Jones v. State

SHARER, J. Appellant, Tyshawn Jones, was convicted by a jury, in the Circuit Court for Washington County, of first-degree felony murder, depraved heart second-degree murder, conspiracy to commit armed robbery, armed robbery, and numerous other related and lesser-included offenses. Appellant received a total executed sentence of life in prison (for the first-degree felony murder), plus 35 years. In his timely appeal, Jones presents five issues for our review, which, as slightly rephrased, are: 1. Whether the circuit court committed reversible error in allowing appellant’s May 4, 2004 statement into evidence. 2.

Whether the evidence was sufficient to sustain the conviction for armed robbery. 3. Whether the evidence was sufficient to sustain the conviction for conspiracy to commit armed robbery. 4. Whether the evidence was sufficient to sustain the conviction for first-degree felony murder. 5. Whether the circuit court committed reversible error by not polling or hearkening the jury before the jurors were discharged.

For the reasons that follow, we shall reverse the conviction for first-degree felony murder. Also, we shall hold that the ⁴³⁷ verdicts were not perfected as a result of the lack of polling and hearkening, and remand for a new trial. BACKGROUND The events of March 13, 2004, which were the genesis of this prosecution, are largely undisputed. Thus, we shall recount only those facts germane to the issues on appeal.

All of the events described occurred in Washington County. The Crimes On the evening of March 13, 2004, appellant was dropped off at the Washington Garden Apartments to attend a party. When he arrived, appellant met his friend, Tione Blake (“Blake”), and, among others, Azaniah Blankumsee (“Blankumsee”), with whom appellant had not previously made acquaintance. Appellant stayed in the parking lot of the apartment complex throughout the evening with some young women he met there.

At some time during the evening, Blankumsee put a .380 caliber pistol to the head of one of the partygoers, but left the party without making harmful use of the gun. Later, outside the apartment, Blake, accompanied by a group of about ten people, approached another partygoer, Andrew Snyder. Blake put a .22 caliber pistol to Snyder’s side and robbed him of approximately eight dollars. Snyder then went back inside to tell those in the apartment that he had been robbed.

Apparently intending to recover Snyder’s money, a crowd left the apartment about five minutes later to confront Blake, Blankumsee, and two others. The crowd from the party, including Jonathan Dennis, followed Blankumsee, Blake, and their companions, who were returning to their cars. Appellant was still in one of the cars “socializing” with two young women. As the crowd approached, Blankumsee pointed the .380 caliber gun at the crowd.

Jonathan Dennis threatened Blankumsee, who then began firing the weapon. Appellant grabbed a .22 caliber pistol from Blake and began to shoot over the heads of the crowd. One of the bullets did not find a ⁴³⁸ safe path, however, and Jonathan Dennis was hit with a single .22 caliber round. The wound was fatal, and Dennis died at the scene.

Appellant and the others fled the scene before police arrived; therefore, no arrests were made at that time. 1 Appellant’s Arrest On March 17, 2004, appellant was arrested in an unrelated matter after he was found hiding in Antietam Creek. In the creek nearby, police found a .22 caliber pistol. It was later determined, through forensic examination, that the shot that killed Jonathan Dennis was fired by the pistol found in the creek near the location where appellant was found. Thus, police were motivated to question him about his knowledge of Dennis’s murder.

Appellant voluntarily went to the Hagerstown City police station on March 22, 2004, to give a statement. He was interrogated by Detective Christopher Kayser of the Hagerstown Police Department and Assistant State’s Attorney Viki Pauler. Before questioning commenced, appellant was presented with a letter agreement which promised that, if appellant would speak truthfully with the investigators in connection with their investigation of the shooting of Jonathon Dennis, the State would not prosecute appellant for crimes arising from his possession of the handgun on March 17, 2004. The letter agreement, drafted by Assistant State’s Attorney Pauler, and read to appellant, provided: RE: Investigation of Tione Blake Dear Mr. Jones: In exchange for your full and complete cooperation with law enforcement, specifically the Hagerstown Police Department, and the State’s Attorney’s Office in the above captioned investigation and prosecution, the State declines at ⁴³⁹ this time to proceed with handgun charges against you stemming from you being in possession of a handgun on Wednesday, March 17, 2001.

If at any[ ]time during the investigation and prosecution of the above-captioned matter, you fail to cooperate fully or fail to be available to law enforcement or the State’s Attorney’s Office, this agreement will be void, and the State will proceed criminally against you with any and all possible charges. (Emphasis added). The letter was signed by appellant, Assistant State’s Attorney Pauler, and witnessed by Detective Kayser. No further explanation was given to appellant, who was not then represented by an attorney.

