Odum v. State

LAWRENCE F. RODOWSKY, Judge, retired, specially assigned. A Prince George’s County grand jury indicted the appellant, Robert Alan Odum, Jr. (Odum), on two counts of murder, of robbery with a deadly weapon, of kidnapping, and of using a handgun in a crime of violence, as well as on single counts of armed carjacking and conspiracy to commit murder. The theory of the State’s case was that Odum participated with four other persons in committing these offenses involving two victims. A jury found Odum guilty on both kidnapping charges.

He was sentenced to thirty years confinement for each offense, with the sentences to run consecutively. In this appeal Odum challenges the sufficiency of the evidence, the voluntariness of his statement, the admissibility of certain evidence, and the propriety of the prosecutor’s closing argument. As explained below, because of the absence of specific factual findings necessary to determine the weight to be afforded the delay in presenting Odum before a Commissioner in the voluntariness analysis, we vacate and remand for a new suppression hearing and a new trial. Odum’s alleged four co-felons were Aaron Hollingsworth (Hollingsworth), Eric Thomas (Thomas), Marco Scutchings, also known as Marco Butler or Marco Scutchings-Butler (Butler), and Cortez Carroll (Carroll).

All five subjects lived in the same general neighborhood in the Fort Washington area of Prince George’s County. Odum had known Hollings-worth, Thomas, and Carroll for approximately ten years and had known Butler for approximately two years. At the time ¹⁸⁹ of the offenses charged, Sunday, June 10, 2001, Odum was twenty-three years of age, married, and the father of an infant daughter. He has a G.E.D. His friends were, respectively, aged nineteen, twenty-two, eighteen, and twenty.

On Saturday night, June 9, 2001, there was a large party in the neighborhood, at which some of the guests, including Odum and Hollingsworth, consumed alcoholic beverages and smoked marijuana. When the party broke up about midnight, the five fell in together, smoking marijuana cigarettes while walking on Lampton Lane toward the Fort Washington United Methodist Church (the Church). The Church’s property faces on Lampton Lane, which is its western boundary, and is bounded on the south by Old Fort Road and on the east by Indian Head Highway. The Church’s parking lot, which was not illuminated in the middle of the night of June 9-10, lies south of the church building.

Between the parking lot and Old Fort Road is a driveway into the parking lot and a lawn area landscaped with bushes. At trial, the principal proof of Odum’s participation was in the testimony of Hollingsworth, who had plea bargained with the State, and in Odum’s statement. Odum did not testify at trial. Also on Saturday night, June 9, the victims, Michael Eugene Patten (Patten), age twenty-nine, and Lea Ann Brown (Brown), age twenty-four, together with friends, had been patronizing Lulu’s nightclub in Washington, D.C. Patten was employed by Riggs Bank in Waldorf, Maryland, where he lived.

Since childhood, Patten had been a member of the Church congregation. Brown was a yeoman third-class petty officer in the United States Navy, assigned to general administrative duties at the Washington Naval Yard. Patten and Brown left Lulu’s together about 2:80 a.m. on June 10. Patten was driving his 1990 Acura Legend.

Meanwhile, when the five subjects had arrived at the Church, Thomas announced that he was going to find someone to rob, and he separated himself from the others in order to stand along the west side of Indian Head Highway, north of its intersection with Old Fort Road. Hollingsworth, Butler, ¹⁹⁰ and Carroll remained on the Church property near the driveway into the parking lot. In his statement Odum said that he crossed to the south side of Old Fort Road and sat on a pile of rocks west of Indian Head Highway. Sometime near 3:00 a.m.

Patten drove the Acura into the Church parking lot and stopped in the parking row nearest the church building. Brown stepped out from the passenger side and urinated. One of the five subjects, who had a handgun, went up to the driver’s side of the car and ordered Patten to get out. Holl-ingsworth took thirty dollars from Patten’s pocket.

Other subjects were on the passenger side of the car, asking Brown for money. Carroll went through Brown’s purse and found her ATM card. Brown yelled out her PIN number. When Patten started to go to the passenger’s side of the car, Hollingsworth beat Patten with his fists and, after Patten fell to the ground, Hollingsworth stepped on his neck to prevent him from getting back up.

