record.

[WITNESS]: Yes. This is the initial Advice of Miranda Rights that I read to [appellant].

[PROSECUTOR]: And the information that is filled out on that form, who completed the form?

[WITNESS]: The information at the top was completed by myself, and [appellant] signed it, and it was witnessed by Corporal Bachtell.

[PROSECUTOR]: And that is a copy of the actual form that was used that day?

[WITNESS]: That's correct.

[PROSECUTOR]: And it contains the signature of [appellant]?

[WITNESS]: That's correct.

* * *

[PROSECUTOR]: What time did you advise him of his Miranda Rights?

[WITNESS]: We began at 1:15, 13:15 hours.

* * *

[PROSECUTOR]: And what did you do after you read [appellant] his Miranda Rights?

[WITNESS]: I asked [appellant] if, in fact, he understood his rights. He indicated that he did. I asked if he would sign the first line which is the acknowledgment that says I have read or have had read to me this explanation of...