Carter v. State

MURPHY, C.J. In the Circuit Court for Baltimore City, a jury convicted Deon Christopher Carter of first degree felony murder. The State’s evidence was sufficient to establish that he killed one Shawn Powell on June 30, 2000. Because that evidence included two documents that were prepared by appellant and seized from the cell in which he was confined while awaiting trial, he argues that he is entitled to a new trial on the ground that THE TRIAL JUDGE ERRED IN FAILING TO SUPPRESS PERSONAL PAPERS SEIZED FROM APPELLANT’S JAIL CELL WHICH HAD BEEN PREPARED IN RESPONSE TO A REQUEST BY HIS ATTORNEY. For the reasons that follow, we are persuaded that the documentary evidence at issue should have been suppressed.

Because we are not persuaded beyond a reasonable doubt that this error was harmless, we shall vacate the judgment of conviction and remand for a new trial. Background On December 1, 2000, while appellant was being transferred from a jail cell in the Baltimore City Central Booking facility to a jail cell in the Maryland Super-max facility, a Central Booking officer searching appellant’s cell discovered two pieces of paper that attracted her attention. One item (State’s exhibit 27) was a map of the crime scene that included statements relating to the items shown on the map, 1 such as a reference to “the only place witness could seen who killed victim,” and “victim dead on this block and drift 1 block east ⁵¹⁴ and crash into wall.” The second item (State’s exhibit 28) was a piece of paper on which appellant had drawn a map of the 1400 block of Fulton Avenue that included certain house numbers. 2 This piece of paper also contained (1) a statement that the “witness lives in one of these houses,” (2) a list of eight “Things to do,” the fifth item being “Make sure Big Nick ain’t said shit?” and (3) the following Clue—Witness is a older person who wear glasses, lives down by the corner and Im almost sure it’s a female. Check between the last 4 to 5 houses mainly!

These exhibits were seized by the Correctional Officer and turned over to Detective Dennis Rafferty of the Baltimore City Police Department Homicide Squad. After the circuit court denied appellant’s motion for suppression of the exhibits, they were received into evidence pursuant to the following stipulation announced to the jury during Detective Rafferty’s direct examination: [I]t is agreed between the State and the Defense, that a law clerk for the Office of the Public Defender ... was present when the Attorney for the Defendant ... provided the Defendant with a copy of the State’s discovery reply and asked Defendant to draw maps and diagrams of the area and to write any thoughts or questions the Defendant may have had for his attorney based on the State’s discovery reply. The State’s discovery reply included the ballistic report, the autopsy report, the blood evidence report, crime scene and six pages of run-sheet reports, and fingerprint and Statement of Charges. It is also stipulated that ... that law clerk for the Office of the Public Defender, would testify that he and [appellant’s trial counsel] visited the Defendant and provided the Defendant with the items that I just mentioned before the search of the Defendant’s jail cell____ The search that ⁵¹⁵ resulted in the recovery of those items occurred on December 1st, 2000.

It is also stipulated that the Defendant, Mr. Carter, has stated that he did not receive those items, the State’s discovery reply until mid-December or the beginning of January, 2001. ... And it is also stipulated that the Defendant prepared those exhibits 27 and 28. Any objections, [appellant’s counsel]? [Appellant’s Counsel]: No, other than my continuing objection to the admissibility of the items. THE COURT: Continuing objection for those reasons considered previously.

Detective Rafferty’s direct examination included a discussion of statements of fact written on the exhibits (e.g., “victim dead on this block and drift one block east ...and “Casing flies right.”) that did not appear in the police reports. Appellant did not testify at trial. 3 During closing argument for the defense, appellant’s counsel argued that the exhibits did not prove that appellant killed the victim. The prosecutor’s rebuttal argument included the following comments: Look, all along, he’s been trying to outwit everybody. Now, he is trying to outwit you.

And one of the things that [appellant’s counsel] is trying to tell you is how unfair it was that they went into the jail cell and took out these exhibits. Ladies and gentlemen, understand, let me make it very clear. They didn’t go out, they didn’t go to the jail cell to take these things. They were moving him to a new facility.

They were searching his things when they came across these things. Okay, so, I’m not sure how unfair she’s talking about. But one of the things that she says, well, [she] had him prepare all these things. ⁵¹⁶ Remember the stipulation, one of the stipulations that we had in this case, the thing that we agreed on between the State and the Defense was that he said he said he didn’t get the State’s discovery response with all of the information in it until mid-December or early January. That is after the search of his jail cell on December 1st.