Someone in the group said, “ ‘Put them in the trunk[.]’ ” Hollingsworth, with the assistance of either Odum or Butler, put Patten, who was unconscious, into the Acura’s trunk. Brown was ordered into the trunk, where Hollingsworth pushed her head down, and Carroll struck her in the head with a pistol when she popped her head back up. The trunk lid was slammed shut on the victims, and all five subjects drove off in Patten’s car. Thomas was driving, with Odum in the front right passenger seat. 1 Carroll, Hollingsworth, and Butler were seated in the rear.

The five subjects transported the victims to a secluded, wooded area in Accokeek. The victims were taken from the trunk. Patten was shot twice in the back of the head and once in the upper back. 2 Carroll shot Brown twice in the neck. ¹⁹¹ The five subjects got back into the Acura. Thomas initially took the wheel, but he swerved off the road, almost hitting trees.

At that point Odum took over driving, with Thomas in the front passenger seat. (Odum’s fingerprint was found on the interior rearview mirror of the Acura). At some point on the drive either to or from Accokeek, Hollingsworth gave five dollars to each of the other four from the money that he had taken from Patten. Odum drove the group to a location in southeast Washington, D.C. in order to buy marijuana.

Holl-ingsworth made the purchase, after collecting back from each of the other four the five dollars that he had distributed previously to each of them. Odum then drove the band to a gasoline station where they bought blunts into which they rolled the marijuana for smoking. Odum next drove the group to Eighth and H Streets in northeast Washington where one of them used Brown’s ATM card to withdraw twenty dollars. Odum then drove the group back home to Fort Washington.

Hollingsworth was the first to be dropped off, at his house. The victims’ bodies were found on the afternoon of June 10. As a result of a tip from a citizen, the Acura was found several days later, abandoned in a residential neighborhood. Additional facts will be stated in the discussion of the particular issues raised by Odum on this appeal.

Those issues, which we have reordered, are: “[1] Whether the evidence was insufficient to sustain the convictions!;] “[2] Whether the trial court erred in refusing to suppress Mr. Odum’s statements as involuntary!;] “[3] Whether the trial court erred in admitting evidence regarding the alleged murder weapon!;] “[4] Whether the trial court erred in admitting the autopsy photographs!; and] “[o] Whether the trial court erred in failing to grant the motion for a new trial.” ¹⁹² I. Evidentiary Sufficiency Odum contends that the evidence was insufficient to support a verdict of guilty of kidnapping. This argument is based on the way in which Hollingsworth testified. He repeatedly referred generally to his “co-defendants,” or the “others,” but, with one possible exception, he did not describe Odum as acting affirmatively until Odum began driving the Acura. Odum submits that mere presence is insufficient to establish guilt as a principal in the second degree and that, at best, the State proved Odum to have been an accomplice after the fact.

Thus, says Odum, citing Osborne v. State, 304 Md. 323 , 499 A.2d 170 (1985), overruled on other grounds by State v. Hawkins, 326 Md. 270 , 604 A.2d 489 (1992), the maximum sentence that could have been imposed on him for each of the two kidnapping convictions was five years imprisonment. Odum’s argument fails on Hollingsworth’s testimony alone, even though we could consider Odum’s statement as well on this issue. See Lockhart v. Nelson, 488 U.S. 33 , 109 S.Ct. 285 , 102 L.Ed.2d 265 (1988). A person may be guilty of a felony, as a principal in the second degree, by aiding, counseling, commanding, or encouraging, either actually or constructively, the commission of the felony in the person’s presence.

State v. Hawkins, 326 Md. 270, 280 , 604 A.2d 489, 494-95 (1992); State v. Ward, 284 Md. 189, 197 , 396 A.2d 1041, 1046-47 (1978). Hollingsworth was unsure whether Odum or Butler assisted Hollingsworth in putting Patten into the trunk, but the ambiguity is immaterial. Of significance is that either Butler or Odum could have assisted in moving Patten’s unconscious body because both were present and participating generally. In addition, after the victims had been placed in the trunk of the Acura, Carroll, Hollingsworth, and Butler jammed themselves into the back seat of the car and left the front passenger seat for Odum.

