Hill v. State

BYRNES, Judge. Appellant, Stephen Hill, was charged with first and second degree assault, use of a handgun in commission of a crime of violence, and carrying a handgun. A jury sitting in the Circuit Court for Prince George’s County found him guilty of second degree assault. Appellant was sentenced to five years incarceration with all but two years suspended.

This sentence was later reduced to eighteen months, to be served on home detention. On review, appellant presents the following questions, which we have rephrased slightly: I. Did the motion court err in failing to suppress the items seized from appellant’s home?

II

Did the trial court abuse its discretion in denying appellant’s motion for mistrial?

III

Did the trial court abuse its discretion in admitting “other crimes” evidence?

IV

Was the evidence sufficient to sustain appellant’s conviction? For the reasons that follow, we shall affirm the judgments. FACTS AND PROCEEDINGS On September 4, 1998, appellant purchased a 9 millimeter handgun from the Sports Authority, a store located in Green ³³⁶ belt. Approximately five weeks later, appellant used a gun in an attempt to force his mathematics instructor at the University of Maryland into giving him an “A” for the course.

Alvaro Alvarez-Parrilla (Alvarez), appellant’s instructor, shared an office in the Mathematics Building at the University of Maryland with Casey Cremins. At trial, Cremins testified that on October 12, 1998, at approximately 12:00 p.m., he and Alvarez were in their office when appellant knocked on the door, entered, and asked Cremins if he would excuse them. Alvarez began to protest, but Cremins stated that he had to leave anyway and then departed. Cremins returned to the office approximately fifteen minutes later and found the door closed.

He knocked and, hearing no reply, opened the door. Appellant and Alvarez were still in the office. Cremins asked if they needed more time. Both men indicated that they did.

Cremins again left the office. He returned approximately one-half hour later, and found the office empty. Alvarez testified that at the time of the incident he was a graduate student and teaching assistant at the University. Appellant was a student in one of his mathematics classes.

Alvarez stated that on Wednesday, October 7, 1998, he gave a midterm examination, which appellant missed. That Friday, following the class in which Alvarez returned the exams, appellant approached Alvarez and stated that he had missed the midterm examination and that he needed to talk to him. Alvarez told appellant to go ahead and tell him about it, but appellant responded that he wanted to speak with Alvarez at a later time. Alvarez told appellant that he could come to his office on the following Monday, October 12.

On October 12, at approximately 12:15 p.m., appellant came to Alvarez’s office. Alvarez testified that his office mate, Cremins, also was present and that appellant asked Cremins to step outside. Alvarez stated that he did not think that it was proper for appellant to ask Cremins to leave his own office. For that reason, he told appellant that if they needed ³³⁷ to discuss a personal matter, they would go elsewhere.

Cre-mins then stated that he would leave the office. Alvarez offered appellant a seat and asked him what the problem was. According to Alvarez, appellant stated that he did not want Alvarez “to be upset or surprised[,]” but that either Alvarez was going to give him an “A” in the course or appellant would kill him. As appellant spoke, he raised his jacket to reveal a pistol hanging in a holster.

Appellant then let the jacket drop. Alvarez testified, “I feared for my life immediately.” Appellant repeated that Alvarez would give him an “A” for the class or he would kill Alvarez. Appellant also stated that if Alvarez went to the police or to anyone else, appellant would dismember him and dump his remains in the river. Alvarez testified that appellant “went on and on about the details of how he would get rid of my body.” At first, Alvarez responded by telling appellant that he could not give him a specified grade in the course because he was only a teaching assistant and others also were responsible for grading the course work.

Alvarez explained that he was trying to distance himself, in appellant’s mind, from the responsibility for grading the course because he was in fear for his life. Appellant asked Alvarez, “[S]o what is it that you want more, do you want your life or do you want to give me an A in the course?” When Alvarez inquired why appellant was doing this, appellant responded, “[T]his is the way we mobsters operate.” Alvarez testified that appellant also stated that “he had decided to not do the course work and just take the easy way out and try to get his A through threatening me.” Alvarez testified that, at one point, Cremins returned to the office and Alvarez indicated to him that they were still busy. Alvarez explained that he did so because he was concerned for everyone’s safety. He then decided that the best approach would be to accede to appellant’s demands.

He told appellant to take the examinations for the course, and that he later would change the grades to give him an A. Appellant agreed to that approach and then left the office. ³³⁸ Alvarez testified that he was afraid to call the police right away because he did not know if appellant was waiting outside his door. Alvarez waited a while and then gathered up his books as if he were going to class. Instead, he went to see Dr. Scott Wolpert, the undergraduate chairman. When Alvarez told Wolpert that a student had threatened him with a gun, Wolpert called the police.

