Browne v. State

DEBORAH S. EYLER, J. A jury in the Circuit Court for Charles County convicted Donald Edward Browne, Jr., the appellant, of two counts of robbery with a dangerous weapon, two counts of use of a handgun in the commission of a felony or crime of violence, two counts of first-degree burglary, one count of false imprisonment, one count of conspiracy to commit robbery with a dangerous weapon, and one count of possession of a firearm after conviction of a qualifying crime. The executed portions of the sentences imposed by the court totaled 40 years in prison. The appellant poses five questions for review, which we have reordered and reworded as follows: I. Did the trial court err in denying his motion for mistrial made after the jury reported for the second time that it was deadlocked?

II

Did the circuit court err in denying his motion to suppress DNA evidence?

III

Did the circuit court err in denying his motion to suppress his oral statement to Sergeant Scott Fetterolf?

IV

Must one of the convictions and sentences for first degree burglary be vacated? V. Must the sentence for false imprisonment be merged into the sentence for one of the robbery with a dangerous weapon convictions? 1 ⁵⁵ For the following reasons, we answer Question I in the affirmative, and on that basis shall reverse the judgments and remand the case to the circuit court for further proceedings. We address Questions II and III for judicial efficiency. Given our disposition, Questions IV and V are moot.

FACTS AND PROCEEDINGS This appeal stems from a home invasion that took place on August 18, 2009, in Newberg, a town in Charles County. At about 8:15 p.m., Royce Miller, who owns and operates the Maryland International Raceway in St. Mary’s County, drove into the garage of his house, where his wife, Linda, was placing items in the trunk of her car. Suddenly, the Millers were confronted by two masked men who entered the garage. One was holding a gun.

Both men were wearing gloves and black clothing that covered them completely. Only the skin under the eye holes of their ski masks was visible. The men ordered the Millers into the house. In the mudroom, the unarmed man pushed Mrs. Miller to the ground, taped her hands behind her back, and took her diamond wedding ring.

The man with the gun forced Mr. Miller into the kitchen and ordered him to get on the ground. He refused. The gunman then directed Mr. Miller to empty his pockets, which he did, placing his wallet, some folded currency, and a cell phone on the kitchen counter. The gunman asked Mr. Miller where their safe was located.

The safe was not upstairs, but Mr. Miller told the gunman it was, because he wanted to get the man away from his wife and because he had a gun of his own upstairs and he wanted to access it. The gunman and Mr. Miller went upstairs. Mr. Miller showed the man where Mrs. Miller’s jewelry box was located. As Mr. Miller was trying to figure out what to do next, the Millers’ son Christopher drove up the driveway.

The man ⁵⁶ downstairs yelled, “We’ve got to go!” The gunman ran downstairs, and the two men ran across the Millers’ property, jumping over their fence and damaging the top of it. Mr. Miller retrieved his gun, and as the men fled he fired two shots outside, from a balcony, and yelled, “The next one’s through your skull!” The men made off with the cell phone and cash from the kitchen counter, and the wedding ring. Christopher saw the two men running away and jumping over his parents’ fence. One of the men pointed a gun at him.

Christopher went inside the house and found his mother; he removed the duct tape from her wrists. Mrs. Miller called 911, and the police responded to the scene. The next day, Mr. Miller walked through the neighborhood to see if he could find any evidence related to the crime. He was accompanied by a neighbor, Carroll Walker, who usually walked through the neighborhood twice a day.

Mr. Walker told Mr. Miller that he had seen two gloves near a goat pen owned by Charles Harley, another neighbor. The Millers went to look at the gloves, and recognized them as the ones that had been worn by the man who had forced Mrs. Miller to the ground and had taken her wedding ring. Members of the Sheriffs Department and an evidence technician came to the property where the gloves were found and collected them. According to Mr. Walker and Mr. Harley, the gloves had not been on that property between 6:30 and 7:30 the evening before, when the men last had checked that area to make sure the goats were safe.

The gloves were provided to Bode Technology for testing. On January 29, 2010, experts there obtained DNA profiles from the gloves. The DNA profiles were uploaded into CO-DIS (the Combined DNA Index System). As we shall explain, that eventually led to a DNA match to the appellant’s DNA, which then led to the appellant’s arrest and indictment.

