Angulo-Gil v. State

¹²⁸ ARRIE W. DAVIS (Retired, Specially Assigned), J. A grand jury in Prince George’s County indicted Henry P. Angulo-Gil, appellant, for first-degree premeditated murder, use of a handgun in the commission of a crime of violence, conspiracy to commit robbery with a deadly weapon, carjacking and theft of property (an automobile) having a value greater than $500. On January 23, 2009, the circuit court held a hearing on appellant’s motion to suppress statements made during custodial interrogation, and to sever the murder counts from the carjacking-related counts. The circuit court granted the motion to sever and ordered separate trials. The suppression motion was taken under advisement.

On February 4, 2009, the circuit court denied the motion to suppress in a written opinion and order. The first jury trial relating to the carjacking began on February 2, 2009. The circuit court granted appellant’s motion for judgment of acquittal on the charge of carjacking, but denied the motion as to theft of an automobile. The jury found appellant guilty of theft of an automobile having a value of more than $500.

The second jury trial relating to the murder charges began on February 9, 2009 and concluded on February 12, 2009. The jury found appellant not guilty of first-degree murder, not guilty of second-degree murder, guilty of involuntary manslaughter, guilty of first-degree felony murder, guilty of second-degree felony murder and guilty of conspiracy to commit robbery with a deadly weapon. On June 22, 2009, appellant was sentenced to life imprisonment without parole for first degree felony murder, a concurrent twenty-year term for conspiracy to commit robbery with a dangerous weapon, and a concurrent five-year term for theft. All other counts were merged for purposes of sentencing.

Appellant filed a timely appeal and raises three questions, which we quote: 1. Did the trial court err in denying the Appellant’s motion to suppress his statement? ¹²⁹ 2. Did the trial court err in instructing the jurors that they could find the Appellant guilty of second-degree felony murder if they found that he committed a murder in the commission of or attempt to commit a robbery? 3. Was the evidence insufficient to sustain the theft conviction and to permit sentencing under the statutory provision applicable to felony theft?

We answer the first question in the affirmative and questions two and three in the negative and, accordingly, remand to the circuit court for further proceedings. Factual Background and Proceedings Below 1. The Carjacking/Auto Theft, Trial During the evening of April 14, 2007, Officer Michael Trader of the Prince George’s County Police Department was on the lookout for a silver Ford Focus that had been stolen earlier that day. Another officer, Corporal Damiean Lee, issued a radio call that the vehicle had been spotted.

In separate vehicles, Officer Trader and Corporal Lee caught up with the Ford Focus, pulled behind it and attempted to effectuate a stop. The Ford Focus tried to flee, but eventually was boxed in by several officers in police vehicles, who forced it to stop. Appellant was the driver of the Ford Focus at the time of the stop. He and another male were removed from the vehicle and arrested.

Detective Marcos Rodriguez of the Prince George’s County Police Department assisted in the investigation because he spoke both English and Spanish. Detective Rodriguez testified as to his four-hour custodial interview of appellant, which took place in Spanish. Over appellant’s objection, the circuit court admitted the transcript of the interview and the statement appellant made to Detective Rodriguez. In that statement, appellant admitted that, on April 14, 2007, he had taken a car from a gas station and that the owner had left the keys in the car.

Corporal Damiean Lee testified that he was the first officer on April 14, 2007, to spot the stolen Ford Focus. According to ¹³⁰ Corporal Lee, the Ford was eventually stopped by four to five police vehicles. At the time of the stop, appellant was “in the driver’s seat and there was another Hispanic male in the passenger seat.” The State’s final witness was Misael Pena, who had previously entered a guilty plea to the incident involving the Ford Focus. Pena testified that he and appellant were walking by a gas station in Hyattsville on the day in question.

According to Pena, they saw a black man leave his keys in his car while he went to pay for his gas. Appellant told Pena to get in the car and they took off with appellant behind the wheel. The owner chased them on foot for a short distance, but soon gave up. According to Pena, it was appellant’s idea to take the car.

After the State rested, appellant moved for judgment of acquittal on both counts for which he was being tried: carjacking and theft over $500. The circuit court granted the motion as to carjacking, but denied the motion as to felony theft. Appellant elected not to testify. Appellant renewed his motion for judgment of acquittal at the close of all of the evidence.