The University of Maryland Police arrested appellant on October 14, 1998, as he drove toward the campus. In a search incident to the arrest, the police recovered ten rounds of 9 millimeter ammunition from appellant’s front pants pocket. Appellant told the officers that he also had a weapon in the vehicle. From the front passenger seat, the police recovered a gym bag, which contained a gun box.

A 9 millimeter semiautomatic pistol was in the gun box. The pistol contained a fully loaded magazine. Three spare magazines, also fully loaded, were in the gun box. On the same date, a search warrant was executed at appellant’s residence.

Among the items seized from appellant’s bedroom were ammunition for a 9 millimeter handgun and a holster. Appellant testified in his own defense. He stated that he had asked to meet with Alvarez to discuss the examination that he had missed and that they agreed to meet in Alvarez’s office on Monday, October 12. Appellant went to Alvarez’s office at the appointed time and found Alvarez and Cremins there.

Appellant testified that he asked if he could speak with Alvarez in private. Alvarez responded that the request was not appropriate, because the office belonged to Cremins as well. Cremins left the office anyhow, and appellant sat down. According to appellant, Alvarez engaged him in small talk.

Appellant then mentioned that he had missed the previous examination and said that he did not have a documented excuse. He asked Alvarez whether there was any way he could receive extra credit or make up the exam. Alvarez replied by saying that he wanted oral sex in exchange for the extra credit. Appellant told Alvarez that he was “straight” ³³⁹ and that he had “no interest in that type of behavior.” Alvarez then told him that he would fail the course, to which appellant replied, “I own a nine millimeter and if you try that I will shoot you.” Appellant also told Alvarez that he was going to withdraw from the course.

He then left the office. Appellant stated that he did not report what Alvarez had said to him because he was embarrassed about it. DISCUSSION I. Appellant contends that the motion court erred in denying his motion to suppress the evidence seized from his residence because the University of Maryland Police lacked authority to search his home and the court failed to make adequate findings in support of its ruling. We will address each of appellant’s contentions and set forth his arguments in further detail.

We begin, however, by recounting the testimony taken at the hearing on appellant’s motion. Standard of Review In reviewing the denial of a motion to suppress, we consider only the record of the suppression hearing and not of the trial itself. Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749 (1987) (citing Jackson v. State, 52 Md.App. 327 , 332 n. 5, 449 A.2d 438 , cert. denied, 294 Md. 652 (1982)); Aiken v. State, 101 Md.App. 557, 563 , 647 A.2d 1229 (1994), cert. denied, 337 Md. 89 , 651 A.2d 854 (1995). We extend great deference to the fact finding of the suppression court and accept the facts as found, unless clearly erroneous.

Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Perkins v. State, 83 Md.App. 341, 346-47 , 574 A.2d 356 (1990). We must give due regard to the court’s “opportunity to assess the credibility of the witnesses.” McMillian v. State, 325 Md. 272, 282 , 600 A.2d 430 (1992). In addition, we review the evidence in the light most favorable to the prevailing party, the State. Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Cherry v. State, 86 Md.App. 234, 237 , 586 A.2d 70 (1991).

Nevertheless, as to the ultimate, concluso- ³⁴⁰ ry fact of whether the search was valid, this Court must make its own independent constitutional appraisal by reviewing the law and applying it to the facts of this case. Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Perkins, 83 Md.App. at 346 , 574 A.2d 356 . The Hearing on the Motion to Suppress Officer John Cassady of the University of Maryland Police obtained a search and seizure warrant for appellant’s residence. The warrant was executed on October 14, 1998.

According to Officer Cassady, appellant’s residence was located in Riverdale, in Prince George’s County, and not on the University campus. The officer also stated that as a member of the University of Maryland Police force, he had limited police authority in Prince George’s County. Officer Cassady testified that any police authority he had in Riverdale came from the concurrent jurisdiction agreement between the University of Maryland Police and the Prince George’s County Police Department. He was not sure of the extent of that agreement.

University of Maryland Police Detective Jeffrey Peters was one of the officers who executed the warrant at appellant’s residence. Detective Peters seized the items from appellant’s home and, on November 4, 1998, filed the return on the warrant. Detective Peters testified that appellant’s mother was present when the warrant was executed and that Captain Givonsky, also of the University of Maryland Police, explained the warrant to her and gave her the property receipt. Detective Peters further testified that Riverdale was not within the concurrent jurisdiction of the University of Maryland Police, and that two detectives from the Prince George’s County Police Department had accompanied the University of Maryland Police to appellant’s residence.

