Jones v. State

SHARER, J. Following a jury trial in the Circuit Court for Wicomico ⁴⁸⁸ County, appellant, Cory Jamaul Jones 1 , was convicted of attempted first degree murder, first degree assault, use of a firearm in the commission of a felony, illegal possession of a regulated firearm, and related offenses. 2 In his timely appeal, appellant presents the following questions, as slightly rephrased, for our consideration: 1. Did the motions court err in denying appellant’s motion to suppress the results of a gunshot residue test? 2. Was the evidence sufficient to support the conviction for illegal possession of a regulated firearm where there was no testimony that the weapon came within the definition of a regulated firearm? 3. Did the trial court err in giving a flight instruction?

Discerning neither error nor abuse of discretion, we shall affirm the judgments of the circuit court. FACTUAL and PROCEDURAL HISTORY On November 5, 2010, at about 7:00 p.m., Jomel Fields was sitting in her car, parked in the driveway of a residence at 923 East Church Street in Salisbury, Wicomico County. While Fields was talking on the phone and waiting for her friend, Tyrell Holly, whom she had just dropped off at the house, two African-American men approached her car. They pulled open the car door, pressed their guns against her head, told Fields to end her phone call, and demanded she hand over her money.

The men were attempting to remove her from the car when Holly exited the upstairs apartment, drawing their attention. At that time, Fields saw a police car on the adjoining block ⁴⁸⁹ and hit her panic alarm. Startled by the alarm, the two assailants began shooting, first at the house, and then at the car. Fields sustained multiple gunshot wounds to her lower extremities and back as a result of the attack. 3 Fields was found a few moments after the shooting by Corporal Brian Whitman of the Salisbury Police Department.

Whitman called for medical assistance, and questioned Fields to obtain a description of her assailants. Fields was unable to provide a detailed description because her attackers had held their guns to her temple, preventing her from turning her head. Officers Ryan Mitchell and Timothy Robinson and Corporal Howard Drewer, all of the Salisbury Police Department, were responding to an unrelated complaint in the area at the time the shooting occurred. Mitchell and Robinson saw two men firing guns into the house at 923 East Church Street, and immediately proceeded to drive around the block to the residence in their separate vehicles.

Approximately 30 seconds after observing the shooting, as Mitchell turned the corner onto Church Street, he saw a man walking away from the residence where the shooting had occurred. When Mitchell attempted to stop him, the man grabbed a weapon from where it had been concealed in his waistband and pointed it at the officer. Mitchell exited his car, moving to the rear with his gun drawn. The assailant fled, and Mitchell pursued him on foot.

Robinson, who was in a car directly behind Mitchell, observed the assailant’s actions. When the gunman fled, Robinson pursued him in his vehicle, observing as the gunman ran behind some buildings on Priscilla Street. A few moments later, Robinson observed Drewer pursuing and apprehending the assailant, and went to assist in the arrest. ⁴⁹⁰ Drewer was in the area of Priscilla Street when he heard the radio communications from Mitchell and Robinson regarding the fleeing assailant. Shortly thereafter, Drewer saw the gunman, who had been running across the road directly towards him "with a gun in his hand, change direction to run into an adjacent field.

Drewer pursued the gunman with his emergency equipment activated, repeatedly yelling over his vehicle’s intercom for the man to stop. When the assailant continued to run, Drewer exited his vehicle and continued the pursuit on foot. The gunman lost his footing near the railroad tracks; when he got up, he turned to face Drewer with his hands raised over his head, the gun held in his right hand. At Drewer’s order, the man tossed the gun about 15 feet to his right, where it was later recovered and preserved as evidence.

The gunman was arrested and transported to the Salisbury Police Department. At trial, Mitchell, Robinson, and Drewer each identified appellant as the man they had pursued and arrested on November 5, 2010. Additionally, they each identified State’s Exhibit 1 as the gun that was discarded by appellant at the time he was apprehended. Jomel Fields also testified that the gun identified as State’s Exhibit 1 “looked like” the gun that was used to shoot her.