On the issue of value, the State argued that the undisputed evidence showed that the vehicle was an operable 2006 Ford Focus and that the crime occurred in April 2007. The court denied the motion, ruling that the jury could find from the facts in evidence that, because the car “was obviously in good operating condition,” it was worth over $500 at the time it was stolen. The jury convicted appellant of felony theft. 2. The Murder Trial Appellant’s murder trial began on February 9, 2009.

The State’s first witness was Detective Bernard Nelson of the Prince George’s County Police Department. On April 14, 2007, Detective Nelson responded to a report of a shooting on New Hampshire Avenue. The victim had been transported to the Washington Hospital Center, where he was pronounced dead from one gunshot wound to the chest. Detective Nelson went to the hospital because, “upon moving [the victim] from the gurney, they found a projectile that apparently came, that ¹³¹ was found in his clothing, dropped out of his clothing.” The bullet was admitted into evidence, without objection.

Detective Nelson then testified that a handgun was recovered from the Ford Focus, where it was located on the floorboard behind the driver’s seat. Appellant was the driver of the vehicle in which the gun was located. The gun, a .38 caliber Rossi revolver, was operational and fully loaded. The gun was received into evidence without objection.

Eleven live .38 caliber bullets were recovered from appellant’s front pants pockets, during a search incident to arrest. According to Detective Nelson, the results of the check of the license number of the vehicle from which appellant was apprehended revealed the owner to be Kenneth Thompson. The vehicle had been reported stolen earlier that day, shortly before the victim was shot. The shooting occurred “a couple of miles” from the gas station where the vehicle was taken and the vehicle was stopped by the police “four to five blocks” away from the gas station.

The parties stipulated that the victim, Carlos Eduardo Milian, died of a gunshot wound to the chest. The parties also stipulated that the bullet comparison test was inconclusive and that the DNA test results were not statistically significant. No latent prints were recovered from the Ford Focus. A latent print that was recovered from the handgun did not match either those of appellant or the other passenger in the vehicle, Pena.

The next witness for the State was Selvin Lima. Lima testified that, on April 14, 2007, he was waiting at a bus stop with the victim “when all of a sudden two guys came, and they tried to rob us, and they tried to take the chain my friend had. And my friend didn’t want to give up his chain, and that is when one of them shot him.” According to Lima, the smaller of the two men grabbed the chain and the taller man fired the shot that killed the victim. Lima identified the gun that was recovered from the Ford Focus as the gun that was used to shoot the victim. ¹³² Maynor Cárcamo testified that he had been standing with his students across the street from the bus stop when he heard one of the students yell, “gun, look out there.” Cárcamo saw people arguing at the bus stop and saw “one grabbing another one.” He then heard a gun shot and saw two “Latino males” running from the scene.

He testified that they got into a Ford Focus, from which Carcamo obtained three of the tag numbers. As he did at the auto theft trial, Corporal Lee testified regarding the stop of appellant on April 14, 2007, while appellant was driving the Ford Focus. Similarly, Corporal Trader described the stop of the vehicle and arrest of appellant on April 14, 2007. Misael Pena testified that he was with appellant on April 14, 2007, when they stole a car from a Texaco gas station.

With appellant driving, they went into the District of Columbia to drink some beer, but then returned to Prince George’s County. After eating in a restaurant on New Hampshire Avenue, Pena and appellant “came across three guys that were standing” at a bus stop. According to Pena, appellant told him to take the chain from one of these individuals, but, when the man resisted, appellant shot him. Pena identified the gun that was used by appellant.

Pena testified that, after the shooting, he and appellant drove back to the District of Columbia in the Ford Focus and were later apprehended by the police as they were riding around in Prince George’s County. On cross-examination, Pena acknowledged that the police dropped certain murder charges against him in exchange for his cooperation against appellant. Pena also acknowledged that he entered into a plea bargain in which he agreed to plead guilty to conspiracy to commit robbery with a deadly weapon and receive a maximum sentence of twenty-five years. Kenneth Thompson, the owner of the Ford Focus, testified at the murder trial that, on the day in question, he left his keys in his car when he went inside the station to pay for gasoline.

