Graham v. State

McAULIFFE, Judge. Appellant Melvin Graham was charged with storehouse breaking and theft of $300.00 or more for allegedly stealing office equipment and supplies from a construction site office trailer. Following a jury trial in the Circuit Court for Baltimore City, Graham was found not guilty of storehouse breaking but guilty of theft of $300.00 or more. He was sentenced to a seven-year term of imprisonment for the theft conviction.

Before the Court of Special Appeals, Graham alleged three errors: first, that the trial court erroneously denied his motion to suppress evidence; second, that the trial court abused its discretion by failing to fully disclose to counsel the contents of a jury note; and third, that the evidence was insufficient to support the theft conviction. This Court issued a writ of certiorari on its own motion prior to consideration of the case by the Court of Special Appeals. I. Before trial, Graham moved to suppress items seized from him as a result of his arrest, claiming that they were the product of an illegal detention that violated his rights under the Fourth Amendment to the United States Constitution. The items seized included a box of electronic equip ⁴⁰² ment taken from the office trailer as well as Graham’s shoes and gloves which were seized for identification purposes.

At the suppression hearing, the testimony and arguments focused on two questions: 1) did the police actually detain Graham at some time before his arrest, and 2) if so, did the police have a lawful basis for the detention at that time? To decide these issues, we review the facts of the case as presented at the suppression hearing. Sergeant Thomas Cutler of the Baltimore City Police Department was the only witness at the suppression hearing. He testified that at approximately 8:15 a.m. on Sunday, 6 May 1990, he and his partner, Officer Rodney George, were on routine patrol in a marked police car when they noticed Graham and another man, Timothy Allen, walking east on Monument Street near its intersection with Calvert Street in Baltimore City.

The officers were at a distance behind the two but noticed that Graham was carrying a cardboard box with “computer-type” equipment protruding from the top. The officers circled the block ahead of the two men and drove west on Monument Street toward them. The officers then stopped, and approached Graham and Allen on foot. Before the officers had spoken, Allen began to walk faster and away from Graham, stating that he was not with Graham and did not know what Graham was carrying.

Graham responded by denying that the box was his and saying that he was carrying it for Allen. After a brief pause, Graham then stated that they had found the box of equipment in a dumpster. Sergeant Cutler testified that, during the course of these remarks, he and Officer George “basically were just shaking our head[s], you know, at that time. You could tell, you know, neither one of them didn’t [want] to own up to it so we didn’t believe them.” He also stated that Graham and Allen had stopped walking and were now standing next to the officers without having been restrained or commanded ⁴⁰³ to stop in any way.

Sergeant Cutler testified that Graham had put the box down when he stopped walking and that the officers noticed the words “SPC Concrete, Inc.” were printed on the side of the box and on a sticker attached to a piece of the equipment in the box. The officers could see that about a half a block away there was a construction site marked with a sign reading “SPC Concrete, Inc.” Sergeant Cutler testified that several additional facts were immediately apparent to him and his partner: neither Graham nor Allen were wearing clothes like those of a construction worker; Graham’s shoes and clothing were muddy despite the fact that the street was dry; and Graham was also wearing heavy work gloves though it was a warm day. Up to this time, neither Sergeant Cutler nor Officer George had asked any questions or directed the movements of Graham or Allen. Sergeant Cutler testified that about one minute into this initial contact Officer George Fugate arrived on the scene in a marked police car.

Sergeant Cutler said he then sent Officer Fugate to the construction site to investigate whether a break-in had occurred there. According to Sergeant Cutler, Officer Fugate found a security guard at the site, and together they discovered that the office trailer had been broken into. The locked door to the trailer had been pried open and items from the office appeared to be missing. The security guard told Officer Fugate that he had last checked the site at 7:15 a.m. and all had been secure.

While Officer Fugate was investigating the construction site, Sergeant Cutler and Officer George remained with Graham and Allen. The officers asked the two men for their names, addresses, and dates of birth, which Graham and Allen provided after some hesitation. Sergeant Cutler testified that at most six minutes passed from when he and Officer George initially confronted Graham and Allen until the time when Officer Fugate reported from the construction site that a breaking and entering had recently occurred there. After receiving this information, ⁴⁰⁴ Sergeant Cutler ordered Graham and Allen arrested.

The officers seized the box of equipment and Graham’s gloves. Graham’s tennis shoes were seized later that day when footprints matching the soles of Graham’s shoes were found on the muddy ground near the office trailer. At the suppression hearing, Sergeant Cutler termed the encounter a “field interview.” He denied that the two were detained before they were officially arrested, stating that none of the officers had told Graham or Allen to stop at any time. According to Cutler, the officers simply approached the two and asked questions after Graham and Allen had blurted out inconsistent statements.

