Davis v. State

WOODWARD, J. On February 4, 2011, Travon David Davis, appellant, was indicted on one count of first degree burglary and one count of conspiracy to commit first degree burglary. On April 27, 2011, appellant sought a continuance in the Circuit Court for Montgomery County so that appellant’s alleged juvenile co-perpetrator, Jerquan H., could testify at trial. The circuit court denied appellant’s motion for a continuance, and, following a two-day jury trial, appellant was found guilty of first degree burglary and was acquitted of conspiracy to commit first degree burglary. On May 9, 2011, appellant moved for a new trial on three grounds: (1) the verdict was “irreconcilably inconsistent”; (2) the denial of appellant’s motion for a continuance violated his Sixth Amendment rights; and (3) the evidence was insufficient to sustain the first degree burglary conviction.

The circuit court denied appellant’s motion for a new trial in an order dated May 31, 2011. On June 15, 2011, appellant was sentenced to eight years’ imprisonment, with all but 18 months suspended, and five years probation upon release. On appeal, appellant presents three questions for our review, 1 which we have rephrased: ³⁰³ I. Did the circuit court abuse its discretion in denying appellant’s motion for a continuance?

II

Did the trial court violate appellant’s Sixth Amendment Confrontation Clause rights when it admitted an audiotape of Jerquan’s interrogation?

III

Was the evidence legally insufficient to sustain appellant’s conviction for first degree burglary? For the reasons set forth herein, we answer all of the above questions in the negative and therefore affirm the judgment of the circuit court. BACKGROUND The Incident Because appellant is challenging the sufficiency of the evidence to sustain his conviction for first degree burglary, we review and recite the facts in the light most favorable to the prosecution. Moye v. State, 369 Md. 2, 12 , 796 A.2d 821 (2002).

On December 29, 2010, Mildred Detwiler called 911 to report that two men were breaking into her house. Detwiler testified at trial that “two young black men” rang her doorbell at approximately 11:30 a.m., and when she did not answer, she observed the two men walk around to the back of her house. As Detwiler walked to the back of her house, she saw one of the men attempt to push up on the dining room window in the back of the house, and then saw both of them walk around to the back porch and look through the lattice underneath the porch. Both men then walked onto the deck and looked at two other windows.

While one man stayed on the deck, the other walked up the steps to her back porch screen door and pushed his hand through the screen on the bottom of the door. According to Detwiler, after pushing his hand through the screen, the man was “feeling up the side of the [ ] door to see ... what was holding the door” and “found the latch on the door.” While this was occurring, the other man was “just standing” on the deck. Detwiler called 911 and went across ³⁰⁴ the street to her neighbor’s home. Once Detwiler arrived at her neighbor’s home, the police arrived “almost immediately,” and she observed a police officer jump out of his car and start running.

Officer Michael Kane responded to Detwiler’s 911 call and, upon arrival, observed two “black male subjects standing on the side yard.” Officer Kane made eye contact with the two men, who were walking toward him, and told them to stop. At this point, the two men turned and ran in the opposite direction and Officer Kane pursued them. Officer Mauricio Veiga was off-duty in the area and observed two men running and “looking back at the cruiser” driven by Officer Kane. Officer Veiga pursued the two men and saw them run into the backyard of a townhouse, bang on the sliding glass door, look back, and then gain entry into the house.

After verifying the address of the townhouse, Officer Veiga called for assistance and, eventually, the two men came out of the townhouse in different clothing. The two men, appellant and Jerquan, who was then 17 years old, were arrested. Following their arrest, appellant and Jerquan provided separate recorded statements to Detective Thomas Dufek. In his statement, Jerquan initially denied any •wrongdoing, but later stated that “we did crawl through the screen,” but “I didn’t try to break in” and “I wasn’t never going to go in the house.” Jerquan also stated that “I just crawled through the door” and that appellant was “not really in this.” In recounting the events of that day, Jerquan used both “we” and “I.” In his statement, appellant said that their “intentions [weren’t] to hurt [any]body,” that they did not think anybody was home, and that they “messed up” and “[were] leaving.” Motion for a Continuance Appellant’s trial was scheduled for April 27, 2011, while Jerquan’s juvenile proceedings were scheduled for June 28, 2011.