While inside, his 2006 Ford Focus was stolen and ¹³³ later recovered by the police that night in Hyattsville, a short driving distance from where it had been taken. Detective Marcos Rodriguez testified at the murder trial regarding his interrogation of appellant. Appellant’s statement to Detective Rodriguez was admitted into evidence over the appellant’s objection. In the statement, which was translated from Spanish into English, appellant never admitted shooting the victim.

However, he did say that Pena was the one who shot the victim after he refused to give up his gold chain and, after that, he and Pena then fled the scene in the stolen vehicle. At the conclusion of the evidence, the court denied appellant’s Motion for Judgment of Acquittal and the jury returned its guilty verdicts the following day. This appeal followed. Discussion 1.

The Suppression Motion — Waiver of Miranda Appellant contends that the suppression court erred in finding that appellant had validly waived his Miranda 1 rights. Appellant’s theory is that, even though appellant initially may have waived his rights when Detective Rodriguez orally recited the Miranda warnings, and appellant orally responded that he wished to waive his Miranda rights, “Appellant’s negative response when asked a second time by Rodriguez whether he would waive his right to counsel undermined the validity of the initial waiver itself.” The State rejoins that, after considering the videotape and transcript of appellant’s statements to Detective Rodriguez, the Advice of Rights and Waiver Form completed and signed by appellant, and arguments of counsel, the trial court properly denied appellant’s motion to suppress because he validly waived his Miranda rights. The State also maintains that the oral waiver is not invalidated as a result of the officer’s repetition of part of a question in order to clarify whether ¹³⁴ appellant understood the question after appellant gave contradictory responses. According to the State, the officer was permitted under Davis v. United States, 512 U.S. 452 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994), to ask clarifying questions to an ambiguous response and to confirm that appellant understood his Spanish when appellant was asked to complete the Advice of Rights form.

The evidence from the suppression hearing is summarized below. Appellant was arrested on April 14, 2007, at approximately 8:45 p.m., and taken to the Criminal Investigation Division of the Prince George’s County Police Department in Hyattsville, Maryland. He was placed in an interview room at approximately 12:52 p.m. At 2:01 a.m. on April 15, 2007, Detective Rodriguez entered the interview room.

He said to appellant in Spanish: “Now I will read to you your rights under the law. If you don’t understand anything I tell you, please stop me and I will explain it to you.” The following transpired: [Detective]: You have the right to remain silent. If you give up that right, anything you say can be used against you in court. Number two, you have the right to speak to an attorney before being questioned and to have an attorney present during questioning.

Okay? [Appellant]: Mmm-huh. [Detective]: Number three, if you wish to have an attorney but you cannot afford an attorney, one can be provided to you at no cost. Number four: If you wish to answer questions without an attorney present, you ... you still ... you still have the right to stop answering questions at any moment. Do you understand your rights? [Appellant]: Uh-huh. [Detective]: Do you understand my Spanish? [Appellant]: Uh-huh. [Detective]: Okay. Tell me “yes” or “no” please. [Appellant]: Yes. [Detective]: Do you understand your rights? [Appellant]: Uh-huh, yes, I understand. ¹³⁵ [Detective]: Okay.

Then mark your answer. Here it says “yes” and here it says “no” and your initials next to it. [Appellant]: [grunts] [Detective]: Okay. Can you mark your answer? Write? [Appellant]: Yes. [Detective]: Okay.

Then it says ... Do you want to make a statement .. . (Unintelligible) other things, do you want to talk with me without having an attorney present? [Appellant]: [grunts] [Detective]: Tell me “yes” or “no”. [Appellant]: Yes. [Detective]: Okay. Have you been promised anything, have you been offered some kind of compensation or benefit or have you been threatened in any way to make a statement?

That is, have I threatened you, have I offered anything, have I ... have I offered you some benefit? Mmmm? [Appellant]: [grunts] no. [Detective]: Answer me please. Yes or no? [Appellant]: No. [Detective]: Okay are you under the influence of alcohol or drugs at this moment? [Appellant]: No. [Detective]: No. Okay. Then what I need you to do, Angulo, is mark your answers here.

Do you know how to read and write? [Appellant]: Yes. [Detective]: Okay. Mark here. That is that you understand your rights. You said yes, mark where it says yes.