On appeal, Graham argues that, notwithstanding Sergeant Cutler’s testimony, the officers’ actions necessarily communicated to Graham and Allen that they were not free to leave. In particular, Graham points to Cutler’s actions of calling for back-up 1 and sending Officer Fugate to investigate the construction site as communicating to Graham that he would be held at least until the officers learned whether a break-in had occurred at the site. As Graham notes, this Court has held that an individual “may be restrained in a police dominated atmosphere by physical force or a show of authority.” Jones v. State, 319 Md. 279, 287 , 572 A.2d 169 (1990) (emphasis added). Graham acknowledges that a detention short of an arrest is lawful if the police have a reasonable, articulable suspicion for such action.

Terry v. Ohio, 392 U.S. 1, 21 , 88 S.Ct. 1868, 1879 , 20 L.Ed.2d 889 (1968). He argues, however, that the facts as they were known to the police before Officer Fugate returned from the construction site did not reasonably warrant detaining him against his will. ⁴⁰⁵ To support this position, Graham analogizes his case to the facts of Jones, in which this Court found that an unreasonable detention had occurred when a police officer commanded a bicyclist to stop after he saw the latter riding down a street at 3:20 a.m. while carrying clothing on hangers wrapped with plastic. The officer had known that a dry cleaning establishment was located about six blocks away and that recently there had been burglaries in the area. The officer, however, had no knowledge of any specific crimes having been committed during the early morning hours nor of any burglaries having occurred in the area that night.

We concluded from these facts that “as we see it, [the officer’s] stop of Jones was based on a ‘hunch’ that Jones may be carrying clothing from the dry cleaners located nearby. Mere hunches are insufficient to justify the stop of a citizen riding a bicycle on a public street.” Jones, supra, 319 Md. at 288 , 572 A.2d 169 . Graham argues that Sergeant Cutler similarly had no knowledge of any crime having been recently committed in the area and that the facts of which the Sergeant was aware were not sufficient under Jones to justify an investigative detention. Graham concludes that his subsequent arrest and the seizure of items possessed by him were improper because all evidence which resulted from the initial unlawful detention was tainted. 2 The State responds by arguing that no detention in fact occurred before the arrests were made.

The State distinguishes Jones by noting that the officers here never told Graham or Allen to stop but only approached the two, who spoke on their own volition and never asked to leave. The officers then merely asked a few preliminary questions over a brief period of time. The State claims there was no other show of authority, such as a police car siren, flashing lights, a drawn gun, or a frisk. Based on these facts, the State ⁴⁰⁶ asserts that Graham voluntarily chose to cooperate with the police, and thus was not detained for Fourth Amendment purposes until his actual arrest.

The State further emphasizes that the Supreme Court has made clear that police questioning does not by itself constitute a detention under the Fourth Amendment: ‘[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.’ Florida v. Bostick, 501 U.S. -, 111 S.Ct. 2382, 2386 , 115 L.Ed.2d 389 (1991), quoting Florida v. Royer, 460 U.S. 491, 497 , 103 S.Ct. 1319, 1323 , 75 L.Ed.2d 229 (1983). 3 The State concludes by suggesting that even if Graham is found to have been detained before his arrest, the police had a lawful basis for that detention. Our analysis begins by recognizing that under established Fourth Amendment law the police officers did not effect a seizure of Graham and Allen merely by exiting their police vehicle and approaching the two. Bostick , ⁴⁰⁷ supra, 111 S.Ct. at 2386 ; California v. Hodari D., 499 U.S. -, 111 S.Ct. 1547, 1550-52 , 113 L.Ed.2d 690 (1991); Florida v. Rodriguez, 469 U.S. 1, 5-6 , 105 S.Ct. 308, 310-11 , 83 L.Ed.2d 165 (1984); INS v. Delgado, 466 U.S. 210, 216 , 104 S.Ct. 1758, 1762 , 80 L.Ed.2d 247 (1984); Royer, supra, 460 U.S. at 497 , 103 S.Ct. at 1323 ; United States v. Mendenhall, 446 U.S. 544, 554-55 , 100 S.Ct. 1870, 1877-78 , 64 L.Ed.2d 497 (1980). This is not a case where the police either physically detained a suspect, immediately commanded him to stop, or even shouted out their identity to him.

See Jones, supra, 319 Md. at 281 , 572 A.2d 169 ; Anderson v. State, 282 Md. 701, 706 , 387 A.2d 281 (1978); Timms v. State, 83 Md.App. 12, 14 , 573 A.2d 397 (1990). Sergeant Cutler gave uncontradicted testimony at the suppression hearing that he and Officer George approached Graham and Allen without restraining or speaking to them in any way. If we assume, however, that Graham was seized after the officers approached him, then that seizure would have been lawful only if founded upon specific, articulable facts which led the officers to reasonably conclude “that criminal activity may be afoot.” Terry, supra, 392 U.S. at 30 , 88 S.Ct. at 1884 . We believe that the facts as known to the officers before any seizure conceivably occurred reasonably suggested that criminal activity was not only afoot but was galloping ahead at a steady pace.