At trial, the State called Mr. and Mrs. Miller; Mr. Walker, Mr. Harley, and Laureen Haynes, all neighbors of the Millers; Christopher Miller; Sergeant Scott Fetterolf, Detective Chris Shankster, Detective Charles Gass, Technician James Am ⁵⁷ mons, and Sergeant Erica Budd, all of the Charles County Sheriffs Office; Tiffany Keener and Dr. Leslie Mounkes, forensic DNA experts with the Maryland State Police; and Stephanie Sivak, Tiffany Meadows, and Michelle Donahue, forensic DNA analysts with Bode Technology. The defense did not call any witnesses. The police officers testified about interviews they conducted with the appellant. Mr. Miller testified that the appellant’s father owns a paving company that in the past several years had done six to eight jobs for the speedway Mr. Miller owns.

About 75% to 80% of the business transacted by the speedway is paid in cash, and Mr. Miller had paid the appellant’s father in cash. The appellant had accompanied his father on some of those jobs, and had seen Mr. Miller pay his (the appellant’s) father in cash amounts of $2,500 to $3,000. We shall include additional facts as pertinent to the issues. DISCUSSION I. The appellant contends the trial court abused its discretion by denying his motion for mistrial made after the deliberating jurors revealed for a second time that they were deadlocked, identifying a particular juror who was holding out for a not guilty verdict (and who previously had identified himself to the court as the single holdout juror).

We review the denial of a mistrial motion for abuse of discretion. Dillard v. State, 415 Md. 445, 454 , 3 A.3d 403 (2010). It is within the trial judge’s discretion to require an apparently deadlocked jury to continue deliberating or to declare a mistrial. Mayfield v. State, 302 Md. 624, 632 , 490 A.2d 687 (1985).

Whether the trial judge abused his or her discretion in denying a mistrial motion in a deadlock situation depends on the circumstances of the particular case. Id. The facts relevant to this issue are as follows. The jury retired to deliberate at 5:10 p.m., after closing arguments on the second day of trial.

At 6:50 p.m., the foreman sent a note ⁵⁸ saying, “The jury is deadlock [sic] on all counts we will not be able to reach a verdict.” The trial judge told counsel about the note and proposed to instruct the jurors to keep deliberating, given that they had not been deliberating long. Counsel agreed. The jurors were returned to the jury box and were so instructed by the court. Immediately after the judge stopped speaking, Juror No. 281 asked to approach the bench, and was allowed to do so.

That juror and counsel convened at the bench and the judge asked, “Okay, what’s the situation?” The juror replied, “Mam, [sic] I’m the one that, I can not, with the evidence that’s been presented here say that Mr. Browne was----” The judge interrupted, and the following colloquy took place: THE COURT: Okay, I’m going to stop you. JUROR: Yes mam [sic]. THE COURT: Because you have not been deliberating very long. JUROR: Yes mam.

THE COURT: You need to go back, listen to your fellow jurors, consider all of the evidence very, very carefully. And can you continue your discussions. I’m not arguing with you, I’m just simply saying ... JUROR: No mam, no mam, I don’t take that way [sic].

THE COURT: ... it really has not been very long. JUROR: Yes mam. THE COURT: Okay ... Counsel have any suggestions, comment? [DEFENDANT’S ATTORNEY]: Just to remember what the instructions were at the beginning of the case.

THE COURT: They are. [DEFENDANT’S ATTORNEY]: All of the instructions. THE COURT: I’m simply asking you to review all of the evidence. Look through the written jury instructions yourself. JUROR: Yes mam. ⁵⁹ THE COURT: Consider everything.

Consult and discuss with your fellow jurors and we’ll see where we are. JUROR: Yes mam. (Emphasis added). Juror No. 281 returned to the jury box and the jurors were escorted to the jury room, where they resumed deliberations.

