Jones v. State

MOYLAN, Judge. The appellant, Tyrone Joseph Jones, was initially charged with 1) murder, 2) the use of a handgun in the commission of a ⁶⁶⁰ crime of violence, and 3) conspiracy to murder. A Baltimore City jury, presided over by Judge John N. Prevas, acquitted him of murder and the use of a handgun but convicted him of conspiracy to murder. On this appeal, he raises the five contentions 1) that the evidence was not legally sufficient to sustain the conviction for conspiracy to murder; 2) that Judge Prevas erroneously denied his motion to suppress his statement to the police; 3) that Judge Prevas erroneously refused to “dismiss” the case because of two alleged discovery violations by the State; 4) that Judge Prevas erroneously admitted both expert and lay opinion evidence; and 5) that Judge Prevas erroneously admitted hearsay evidence identifying the appellant as a perpetrator of the crime.

Inferring an Agreement to Act in Concert From the Concerted Nature of the Action Itself The appellant’s first contention is that the evidence was not legally sufficient to support the conspiracy conviction. In conspiracy trials, there is frequently no direct testimony, from either a co-conspirator or other witness, as to an express oral contract or an express agreement to carry out a crime. It is a commonplace that we may infer the existence of a conspiracy from circumstantial evidence. If two or more persons act in what appears to be a concerted way to perpetrate a crime, we may, but need not, infer a prior agreement by them to act in such a way.

From the concerted nature of the action itself, we may reasonably infer that such a concert of action was jointly intended. Coordinated action is seldom a random occurrence. A thin line may sometimes separate 1) joint participation as a second-degree principal aiding and abetting the ⁶⁶¹ first-degree principal in the perpetration of a crime and 2) an antecedent agreement to cooperate in that fashion. Theoretically, one might decide on the spur of the moment to aid and abet another in a crime without ever having been solicited to do so and without any even implicit understanding between the parties.

In such a ease, there would be joint participation but no antecedent conspiracy. More frequently, however, joint participation by two or more codefendants and a conspiracy, to wit, a mutual understanding, jointly to participate overlap. The former gives rise at least to a permitted inference of the latter. In this case, it is the evidentiary fact of the appellant’s joint participation with another in a murder that is the predicate for the permitted inference of an antecedent agreement between the two so to coordinate their efforts.

The victim, sixteen-year-old Tyree Wright, was shot and killed at approximately 10:30 P.M. on June 24, 1998, as he sat on the outdoor steps of his family’s home at 1701 East Federal Street in Baltimore. Three separate witnesses, all family members, described how two men emerged from an adjacent alley together and how one of the two produced a silver-plated revolver and fired several shots. The circumstances of the approach and of the shooting were such that it was a reasonable inference that the two men were acting in concert. A key witness was Emanuel “Man” Johnson, the fourteen-year-old brother of Tyree Wright.

Emanuel Johnson described how he was sitting on the steps with his family members when the two strangers suddenly emerged from an alley. His attention was drawn to them because of “the way they came up.” As Emanuel saw the light of the gunfire, he saw the second man standing near the shooter. Based upon the clothing the second man was wearing, Emanuel later, both in court and in an on-the-street show-up, identified the appellant as that second man. Emanuel described how the two men, immediately after the shooting, turned and ran together “back down the alley.” Richard Uzzell, the victim’s stepfather, testified as to the approach of the two strangers.

He stated that they “had ⁶⁶² come up through the alley, snuck up by the alley on Federal Street on the left-hand side of the alley.” David Michael Brown, the victim’s uncle, was very specific in describing how the two men acted. He testified as to how “two guys come up the alley [who were] stooped down.” He repeated how both men were “stooped down” as they emerged from the alley. He demonstrated for the jury the firing stance taken by the two. He described how they were “within arm’s reach” of each other and “side by side, like on an angle like.” He recalled how “[t]hey came out — and swung around like that.” After the police arrested the appellant a few minutes after the shooting, approximately six blocks away, swab samples were taken from his left hand.

