Brock v. State

EYLER, DEBORAH S., J. In the early morning hours of March 1, 2009, Nelson Gause was fatally stabbed while dancing at Kolper’s Tavern (“the Tavern”), a bar and nightclub located at 1520 Clipper Road, in Baltimore City. His friend, Michael Pryor, attempted to stop the perpetrator from fleeing the scene, sustaining cuts to his hand, head, and shoulder in the process. Before the trial in this matter, Pryor was murdered in what the parties characterize as an unrelated homicide. This appeal involves the admissibility of two statements Pryor made to the police before his death.

In the Circuit Court for Baltimore City, Louis Brock, a/k/a Lewis Brock, the appellant, was indicted on charges of first-degree murder of Gause and related crimes and attempted first-degree murder of Pryor and related crimes. A jury acquitted the appellant of all charges relating to Gause’s death but convicted him of second-degree assault of Pryor. The court sentenced the appellant to a term of ten years’ incarceration. ²⁵⁰ The appellant presents two questions for review, which we have rephrased: I. Did the circuit court err in denying his motion to suppress Pryor’s statement to police at the scene of the crimes because the statement was inadmissible under the Confrontation Clause?

II

Did the circuit court err in excluding a subsequent statement made by Pryor to the police on the ground that the statement was hearsay and not subject to any exception to the hearsay rule? For the reasons to follow, we shall affirm the judgment of the circuit court. FACTS AND PROCEEDINGS On March 1, 2009, at approximately 1:30 a.m., Gause was stabbed in the neck while dancing at the Tavern. He collapsed, bleeding profusely.

The police were called. Other patrons attempted to assist Gause, but he lost consciousness before medical personnel arrived and bled to death. At 1:34 a.m., Baltimore City Police Officer Nuradin Ad-meged responded to a call for a “cutting” at the Tavern. He was the first officer on the scene.

He saw Gause lying on the dance floor, bleeding, and called for medical assistance. Nearby, he saw Pryor “pacing” back and forth “bleeding from his hands.” Officer Admeged approached Pryor and, as we shall discuss in more detail, Pryor said that Gause had been stabbed, that he had witnessed the stabbing, that the assailant had fled to the parking lot, and that he and the man had fought. Pryor further said he had sustained a cut to his hand as a result, and that he saw the assailant get in the passenger side of a cream-color car, which drove off. Pryor also gave a physical description of the assailant: a black male with his hair in corn rows, between the ages of 25-30, wearing a gray T-shirt, blue jeans, and Nike boots (“the March 1, 2009 Statement”).

Officer Mario Vero responded to the Tavern. Soon after arriving, he left to respond to a second call reporting that a ²⁵¹ man was “knocking on doors asking for help in the 3300 block of Falls Road,” about a quarter mile from the Tavern. Officer Vero encountered the appellant on the front porch of 3341 Falls Road. He was bleeding from his hands.

He had his hair in cornrows and was wearing a black polo shirt, jeans, and black boots. Officer Vero arrested the appellant and arranged for his transportation to Sinai Hospital. The appellant was treated for a broken hand and cuts to his hand and his head. The following day, Detective Gary Niedermeier, the lead investigator on the case, went to the hospital to interview the appellant. 1 The appellant waived his Miranda rights and gave an oral statement. 2 He admitted being at the Tavern on the night and at the time in question and said that “something happened and everybody went outside.” He stated that, while he was outside of the Tavern, he was hit from behind and got into a fight with a “light skinned male with facial hair” who looked “[ljike a Muslim.” 3 In the months that followed the crimes, Pryor gave several statements to the police.

He identified the appellant in a photographic array and in a video surveillance tape from the Tavern. On February 17, 2010, Pryor met with Detective Niedermeier and the prosecutor to prepare for trial. 4 In the meeting, Pryor denied having seen the appellant stab Gause and recanted his prior identifications of the appellant (“February 17, 2010 Statement”). On March 2, 2010, the State ²⁵² summarized Pryor’s February 17, 2010 statement in a supplemental discovery notification to the defense. As noted, Pryor was murdered on May 15, 2010.

Thereafter, the appellant moved to suppress Pryor’s March 1, 2009 Statement and the subsequent statements Pryor had given to the police identifying the appellant as Gause’s and Pryor’s assailant. On July 23, 2010, the court held a motions hearing. It denied the motion to suppress the March 1, 2009 Statement. 5 From July 26 to 28, 2010, the case was tried to a jury. Officer Admeged related the substance of what Pryor had told him at the scene (ie., Pryor’s March 1, 2009 Statement).