The University of Maryland Police actually executed the warrant, however. The most recent agreement on concurrent jurisdiction between the Prince George’s County Police Department and the University of Maryland Police force was admitted into evidence. ³⁴¹ Did the University of Maryland Police act without authority in obtaining and executing the search warrant for appellant’s residence? Appellant argues that the University of Maryland Police did not have authority to obtain or execute a search warrant in Riverdale, which was outside their concurrent jurisdiction. He maintains that the search warrant did not validly confer power to conduct the search on that police force.

He further takes the position that because the University of Maryland Police actually conducted the search, seized the property, explained what was happening to appellant’s mother, and filed the return, the search was under their personal and immediate direction. The Prince George’s County detectives, while present, merely occupied a passive role, and their presence did not make the search authorized. Appellant argues that the procedure carried out in this case was contrary to the dictates of Buckner v. State, 11 Md.App. 55 , 272 A.2d 828 , cert. denied, 261 Md. 723 (1971). The powers of the University of Maryland Police are set forth in Md.Code (1978, 1999 RepLVoL), § 13-601 of the Education Article [“Ed.”], which provides, in part: (b) Powers. — (1) A University of Maryland police officer is and has all the powers of a peace and police officer in this State.

(2) However, a University of Maryland police officer may exercise these powers only on property that is owned, leased, operated by, or under the control of the University of Maryland. The police officer may not exercise these powers on any other property unless: (i) Engaged in fresh pursuit of a suspected offender; (ii) Requested or authorized to do so by the chief executive officer or chief police officer of any county; (iii) Necessary in order to facilitate the orderly flow of traffic to and from property owned, leased, operated by, or under the control of the University of Maryland; or (iv) Ordered to do so by the Governor. ³⁴² Under Md.Code (1957, 1996 Repl.Vol., 1998 Cum.Supp.), Art. 27, § 551, (“ § 551”) a judge may “issue a search warrant directed to any duly constituted policeman, or police officer authorizing him to search.” 1 “The cardinal rule of statutory construction is to ascertain and carry out the intent of the legislature.” Montgomery County v. Buckman, 338 Md. 516, 523 , 636 A.2d 448 (1994). “The starting point in statutory interpretation is with an examination of the language of the statute. If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain ³⁴³ meaning, we will give effect to the statute as it is written.” Jones v. State, 336 Md. 255, 261 , 647 A.2d 1204 (1994). Stated another way, “[w]hen the words of the statute are clear and unambiguous, we need not go further.” State v. Thompson, 332 Md. 1, 7 , 629 A.2d 731 (1993). “But where a statute is plainly susceptible of more than one meaning, construction is required; in such circumstances, courts may consider not only the literal or usual meaning of words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment.” State v. Intercontinental, Ltd., 302 Md. 132, 137 , 486 A.2d 174 (1985).

In addition, “construction of a statute which is unreasonable, illogical, unjust, or inconsistent with common sense should be avoided.” D & Y, Inc. v. Winston, 320 Md. 534, 538 , 578 A.2d 1177 (1990). Finally, this Court will not read language into the statute when the language is not there. See Amalgamated Casualty Ins. Co. v. Helms, 239 Md. 529, 534-35 , 212 A.2d 311 (1965) (under guise of construction, court should not rectify possible omissions and remedy possible defects in statute).

Turning to the present case, we can discern no requirement in § 551(a) that the officer requesting the search warrant must have the powers of a police officer within the jurisdiction in which the premises to be searched are located. The only requirement is that the items to be seized be located in the jurisdiction of the issuing court. See Intercontinental, Ltd., 302 Md. at 140 , 486 A.2d 174 (“[T]he only jurisdictional requirement imposed by § 551(a) is that the property to be seized be located within the territorial jurisdiction of the issuing judge”). Indeed, the statute does not address who may apply for a warrant.

The only mention of police officers is that the court may issue a search warrant “directed to any duly constituted policeman, or police officer authorizing him to search.” § 551. We will not read into the statute an additional requirement that the officer applying for the warrant have the powers of a police officer within the jurisdiction in which the items to be seized are located. Under Ed. § 13 — 601(b)(1), the University of Maryland Police have “all the powers of a peace and police officer in this State.” That authority necessarily ³⁴⁴ includes the authority to apply for a search warrant. This is only logical, as the officer in whose jurisdiction the crime has been committed will have knowledge of the investigation necessary to complete the application and affidavit.