On the first day of appellant’s trial, defense counsel moved for a continuance before the Administrative Judge, because Jerquan, who “still ha[d] a 5th Amendment privilege,” refused to testify until after his adjudication. According to ³⁰⁵ defense counsel, Jerquan would testify that appellant “had no involvement in this incident.” The State opposed the continuance and offered to stipulate to the contents of Jerquan’s statement, which the State characterized as both exculpatory and incriminating. The State also cited to Maryland Rule 2-508(c), a rule of civil procedure regarding continuances and absent witnesses, for the proposition that, if “the parties are willing to stipulate what the actual witness would testify to, the Court may deny the motion.” Defense counsel and the State were unable to reach an agreement on the contents of the stipulation and on a new trial date. The Administrative Judge denied the motion for a continuance.

In doing so, the court found that Jerquan was not “absent” under Rule 2-508(c) and that the State was “willing to stipulate to substantially everything that [defense counsel] wanted [Jerquan] to have said if he didn’t assert the 5th [Amendment].” The Trial and Verdict At the end of the first day of trial, the State indicated that it planned to introduce an audiotape of Jerquan’s interrogation. In response, defense counsel stated: “I’m accepting the statement being played, but I’m not giving up any rights that I had as a result of the continuance, when I wanted the live body here.” The State then indicated that it planned to play the interrogation as part of its case-in-chief, and the trial judge stated that it would come in “since both sides want it.” Jerquan was then called to testify and invoked his Fifth Amendment right to silence, and the court found him to be unavailable. The next day, the State introduced into evidence the audiotape of Jerquan’s interrogation during its direct examination of Detective Dufek. The State also played a portion of the audiotape of appellant’s interrogation.

When each of these audiotapes were offered into evidence, defense counsel stated that he had “[n]o objection.” ³⁰⁶ At the close of the State’s case-in-chief and at the close of all evidence, defense counsel moved for a judgment of acquittal; both motions were denied. The jury returned a verdict of guilty on the charge of first degree burglary and not guilty on the charge of conspiracy to commit first degree burglary. On May 9, 2011, appellant moved for a new trial, which was denied on May 31, 2011. The court also denied appellant’s motion to reconsider this ruling.

As previously stated, on June 15, 2011, appellant was sentenced to eight years’ imprisonment, with all but 18 months suspended, and five years probation upon release. This timely appeal followed. Additional facts will be set forth herein to resolve the questions presented. DISCUSSION I. Appellant argues that the trial court denied his rights under the Sixth Amendment and Article 21 of the Maryland Declaration of Rights when it denied his motion for a continuance to obtain Jerquan’s exculpatory testimony.

According to appellant, under Jackson v. State, 214 Md. 454, 459 , 135 A.2d 638 (1957), a trial court abuses its discretion in denying a continuance when the requesting party has shown: (1) “that he had a reasonable expectation of securing the evidence of the absent witness or witnesses within some reasonable time”; (2) “that the evidence was competent and material, and he believed that the case could not be fairly tried without it”; and (3) “that he had made diligent and proper efforts to secure the evidence”. 2 ³⁰⁷ Appellant argues that he made a sufficient showing of each of the Jackson factors. First, appellant argues that “[t]here was a reasonable likelihood that [Jerquan] would have been available within a reasonable amount of time.” In support of this proposition, appellant notes that Jerquan’s trial was scheduled for the end of June 2011, two months after appellant’s trial date. Appellant claims that “there was a reasonable likelihood that [Jerquan] would cease to have a Fifth Amendment basis for refusing to testify after that point.” Because “the alleged co-perpetrator was likely to have the charges against him resolved within a timely period,” appellant concludes that “a continuance was entirely reasonable and warranted.” With respect to the second Jackson criteria, appellant argues that “[t]he case could not be fairly tried without [Jerquan]’s testimony,” as the testimony “would have confirmed the heart of the defense ... that [appellant] was present, but not a participant in the burglary.” According to appellant, Jerquan’s recorded interrogation was not an “adequate substitute for [appellant’s] right to call [Jerquan] as a live witness,” because: (1) defense counsel’s proffer of Jerquan’s likely testimony “was more exculpatory than the tape alone”; (2) “a videotape is not an adequate or constitutionally sufficient substitute for live testimony”; and (3) Jerquan would have been able to clarify his inculpatory use of “we” in his videotaped statement. Finally, appellant asserts that defense counsel was diligent in his efforts to secure Jerquan’s testimony.