From this the jury could infer that the other subjects recognized Odum as a participant who would join in the escape from the initial crime scene and in transporting the victims. ¹⁹³ Odum’s five dollar share in the fruits of the robbery of Patten also demonstrates that he was present, aiding and abetting. In McCullers v. State, 233 Md. 202 , 195 A.2d 727 (1963), a vehicle occupied by a driver and two passengers, one of whom was McCullers, entered a service station. Another passenger, one Williams, went into the station office and stole money. The driver drove off without Williams, but picked him up one block away.

In a statement given to the police, McCullers admitted that Williams had stolen the money and that he, McCullers, had received part of it. Later, McCullers denied any knowledge that Williams intended to steal and asserted that the money he had received from Williams was in payment of a debt. The Court of Appeals held that there was sufficient evidence from which the trier of fact fairly could find McCullers’s guilt of larceny beyond a reasonable doubt. There was sufficient evidence that Odum aided and abetted the two kidnappings, even without relying on Odum’s statement.

II

Suppression Odum moved to suppress his statement as involuntary. At the suppression hearing he testified that his waiver of Miranda rights was obtained by a detective who choked him in order to induce the waiver. He further testified that other police officers promised him favorable bail treatment if he gave a statement. The officers involved denied, specifically and generally, the use of force, threats, or inducements.

The court believed the testimony of the police officers. Odum’s motion also submitted “that such statement was taken after he was deprived of his right to prompt presentment before the Commissioner, pursuant to Maryland Law.” At the suppression hearing, Odum argued that the delay of more than thirty hours in taking him before a Commissioner must be “weighed heavily against the State.” 3 In rejecting the motion to suppress, the circuit court’s ruling from the ¹⁹⁴ bench does not reflect consideration of whether any special weight should be given to any part of the delay. 4 After this case initially was argued, but before its decision, the Court of Appeals, on June 13, 2003, decided three cases involving the effect on voluntariness of an unnecessary delay in presentment. See Williams v. State, 375 Md. 404 , 825 A.2d 1078 ; Facon v. State, 375 Md. 435 , 825 A.2d 1096 ; and Hiligh v. State, 375 Md. 456 , 825 A.2d 1108 . We directed the parties to reargue Odum’s involuntariness contention in the light of these decisions, the rule of which applies to cases tried before the decisions were rendered.

See Perez v. State, 155 Md.App. 1, 27 , 841 A.2d 372, 387 (2004). The record at the suppression hearing reveals the following facts most favorable to the State. See Rowe v. State, 363 Md. ¹⁹⁵ 424, 431-32, 769 A.2d 879, 883 (2001). Odum was arrested at 11:00 a.m. on June 26, 2001, under a warrant charging him with armed robbery of a liquor store.

He was taken to the Landover Station of the Prince George’s County police. A Commissioner is available in that building twenty-four hours a day. At 11:37 a.m. Odum was placed in an interview room that measured as much as ten feet by fifteen feet and contained a desk and two chairs.

At various times Odum was taken to the bathroom, and he was given food, coffee, sodas, and cigarettes. At no time during his stay in the interview room was Odum handcuffed. Corporal Samuel Smith had investigated the liquor store robbery and obtained the warrant under which Odum was being held. On the day of the arrest Corporal Smith was at the courthouse in Upper Marlboro on another case.

Advised by cell phone that Odum had been arrested, Corporal Smith asked “[t]o have him placed in an interview room, and to just check on him periodically until [Corporal Smith got] out of the courthouse.” Odum was confined alone in the interview room, with the exception of a visit to the bathroom, until 5:40 p.m. when Corporal Smith entered. He told Odum of the liquor store robbery charges, took Polaroid pictures of him, and did not caution Odum under Miranda. Corporal Smith left the interview room at 6:30 p.m. At 6:52 p.m.