At around 8:10 p.m., the foreman sent the following note: Jury [sic] #281 has examined the evidence and read the instructions and has not changed his position as such the jury remains deadlock [sic] and a decision cannot be made.... The court presented the note to counsel and asked for suggestions and comments. The prosecutor suggested that the jurors be sent home for the night so they could return the next morning to “start fresh.” Defense counsel moved for a mistrial, stating, “since they’re unable to reach a verdict I would be asking for a mistrial at this time,” and that “they’ve already been instructed to go back since, with the same issue.” The court denied the mistrial motion, ruling: We’ve had a two day trial with a lot of evidence presented today. And in the overall scheme of things they have been deliberating three hours at the most since it also involved ordering dinner and a couple of smoke breaks and making phone calls before they even started.

So, I think it’s appropriate to bring them back tomorrow morning. I’ll ask them to be in at 9 a.m. So let’s bring them back in and say so. The jurors were returned to the courtroom and were told only that they were being sent home for the night and to return in the morning.

Deliberations resumed the next day at 9:32 a.m., after the judge advised the members of the jury to “[p]lease take your time. It’s a good idea to go back to the definitions of the crimes that were charged and go through each one of the elements one by one.” At 10:35 a.m., the foreman sent a note ⁶⁰ stating that the jury had reached a verdict. The verdict was returned and confirmed by polling. The appellant argues that under the circumstances that existed the trial court abused its discretion by denying his motion for mistrial.

He maintains that the judge’s individual instruction to the self-identified holdout juror, combined with her merely sending the jurors home for the night after the second deadlock note, in which the foreman singled out the self-identified holdout juror as the cause of the jury’s inability to reach a verdict, was coercive. He takes the position that a mistrial should have been granted to prevent a verdict that was the product of jury coercion. The State counters that by denying the mistrial motion the trial court properly exercised its broad discretion to assess whether the jury in fact was hopelessly deadlocked. It points out that, under Mayfield , a trial judge is not required to declare a mistrial simply because an apparently deadlocked jury voluntarily reveals its numerical split. 302 Md. at 631— 32, 490 A.2d 687 .

Under the circumstances here, the State argues, the court’s actions were not coercive and a mistrial was not necessary. The right to a jury trial in a criminal case is guaranteed by the Sixth Amendment to the federal constitution and by Article 21 of the Maryland Declaration of Rights. One of the requirements embodied in the right to a jury trial is that of a unanimous verdict. With respect to unanimity [the Court of Appeals has] stated: “The verdict is the unanimous decision made by a jury and reported to the court, on the matters lawfully submitted to them in the course of the trial.

Unanimity is indispensable to the sufficiency of the verdict.” Smith v. State, 299 Md. 158, 163-64 , 472 A.2d 988 (1984).... Butler v. State, 392 Md. 169, 181 , 896 A.2d 359 (2006) (emphasis omitted) (citation omitted) (holding that when a jury note revealed that one juror expressed a general disbelief of the police during deliberations, it was coercive for the trial court to instruct the jury that taking such a position after having ⁶¹ been asked in voir dire whether such a belief was held, and having answered negatively, could be a violation of the juror’s oath); see also Caldwell v. State, 164 Md.App. 612, 635 , 884 A.2d 199 (2005) (“The concept of unanimity ... embraces not only numerical completeness but also completeness of assent, i.e., each juror making his or her decision freely and voluntarily, without being swayed or tainted by outside influences.”). Several Maryland appellate opinions addressing the potential for judicial coercion of a verdict in a criminal case involve the giving of an Allen-type instruction to a deliberating jury after the jury has revealed that it is deadlocked. 2 The wording of the traditional Allen charge “encourages jurors to reach a verdict by stressing deference of the minority jurors to the views of the majority.” Thompson v. State, 371 Md. 473 , 483 n. 5, 810 A.2d 435 (2002). The Court of Appeals has disapproved of the traditional Alien charge, reasoning that it has a coercive effect on minority jurors, and instead has approved the modified Allen charge recommended by the American Bar Association (“ABA”). 3 See Burnette v. State, 280 Md. 88, 96 , ⁶² 371 A.2d 663 (1977) (observing that the ABA-recommended instruction “does not charge the minority to doubt the reasonableness of its convictions when they are not concurred in by the majority____ All jurors, in the approved charge, are encouraged to deliberate and consult with one another.