The gun was admitted into evidence at trial without objection. Upon forensic examination, the gun recovered by Drewer could not be excluded as the weapon that fired some of the bullets that were recovered from the crime scene at 923 East Church Street. I. MOTION TO SUPPRESS RESULTS OF GUN SHOT RESIDUE TEST A. Issue Specific Facts After appellant was booked, Detective Thomas Hitty performed a gunshot residue test on appellant’s hands. The swabs taken from appellant’s hands were re-sealed into the gunshot residue kit and submitted to the Maryland Crime Lab for analysis.

The gunshot residue kit was admitted into evidence at appellant’s trial without objection. When tested, ⁴⁹¹ particles consistent with gunshot residue were found to be present on the swab taken from appellant’s left hand. 4 Prior to trial, appellant moved to suppress the results of the gunshot residue (“GSR”) test. At the motions hearing, Hitty testified as the State’s only witness, preliminarily recounting the circumstances surrounding the charged offenses and appellant’s arrest. Hitty explained that a GSR kit consists of multiple small swabs that are rubbed on a suspect’s hands and the webbing of the fingers to collect any chemical residue given off by a discharged firearm.

The swabs are then sealed back into the kit and submitted to the crime lab for analysis. Hitty further testified that the chemical residue on a suspect’s hands degrades “in a short amount of time,” and is easily destroyed or contaminated if the suspect perspires, washes or urinates on his hands, or rubs his hands on his clothing. Instructions in the GSR test kit and Maryland State Police guidelines recommend that a sample be collected within three hours after the suspected discharge of the firearm. As to the timing of the GSR test, Hitty testified that within 45 minutes after appellant’s arrest, he approached appellant in the booking area of the Salisbury Police Department.

Hitty informed the court that after identifying himself to appellant, he rubbed appellant’s hands with the swabs from the GSR kit. During the collection of the GSR sample, appellant indicated that “he wanted to make no statements without a lawyer present.” Appellant also questioned whether Hitty had a warrant to conduct the GSR test. Otherwise, appellant did not verbally or physically resist Hitty’s collection of the GSR samples. When Hitty finished swabbing appellant’s hands, he left the holding cell without engaging in any additional conversation with appellant.

After hearing the testimony of Hitty and the arguments of counsel, the motions court concluded that the collection of gunshot residue from appellant’s hands was a non-invasive search justified by exigent circumstances, opining in part: ⁴⁹² The most persuasive argument to me to deny the motion to suppress is the fact that the process is not invasive, unlike drawing blood from a suspected drunk driver or a body cavity search, or even reaching into someone’s pants to withdraw something that’s been secreted, such as CDS. Or even a buccal swab. This is less invasive than that. In fact, it’s more like fingerprints.

I don’t believe a search warrant is required for the taking of fingerprints. As to the exigency of the circumstances, the court credited Kitty’s testimony regarding the several ways a defendant could contaminate or remove the residue from his or her hands while in custody. The court further noted that it would be unnecessarily burdensome for the police to have to closely monitor an arrestee to ensure that the evidence was not destroyed while they obtained a search warrant to collect the samples. On these bases, the court denied appellant’s motion to suppress the GSR test results.

B. Arguments of the Parties Appellant contends that the GSR test constituted an unreasonable search and seizure; thus, he concludes, the motions court erred by denying his motion to suppress. Specifically, appellant asserts that in the absence of exigency—given that more than two hours remained before the GSR test results would have been compromised due to the passage of time—the failure of the police to obtain a warrant before collecting physical evidence from his body, without his consent, constituted an illegal search in violation of his Fourth Amendment rights. Appellant further asserts that the GSR test results should be characterized as an involuntary self-incriminating statement and, further, that he was denied the right to the presence of counsel while incriminating evidence was being collected from his body, in violation of his Fifth and Sixth Amendment rights. The State responds that appellant failed to properly preserve his arguments regarding self-incrimination and deprivation of his right to counsel for appellate review, and that even if they were preserved, appellant’s arguments on these points ⁴⁹³ are without merit.