A police expert in forensic trace evidence analysis testified that tests established that the swabs revealed gunshot residue that would have been deposited on the appellant’s hand “from either firing a gun or having your hand near a gun when it went off.” In denying the appellant’s motion for a judgment of acquittal, Judge Prevas concluded: So every version that we’ve heard of the incident, the one coming from the Defense and the ones coming from the State were that the two people in the alley were acting in concert, one was the shooter and the other one was the traditional aider and abetter in the sense of [his being] there to provide assistance. (Emphasis supplied). Ironically, with respect to the existence of a conspiratorial agreement between the appellant and the gunman to shoot someone on the night of June 24,1998, the defense significantly buttressed the State’s case in that regard. It was the defense that managed to get before the jury, indirectly, observations of the crime scene and of antecedent circumstances made by one Michael West.

It did so by cross-examining Detective Gary Hoover at length about statements made to him by Michael West. ⁶⁶³ The defense made this strenuous effort to get Michael West’s statements before the jury because it believed they were exculpatory. In one sense, they were. West’s description of the assailants who emerged from the alley differed from the descriptions given by the victim’s family members. West’s statements, therefore, tended to disprove the identity of the appellant as one of the assailants.

Notwithstanding this arguably exculpatory evidence in that particular regard, the State nonetheless established a legally sufficient, prim a facie case as to the criminal agency of the appellant through 1) the extrajudicial identification of him by Emmanuel “Man” Johnson, 2) the in-court identification of him by David Brown, and 3) the evidence of gunshot residue on his left hand. Although Michael West’s statements may have been exculpatory with respect to the appellant’s criminal agency, they were, by diametric contrast, very definitely inculpatory in terms of the corpus delicti of a conspiracy. Those statements helped to show that the assailants who emerged from the alley, whoever they may have been, were acting in furtherance of a conspiratorial purpose. Michael West gave the assailants a common motive and a common purpose.

West’s statements to Detective Hoover, recounted to the jury by Detective Hoover, included the fact that West was a neighborhood resident who observed the shooting from a distance of approximately one hundred feet. West was, moreover, a member of the guns-and-drugs segment of the neighborhood. As of June 24, West was involved with others in a gang war. West believed that on June 24 the “guys he was warring with went to the wrong corner and shot the wrong kid.” During his cross-examination by defense counsel, Detective Hoover acknowledged West’s description of the extended “war” between two rival gangs who had been “shooting at each other on a number of occasions”: Q: He told you that he’d been having a war, he’d been having a war over an extended period of time, and I use that in the vernacular, with a bunch of — basically his boys and another gang had basically been having a war? ⁶⁶⁴ A: Yes, sir, he said he’d been having trouble.

Q: And they’d been shooting at each other on a number of occasions, right? A: Yes, sir. West believed that the assailants, whoever they may have been, were actually gunning for him. Detective Hoover recounted a phone call from West to the murder victim’s brother.

In fact, he called Tyree’s brother up in jail and said, I’m sorry man, I think they were gunning for me, that’s why your brother got killed. West’s statements, substantively in evidence at the urging of the defense and without any hearsay objection, at least inferentially established that on the night of June 24 the gunman and his accomplice or accomplices were acting with a clear purpose to shoot and kill someone, probably West himself. 1 That is a prima facie case of a conspiracy to murder on the part of those assailants. It is other evidence from other sources, of course, that establishes the appellant’s identity as one of those assailants. We hold that the evidence was legally sufficient to permit the jury reasonably to find that the appellant and the shooter were acting in concert with the conspiratorial purpose of killing their intended victim.

The evidence, therefore, was sufficient to support the verdict and Judge Prevas was not in error submitting the charge to the jury. ⁶⁶⁵ The Difference Between a Fourth Amendment “Seizure of the Person” and “Custody” Within the Contemplation of Miranda v. Arizona The appellant’s second contention is that Judge Prevas erroneously failed to suppress several brief responses made by the appellant to Officer Kevin DeVito during the short interlude between Officer DeVito’s initial “Terry stop” of the appellant and the subsequent arrest of the appellant a few minutes later, after one of the witnesses to the crime was brought to the scene and made a “show-up” identification. Based on the description of clothing worn by the second assailant, the appellant had been stopped on the street by Officer DeVito a few minutes after the shooting occurred and approximately six blocks away. Officer DeVito’s testimony as to what he asked the appellant and as to the appellant’s responses seems totally innocuous: A: I asked him if he lived in the area, the specific area where we had encountered him, he indicated he did not. We asked him what he was doing or what he had been doing.