Before Sergeant Cutler and Officer George had said a word, several suspicious facts became evident. First, Allen had started to walk faster and away from Graham once he saw the police. Second, the two men made contradictory statements, each denying ownership or knowledge of the box of electronic equipment Graham was carrying. Graham even contradicted himself, first saying that the box of equipment was Allen’s but then saying that they had both found it in a dumpster.

Third, the box and the equipment were each labelled with SPC Concrete Inc.’s name, and the officers saw that a construction site bearing the name “SPC Concrete, Inc.” was located only half a block away. Fourth, neither Graham nor Allen appeared dressed as a construe ⁴⁰⁸ tion worker, and, since it was early on a Sunday morning, it did not appear to be a workday. Fifth, Graham’s clothing and tennis shoes were muddy despite the fact that the street was dry. And sixth, Graham was wearing gloves on a spring day which, as the trial judge stated, “was too warm for gloves.” As this Court has made clear, the level of suspicion necessary to constitute reasonable, articulable suspicion “ ‘is considerably less than proof of wrongdoing by a preponderance of the evidence’ ” and “ ‘obviously less demanding than that for probable cause.’ ” Quince v. State, 319 Md. 430, 433 , 572 A.2d 1086 (1990), quoting United States v. Sokolow, 490 U.S. 1 , 109 S.Ct. 1581, 1585 , 104 L.Ed.2d 1 (1989).

When evaluating the validity of a detention, we must examine “the totality of the circumstances — the whole picture.” United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981). We find that in this case the facts taken together amount to more than the “minimal level of objective justification” required to warrant a brief detention. Delgado, supra, 466 U.S. at 217 , 104 S.Ct. at 1763 . Sergeant Cutler and Officer George were immediately confronted with an array of facts which led them to reasonably suspect that Graham and Allen were engaged in some kind of criminal activity.

Thus even if the officers did in fact detain the two after making the observations we have detailed, that detention would have been lawful, and the subsequent arrest and seizure of property would not be tainted. The motion to suppress was properly denied by the trial court.

II

Graham next contends that the trial court abused its discretion by refusing to disclose to the parties the full contents of a note from the jury sent after two hours of deliberation. The note stated that the jury could not reach a unanimous verdict and indicated the jury’s numerical split. The court disclosed to counsel all but the numerical split, stating that the jury had indicated its vote but that it would ⁴⁰⁹ be improper for the court to reveal it. The court then asked the parties what action they would propose, finally settling on giving the jury a modified Allen instruction 4 before requiring further deliberation.

Graham argues that the court, by not revealing the numerical split, improperly put him in a position of not knowing what option to recommend to the court. The State argues alternatively that 1) this issue should not be reviewed on appeal because defense counsel did not properly preserve it at trial, and 2) the trial judge properly refused to disclose the numerical split. ⁴¹⁰ We first review the discussion between the court and the parties concerning the jury note: THE COURT: Counsel, I have received a communication from the jury which indicates that they are split in that they cannot, I am not saying how, that they cannot reach a decision, and I thought I should share that with you. What do you want me to do? It is three twenty-five.

The jury has been deliberating for quite awhile. Although they should not have, they indicated their vote. I will not share that with you, of course. THE STATE: Your Honor, the State would request if possible that they just try to continue negotiating at least for an hour or so.

THE COURT: What about a modified Allen charge? You want me to do that or not? THE STATE: I am sorry, I couldn’t hear what you said. THE COURT: You want me to give a modified Allen charge or not?

DEFENSE COUNSEL: If I may, your Honor? THE STATE: Yes, the State would request that. THE COURT: Mr. Stabile [defense counsel]. DEFENSE COUNSEL: Well, Judge, they have been out almost two hours.

Mr. Graham’s desire is to accept a hung jury at this point. THE COURT: Is to do what? DEFENSE COUNSEL: Accept a hung jury at this point. THE COURT: Well, I am not going to hang the jury.

That is not one. of the options. I am not about to excuse the jury. I think it. is probably a good idea, considering the short nature of the trial, it took only a few hours to try and considering the fact that they have been out since one-thirty which means they have been out two hours, I would suggest a modified Allen charge to see where we are. By the end of the day we can make a decision as to whether we bring them back or not.

Is that fine? DEFENSE COUNSEL: That is fine. ⁴¹¹ Ordinarily we will not decide an issue unless it plainly appears by the record to have been raised in or decided by the trial court. Maryland Rule 8-131(a). Unless Graham had no opportunity to do so, he is required to have made known to the court his objection to the ruling at the time the ruling was made.

Maryland Rule 4-323(c). The record in this case reflects that defense counsel had an adequate opportunity to request that the trial judge disclose the entire contents of the note and to object to the failure of the trial judge to do so. Instead, with full knowledge that the information disclosing the numerical split of the jury was contained in the note and that the trial judge did not intend to disclose it, defense counsel interposed no objection and