Okay? He knows what’s going on. He knows he did it. I have no question he did this for his lawyer.

I’m not disputing that. But he gets all this information. I mean, he practically admits it, and we practically agreed to it through our stipulation. Look at this.

Number five, “Make sure that Big Nick ain’t said shit.” Pardon my language. I or we would love to know who Big Nick is. You know why? Because Big Nick also knows that Deon Carter is guilty.

He wants to make sure Big Nick didn’t talk. Why else would you write this? You’re smart. All of you are smart.

You have common sense. You’re supposed to just ignore this? The Ruling at Issue During the pretrial hearing on the admissibility of State’s exhibits 27 and 28, the State argued that (1) the failure of appellant’s trial counsel to litigate this issue earlier constituted a “waiver by inaction,” (2) the exhibits were not protected by any privilege, and (3) the search of appellant’s jail cell did not violate any of his constitutional rights. The suppression hearing court ultimately ruled as follows: THE COURT: Good morning all.

The first order of business is to make a ruling on [the] Defense Motion to Suppress. You will recall that the Court held a hearing on the motion yesterday and took it under advisement for the evening and is now prepared to rule on it. I’ve had an opportunity to read the case submitted by the Defense, and the cases contained in the Memorandum and the attachment submitted by the State. ⁵¹⁷ Based upon a reading of those cases, the Court holds that the Motion of the Defense to Suppress should be and is hereby denied. Unfortunately, that ruling does not include any findings of fact.

We shall, however, address each of the State’s arguments. The State’s “Waiver by Inaction” Argument The State argues that, because appellant’s trial counsel did not file a timely motion for return of items protected by the attorney-client privilege, there has been a waiver of the issue of whether State’s exhibits 27 and 28 should have been suppressed. The following transpired after the prosecutor, quoting from In Re: Grand Jury, 138 F.3d 978 (3d Cir.1998), 4 argued that the objection interposed by appellant’s trial counsel had been waived because appellant’s counsel had not “move[d] the Court” for an order compelling the State to return the exhibits: [The Prosecutor]: So in this case there was no Motion to Compel filed, Your Honor. Although I do agree there was an objection raised by [appellant’s counsel] about the use of the information. [Appellant’s Counsel]: Judge, not only was there an objection, Counsel and I discussed this numerous times. ⁵¹⁸ [The Prosecutor]: We discussed it numerous times.

I agree. [Appellant’s Counsel]: I was going to go to Judge Prevas on a pretrial discovery on this discovery issue, and Counsel and I discussed the fact that we would litigate this at the time of trial, that that would be when we litigate. So for the State to act as though, you know, I forfeited my client’s privilege because I didn’t file this Motion to Compel, its just ludicrous. Its’ just completely outrageous. [The Prosecutor]: Your Honor, I’m sorry. I’m going to disagree with that.

We did discuss litigating it, but that is exactly what the U.S. Attorney did in the cases. A U.S. Attorney said no, I don’t believe it’s privileged, and that’s exactly what I told [appellant’s counsel] over the phone many times. I’m not disputing what she’s saying. Let me make that very clear.

I’m not saying that those things did not happen. We spoke about it on the phone. She wanted the documents back. She said that I shouldn’t be allowed to use them at trial, and of course I was saying no, you know, respectfully we disagreed, and we said, we’ll, you know, fight about it later.

But the point is is [sic] that is exactly what happened in the [In Re: Grand Jury ] case. As the State agreed to litigate this issue prior to jury selection, the State cannot now complain that appellant’s trial counsel did not preserve the issue for our review. Moreover, when “the court is not sandbagged; [and] is afforded the opportunity of correcting any error it may have made ... the purpose of the [waiver] rule, and the policy underlying it, will have been met, and those grounds [that have been asserted at this point in the trial] are preserved for review.” Banks v. State, 84 Md.App. 582, 589 , 581 A.2d 439 (1990). The State’s Arguments that the Exhibits are not Privileged During the suppression hearing, appellant testified that he had prepared the exhibits at the request of his counsel.

The ⁵¹⁹ State argued that this testimony was false. As set forth above, however, when referring to the exhibits during rebuttal argument, the prosecutor stated, “I have no question he did this for his lawyer. I’m not disputing that.” Under these circumstances, we shall not hypothesize that the suppression hearing court denied appellant’s motion on the ground that the defense failed to prove that appellant prepared each exhibit at the request of his trial counsel. The State also argues that, because appellant did not take any precautions to identify the exhibits as “privileged”