The minority is not portrayed as somehow the cause of the deadlock.” 4 ). Maryland Criminal Pattern Jury Instruction (MPJICr) 2:01 substantially follows the language recommended by the ABA. When a jury reveals that it is deadlocked and volunteers the numerical breakdown of its split, there is an increased risk that the trial judge’s remarks in response will be coercive. In Smoot v. State, 31 Md.App. 138 , 355 A.2d 495 (1976), on which the appellant relies, within a span of a few hours a deliberating jury twice reported that it was deadlocked.

Both times the jurors disclosed the majority and minority breakdown. After the first jury note, the judge instructed the jurors that he would “not accept” that they could not reach a verdict, and directed them to continue deliberating. 31 Md.App. at 141 , 355 A.2d 495 . The judge did not disclose to counsel the precise contents of the note— including that it contained a breakdown of the jurors’ votes— ⁶³ until after he instructed the jurors to continue deliberating. When defense counsel asked to be told the contents of the note and learned that it contained a vote breakdown, he moved for a mistrial, arguing that the court’s instruction was coercive.

The court denied the motion. The second note reporting a deadlock came after the jurors had had dinner for almost two hours and then spent slightly more than an hour deliberating. It repeated the same breakdown (eight in favor of guilty and four in favor of not guilty). Defense counsel again moved for a mistrial.

The trial judge told counsel he simply would tell the bailiff to let the jurors know they should continue deliberating. About an hour later, not in response to any new note, the trial judge called counsel to the bench and said he was going to bring the jurors into the courtroom and give them the ABA-recommended Allen charge. Defense counsel objected, arguing that, after five hours of actual deliberation time and two notes reporting a clear split among the jurors, allowing the jurors to deliberate further would be coercive. Defense counsel again moved for a mistrial.

The court denied the motion and gave the jurors the modified Allen charge. About fifty minutes later the jury returned a guilty verdict. On appeal, this Court held that the trial judge had exercised coercive influence on the verdict by telling the jury, in the face of a disclosed split, that he would not accept their deadlock; by giving an Allen-type instruction after the jury’s second note revealed it still could not agree and again gave the majority/minority split; and by not admonishing the jury to refrain from disclosing the details of their division after they already had done so. On this last point, we opined: [T]he jury twice volunteered the details of their division.

After the first disclosure, they should have been admonished by the court, and counselled [sic] against any repetition. In the absence of such a cautionary instruction, the second disclosure of their split ... was even more explicit and more improper. ⁶⁴ In response to the plaintive inquiry on the “bottom line” of their note, “What do we do now?”, the trial court, under the circumstances then existing in this case, should have granted the [defendant’s] motion for a mistrial and sent them home. To require, as he did, another hour of deliberation and then sua sponte to administer the Allen-type charge ... was an abuse of discretion.... Id. at 151-52 , 355 A.2d 495 .

In Mayfield v. State, 302 Md. 624 , 490 A.2d 687 , upon which the State relies, the Court of Appeals was asked by the defendant on appeal to accept as a general proposition that “when a jury becomes deadlocked and voluntarily reveals its numerical split, it is always coercive for the trial judge to give an ABA recommended Allen-type instruction.” 302 Md. at 632 , 490 A.2d 687 . The Court declined to do so. In that case, after deliberating for about five hours, the jurors sent a note listing the vote breakdown on each count and stating that they could not reach a unanimous verdict. On four counts, the breakdown was eleven for guilty and one for not guilty.

On the remaining count the split was nine for guilty and three for not guilty. The note did not identify the individual juror’s votes. The court informed counsel of the note and its contents and that it was going to give the ABA-recommended Allen charge. Defense counsel moved for a mistrial, which was denied.

The court gave the modified Allen charge and the jurors retired to continue deliberating. Defense counsel renewed his mistrial motion twice thereafter, as the jurors continued to deliberate, complaining that by allowing deliberations to continue when there was a revealed eleven to one split in favor of a guilty verdict on most counts, the court was giving the eleven juror majority the opportunity to “ ‘hound my one guy into conviction.’ ” Id. at 628 , 490 A.2d 687 . The court reserved on the renewed motions. About one hour and forty minutes after the jurors had been returned to deliberate, they sent a note saying they had reached a verdict on all counts except one.