LAppellant]: Uh-huh, yes. [Detective]: Mark it. Here it says, do you understand your rights? [Appellant]: Here ... my initial or what ... ? [Detective]: Initials are, for example, the two ... [Appellant]: Yes. ¹³⁶ [Detective]: ... the first letter of your ... Okay. Mark your answer “yes” or “no”.

Do you understand your rights? [Appellant]: Yes. [Detective]: It says do you wish to make a statement without an attorney present? Do you want to talk to me right now? [Appellant]: No. [Detective]: Okay. Do you understand the question? [Appellant]: Yes. [Detective]: Okay. First you tell me yes and now you tell me no.

Do you understand what the question is? [Appellant]: Uh-huh. To make a...a----a... [Detective]: That is, do you want to talk to me right now without an attorney present? [Appellant]: [unintelligible] yes I do. [Detective]: Okay. Your initials. [Appellant]: Uh-huh. Appellant argued to the motions court that, once appellant said “no” the second time he was asked whether he wished to make a statement without an attorney, Detective Rodriguez was required to cease questioning immediately under Miranda and Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981).

The State countered that a valid Miranda waiver already had been obtained from appellant and, when Detective Rodriguez was confronted with an “ambiguous” response thereafter, he was permitted to ask clarifying questions under Davis v. United States, 512 U.S. 452 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994). The motions court took the matter under advisement. In a written opinion, filed on February 4, 2009, the motions court denied the motion to suppress. In considering the question, the motions court had the benefit of the videotape of appellant’s statements, the seventy-page transcript of appellant’s interview and the Advice of Rights and Waiver form signed by appellant.

The motions court made the following ¹³⁷ findings in its written decision pertinent to the Miranda question: This court finds that [appellant] was ambiguous in asserting his Miranda rights. Initially he states that he will speak with the officer without an attorney, then subsequently says he will not. The court further finds that the Detective followed up with questions to clarify the [appellant’s] intent as to his desire to talk with the Detective without counsel. In addition, at the time [appellant] and the Detective were going over the Advice of Rights and Waiver Form the only questions being asked of [appellant] were regarding his rights.

There were no questions asked regarding the underlying investigation. Therefore, this court finds that the Detective was permitted to ask clarifying questions and [appellant] made a knowing and voluntary waiver of his Miranda rights. In reviewing the denial of a motion to suppress, this Court looks only to the record of the suppression hearing and does not consider the evidence admitted or arguments made at trial. Knight v. State, 381 Md. 517, 535 , 850 A.2d 1179 (2004); Christian v. State, 172 Md.App. 212, 216 , 914 A.2d 151 (2007).

This Court also accepts the findings of fact made by the suppression court unless they are clearly erroneous and reviews those findings in the light most favorable to the prevailing party, in this case, the State. Cooper v. State, 163 Md.App. 70, 84 , 877 A.2d 1095 (2005); Conboy v. State, 155 Md.App. 353, 361 , 843 A.2d 216 (2004). “[A]n appellate court will give great deference to a hearing judge’s determination and weighing of first-level findings of fact. It will not disturb either the determinations or weight given to them, unless they are shown to be clearly erroneous.” Longshore v. State, 399 Md. 486, 498 , 924 A.2d 1129 (2007); see Williams v. State, 188 Md.App. 78, 89-90 , 981 A.2d 46 (2009). The suppression court’s legal conclusions, however, are subject to our independent constitutional review.

Rush v. State, 403 Md. 68, 83 , 939 A.2d 689 (2008); Wilson v. State, 174 Md.App. 434, 439 , 921 A.2d 881 , cert. denied, 400 Md. 649 , 929 A.2d 891 (2007). ¹³⁸ In the case before us, appellant argues that, after initially waiving his rights, he later changed his mind when Detective Rodriguez asked him to sign a written waiver and said he did not wish to speak without a lawyer. According to appellant, “Rodriguez would not accept this change of heart and persisted in his efforts to obtain a waiver under the guise of ‘clarification.’ ” However, a review of the transcript reveals that the questioning was limited to clarification as to whether appellant understood his Miranda rights, all of which took place before any discussion regarding the criminal acts took place. Given the fact that appellant was being questioned in Spanish and the detective was unsure as to whether appellant understood what was being said to him, it was reasonable for him to ask “questions to clarify the defendant’s intent as to his desire to talk with the Detective without counsel.” When reading the interview transcript, patently, appellant could have been confused by the two-part question by the detective, which asked both if he wanted to make a statement and whether he wanted to talk with him. After appellant replied, “no,” he was asked by the detective if he understood the question; appellant’s response indicates that he believed he was being asked to make a statement.