Addressing the merits of appellant’s preserved arguments, the State maintains that the warrantless intrusion upon appellant’s person for the purpose of collecting GSR evidence was a properly limited search incident to appellant’s lawful arrest and was further justified by the exigency of the situation presented. C. Preservation Initially, we consider whether appellant’s arguments have been properly preserved for appellate review, as this Court “ordinarily will not consider any point or question ‘unless it plainly appears by the record to have been raised in or decided by the trial court.’” Robinson v. State, 404 Md. 208, 216 , 946 A.2d 456 (2008) (citations omitted); Md. Rule 8-131(a). The State, as previously noted, contends that appellant’s arguments regarding his right to counsel have not been preserved. To preserve an assignment of error based on an evidentiary question, a party is required to bring its position to the attention of the trial court so that the court may pass upon any objection, and possibly correct any errors.

Robinson, 404 Md. at 216-17 , 946 A.2d 456 (noting that such requirements serve the interest of fairness and judicial economy). The failure to raise a particular argument in support of a request to exclude evidence acts as a waiver of the argument for the purposes of appellate review. See Stone v. State, 178 Md.App. 428, 445 , 941 A.2d 1238 (2008) (holding that the failure to argue a particular theory at a suppression hearing waives the ability to argue that theory on appeal). At the suppression hearing, appellant’s counsel did not invoke the protections of either the Fifth or Sixth Amendments as grounds for his motion to suppress.

Indeed, when asked by the motions court for the basis of the motion, defense counsel responded that “the only issue that [h]e would present to the Court” was “a search of Mr. Jones for a GSR analysis.” Allegations of an illegal search implicate a defendant’s Fourth Amendment rights, not the right against self-incrimination ⁴⁹⁴ under the Fifth Amendment or the right to counsel under the Sixth Amendment. Based on counsel’s limited response below, the issue of Fifth or Sixth Amendment violations were not before the motions court. Therefore, we conclude that appellant waived his right to now argue that the collection of the GSR evidence infringed upon his Fifth or Sixth Amendment rights. Even had appellant’s arguments been properly preserved, we would conclude that he was not entitled to relief on these grounds.

The protections of the Fifth Amendment prohibiting the admission of compelled statements or physical communications that are self-incriminatory do not apply to physical characteristics such as the giving of a blood sample, voice sample, or handwriting exemplar. Pennsylvania v. Muniz, 496 U.S. 582, 595-98 , 110 S.Ct. 2638 , 110 L.Ed.2d 528 (1990); United States v. Dionisio, 410 U.S. 1, 7 , 93 S.Ct. 764 , 35 L.Ed.2d 67 (1973); Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951 , 18 L.Ed.2d 1178 (1967). We agree with other jurisdictions that have considered this issue, concluding that “[a GSR] test is a nontestimonial identification procedure ‘comparable to handwriting exemplars, voice samples, photographs, and lineups.’ ” State v. Page, 169 N.C.App. 127 , 609 S.E.2d 432, 436 (2005) (quoting State v. Coplen, 138 N.C.App. 48 , 530 S.E.2d 313, 318 (2000)); U.S. v. Pettiford, 295 F.Supp.2d 552 , 560 n. 10 (D.Md.2003) (“A GSR test does not invoke the protections of the Fifth Amendment because it does not provide evidence of a testimonial or communicative nature.”). Indeed, appellant concedes that GSR evidence has been classified as nontestimonial evidence.

Therefore, we are not persuaded by appellant’s argument that he was forced to make a self-incriminatory statement within the meaning of the Fifth Amendment. We also find to be unavailing appellant’s arguments regarding his Sixth Amendment right to the presence of counsel while the GSR sample was collected. Absent a waiver, the Sixth Amendment prohibits the admission of a statement by a criminal defendant if the statement is made (1) ⁴⁹⁵ outside the presence of legal counsel; (2) in response to interrogation; and (3) after the right to counsel has attached with respect to the charge being tried. Conyers v. State, 354 Md. 132, 192 , 729 A.2d 910 (1999).

Once the right to counsel attaches, a criminal defendant is entitled to the presence of counsel at every “critical stage” of his trial. See Adams v. State, 192 Md.App. 469, 480-84 , 995 A.2d 763 (2010) (discussing right to counsel). The GSR test in the instant case was performed after appellant’s arrest, but before any charges or adversarial proceedings commenced. Further, we are not persuaded that the administration of a GSR test, a non-adversarial encounter for the purpose of collecting evidence, is a “critical stage” at which appellant was entitled to the presence of counsel.