The State’s supplemental discovery notification summarizing Pryor’s February 17, 2010 statement was marked as State’s Exhibit 3, and was offered into evidence by the defense, unsuccessfully. The State called as witnesses two people who had been at the Tavern on the night in question; neither had witnessed Gause being stabbed or Pryor fighting with Gause’s assailant, however. Detective Niedermeier testified, however, about the statement the appellant had made while he was hospitalized. DNA evidence introduced by the State showed that a stain on Pryor’s shirt contained a mixture of Pryor’s DNA and the appellant’s DNA. 6 Finally, the jury was shown digital video footage from security cameras in the Tavern on the night of the stabbing which, according to the State, showed the appellant holding what appeared to be a knife in his hand and fleeing from the Tavern shortly after Gause was stabbed.

We shall include additional facts in our discussion of the issues. ²⁵³ DISCUSSION I. Motion to Suppress Pryor’s March 1, 2009 Statement At the motion hearing, Officer Admeged testified as follows. He was the first responder to the Tavern, arriving within three to four minutes of receiving the radio call about a “cutting.” “Within seconds” of his arrival, several other officers also arrived on the scene. There were “a lot of people outside” the Tavern and many people inside as well. Some patrons continued to drink and socialize.

Officer Admeged’s focus was on determining whether a crime had occurred and “eliminating] any and all immediate threat ... to [the police] and potential witnesses and citizens.” Upon entering the Tavern, Officer Admeged observed Gause lying on the floor, bleeding. A woman was kneeling over him, attempting to render first aid. Officer Admeged immediately called for medical assistance. Right away his attention was drawn to Pryor, who was “pacing” nearby and appeared “agitated [and] upset.” Officer Admeged could see that Pryor was “bleeding from his hands.” He approached Pryor and said, “What’s going on? ...

What’s happening?” Pryor responded, “My friend was just stabbed.” Officer Admeged testified: And then [Pryor] went through the—going back and forth, I’m following him. He’s going to check on [Gause] and then going back and pacing himself telling me that [his] friend was just stabbed. This guy just stabbed [Gause] and [ ] ran out of the club and he’s describing to me what all you know the person’s description. Giving me—he’s wearing Nike boots, gray shirt and giving me a description of the person and he said [the assailant] ran out of the door [and Pryor] chased him.

He’s actually demonstrating as he’s explaining to me what all took place and I’m following him and we went outside and he showed me where the car—a car was parked. ²⁵⁴ According to Officer Admeged, Pryor told him that he and Gause’s assailant got into “a fist fight” in the parking lot and Pryor “suffered a cut on his hand.” Pryor told the officer that the assailant had a knife and “might have ... chucked [it] ... into the bushes on the side of the parking [lot].” 7 At some point, Officer Admeged made a second call for medical assistance with respect to Pryor’s injuries. On cross-examination, Officer Admeged testified that while he was speaking to Pryor there were at least 5 police officers present “at the door ... outside ... [and] inside the building.” He estimated that it took the police “roughly[ ] half an hour” to secure the Tavern and make sure the suspect was not still there. There was no dispute below that the March 1, 2009 Statement was hearsay. The prosecutor argued that the statement was admissible, however, as an excited utterance.

See Md. Rule 5-803(b)(2) (excepting from the rule against hearsay a statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition”). Defense counsel argued that the March 1, 2009 Statement was testimonial hearsay and, as such, even if it fell into a “firmly rooted exception” to the rule against hearsay, 8 it nonetheless was inadmissible at trial under Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), and its progeny. The prosecutor responded that Pryor’s statement was non-testimonial because Officer Admeged’s primary purpose in questioning Pryor was to respond to an ongoing emergency. In ruling that Pryor’s March 1, 2009 Statement was non-testimonial, the motion court reasoned as follows: I focused with great interest on the testimony of [Officer Admeged].

Noting the rapid response in three to four ²⁵⁵ minutes of the call. The characterization of a man that he saw in the [Tavern] as on his back and bleeding noting that the officer called for medical assistance not once but twice. Once for Mr. Gause and the second time for Mr. Pryor. The language he used was pacing and upset and agitated to characterize Pryor as well as bleeding from his hands. “I approached him.

I asked him what’s going on? My friend was just stabbed. He’s pacing back and forth.” He [referring to Pryor] describes the stabber running out the door and chasing him and demonstrating and showing the officer where we were. I’m not troubled by the use of the past tense or the past perfect tense.

There was a fist fight, a knife was involved. The knife may have been thrown. They might have tried to look for it. The stabber gets away. [Officer Admeged] called for a second medic for his [Pryor’s] injuries. [Pryor] makes the description in the context and in a conversation that doesn’t, to me, appear in the entire circumstances as being an interrogation or a formal interview.