Thereafter, the detective read appellant his Miranda rights and obtained a statement from him. 2 Appellant was later arrested on yet another unrelated charge and was being held at the Washington County Detention Center. On May 4, 2004, Detective Kayser had appellant transported to the Hagerstown Police Department for further questioning regarding the Jonathon Dennis shooting. When appellant arrived, he was given a drink and some cigarettes and then was read his Miranda rights. Appellant also signed a waiver of rights form.

Without mention or discussion of the March 22 letter agreement, Detective Kayser began to question appellant about events of the night of the Dennis shooting. During this interrogation, appellant admitted to being at the Washington Garden Apartments at the time of Jonathon Dennis’s death, and to shooting the .22 caliber handgun. He explained that he fired the gun over the heads of the crowd in order to keep the crowd at bay. Thereafter, appellant was indicted by a grand jury on 36 counts, including those challenged in this appeal: armed robbery, conspiracy to commit armed robbery, and first-degree felony murder.

Appellant’s motion to suppress both the ⁴⁴⁰ March 22 and May 4 statements was heard on October 26 and 27, 2004. The State agreed not to introduce the March 22 statement, but argued that the May 4, 2004 statement was admissible. The suppression court ruled, in an oral opinion, that the May 4 statement was “voluntary ... and free from coercion and free from lack of due process.” A written order to that effect was issued by the court on October 28, 2004. The charges against appellant were tried to a jury on January 4 and 5, 2005.

At trial, appellant sought to re-open the suppression of his May 4, 2004 statement and timely objected to the introduction of the statement into evidence. The court denied suppression and overruled appellant’s objection. Appellant was found guilty of the charges that we have noted, supra. As we shall discuss, the jury was discharged without being polled or hearkened.

The jurors were reassembled on February 14, 2005, sworn and polled at that time. The polling confirmed that the verdict was unanimous. The circuit court held a sentencing hearing on April 21, 2005, after which appellant filed his timely appeal. Additional facts will be set forth as they become necessary to our discussion of the issues. 1.

Whether the circuit court committed reversible error in allowing appellant’s May 4, 2004 statement into evidence. Appellant asserts that the circuit court erred by not suppressing his May 4, 2004 statement, arguing that his statement was obtained through illegal inducement. His statement was involuntary, appellant argues, because the March 22 letter was a promise of non-prosecution, and there was a temporal connection between the March 22 letter, and the resulting statement, and the ultimate May 4 statement. Additionally, appellant argues, the May 4 statement was rendered involuntary because the investigator and assistant state’s attorney did not advise him that he was not protected from prosecution by the March 22 letter agreement.

In short, appellant would ⁴⁴¹ have us impose an affirmative duty upon the interrogating officers to warn him of the non-effect of the letter. In Hillard v. State, 286 Md. 145, 150 , 406 A.2d 415 (1979), the Court of Appeals said: Maryland criminal law requires no confession or other significantly incriminating remark allegedly made by an accused be used as evidence against him, unless it first be shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary. When a defendant raises involuntariness as an issue, the State must prove voluntariness beyond a reasonable doubt. Knight v. State, 381 Md. 517, 532 , 850 A.2d 1179 (2004).

Although many factors may be in play in the determination of voluntariness, “a confession that is preceded or accompanied by ... a promise of advantage will be held involuntary, notwithstanding any other factors that may suggest voluntariness.... ” Williams v. State, 375 Md. 404, 429 , 825 A.2d 1078 (2003). 3 In Winder v. State, 362 Md. 275, 309 , 765 A.2d 97 (2001), the Court of Appeals articulated a two-part test to determine the voluntariness of custodial statements made under circumstances of alleged inducement through improper promises: We will deem a confession to be involuntary, and therefore inadmissible, if 1) a police officer or an agent of the police force promises or implies to a suspect that he or she will be given special consideration from a prosecuting authority or some other form of assistance in exchange for the suspect’s confession, and 2) the suspect makes a confession in apparent reliance on the police officer’s statement. “The trial court’s determination regarding whether a confession was made voluntarily is a mixed question of law and ⁴⁴² fact.” Id. As such, we review the circuit court’s determination on the issue of voluntariness die novo. Id. Our review of the denial of a motion to suppress, however, is limited to the record of the suppression hearing.

Id. at 311 , 765 A.2d 97 . We will consider the facts, as found by the trial court, in the light most favorable to the State as the prevailing party below. Knight, supra, 381 Md. at 535 , 850 A.2d 1179 (citing Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2000)). Appellant assigns a temporal connection between the statement he gave the police on May 4, 2004, and the earlier promise made by the State on March 22.

Thus, he concludes, the May 4 statement was the product of the promise of non-prosecution made by the Hagerstown Police Department and the State’s Attorney’s Office on March 22. The letter agreement, he argues, gave him immunity to all crimes linked to the .22 caliber handgun. To resolve the effect of the March 22 letter, the suppression court was required to construe it under the totality of the circumstances. In our independent appraisal, we must do likewise.