Therefore, appellant’s Sixth Amendment right to counsel had not yet attached and, thus, was not infringed by the collection of GSR evidence. Moreover, appellant does not contend, and the record does not indicate that the GSR test was conducted in conjunction with any interrogation by the police. Therefore, his rights under the protections afforded by the Fifth Amendment or Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), are likewise inapplicable. Other courts addressing this issue have come to similar conclusions.

See, e.g., State v. Odom, 303 N.C. 163 , 277 S.E.2d 352, 355 (1981) (concluding that arrestee was not entitled to counsel during GSR test, relying on Supreme Court cases indicating that the collection of physical evidence, such as fingerprints, blood, clothing, and hair, does not constitute a critical stage of trial); United States v. Love, 482 F.2d 213, 217 (5th Cir.1973) (holding that collection of physical evidence was not a critical stage during which arrestee was entitled to counsel because such tests “involve[ ] none of the probing into an individuals’ private life and thoughts that marks an interrogation or search.”). For the foregoing reasons, even had appellant properly preserved his constitutional arguments, we would find that his rights were not violated by the circuit court’s admission of the GSR test results. ⁴⁹⁶ D. Standard of Review We now consider appellant’s argument that the warrantless seizure of the GSR evidence constituted an illegal search, requiring that the evidence must be excluded. “In reviewing the ruling on a motion to suppress evidence, we consider only the evidence contained in the record of the suppression hearing.” Bost v. State, 406 Md. 341, 349 , 958 A.2d 356 (2008); Rush v. State, 403 Md. 68, 82-83 , 939 A.2d 689 (2008); Gatewood v. State, 158 Md.App. 458, 475-76 , 857 A.2d 590 (2004); Mendes v. State, 146 Md.App. 23, 40 , 806 A.2d 370 (2002). We do not consider the evidence that was admitted at trial. Charity v. State, 132 Md.App. 598, 605 , 753 A.2d 556 (2000).

We “do not engage in de novo fact-finding.” Haley v. State, 398 Md. 106, 131 , 919 A.2d 1200 (2007). “Instead, we ‘extend great deference to the findings of the motions court as to first-level findings of fact and as to the credibility of witnesses, unless those findings are clearly erroneous.’ ” Padilla v. State, 180 Md.App. 210, 218 , 949 A.2d 68 , cert. denied, 405 Md. 507 , 954 A.2d 468 (2008) (quoting Brown v. State, 397 Md. 89, 98 , 916 A.2d 245 (2007)); Gatewood, 158 Md.App. at 475-76 , 857 A.2d 590 ; Sifrit v. State, 383 Md. 77, 92-93 , 857 A.2d 65 (2004); State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439 (2003). In making our ruling, we “review the evidence and the inferences that may be reasonably drawn in the light most favorable to the prevailing party,” in this case, the State. Bost, 406 Md. at 349 , 958 A.2d 356 ; Gatewood, 158 Md.App. at 475-76 , 857 A.2d 590 . But, “[w]e make our own independent appraisal as to whether a constitutional right has been violated by reviewing the law and applying it to the facts of the case.” Bost, 406 Md. at 349 , 958 A.2d 356 ; Gatewood, 158 Md.App. at 475-76 , 857 A.2d 590 .

See also Williams v. State, 372 Md. 386, 401 , 813 A.2d 231 (2002) (stating that reviewing court makes “an independent, de novo, constitutional appraisal by applying the law to the facts presented in a particular case”); Nathan v. State, 370 Md. 648, 659 , 805 A.2d 1086 (2002) (recognizing that, in review of a ruling upon a motion to ⁴⁹⁷ suppress, appellate courts consider facts in the light most favorable to the prevailing party). E. Analysis Generally, a search conducted without a warrant supported by probable cause violates the Fourth Amendment’s prohibition against unreasonable search and seizure. Belote v. State, 411 Md. 104, 112 , 981 A.2d 1247 (2009); Cherry v. State, 86 Md.App. 234, 240 , 586 A.2d 70 (1991). Exceptions exist, however, for evidence that is collected in the course of a warrantless search that is conducted “incident to a lawful custodial arrest,” 5 and for evidence that is seized without a warrant due to “exigent circumstances.” 6 Belote, 411 Md. at 112 , 981 A.2d 1247 (citations omitted); U.S. v. Pettiford, 295 F.Supp.2d 552, 560 (D.Md.2003).