The court declared a mistrial on that one count (on which the ⁶⁵ jurors had been split nine to three) and took the verdict on the remaining counts. The defendant was found guilty on each count. As noted, on appeal, the defendant argued that giving a modified Allen charge to a jury that has volunteered its numerical breakdown is coercive as a matter of law. The Court opined, to the contrary, that the particular circumstances of the case will dictate whether a trial judge’s actions amounted to coercion.

Interestingly, the Court observed: It is possible ... that a single minority juror might feel coerced by an ABA approved Allen-type charge when that juror believes that the trial judge is aware that there is only one holdout. On the other hand, if a trial judge in this situation were simply to direct that the jurors continue deliberations, without giving any instruction concerning their responsibilities, the lone holdout might also infer that the directive was aimed at him. An instruction to continue deliberations, without any amplification, may arguably be more coercive upon the minority than the ABA recommended Allen-type charge. Such unexplained instruction would not contain the ABA approved language which emphasizes “individual judgment,” the need to “decide the case for yourself’ and the refusal to “surrender your honest conviction ... because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.” Id. at 631 , 490 A.2d 687 .

The Court held: We believe that it would be sheer speculation to conclude that, when a jury becomes deadlocked and voluntarily reveals its numerical split, it is always coercive for the trial judge to give an ABA recommended Allen-type instruction. This is particularly true in light of the charge’s repeated stress upon the need for each juror’s individual judgment and the obligation of each juror to adhere to his own convictions. Id. at 632 , 490 A.2d 687 . The Court concluded that, under the circumstances, the trial court did not abuse its discretion in ⁶⁶ giving the modified Allen charge and denying the motion for mistrial. 5 Although different in procedural posture from the case at bar, a series of cases decided by the District of Columbia Court of Appeals concerning judicial coercion of a verdict in the face of a polling breakdown is instructional on the concept of verdict coercion and the best analysis to be used by an appellate court in assessing whether a verdict was the product of coercion.

In Crowder v. United States, 383 A.2d 336 (D.C.1978), the foreperson announced guilty verdicts on charges of second-degree burglary and grand larceny. On polling, however, the twelfth juror said she had found the defendant guilty on the burglary charge but not guilty on the larceny charge, because of a lack of evidence. The court instructed the jurors to return to the jury room for further consideration of your verdict, and when you have reached a unanimous verdict, you may return to the court. If it’s not unanimous, then you continue your deliberations.

After you return to the jury room, any member is free to change his or her vote on any issue submitted to you. Each juror is free to change his or her vote until the jury is discharged. Crowder, 383 A.2d at 341 . Forty minutes later, the jurors returned a verdict of guilty on the burglary charge. ⁶⁷ On appeal, the Crowder court held that the trial court had abused its discretion by returning the jurors to deliberate after the poll revealed the exact split in the vote and the identity of the dissenting juror.

The court noted that there is an “inevitable increase in potential coerciveness” that happens when the numerical division of the jury vote and the identity of a lone dissenting juror is revealed in open court. Id. at 343 . Reasoning that it is the duty of the trial judge to alleviate the potential for coercion of a verdict created by a polling breakdown, the court observed, in a footnote, that the trial judge could have accomplished that by giving an instruction such as the ABA-reeommended Allen charge. Specifically, the court stated that the situation justified a further attempt to dissipate the potential coerciveness inherent whenever the twelfth juror’s dissent is revealed in open court and the jury is instructed to continue its deliberations.

The most obvious danger in such a situation is that the lone recalcitrant juror will conclude that the trial judge is requiring further deliberations in order to eliminate his dissent. To allay any such fears, the trial judge might consider [giving an instruction similar to the ABA recommended Allen charge]. Id. at 342 n. 11. 6 In Harris v. United States, 622 A.2d 697 (D.C.1993), the court drew upon its holding in Crowder in concluding that the trial court did not abuse its discretion by allowing jurors to continue deliberating after a polling breakdown. The case ⁶⁸ was tried against two defendants.