Appellant notes that defense counsel prepared a subpoena and contacted Jerquan’s mother prior to trial, and that Jerquan was already under subpoena by the State. ³⁰⁸ In response, the State argues that “[t]he trial court was within its discretion in denying a defense continuance request.” With respect to the three Jackson requirements, the State makes the following arguments: (1) appellant failed to show that he had a reasonable expectation of securing Jerquan’s live testimony in a reasonable time, because one codefendant does not have the right to be tried before or after another co-defendant and Jerquan was not going to trial for two months and had many available remedies to exhaust before he could no longer invoke his Fifth Amendment right to silence; (2) Jerquan’s testimony was not “necessary,” as it “would be substantially the same as his recorded statement to the police”; and (3) it is unclear whether appellant subpoenaed Jerquan prior to trial. “The decision of whether to grant a request for continuance is committed to the sound discretion of the court.” Abeokuto v. State, 391 Md. 289, 329 , 893 A.2d 1018 (2006) (citing Ware v. State, 360 Md. 650, 706 , 759 A.2d 764 (2000)). A trial court’s ruling on a continuance will not be disturbed absent an abuse of discretion, which was prejudicial to the party requesting the continuance. Jackson, 214 Md. at 459 , 135 A.2d 638 . To show an abuse of discretion, the party that requested the continuance must show: (1) “that he had a reasonable expectation of securing the evidence of the absent witness or witnesses within some reasonable time”; (2) “that the evidence was competent and material, and he believed that the case could not be fairly tried without it”; and (3) “that he had made diligent and proper efforts to secure the evidence.” Id.; see also Fontaine v. State, 134 Md.App. 275, 298 , 759 A.2d 1136 (2000).

In our view, appellant failed to carry his burden to show (1) that he had a reasonable expectation that Jerquan would testify within some reasonable time, and (2) that the case “could not be fairly tried” without Jerquan’s live testimony. Under Jackson , the first factor that appellant must show in order to be entitled to a continuance is that “he had a reasonable expectation of securing the evidence of the absent ³⁰⁹ witness or witnesses within some reasonable time.” 214 Md. at 459 , 135 A.2d 638 . Here, it is undisputed that Jerquan was not going to waive his Fifth Amendment privilege and testify at appellant’s trial. In Tann v. State, 43 Md.App. 544, 548 , 406 A.2d 448 (1979), this Court held “that where the absent witness is also a co-defendant and there is no showing that he will waive his privilege against self-incrimination and exonerate the appellant, the trial judge may deny the postponement of a trial.” Appellant, nevertheless, asserts that, because Jerquan’s trial was scheduled only two months after appellant’s trial, “there was a reasonable likelihood that [Jerquan] would cease to have a Fifth Amendment basis for refusing to testify after that point.” Appellant’s contention overlooks the fact that Jerquan’s Fifth Amendment privilege would not end with his trial, unless he was found not involved.

If Jerquan was found involved, his Fifth Amendment privilege would continue through disposition and all subsequent appeals. Any appeal to this Court could take anywhere from nine months to over a year. At the hearing on appellant’s motion for a continuance, there was no indication that Jerquan was going to enter a plea of involved. Therefore, because Jerquan was not going to waive his Fifth Amendment privilege to testify at appellant’s trial and there was no indication that he would enter a plea of involved, we conclude that appellant failed to show that Jerquan would be available to testify “within some reasonable time.” See Jackson, 214 Md. at 459 , 135 A.2d 638 .