The parties have directed us to no Maryland appellate opinion, nor have we found any, addressing an assertion that the collection of GSR evidence constituted an illegal search under the Fourth Amendment, rendering the evidence inadmissible at trial. We find guidance in opinions of the Federal courts, which have consistently held that, so long as the search is supported by adequate probable cause, GSR evidence is admissible even without a valid search warrant. For example, in U.S. v. Pettiford, 295 F.Supp.2d 552 (D.Md.2003), the defendant was apprehended after the police responded to the scene of a “road rage” shooting. Id. at 555-57 .

The police observed Pettiford only minutes after the shooting, in a location only a few blocks from where the incident had ⁴⁹⁸ occurred, traveling in the direction the shooter reportedly was driving when he left the scene of the crime. Id. at 558 . Pettiford matched the physical description of the shooter and was driving a car that matched descriptions of the shooter’s car. Id.

Also, the front passenger window of Pettiford’s car was broken, with glass still falling to the ground, indicating that the damage had occurred recently. Id. Pettiford initially attempted to evade the police, but was quickly apprehended. Id.

While questioning Pettiford, the police observed bullet holes in the driver’s side door of his car. Id. at 559 . Pettiford admitted that he was involved in the “roadrage” incident, but claimed that he was only a victim, not a shooter. Id. at 555, 559 .

After the police seized his car and towed it away as evidence of the shooting, Pettiford voluntarily accompanied an officer to the police station where he submitted to a GSR test without objection. Id. at 556 . Pettiford was then held at the police station for more than five hours before he was placed under arrest for his participation in the shooting. Id. at 555-57 .

Prior to trial, Pettiford moved to suppress the GSR evidence, arguing that it was collected without a warrant in violation of his Fourth Amendment rights. Id. at 560 . In its ruling on Pettiford’s motion to suppress, the United States District Court for the District of Maryland first determined that the initial investigative stop of Pettiford was adequately supported by reasonable articulable suspicion, and that Pettiford’s subsequent detention and arrest were based upon probable cause; therefore, Pettiford’s arrest was legal. Id. at 558, 559 .

Considering Pettiford’s argument that suppression of the GSR evidence was necessary, the Court concluded that Pettiford had consented to the collection of the GSR evidence. Id. at 560 . The Court further opined, however, that even had Pettiford not consented, the evidence collected during the warrantless search would be admissible pursuant to the exigent circumstances exception to the warrant requirement. Id.

In support of its holding, the Court recounted the information that was known to the police at the time the GSR ⁴⁹⁹ evidence was collected and concluded that the detective who conducted the search, “had probable cause to believe that the GSR test would yield evidence that Pettiford had discharged a firearm.” Id. The Court next noted testimony indicating that GSR evidence remains detectable on a person’s hands for only a limited period of time after a shooting, and that it is easily destroyed. Id. at 560-61 . The Court opined that delay to obtain a search warrant to conduct the GSR test increases a detainee’s “opportunity to destroy the evidence by simply washing his hands.” Id.

The Court also observed that the GSR test required only the swabbing of Pettiford’s hands, which constituted “only a minimal intrusion” upon his privacy. Id. at 561 . Based upon its determinations, the Pettiford Court ultimately concluded that exigent circumstances justified the warrantless collection of the GSR evidence and, therefore, the evidence was admissible at Pettiford’s trial. 7 Id. at 561 . See also U.S. v. Bridges, 499 F.2d 179, 183-84 (7th Cir.1974) (finding no error in trial court’s denial of defendant’s motion to suppress evidence that he had recently handled dynamite, based upon scientific testing of swabs taken from his hands without a warrant, opining that some tests “are such minor intrusions into or upon the ‘integrity of an individual’s person’ that they are not, in the absence of a search warrant, unreasonable intrusions,” and analogizing the swabbing of a suspect’s hands to the collection of fingerprints or taking of photographs, neither of which require a warrant).