Appellant recognizes, indeed he cannot escape, the letter’s specific reference to “all charges against [appellant] stemming from [appellant] being in possession of a handgun on Wednesday, March 17, 2004” (Emphasis added). Clearly, the letter was not an explicit offer not to prosecute appellant for any part in the events of March 13. We conclude, as did the suppression court, that the letter was carefully and precisely drawn and afforded protection to appellant from prosecution of charges arising from his possession of the firearm on March 17, 2004, and nothing more. The following colloquy between the court and Jones’s counsel provides insight into the court’s reasoning: [COUNSEL] [Appellant] was told that he would not be prosecuted for any handgun charges stemming from being in possession of the gun.

When you say stemming, it goes out into a broad range of possibilities, to the lay person. And even to me. I’m not really sure what charges stemming from being in possession means. ⁴⁴³ He was told to be cooperative. THE COURT: Let’s complete it.

Complete the sentence. [COUNSEL]: I’m sorry, your Honor? THE COURT: Complete the sentence. [COUNSEL]: “Stemming from being in possession of the handgun on Wednesday, March seventeenth.” I still think, I mean he was ... he admitted to being in possession of the gun, the gun that they knew killed Jonathan Dennis. Now I don’t know what all the possibility of charges were but they weren’t simply being in possession of a handgun. That’s not what it says.

It says, “Charges stemming from being possession of a handgun.” THE COURT: “Handgun on Wednesday, March the seventeenth.” We conclude from that exchange that the suppression court chose to construe the letter agreement narrowly, giving due regard to the restrictive language employed. As we consider the wording of the letter, and the plain meaning of the words and phrases employed, we agree with the suppression court’s strict construction, and cannot give to it the more expansive reading that appellant presses upon us. Appellant argues, however, that even if the letter is restricted in its import, he did not understand the agreement because of his lack of intelligence, age, and experience, and because it was not fully explained to him. Thus, he concludes that his interpretation of the letter protects him from prosecution for any crime flowing from his possession of the firearm.

The State first responds that the promise made to appellant on March 22 was not improper because the prosecution had the ability to perform its bargain, and did so. The State’s commitment to appellant, therefore, was not a ruse — the State made a promise and kept it, in that appellant was not prosecuted for charges related to his possession of the handgun on March 17, the date he was found in Antietam Creek. Alternatively, the State argues that, assuming the March 22 agreement reached to the May 4 statement as well, ⁴⁴⁴ appellant could not rely upon it because he breached the agreement at the outset. The agreement required appellant’s “full and complete cooperation” with the prosecution and the police, and it is clear that appellant was untruthful from the start.

At the suppression hearing, appellant testified that, after signing the letter, he lied to the police about his whereabouts on the night of the Dennis shooting. The State argues, reasonably, that appellant’s failure to be truthful amounted to a failure to fully cooperate as the agreement required. Even assuming that the State’s obligation under the agreement might have extended beyond the events of March 17, we fail to see how appellant, having breached his obligation under the agreement, might now hold the State to its bargain. Under the first prong of the Hillard test, we must determine whether the police made an improper promise, threat, or inducement.

See Knight, supra, 381 Md. at 534 , 850 A.2d 1179 . An improper inducement involves a promise by interrogating officers or prosecutors to exercise discretion or to provide some special advantage to a suspect. 4 Id. at 536 , 850 A.2d 1179 . The promise made to appellant in the case sub judice was not to exercise discretion or to give some special treatment. Rather, it was a legally binding promise not to prosecute a narrowly defined set of possible charges “stemming from the possession of a handgun on Wednesday, March 17,200b.” (Emphasis added).

The Assistant State’s Attorney had the authority to enter into the agreement and the ability to perform. Such a practice — immunity from prosecution for a particular crime in return for information about another — is not uncommon in law enforcement. The tactic is so common, in our experience, that it cannot be said that the promise to appellant was an offer of special treatment. Based upon the ⁴⁴⁵ record of the suppression hearing, and considering the totality of the circumstances, we do not find that an improper promise or inducement was made by the State.

Because there was no improper inducement, we need not reach the second prong of Hillard . However, it is appropriate to address whether appellant could have relied on the March 22 agreement as an inducement for the giving of his May 4 statement. For this discussion, we shall assume, arguendo, that the agreement amounted to an improper inducement. The second Hillard prong inquires whether the suspect made a confession in reliance on the inducement.