After a full day of deliberations, the jurors reported that they had reached verdicts and the foreperson announced verdicts of guilty on all three counts against each defendant (second degree murder, possession of a firearm while committing a crime of violence, and carrying a pistol without a license). During polling, the twelfth juror said she only agreed with “[p]art of it and not all of it.” Harris, 622 A.2d at 699 . The trial judge immediately sent the jurors to the jury room to continue deliberating. Defense counsel moved for a mistrial on the ground that the circumstances placed undue pressure on the twelfth juror to change her vote.

The court denied the motion. Later that evening, the jurors sent a somewhat curious note saying they all agreed that they could not reach a unanimous verdict. At that point, they were sent home for the night. When the jurors returned the next morning, the court instructed them, in relevant part: Each of you is free to change your mind on any count against either defendant if you decide to do so, but you are also free not to change your mind even if other jurors disagree with you, and you should not do so simply for the purpose of reaching a verdict unless you are persuaded to change based on the evidence and your further discussions with your fellow jurors.

Remember that you are not partisans or advocates for any party in this matter. You are judges of the facts, you must decide the case based solely on the evidence, without prejudice, fear, sympathy, or favor for or against any party. To that end, I remind you that in your deliberations in the jury room your purpose should not be to support your own opinion, but to discuss the case with your fellow jurors with an open mind and to ascertain and declare the truth based on the evidence. Id. at 700 .

The jurors deliberated for two more full days, occasionally sending status notes saying they had not yet reached a unanimous verdict. No responses were requested or given. ⁶⁹ On the morning of the third day, after deliberating for an hour, the jurors reached verdicts of guilty on all counts against the defendant and guilty on one count against the co-defendant, which were confirmed by polling. On appeal, the defendant argued that the trial court had abused its discretion by allowing the jurors to deliberate after the initial poll revealed a single holdout juror, and that, in that circumstance, the verdict was coerced. In affirming the judgments, the appellate court, relying upon Crowder , explained that the analysis of the coercion question is two-pronged.

First, the reviewing court must determine “the existence or degree of inherent coercive potential” in the circumstances. Id. at 705. The court identified a non-exclusive list of factors relevant to this determination: the degree of isolation of a dissenting juror (or jurors), whether the identity of a dissenting juror (or jurors) is revealed in open court as opposed to in a note, whether the exact numerical division of the jury is revealed, whether the judge knows the identity of a dissenting juror (or jurors) and whether the juror is aware of the judge’s knowledge, whether other jurors may feel “bound” by a vote they have announced, and whether an “anti-deadlock” instruction has been given and, if so, whether this has occurred under circumstances where the potential for coercion is high. Id.

Second, the reviewing court must combine its assessment of the inherent coercive potential “-with an evaluation of how the judge reacted to the situation.” M (Footnote omitted). Did the judge make affirmative efforts to dispel any coercive potential? Did the judge take a middle course and act (or refrain from acting) in a reasonable and neutral way? Did the judge perhaps compound the problem by actions effectively adding to juror pressure?

Did the judge independently create a situation of coercive potential? Id. On the first prong of its analysis, the Harris court determined that “[t]he situation itself had a great deal of inherent coercive potential^]” 622 A.2d at 705-06 . The twelfth juror ⁷⁰ disagreed at least in part with the verdict as announced, in open court, and thus was “isolated in her dissent to some degree, the judge and fellow jurors knew it was she that dissented, and the other jurors had already ‘declared’ their views on at least [the defendant’s] verdict.” Id. at 706 .

It was clear from the circumstances that the numerical split was eleven to one, at least on some counts. The court found, however, that the dissenting juror “was not disagreeing unequivocally with a verdict relating to a single defendant-there were two defendants whose verdicts had been announced.” Id. Thus, it was not clear that the juror was dissenting from the verdict on the counts against the defendant, as opposed to the verdict on the counts against the co-defendant. Moreover, even if the juror was dissenting from the verdict on the counts against the defendant, she did not state why, and only remarked that she disagreed with “part of it.” Id.

On the second prong of its analysis, the court concluded that, although there was great inherent coercive potential in the situation, the trial judge “acted with sensitivity and skill to alleviate coercion” by not giving an anti-deadlock instruction after the twelfth juror dissented during polling and by not otherwise singling the juror out; by sending the jurors home after they sent a note saying they were in disagreement; and by giving a charge after the jurors returned the next day that reduced the potential for pressure on the holdout