Donaldson v. State

ALPERT, J. Michael Donaldson, Jr., appellant, was convicted in the Circuit Court for Baltimore County of first degree murder, conspiracy to commit first degree murder, and the use of a handgun in a crime of violence. The court imposed a sentence of life in prison, without the possibility of parole, on the murder charge, a consecutive life sentence on the conspiracy charge, and a consecutive 20 year sentence on the handgun charge, all to be served consecutively to any outstanding and unserved Maryland sentences. This timely appeal followed. Appellant presents only one question for our review: Did the trial court err in allowing the video tapes of the police interviews of Michael Donaldson to be played for the jury?

We answer appellant’s question in the negative, and we thus affirm the judgments of the circuit court. FACTS 1 and LEGAL PROCEEDINGS The testimony adduced at trial showed that on March 22, 2009, appellant planned and participated in the execution style murder of his close friend, James Falcoun, allegedly because he discovered that Falcoun had had a sexual relationship with Joanne Severn, appellant’s girlfriend and the mother of two of his children. Appellant recruited two other friends, Eric Moss and Edward Harris, to carry out the murder, telling them he ⁵⁸⁵ wanted “his best home boy dead” for something he did with Joanne Severn. 2 Appellant lured Falcoun to a dark side street near appellant’s home on the pretense of wanting Falcoun to download some of his music to appellant’s cell phone. When Falcoun arrived with his girlfriend, Erica Burke, appellant got into Falcoun’s car.

Shortly thereafter, a man, later identified as Edward Harris, appeared at the driver’s window. Appearing to recognize the man, Falcoun rolled down the window as if to shake his hand. Instead, Harris pointed a gun at Falcoun and fired approximately six times. Eric Moss stood by the rear driver’s side door but did not participate in the shooting.

Falcoun was able to drive away from the scene of the shooting, but when he hit another car while attempting to reach safety, appellant fled the vehicle, leaving his cell phone behind. Burke used appellant’s cell phone to call 911. She then got into the driver’s seat and pulled the car into a nearby gas station parking lot to await help. After police and emergency personnel arrived at the scene, Falcoun was transported to the hospital, where he was later pronounced dead as a result of the gunshot wounds, the victim of a homicide.

During the ensuing investigation, appellant provided conflicting stories to police regarding his whereabouts before and after the crime. He was interviewed by Detectives David Jacoby and Mo Greenberg 3 on three occasions — March 23, 2009, March 31, 2009, and April 2, 2009 — and each interview was recorded for audio and video, although appellant was neither advised there was a camera in the room nor asked for ⁵⁸⁶ his permission to record the interviews. 4 Detective Jacoby denied being under an obligation to advise an interviewee that his statement may be recorded or to obtain his consent thereto. At the time of the first interview on March 28, 2009, appellant had not yet been developed as a suspect; he was interviewed as a witness present at the scene of the shooting of Falcoun. During that interview, appellant described the details of the crime and provided the name of someone named “Dazz,” whom he said might have been responsible for the shooting.

He was unable to think of a motive for the shooting, opining it was “a straight up beef.” During the first interview, appellant was “calm, very talkative.” Detective Jacoby also interviewed Joanne Severn on March 23, 2009, after she had left a message with the homicide office stating that she had information regarding Falcoun’s death. From the information obtained during that interview, Jacoby focused on appellant as a suspect. Appellant was next interviewed on March 31, 2009. On that occasion, he was read his Miranda rights, Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966); appellant signed a waiver of those rights and indicated he understood what he had read in the waiver.

During the second interview, appellant was “very talkative, a little more emotional,” than he had been during the first interview. Appellant told Jacoby that he maintained guns and ammunition at a storage facility and attempted to deflect suspicion from himself as a suspect by stating that if he had been involved in the shooting, he never would have gotten into the victim’s car because he could have been injured. 5 Following the second interview, appellant was released and driven home. ⁵⁸⁷ At the time of the third interview on April 2, 2009, appellant had been placed under arrest for the murder of James Fal-coun. Appellant was again advised of his Miranda rights, and he again signed the Miranda rights waiver form. Appellant did not ask for an attorney, he was not threatened or promised anything as an inducement to talk to police, and he was given food and water and breaks as requested.

During the third interview, Detective Jacoby confronted appellant with the facts of the case, including the many discrepancies in appellant’s stories and his omission of facts relating to the conversation with Joanne Severn in which he learned that she had had a sexual affair with Falcoun. Appellant’s demeanor differed from that exhibited during the first two interviews, as he was “[sjomewhat more vocal, tried talking over [Jacoby], argumentative.” Over objection, the DVD recordings of appellant’s three interviews with police were admitted into evidence and played for the jury. Appellant chose to testify. He denied having any part in the shooting of James Falcoun.

Additional facts will be included as relevant. DISCUSSION Appellant alleges that the trial court erred in allowing the jury to view, and admitting into evidence, the DVD recordings of the three interviews he gave to police, on the ground that he was unaware that the interviews were being taped, and he had not given his consent to being recorded. While not disputing the admissibility of the statements themselves, nor suggesting that his statements had been given in any violation of Miranda , he contends that his argumentative and defensive manner with Detective Jacoby, particularly during the April 2, ⁵⁸⁸ 2009 interview, was prejudicial and incriminatory and likely to have influenced the jury in violation of his Miranda right against compelled self-incrimination. The “emotional tenor of the interview,” he says, added evidentiary value that would not have been present had the statement simply been transcribed and read to the jury.