Winder, supra, 362 Md. at 309 , 765 A.2d 97 . “[T]he promise must have caused the suspect to confess.” Reynolds v. State, 327 Md. 494, 509 , 610 A.2d 782 (1992). Based on the record of the suppression hearing, we cannot discern how appellant could have reasonably relied on the agreement. Even taking into account his claim that his lack of intelligence, age, and experience tends toward involuntariness, we conclude that, under all of the circumstances, his May 4 statement was not tainted by any inducement that may have been made on March 22. Moreover, a holding that he relied on an agreement that he admitted to having breached before the ink was dry, would be void of reason.

We find no authority for the proposition that one who breaches the agreement not to prosecute can later enjoy the fruits of the agreement. We agree with the circuit court that appellant’s May 4 statement was voluntary and admissible, and shall not disturb the circuit court’s denial of the motion to suppress. 2. Whether the evidence was sufficient to sustain the conviction for armed robbery. Appellant next argues that the evidence was insufficient to support his armed robbery conviction, suggesting that the State “presented absolutely no evidence at trial” to establish his participation in the underlying felony — the armed robbery committed by Blake. ⁴⁴⁶ The test for sufficiency of the evidence presented at trial is “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Smith, 374 Md. 527, 533 , 823 A.2d 664 (2003).

It is undisputed that appellant did not actually carry out the armed robbery; rather, his culpability rests in his involvement as an accomplice, or principal in the second degree. Therefore, our determination of sufficiency will be viewed from that perspective. “A principal in the second degree is one who is actually or constructively present when a felony is committed, and who aids or abets in its commission.” Pope v. State, 284 Md. 309, 326 , 396 A.2d 1054 (1979). At trial, the state presented evidence to support its theory of the case, which was that appellant knew that Blake and Blankumsee planned to rob someone at Washington Gardens. The State introduced appellant’s May 4 statement to the police, in which he admitted to knowing, before he went to the Washington Gardens, that Blake intended to commit a robbery at that place.

The State introduced evidence of Blake’s earlier telephone call to appellant advising specifically of his plan. After arriving at the Washington Gardens, appellant waited in Blake’s car while the robbery was carried out. Shortly thereafter, appellant was in possession of the handgun that Blake had used to accomplish the robbery of Snyder. “A principal in the second degree is one who is guilty of [a] felony by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, either actual or constructive.” State v. Ward, 284 Md. 189, 197 , 396 A.2d 1041 (1978), overruled on other grounds by Lewis v. State, 285 Md. 705 , 404 A.2d 1073 (1979) (emphasis in original). “One may ... encourage a crime by merely standing by for the purpose of giving aid to the perpetrator if necessary ... Guilt or innocence ... is not determined by the quantum of [the] advice or encouragement” of the abettor.

Pope, supra, ⁴⁴⁷ 284 Md. at 332 , 396 A.2d 1054 (quoting R. Perkins, Criminal Law 659, 2d ed.1969). Always, we bear in mind that the jury, as the trier of fact, is in the best position to judge the evidence and to make demeanor-based credibility assessments. Therefore, we conclude that, based on appellant’s advance knowledge that a robbery was to be committed, his presence of the scene, and his post-robbery efforts, a rational jury could conclude that appellant assisted in the robbery as a principal in the second degree. We find the evidence legally sufficient to support the jury’s verdict as to the armed robbery conviction. 3.

Whether the evidence was sufficient to sustain the conviction for conspiracy to commit armed robbery. Appellant also argues that the State did not present sufficient evidence to sustain his conviction of conspiracy to commit armed robbery. Our standard of review is the same as for the armed robbery analysis: whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Conspiracy is a common law crime.

To sustain a conspiracy conviction, the State must prove that two or more persons agreed to accomplish an unlawful purpose, or to achieve some lawful purpose by illegal means. Townes v. State, 314 Md. 71, 75 , 548 A.2d 832 (1988). The crime of conspiracy is complete when the unlawful agreement is reached, and no overt act in furtherance of the agreement need be shown. Id.

Appellant argues that the State did not produce any evidence of an agreement between himself and Blake or Blankumsee. We find the evidence to have been sufficient. Appellant’s statement to police included an admission that he knew about the planned robbery prior to meeting Tione Blake. Specifically, appellant told police that Blake called him the night of the incident and said, “Got something for us to do,” the “something” being a “stick” (robbery) at Washington ⁴⁴⁸ Gardens.

Other evidence at trial made clear that appellant met Blake and Blankumsee at Washington Gardens and waited in the car while the robbery was carried out by Blake. In short, appellant knew the robbery was planned, met the principal robbers at the scene of the crime, and remained at the scene during, and after, the commission of the crime. That evidence is sufficient for a finding of guilt by a rational jury. We find no error. 4.

Whether the evidence was sufficient to sustain the conviction for first-degree felony murder. Appellant challenges the sufficiency of the evidence to support his conviction of first-degree felony murder. The State’s theory was that there was a sufficient nexus between the robbery of Andrew Snyder and the subsequent shooting death of Dennis to support the felony murder conviction.