Regarding the second Jackson factor, the State advised the trial court, at the hearing on appellant’s motion for a continuance, that it was willing to stipulate to the entirety of Jerquan’s recorded interview. Defense counsel responded, however, that “[t]here’s lots more to it than just the bare statement.” The following colloquy then ensued among the court, defense counsel, and the prosecutor: THE COURT: ... So, the reason I’m asking is if there is a specific proffer of testimony I’ll be glad to, you know, hear that and see if the State will stipulate to it. If ³¹⁰ there’s not a specific proffer of testimony, it seems to me that there’s a pretty comprehensive statement made by this potential witness and that that statement seemed to cover the Defense. [DEFENSE COUNSEL]: Your Honor—I’m sorry.

THE COURT: So, absent some specific proffer of something that’s not in that statement that the State is not willing to stipulate to, I’m inclined to deny the request for a postponement, so. [DEFENSE COUNSEL]: Okay, I can supply the date— Just one—The Court’s indulgence. That my client and what would be the co-defendant spent the night together. That they were together the entire day before this event occurred. That there was no discussion between them whatsoever about breaking into anyone’s house, including the particular victim in this particular case.

That my client was merely just standing there. That the whole idea in breaking into the house was solely that of the juvenile codefendant. [PROSECUTOR]: Except for the last statement— THE COURT: All right, well hold on a second. And are you telling, are you representing to me that you have a good faith basis to represent that that would be the testimony of this witness were he to testify? [DEFENSE COUNSEL]: I do based on the statement, based on conversations that I’ve had— THE COURT: All right. [DEFENSE COUNSEL]:—in this case. THE COURT: All right.

And [prosecutor], you take exception to some part of that proffer. [PROSECUTOR]: I wouldn’t, I have no problem with everything [defense counsel] said up to the point where he said, “and the whole idea was by [Jerquan],” and I don’t think, he can state the last quote again. ³¹¹ [DEFENSE COUNSEL]: And was solely, I think I said it was solely his idea and my client had no involvement with it whatsoever. [PROSECUTOR]: Well, you can, again, if you take out that last part I’ll stipulate. I think he said seven or eight things. That last part, how could we, you know, I can’t stipulate to that because you know, [appellant] is on the scene too. To put that information in front of the jury, and I don’t think, I think defense counsel may have a good faith belief to say that, but that’s kind of just a defense, with all due respect to Professor Drew, that’s a defense attorney just trying to across the board make a statement to influence the jury that will be sitting in a box in a couple of hours or a couple of months.

THE COURT: All right. [PROSECUTOR]: But I agree with everything up to that. THE COURT: Well, the “no involvement whatsoever” it ' seems to me is, you know, painting with a brush. The specifics are you said that he didn’t plan it. He didn’t participate in it.

They didn’t discuss it. And if the State is willing to stipulate that that would be the statement of this witness I think that’s sufficient. [DEFENSE COUNSEL]: And the idea was the juvenile’s? THE COURT: [The prosecutor] says that that’s part of his stipulation, if I understood it right. Yes, but [defense counsel is] going beyond what’s in the interview. [Defense counsel] is saying if I call him to testify he would say X. So, it’s not just, he’s not limiting it to what’s in that interview. [PROSECUTOR]: In the interview at one point [Jerquan] says, “I was the one who crawled through the screen.

My cousin didn’t do anything.” I mean, that is the essence of the defense. And he says in the interview, “My intention was just to look in the house.” ³¹² And he talks about I, I, I. He basically in the interview he says these things. “My cousin’s boyfriend,” you know, “my cousin [ (appellant) ] didn’t do anything.” So, I think that covers it when he says, “my cousin didn’t do anything.” To go beyond it and take that statement and say it five more times, you know, I am willing to stipulate ... but I’m not willing to take that one statement and have it parsed into 10 different ways to say it. Those are pretty powerful words. [Jerquan] says, “I was the one who crawled through the screen. My cousin [ (appellant) ] didn’t do anything.” [PROSECUTOR]: Your Honor, I