None of the circumstances in or outside of the [Tavern] lend themselves to any sense of formal interview. The place was not secure, the first responder as the officer characterized himself, was not there for the purpose of interviewing but certainly there was—on response to cross-examination ... “I couldn’t identify the threat. The place wasn’t secured yet. There was a guy there who was stabbed.

It would take minutes to establish if the stabber was still in the building.[”] That process was assisted by Pryor’s description or discussion of the stabber to help the police to locate the threat that hadn’t been identified or pinned down or secured. The location and the neighborhood] certainly wasn’t secure.... The motion court further concluded that Pryor’s March 1, 2009 statement was an excited utterance, and thus was admissible as an exception to the rule against hearsay. As noted, at trial, Officer Admeged testified over objection about the substance of Pryor’s March 1, 2009 Statement. ²⁵⁶ The Confrontation Clause of the Sixth Amendment to the federal constitution guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The Confrontation Clause applies to prosecutions in state courts as well as federal courts.

See Pointer v. Texas, 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965). In Crawford, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 , the Supreme Court held that it is a violation of a defendant’s rights under the Confrontation Clause to admit into evidence at trial a “testimonial” statement by a declarant who is not subject to cross-examination. Overruling its holding in Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), the Court held that the Confrontation Clause prohibits the admission of a “testimonial” statement by a declarant who cannot be cross-examined, regardless of whether the declarant’s statement bears indicia of reliability that would make it admissible under a “firmly rooted exception” to the rule against hearsay. The Court explained that “[t]estimony[ ]” ... is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” [2 N. Webster, An American Dictionary of the English Language (1828).] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. 541 U.S. at 51 , 124 S.Ct. 1354 .

In Crawford , the statement at issue was given by the defendant’s wife during an interview with police at the station house. At trial, the wife was not available for cross-examination because the defendant had invoked the marital privilege. Concluding quite easily that a formal statement to police at the station house is testimonial in nature, the Supreme Court left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id. at 68 , 124 S.Ct. 1354 (footnote omitted). The Court observed, however, that the term “testimonial” covers, at a bare minimum, “prior testimony at a ²⁵⁷ preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id.

Two years later, in an opinion in consolidated cases, Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 , 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006), the Supreme Court elaborated upon the meaning of “testimonial” as used in Crawford . Both cases involved domestic disputes. In Davis, the statements at issue were made to a 911 operator. The victim called 911 while her ex-boyfriend was assaulting her, reporting that he was “jumpin’ on [her] again.” Id. at 817, 126 S.Ct. 2266 .

She proceeded to tell the 911 operator that the defendant did not have a weapon, but was using his fists, and to give his full name and birthdate. She later informed the 911 operator that the defendant had fled the scene. At trial, the victim did not appear, and over objection the court admitted the 911 recording into evidence. In Hammon , the police responded to a domestic disturbance call at the home of a married couple.

When they arrived at the scene, the wife was sitting on the porch and, although she appeared “somewhat frightened,” she told police “nothing was the matter.” Id. at 819 , 126 S.Ct. 2266 . She gave the police permission to enter the house. Inside, they observed a gas heating unit in the corner, which had been damaged, and broken glass on the floor. The husband, who was inside the house, told the police that, although he and his wife had been arguing earlier, “everything was fine now.” Id.

After the police spoke to the wife again, inside the house but apart from her husband, she recounted that her husband had broken the heater, shoved her down on the ground into the broken glass, and punched her in the chest twice. She filled out and signed a battery affidavit. The husband was charged, but at trial the wife failed to appear. The court allowed a police officer to testify about the wife’s statement at the scene and to authenticate her battery affidavit.

Because the statement in each consolidated case was ²⁵⁸ made in response to police interrogation, 9 the Court turned to the question of “which police interrogations produce testimony.” Id. at 822 , 126 S.Ct. 2266 . The Court enunciated the following principle: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Id.

(footnote omitted). The Court ultimately concluded that the statement by the ex-girlfriend to the 911 operator in Davis was not testimonial but the statement by the wife to the police in Hammon was testimonial. It emphasized that the victim in Davis was recounting events to the 911 operator “as they were actually happening ” and “any reasonable listener” would have recognized that she “was facing an ongoing emergency.” Id. at 827 , 126 S.Ct. 2266 (emphasis in original). Moreover, the questions asked and the answers elicited, viewed objectively, revealed that the information the victim in Davis had provided was necessary to allow the police to resolve that emergency.

Finally, the Court noted the informality of an interview with a 911 operator, contrasting it to the formal station house interview in Crawford : “[the victimj’s frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe.” Id. The Court warned, however, that the primary purpose of an interrogation can shift quickly and therefore a statement that begins as a response to an ongoing emergen ²⁵⁹ cy—and thus is non-testimonial—may evolve into a testimonial statement once the purpose of resolving the emergency has been achieved. Because the Court only was asked to decide whether the victim’s initial comments to the 911 operator were or were not testimonial, it did not address the nature of the statements she made to the police after her husband fled. In Hammon , in contrast, the Court held that the wife’s statements were testimonial, emphasizing that, when the police responded to the scene, no emergency was in progress.

