Mickens v. State

1

DAMIEN MICKENS v. STATE OF MARYLAND

No. 1359-2022

Court of Special Appeals of Maryland

March 25, 2024

UNREPORTED^[*]

Circuit Court for Baltimore City Case No. 120181009.

Nazarian, Zic, Harrell, Glenn T. (Senior Judge, Specially Assigned), JJ.

OPINION

Nazarian, J Damien Mickens is one of four co-defendants charged in connection with a bus stop shooting that resulted in the death of two men and injuries to a third. After a joint trial in the Circuit Court for Baltimore City, a jury convicted Mr. Mickens of second-degree murder, conspiracy to commit first-degree murder, and related handgun offenses. Mr. Mickens appeals,^[1] asserting that the trial court erred in two ways: first, by admitting his confession that, he says, violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and Maryland common law, and second, by admitting an expert ballistics opinion that, based on the post-trial decision of our Supreme Court in Abruquah v. State, 483 Md. 637 (2023), was unreliable and should not have been admitted. We affirm the trial court's ruling that Mr. Mickens's confession was admissible but reverse his convictions and remand for further proceedings because the ballistics evidence was admitted improperly and the error wasn't harmless beyond a reasonable doubt.

I. BACKGROUND

A. The Shooting.

On the afternoon of April 10, 2020, a shooting near a Baltimore bus stop caused the deaths of Kendrick Brown and William Barrett and the seemingly unintended assault of Thanh Nguyen Ha, a passerby whose arm was grazed by a stray bullet. The event, which took place in broad daylight, was captured on surveillance video cameras mounted at several nearby businesses. The silent videos show four males, with faces covered, approaching the street corner of Patapsco Avenue and Hanover Street on foot, then interacting with Messrs. Brown and Barrett. After what appears to be a drug transaction, one of the masked suspects (alleged to be co-defendant Antoine Trent) drew a pistol and shot Mr. Brown (who was standing in front of the bus stop), which prompted the masked suspects and Mr. Barrett to run away. Another masked male (alleged to be Mr. Mickens), chased Mr. Barrett down and across the street, around cars, while shooting at him from behind. Mr. Barrett fell to the ground directly across the street from Mr. Brown. Mr. Barrett's shooter's left pinky finger was bandaged visibly (as was Mr. Mickens's left pinky when he was interrogated by detectives later).

The videos showed a male greeting and speaking with several of the co-defendants. The investigation led police to question the individual, who was identified as eyewitness Sean Clark. Mr. Clark was questioned by police on April 22, 2020, and identified Mr. Mickens's co-defendants as Kevin Cleveland, Mr. Trent, and Jabez Johnson, whom he knew from the neighborhood, from still images taken from the videos. Mr. Clark was unfamiliar with the gunman with the bandaged pinky, though, and did not identify Mr. Mickens.^[2] The video and corresponding still images led police eventually to search Mr. Mickens's residence. On the morning of April 25, 2020, police executed a search warrant and seized clothing similar to that worn in the video by Mr. Barrett's shooter, along with ammunition and a loaded .40 caliber handgun. Mr. Mickens-seventeen years old at the time-then was arrested at his home, Mirandized, and taken to the police station. During the interrogation that followed, which we recount in detail below, Mr. Mickens confessed to his involvement in the shooting.

Mr. Mickens was charged with two counts each of first-degree murder, conspiracy to commit first-degree murder, and use of a firearm during the commission of a crime of violence (counts 1-3 related to the death of Mr. Brown and counts 4-6 to the death of Mr. Barrett). Mr. Mickens also was charged with first- and second-degree assault and use of a firearm during the commission of a crime of violence (counts 7-9, which related to the injuries to Mr. Ha), and possession of a firearm by a person under twenty-one (count 10).

B. The Suppression Hearing.

Mr. Mickens moved to suppress the statement that he made while in custody on the grounds that his Miranda waiver was invalid and that his statements were involuntary under federal and state constitutional law and Maryland common law. The court held a hearing on June 2, 2022, after trial had begun. At the hearing, the court admitted a video recording of Mr. Mickens's interview with police, a transcript of the interview, Mr. Mickens's signed Miranda waiver, and "the suspect/witness activity sheet," which included "information about how Mr. Mickens arrived at Homicide, what time he arrived at Homicide, when he was given bathroom breaks," and the like. Neither detective who interviewed Mr. Mickens testified, nor did Mr. Mickens himself. Mr. Mickens also offered the expert testimony and written report of Dr. Michael O'Connell, a forensic psychologist who evaluated him.

1. The recording and transcript of the interview.

The interview took place on April 25, 2020, at 9:20 a.m., was conducted by Detectives Eric Ragland and Eric Perez, and lasted about three hours and forty minutes. Mr. Mickens was seventeen years old at the time and had never been arrested before. At the outset, Detective Ragland stated that he had already read Mr. Mickens his Miranda rights at his arrest and would do so again. Before reviewing the Miranda form, Detective Ragland inquired whether Mr. Mickens had "any problems with writing or reading":

DETECTIVE RAGLAND: . . . Do you have any problems with writing or reading?