When Detective Rodriguez, by way of clarification, told appellant that he was being asked if he wished to talk with him, appellant readily repeated his initial response: he was willing to voluntarily speak to the detective without the presence of an attorney. Miranda requires that, before undertaking any custodial interrogation, law enforcement personnel must deliver to a suspect the now familiar advisements, to wit: ¹³⁹ State v. Luckett, 413 Md. 360, 378 , 993 A.2d 25 (2010), quoting Miranda, 384 U.S. at 479, 86 S.Ct. 1602 . Then, “[d ]uring the questioning, if the individual states that he wants to speak with an attorney, there can be no further questioning until counsel has been provided or the suspect himself initiates further communication with the police.” Rush v. State, 403 Md. at 83 , 939 A.2d 689 (emphasis added); Bryant v. State, 49 Md.App. 272, 279 , 431 A.2d 714 (1981), cert. denied, 456 U.S. 949 , 102 S.Ct. 2020 , 72 L.Ed.2d 474 (1982). This right is the result of the Supreme Court’s holding in Edwards v. Arizona, 451 U.S. 477, 484 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), in which the Court held that law enforcement officers must immediately cease questioning a suspect who has clearly asserted his right to have counsel present during custodial interrogation.

The Supreme Court held, however, that police interrogators can reinitiate questioning if two weeks have elapsed since they ended the most recent interrogation. In Edwards , after initial questioning, the defendant made a request for counsel and questioning ceased. However, the next day, the police re-started interrogating him before an attorney could be provided, which was held to violate his rights. ¹³⁸ [A] suspect must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. ¹³⁹ The case before us is more similar to the Supreme Court’s holding in Davis v. United States, 512 U.S. 452 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994), which set out the required analysis when an invocation of the right to counsel, after a valid Miranda waiver, is ambiguous. In Davis , after a sailor was beaten to death at the Charleston Naval Base, the investigation focused on the petitioner.

As required by military law, the investigative agents advised him of the military equivalent of his Miranda rights before any substantive questioning. At the outset, the petitioner waived his rights to remain silent and to counsel, both orally and in writing. Approximately one hour into the interview, the petitioner said, “Maybe I should talk to a lawyer.” The Naval investigators sought to clarify whether petitioner actually wanted a lawyer to be present. The petitioner then said, “No, I don’t want a lawyer.” After a break, the petitioner was re-advised of his rights and the interview continued.

Eventually, the petitioner unequivocally ¹⁴⁰ requested counsel and the interview ceased. 512 U.S. at 454 , 114 S.Ct. 2350 . At his general court-martial, Davis moved to suppress the statements made during the interview, arguing that his initial comment, “Maybe I should talk to a lawyer,” was a request for counsel and required the agents to cease the interrogation. The Military Judge denied the motion and the United States Court of Military Appeals affirmed. Noting that it had not previously squarely addressed the issue of what triggered Edwards and the development of varying approaches by the lower courts, the Supreme Court granted certiorari to provide guidance. 512 U.S. at 456 , 114 S.Ct. 2350 .

The Supreme Court began its analysis by noting that the applicability of the “prophylactic rule” of Edwards “requires courts to ‘determine whether the accused actually invoked his right to counsel.’ ” 512 U.S. at 548 , 114 S.Ct. 2396 (emphasis in original), quoting in part Smith v. Illinois, 469 U.S. 91, 95 , 105 S.Ct. 490 , 83 L.Ed.2d 488 (1984). The inquiry, the Supreme Court held, is an objective one and “the suspect must unambiguously request counsel.” 512 U.S. at 459, 114 S.Ct. 2350 . Further, a suspect “must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require the officers to stop questioning the suspect.” 512 U.S. at 459, 114 S.Ct. 2350 .

The Supreme Court in Davis refused to expand Edwards “and require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney.” Id. The Supreme Court held “that, after a knowing and