He stated that he had been playing basketball with some friends and that he’d been dropped off on the corner. I think, when I asked him where he lived, he gave me an address that was on the west side of town. I know that cause I used to work in the west side of town. Q: When Mr. Jones told you he’d been dropped off in the area to play basketball, do you know what — did he give you an idea with time?

This was between 10:30 and 11 o’clock when this is all happening, right? Did he tell you what time he’d been dropped off? A: No, if it had come up, I don’t recall. It is hard to conceive of how anything in that quoted exchange could possibly have prejudiced the appellant.

Because the appellant argues that he was confronted on cross-examination with the improbability of his further statement to ⁶⁶⁶ Officer DeVito that he was present in the neighborhood to purchase food at a carry-out, however, we will consider the contention further. The appellant now claims that when he gave those responses he was in custody for Miranda purposes but had not been “Mirandized” before being questioned by Officer DeVito. We hold, to the contrary, that the appellant was not in custody within the contemplation of Miranda and that there was, therefore, no need for him to have been given Miranda warnings. The appellant, to be sure, had been seized within the contemplation of the Fourth Amendment and was not free to leave the scene.

Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). That was enough to engage the gears of the Fourth Amendment, but it was not enough to engage the gears of Miranda v. Arizona. As Berkemer v. McCarty, 468 U.S. 420 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984), made clear, every lawful detention within the contemplation of the Fourth Amendment is not ipso facto necessarily “custody” within the contemplation of Miranda. In Berkemer v. McCarty, the defendant had been lawfully stopped on the highway for a traffic violation and, while sitting in his vehicle, was interrogated by the stopping officer.

He gave several incriminating admissions without having been given Miranda warnings. The Supreme Court made it clear, 468 U.S. at 436-37 , 104 S.Ct. 3138 , that the defendant had been subjected to lawful detention, to wit, to the restraint of his person, within the contemplation of the Fourth Amendment: It must be acknowledged at the outset that a traffic stop significantly curtails the “freedom of action” of the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a crime either to ignore a policeman’s signal to stop one’s car or, once having stopped, to drive away without permission. Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so.

Partly for these reasons, we have long ac ⁶⁶⁷ knowledged that “stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning of [the Fourth] Amendment, even though the purpose of the stop is limited and the resulting detention quite brief.” (Citation and footnote omitted; emphasis supplied). Such restraint, however, said nothing about “custody” for Miranda purposes. The defendant in Berkemer strenuously maintained that he was, in the very words of Miranda, “a person [who had] been taken into custody or otherwise deprived of his freedom of action in [a] significant way.” 468 U.S. at 435 , 104 S.Ct. 3138 . The Supreme Court declined to get hung up by a phrase taken out of context and, instead, looked to the underlying circumstances that had necessitated the very birth of the Miranda catechism: However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent.

Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights. 468 U.S. at 437 , 104 S.Ct. 3138 (emphasis supplied). Miranda’s concern was with an interrogation environment so oppressive as to give rise to a presumption of compulsion in the context of the Fifth Amendment privilege against “compelled” self-incrimination. The concern was with the Kafkaesque trappings of the “third degree.” The drum-like refrain of the Miranda analysis repeated and re-echoed the theme of “incommunicado interrogation” in a “police-dominated atmosphere.” Early on, this Court recognized that Miranda could not have been written in a constitutional vacuum and that Miranda ’s only claim to constitutional legitimacy was necessarily bottomed on its holding that “custodial interrogation,” as dealt ⁶⁶⁸ with and described in that opinion, was so “compelling” and “coercive” presumptively to violate the Fifth Amendment privilege.