It also is clear that there was no error committed in the execution of the search warrant in this case. To be sure, appellant’s home in Riverdale was outside the concurrent jurisdiction of the University of Maryland Police. Yet, two Prince George’s County police detectives accompanied them to appellant’s residence. Appellant is correct that the University of Maryland Police conducted the search, spoke with his mother, and seized the items from appellant’s room.

That does not mean that the evidence seized was required to be suppressed. The Prince George’s County detectives may have played a limited role in executing the warrant, but the University of Maryland Police nevertheless were acting under color of authority of the Prince George’s County Police Department. Appellant refers us to Buckner v. State, 11 Md.App. 55 , 272 A.2d 828 (1971), in support of his position. In Buckner , a State Police detective executed a search warrant at the defendant’s home.

He was assisted by a State Police sergeant, a Howard County Police sergeant, and an Assistant State’s Attorney. When the detective and the Assistant State’s Attorney went into one defendant’s bedroom, the Assistant State’s Attorney recovered a small metal box from the closet, called the detective’s attention to it, and placed the box on the bed. The defendant alleged that the seizure of the box and its contents were illegal, because the Assistant State’s Attorney was not a duly constituted police officer under § 551(a). The Court held that because the search “was under the personal and immediate direction” of the detective, and the detective seized the contents of the box, the fact that the Assistant State’s Attorney was not a duly constituted police officer did not invalidate the search and seizure.

Buckner, 11 Md.App. at 81 , 272 A.2d 828 . Appellant maintains that, under Buckner , the fact that the University of Maryland Police Officers were the primary ³⁴⁵ actors in executing the warrant made the seizure illegal under § 551(a). We disagree. Here, unlike in Buckner , the individuals who conducted the search and seizure were police officers.

Although they were out of their jurisdiction, they were accompanied by Prince George’s County Police detectives. We decline to read Buckner as authority for invalidating the search and seizure. Even if we were to conclude that § 551(a) was violated, moreover, it is clear that suppression of the seized evidence was not a possible remedy for that violation, in any event. Section 551 does not remotely involve, explicitly or implicitly, the Exclusionary Rule of evidence.

Anne Arundel Co. v. Chu, 69 Md.App. 523, 528 , 518 A.2d 733 (1987), aff'd, 311 Md. 673 , 537 A.2d 250 (1988). See also Pearson v. State, 126 Md.App. 530, 544 , 730 A.2d 700 (1999) (“There is no sanction of exclusion of evidence for a violation of § 551 and such a sanction would be proper only when a violation of the statute coincidentally is also a violation of the Constitution.”) (internal citation omitted). Only three flaws in the warrant allow for return of the property — that the property taken was not the same as that described in the warrant, that there was no probable cause for believing the existence of the grounds on which the warrant was issued, and that the property was taken under a warrant issued more than 15 days prior to the seizure. § 551(a). Appellant makes no claim that probable cause was lacking or that there was any constitutional violation.

Accordingly, the motion court committed no error in denying appellant’s motion to suppress. Did the motion court fail to make adequate findings in support of its ruling? In denying appellant’s motion to suppress, the motion court stated that it found “that the University of Maryland Police [were] operating under and pursuant to a valid warrant that had been issued.” ³⁴⁶ Appellant claims that this ruling did not answer his arguments that the University, of Maryland Police did not have authority to execute the warrant and that the warrant was not valid. Appellant further argues that the court failed to determine whether the University of Maryland Police had authority to exercise police powers in Riverdale and whether the court relied on the evidence that two Prince George’s County police detectives accompanied the University of Maryland Police during the search.

Under Maryland Rule 4-252(g), in ruling on a motion to suppress evidence, “[i]f factual issues are involved in determining the motion, the court shall state its findings on the record.” “Where, however, there is no dispute regarding the relevant facts, or if the trial court’s resolution of an essential fact is implicit in its ruling, then no express findings are necessary.” Simpson v. State, 121 Md.App. 263, 276 , 708 A.2d 1126 (1998). Evidence was presented that the University of Maryland Police had jurisdiction on the University campus and within the confines of the concurrent jurisdiction agreement with the Prince George’s County Police Department. There was no evidence presented that Riverdale fell within the concurrent jurisdiction of the University of Maryland Police. Officer Cassady testified that there was a concurrent jurisdiction agreement, but did not know the limits of that agreement.

In addition, Detective Peters testified that Riverdale was not within the University of Maryland Police force’s concurrent jurisdiction. The limits of the concurrent jurisdiction were set forth in the agreement admitted into evidence. There was no dispute that Riverdale was outside the jurisdiction of the University of Maryland Police. The only manner in which the court could deny the motion was to conclude that the warrant was validly obtained by the University of Maryland Police and that the two Prince George’s County police detectives present during the search satisfied the