The State counters that Detective Jacoby’s recitation of appellant’s Miranda rights and appellant’s voluntary waiver of those rights was all that was required to allow the admission of the statements in any format. The Miranda warning that advised appellant that anything he said could be used against him in a court of law was sufficient to put him on notice that the words he used during the interviews might be admitted at trial. An additional advisement that the interviews were being recorded, the State continues, was not required, and appellant cites no authority to the contrary. Prior to trial, defense counsel moved in limine to exclude the recordings of the statements appellant gave to Detective Jacoby, particularly during the third interview 6 : Also with reference to a video, there again, we are not challenging proper advice of my client’s Miranda warnings, we are not challenging the statement of my client to the police.

There were a number of interviews with my client all of which were videotaped at headquarters of the police on Joppa Road in Towson. In the third interview in questioning [sic], my client[ 7 ] made various accusations, began raising his voice, standing, pointing at my client. My client, in response, did the same. Both parties used foul language that was not appropriate and the fact that most, the fact that most of the third interview is the detective accusing my client of committing this murder and my client denying it, ⁵⁸⁹ which is the same he did [sic] in the first two videos.

There is no new evidence in the third video other than the detective by his actions caused my client to become very agitated and although I am not challenging what my client actually said, my client was not informed that he was being videotaped and that that videotape would be used in the trial against him and shown to a Jury. Therefore, he did not consent to that, was not aware of it, and obviously, if he knew that his actions being videotaped were going to be shown to the Jury, would probably not have acted in the same way. For all those reasons, I ask those tapes not be shown to the jury. Counsel later added that the reason he was objecting to the recordings was because “the police purposely made my client lose his temper.” The trial court reserved ruling on the motion until it could view the edited portions of the recordings in camera.

Due to technical difficulties with the playing of the recordings, the issue was not resolved until after the trial had commenced. Prior to Detective Jacoby’s testimony on the fourth day of trial, defense counsel again raised the issue of the playing of the recordings before the jury: [Defense counsel]: Yes, Your Honor. The State intends to introduce through the testimony of Detective Jacoby portions of my client’s statement to him over three different dates. He was interviewed three separate times.

There’s a total of, I think it’s just under 20 hours of tapes, interviews, of which the State has narrowed it down to around two. My objection, first, I would make it clear for the record, we are not challenging Miranda, we are not challenging voluntariness of my client’s statements. What Pm challenging is my client, when he was advised of his rights, was not advised that the interviews were being taped and recorded and that those recordings would be shown to the jury. My particular emphasis would be on the third interview in which the Detective raised his voice in laying out the ⁵⁹⁰ detective’s opinion as to what happened.

My client in response raised his voice. At one point they were standing almost nose to nose, yelling, well their voices raised quite loudly at each other, my client denying everything and the Detective giving his version. I think the actions of my client, particularly in the third tape recording are highly prejudicial. I don’t believe he would use the foul language that he used, which was quite extensive [had he] known that that was going to be shown to the Jury during his trial.

And that certainly is unduly prejudicial to him and would deny him a fair and impartial trial. For these reasons, I would ask that those three disks not be shown to the jury. I have no objection to the statements made by my client on those disks being read or related to the Jury, but strongly object to the introduction of the video. After noting it had had some difficulty viewing the recording of the March 23, 2009 interview and stating it reserved its right to change its ruling if anything on that tape were relevant to the ruling, the court ruled as follows: THE COURT: ...

Miranda is indeed not challenged. Vol-untariness of these statements is not challenged. But the one thing I noted is that with regard to the April 2nd, 2009, interview of Mr. Donaldson, the detective went over the Miranda form including a disclosure to him in writing and orally that anything he said, if he chose to speak during the course of that interview, could be used against him in a court of law. I think that suffices to place any reasonable interviewee on notice that the words during the course of any statements they give can come up again in court and I know of no legal requirement that necessitates disclosure that an interview is being audio taped or video taped.

If that is going to be the law, is not now the law as I understand it, and I independently, after reviewing at least the March 31st and April 2nd interviews, don’t determine there is anything unfair or otherwise objectionable that went on during the course of these recorded interviews that ⁵⁹¹ would cause me to determine that the April 2nd, 2009, the interview should not be played for the jury. Thereafter, Detective Jacoby testified as to how he became involved in the case and regarding the interviews he conducted with appellant. Prior to the State’s moving its exhibit 30, the DVD recording of the March 23, 2009 interview, into evidence, defense counsel lodged a general objection, which the court overruled. The recording was played for the jury.

Defense counsel again offered a general objection to the admission of State’s exhibit 32, the DVD recording of the March 31, 2009 interview, which was again overruled. The second recorded interview was played for the jury. When the State moved to admit exhibit 35, the DVD recording of the April 2, 2009 interview, into evidence, defense counsel offered a further objection, that is, that on the tape, Detective Jacoby gave his opinion as to what he believed were the facts of the case, which would not be admissible through his testimony. The State countered that the detective’s statements were not being offered for the truth of the matters asserted therein, but