Without the presumption of compulsion, the Supreme court lacked any jurisdictional basis for imposing the Miranda catechism on the states. In Cummings v. State, 27 Md.App. 361, 364-66 , 341 A.2d 294 (1975), we referred to that indispensable predicate of “custodial interrogation” as spelled out by Miranda: A scanning of Miranda[ v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966)] makes its thrust preeminently clear.... “[TJhe defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world.” Ibid., at 384 U.S. 445 [, 86 S.Ct. 1602 ], Miranda pointed out that all of the four cases being dealt with in that umbrella opinion “share salient features — incommunicado interrogation of individuals in a police-dominated atmosphere ...” Ibid., at 445[, 86 S.Ct. 1602 ], It pointed out that the major danger of the “in-custody interrogation” is that its incommunicado character obscures a later judicial determination of what really transpired. “An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today ...” Ibid., at 445[, 86 S.Ct. 1602 ]____ Miranda made it very clear that the warnings it mandated and the waiver it required were “employed to dispel the compulsion inherent in custodial surroundings.” Ibid., at 458[, 86 S.Ct. 1602 ]. The evil at which the prophylactic devices of Miranda were aimed was made very clear. “An individual swept, from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak ...” Ibid. (Emphasis supplied).

We focused, 27 Md.App. at 366-67 , 341 A.2d 294 , on the required linkage between circumstances amounting to “inherent compulsion” and the prophylactic device designed to counteract such compulsion: ⁶⁶⁹ The constitutional distillate of Miranda is that self-incrimination flowing from a custodial interrogation is, ipso facto, compelled self-incrimination because of the inherent coercion — the inherent compulsion — of the custodial interrogation environment. In the custodial interrogation situation, therefore, the constitutionally damning element of compulsion can only be extirpated by the elaborate prophylactic process of warning and waiver prescribed by Miranda as the required compulsion antidote. Absent the compulsion,, there is no need for the antidote. (First emphasis in original; emphasis supplied).

Indeed, that was the very analysis later employed by the Supreme Court in Berkemer to distinguish a curbside detention, notwithstanding that it was a Fourth Amendment seizure of the person and that the suspect was not free to leave, from “custodial interrogation” under circumstances presumptively constituting unconstitutional compulsion. The mere “stop,” unless it escalates into a more significant detention, will presumably be brief, whereas custodial interrogation may frequently be prolonged indefinitely, with the suspect fearing that “questioning will continue until he provides his interrogators the answers they seek.” Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced “to speak where he would not otherwise do so freely.” First, detention of a motorist pursuant to a traffic stop is 'presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorist’s expectations, when he sees a policeman’s light flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way.

In this respect, questioning incident to an ordinary traffic stop is quite different from station-house interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will ⁶⁷⁰ continue until he provides his interrogators the answers they seek. 468 U.S. at 437-38 , 104 S.Ct. 3138 (emphasis supplied). The Berkemer Court went on to point out that a mere “stop,” albeit attended by some inevitable psychic pressure and anxiety, is neither “incommunicado” nor “in a police-dominated atmosphere.” Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset these forces.

Perhaps most importantly, the typical traffic stop is public, at least to some degree. Passersby, on foot or in other cars, witness the interaction of officer and motorist. This exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist’s fear that, if he does not cooperate, he will be subjected to abuse. The fact that the detained motorist typically is confronted by only one or at most two policemen further mutes his sense of vulnerability.

In short, the atmosphere surrounding an ordinary traffic stop is substantially less “police dominated” than that surrounding the kinds of interrogation at issue in Miranda itself and in the subsequent cases in which we have applied Miranda. 468 U.S. at 438-39 , 104 S.Ct. 3138 (footnote omitted; emphasis supplied). With what turns out to be dispositive significance for the contention now before us, the Supreme Court in Berkemer, 468 U.S. at 439-40 , 104 S.Ct. 3138 , then analogized a traffic stop to a more crime-oriented “Terry stop” and went on to point out that neither involves the type of “custodial interrogation” required to bring into play “the dictates of Miranda.” ⁶⁷¹ In both of these respects, the usual traffic stop is more analogous to a so-called “Terry stop” than to a formal arrest. ... [A] policeman who lacks probable cause but whose “observations lead him reasonably to suspect” that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to “investigate the circumstances that provoke suspicion.” Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.... The comparatively nonthreatening character of detentions of