The police did not witness an argument and were “not seeking to determine ... ‘what is happening,’ but rather ‘what happened.’ ” Id. at 830 , 126 S.Ct. 2266 . Moreover, unlike in Davis, the victim in Hammon was separated from her attacker and protected by the police presence. The Court pointed out, however, that it was not suggesting that statements made in response to police interrogation at a crime scene necessarily are testimonial. When police first arrive at a crime scene, they must assess threats to themselves and the public at large and, “[s]uch exigencies may often mean that ‘initial inquiries’ produce nontestimonial statements.” Id. at 832 , 126 S.Ct. 2266 (emphasis in original).

The wife’s statements in Hammon , however, were “neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation,” and, as such, were testimonial. Id. At a time after the motion hearing and trial in the instant case, the Supreme Court decided Michigan v. Bryant, — U.S. —, 131 S.Ct. 1143 , 179 L.Ed.2d 93 (2011). In that case, Detroit police responded to a shooting call.

They arrived at a gas station and found the victim, Covington, lying on the ground next to his car with a gunshot wound to the abdomen. He was in severe pain and had difficulty speaking. Police officers asked Covington “ ‘what had happened, who had shot him, and where the shooting had occurred.’ ” Id. at 1150 (quoting People v. Bryant, 483 Mich. 132, 143 , 768 N.W.2d 65 (Mich.2009)). Replying that “Rick” (the defendant) had shot him, Covington told the police that he had gone to Rick’s house; had had a conversation with him through the back ²⁶⁰ door; when he turned to leave, Rick shot him through the door; and he managed to get in his car and drive to the gas station where the police found him.

The shooting had occurred approximately 25 minutes earlier. The police spoke to Covington for about 5-10 minutes, until medical personnel arrived at the scene. Covington died of his injuries. The Bryant Court held that Covington’s statements to the police were non-testimonial.

It observed that the case required “further explanation of the ‘ongoing emergency’ circumstance addressed in Davis ” in that it presented “a non-domestic dispute, involving a victim found in a public location, suffering from a fatal gunshot wound, and a perpetrator whose location was unknown at the time the police located the victim.” Id. at 1156. Thus, the circumstances involved a potential threat to the police and the public at large that was not present in either case in Davis. The Court emphasized that, in assessing whether a statement is testimonial in such a case, the ultimate inquiry is what was the primary purpose of the interrogation, ie., was it to meet an ongoing emergency or to establish past events for purposes of a criminal prosecution? The existence of an “ongoing emergency” is relevant to whether a statement is testimonial because “an emergency focuses the participants on something other than ‘proving] past events potentially relevant to later criminal prosecution.’ ” Id. at 1157 (quoting Davis, supra, 547 U.S. at 822 , 126 S.Ct. 2266 ) (alteration in Bryant) (footnote omitted).

In so inquiring, a court must “objectively evaluate the circumstances in which the encounter occur[red] and the statements and actions of the parties.” Id. at 1156. Thus, the focus is not on the subjective or actual purpose or intent of the interrogator or the declarant, but on the “purpose that reasonable participants would have had” under the same circumstances. Id. Moreover, the circumstances must be evaluated based on the facts as known to the participants at the time of the encounter, not in hindsight.

Finally, both the questions asked and the answers elicited are ²⁶¹ relevant in determining the primary purpose of the interrogation. The Bryant Court explained that “the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public.” Id. at 1162. In the context of a domestic disturbance case (as in Davis), there is a “narrower zone of potential victims” and, ordinarily, the ongoing nature of the emergency will cease as soon as the victim is protected by police presence. Id. at 1158.

When the context is a shooting by an unknown actor, however, the emergency may continue even after the threat to the first victim has been “neutralized.” Id. Similarly, the type of weapon used may be relevant. A fist fight ends as soon as the participants are separated. When the weapon is a gun, however, the emergency may be ongoing until such time as the armed perpetrator has been apprehended.

In Bryant, the victim was mortally wounded, the weapon was a gun, and the perpetrator was unknown to the police. Further, any motive for the shooting was unknown, leaving open the possibility that the shooter might be looking for Covington or that there could be other potential victims. The situation was “fluid and somewhat confused” and the questioning of Covington lacked any formality. Id. at 1166.

All of these facts, viewed in their totality and objectively, led the Court to conclude that the primary purpose of the interrogation was to respond to an ongoing emergency. Accordingly, Covington’s statements were non-testimonial and properly were admitted into