Subsequent to Pettiford , the United States Court of Appeals for the Fifth Circuit decided United States v. Johnson, 445 F.3d 793 (5th Cir.2006), cert. denied, 547 U.S. 1199 , 126 S.Ct. ⁵⁰⁰ 2884 , 165 L.Ed.2d 908 (2006), wherein it considered the trial court’s admission of GSR evidence collected after the defendant was lawfully arrested. Id. at 796. The Johnson Court noted that “[i]ncident to a lawful arrest, ‘it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.” Id. at 795 (quoting Chimel v. California, 395 U.S. 752, 763 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969)). Acknowledging that the presence of gun powder on Johnson’s hands was relevant evidence of the charged offense that could easily be removed or destroyed, the Court opined that, so long as Johnson’s arrest was valid, the GSR test was lawful and the admission of the results of the GSR test at his trial was not erroneous.

Id. at 795-96 . Analogizing GSR evidence to other substances that may be collected from a suspect’s body by minimally invasive means, we find the decision of the Federal District Court of Maryland in Pettiford , and of the Fifth Circuit Court in Johnson , to be consistent with the earlier decision of the United States Supreme Court in Cupp v. Murphy, 412 U.S. 291 , 93 S.Ct. 2000 , 36 L.Ed.2d 900 (1973). Cupp’s estranged wife had been strangled in her home. Id. at 292 , 93 S.Ct. 2000 .

The police had probable cause to believe that Cupp was the person who had killed her. Id. at 293-94 , 93 S.Ct. 2000 . Cupp submitted voluntarily to an interview at the police station, at which time the officers observed a dark spot on Cupp’s finger that appeared to be blood. Id. at 292 , 93 S.Ct. 2000 .

Cupp refused when the police requested to take scrapings from under his fingernails. Id. Cupp was forcibly detained for a short time while the police collected the physical evidence from his hands. Id.

The samples from Cupp’s hands were later analyzed and found to contain traces of his wife’s skin and blood cells and fabric from her nightgown. Id. The evidence was admitted at Cupp’s trial. Id.

On appeal, Cupp asserted the physical evidence was obtained without a warrant in violation of the protections afforded to him by the Fourth and Fourteenth Amendments, prohibiting unreasonable searches. Id. The Court noted that ⁵⁰¹ incident to an arrest supported by probable cause, police are permitted to conduct a warrantless search of the items or area within the immediate control of a detained suspect for the purpose of seizing any weapons or incriminating evidence that might otherwise be used or destroyed. Id. at 295 , 93 S.Ct. 2000 (citing Chimel v. California, 395 U.S. 752, 762-63 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969)).

The Court opined that in light of the circumstances presented, “the very limited search” was “necessary to preserve the highly evanescent evidence” on Cupp’s hands. Id. at 296, 93 S.Ct. 2000 . On this basis, the Court concluded that the warrantless search did not violate the defendant’s Fourth and Fourteenth Amendment rights, and therefore, the results of scientific tests performed on the evidence collected from Cupp’s hands was properly admitted at his trial. Id.

Opinions of the appellate courts of our sister States are largely consistent with the Federal precedents discussed above, holding that the warrantless collection of GSR evidence from an individual whom the police have probable cause to believe has recently fired a gun in the course of committing a crime, does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. 8 The limited intrusion on the individual required to collect GSR evidence is ⁵⁰² often analyzed as a search incident to a legal arrest, or justified by exigent circumstances due to how easily GSR evidence can be destroyed through either intentional or unintentional actions. Both analyses are applicable to the facts presented in the instant appeal. Appellant does not assert that his arrest was not supported by adequate probable cause, nor that the collection of the GSR ⁵⁰³ evidence was not contemporaneous with his arrest. Therefore, we conclude that the GSR evidence was properly collected in the course of a reasonable search incident to appellant’s lawful arrest, for which no warrant was required.

See Johnson, 445 F.3d at 795 (“Incident to a lawful arrest, ‘it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.”). Alternately, we note that Kitty’s testimony