MR. MICKENS: I can't spell a lot.

DETECTIVE RAGLAND: Okay.

MR. MICKENS: I could spell. I can read, but I can't-

DETECTIVE RAGLAND: Yeah, spelling doesn't count.

MR. MICKENS: Okay.

DETECTIVE RAGLAND: Spelling doesn't count. I'm going to read some stuff here that I read to you before in the house and these are Miranda rights.

MR. MICKENS: Uh-huh.

Detective Ragland then had Mr. Mickens read each right out loud one-by-one:

DETECTIVE RAGLAND: . . . Remember I explained to you that every citizen of the United States, you have certain rights- MR. MICKENS: Uh-huh.

DETECTIVE RAGLAND:-and we're here to protect those rights and advise you of those rights so that they're not violated. Okay?

MR. MICKENS: Okay. * * *

DETECTIVE RAGLAND: So since you don't have a problem with reading, I'm going to all[ow] you to read these out loud to me.

MR. MICKENS: Uh-huh.

DETECTIVE RAGLAND: Okay? After you read each one, I'm going to ask you do you have any questions like I did before.

MR. MICKENS: Uh-huh.

DETECTIVE RAGLAND: All right? And then you're going to place your initials in that red ink right here in that place and then when we finish that, then we'll get down to this section. All right? . . .

* * * MR. MICKENS: You have a right to remain silent.

DETECTIVE RAGLAND: You understand that?

MR. MICKENS: Yes, sir.

DETECTIVE RAGLAND: Place your initials.

MR. MICKENS: I do. Anything you say or do will be held against you in a court of law.

DETECTIVE RAGLAND: Understand?

MR. MICKENS: Yes, sir. You have the right to talk to an attorney before any questions or during any questioning.

DETECTIVE RAGLAND: You understand?

MR. MICKENS: No, I don't understand that.

DETECTIVE RAGLAND: All right. You have the right to talk with an attorney. That is you could talk to a lawyer, okay.

MR. MICKENS: Uh-huh.

DETECTIVE RAGLAND: Before I ask you any questions or while I'm asking you questions, you can say, "I want to talk to a lawyer." Okay?

MR. MICKENS: So I could wait?

DETECTIVE RAGLAND: You always can wait. You have the right to say, "I want to talk to an attorney"-

MR. MICKENS: Okay.

DETECTIVE RAGLAND:-before I ask you any questions today-

MR. MICKENS: Uh-huh.

DETECTIVE RAGLAND:-or we get to the point where you say we're going to talk and while you're talking if you decide that you want to say, "I want a lawyer," you can say you want a lawyer, but-

MR. MICKENS: Okay.

DETECTIVE RAGLAND:-signing this just says that you understand it.

MR. MICKENS: Yeah.

DETECTIVE RAGLAND: You're not asking for it, but it just says you understand it. If you understand-

MR. MICKENS: I mean, I'm cooperating, but-

DETECTIVE RAGLAND: Okay.

MR. MICKENS:-I still get a lawyer?

DETECTIVE RAGLAND: You will. We'll get a little further and explain that some more.

MR. MICKENS: If you agree to answer questions, you may stop at any time and request an attorney and no further questions will be asked of you.

DETECTIVE RAGLAND: Self-explanatory?

MR. MICKENS: Yes.

DETECTIVE PEREZ: It's kind of like what you said just now, but.

DETECTIVE RAGLAND: Kind of what you asked. It answered your question?

MR. MICKENS: Uh-huh.

DETECTIVE RAGLAND: All right. Go ahead and read the last one.

MR. MICKENS: If you want an attorney and cannot to [sic] hire one, an attorney will be appointed to you-appointed to your [sic] represent to [sic] you.

DETECTIVE RAGLAND: You understand that? How about I read that one? If-

MR. MICKENS: They-if I can't afford it, ya'll going to give me one.

DETECTIVE RAGLAND: Right. A public defender.

MR. MICKENS: Uh-huh.

DETECTIVE RAGLAND: Okay. All right. And now that you say that you understand all five of these rights, I just need you to read the bold print there and then sign.

MR. MICKENS: Write I-

DETECTIVE RAGLAND: Read it out loud first.

MR. MICKENS: I have been advised of and understand my rights. I freely and voluntarily waive my right and agree to talk with the police without having an attorney present. So I gotta sign that?

DETECTIVE RAGLAND: You don't have to sign it. Do you understand what it's saying?

MR. MICKENS: Yeah.

DETECTIVE PEREZ: Yeah.

DETECTIVE RAGLAND: Can you explain to me what it's saying since you-

MR.

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