Corporal Michael Delaney entered, advised Odum of his Miranda rights, and, in about “five minutes,” obtained a written waiver of those rights. Corporal Delaney was a homicide investigator who was principally dealing that evening with Carroll who, at some unspecified time, had been taken into custody. Indeed, at least four other persons from the Fort Washington neighborhood were in custody at the Landover Station on the night of June 26-27. Corporal Smith described Odum as yelling “LL” to the adjoining interview room.

The officer interpreted this to mean Lampton Lane. That was one of the streets in Fort Washington abutting the Church. Between 8:21 and 9:10 p.m. Corporal Smith and Detective Jackie Braudus, the lead investigator on the Patten and ¹⁹⁶ Brown murders, photographed Odum’s boots outside of the interview room.

During that same period Corporal Smith asked Odum to state his whereabouts at the time of the liquor store robbery. Odum said he was in Virginia. Corporal Smith asked no other questions, and no statement was taken. Odum remained confined alone in the interview room from 9:10 p.m. on June 26, 2001, to 1:00 a.m. on June 27, when Detective Ismael Canales (Canales), a homicide detective, entered.

Canales said he was investigating the murder of two people in Accokeek, without specifying their race. Odum denied knowing anything about two “white” people being killed. There was general conversation about Odum’s background. Canales told Odum that others were being interrogated concerning the Accokeek murders and that it would simply be a matter of time until one of the other subjects implicated Odum.

Odum took the position that his trump card was that he would be the State’s star witness if others implicated him. At about 2:00 a.m. Odum signed a second waiver of Miranda rights and, between 2:00 and 4:00 a.m., gave a written statement to Canales. In his statement Odum acknowledged his presence at the scenes of the kidnappings and murders, but he denied active participation.

It is that statement for which suppression is sought in this appeal. After giving his written statement, Odum remained confined in the interview room until 1:56 p.m. on June 27. The only interruptions to this confinement, other than for physical needs, were for the purpose of taking saliva and hair samples and for a brief interview at 10:57 a.m. In that interview Homicide Detectives Chris Smith and Glenn Clark showed Odum a photograph of Hollingsworth whom Odum identified as the subject who had shot Patten, thereby confirming what Odum had said in his written statement.

At 1:56 p.m. he was taken to a holding cell near the Commissioner’s hearing room and left in the custody of the Prince George’s County Department of Corrections. At 3:00 p.m. on June 27, Odum was served with a statement of charges, alleging that he had murdered Patten and Brown. ¹⁹⁷ Service of those charges apparently was effected in the holding cell. Odum appeared before the Commissioner at 6:12 p.m. that evening. Thus, approximately thirty and one-half hours elapsed between Odum’s arrival at the Landover Station and his appearance before the Commissioner.

Maryland Rule 4-212(e) addresses the required procedure following the execution of an arrest warrant on a defendant who is not in custody. The rule in relevant part provides that “ft]he defendant shall be taken before a judicial officer of the District Court without unnecessary delay and in no event later than 24 hours after arrest[.]” Also relevant is Maryland Code (1974, 2002 Repl.Vol.), § 10-912 of the Courts and Judicial Proceedings Article (CJ), which provides: “(a) ... A confession may not be excluded from evidence solely because the defendant was not taken before a judicial officer after arrest within any time period specified by Title 4 of the Maryland Rules. “(b) ... Failure to strictly comply with the provisions of Title 4 of the Maryland Rules pertaining to taking a defendant before a judicial officer after arrest is only one factor, among others, to be considered by the court in deciding the voluntariness and admissibility of a confession.” The Williams, Facon, and Hiligh cases, supra, clarified the relationship between the rule and the statute as they affect voluntariness.

In Williams the defendant was arrested, without a warrant, at 4:10 a.m. on July 30, 2000, for two robberies. After a necessary delay for the hospital treatment of injuries sustained by Williams when the arrest was effected, Williams, still in his hospital gown, was placed in an interview room at 9:25 a.m. By 12:42 p.m. that same day Williams had waived his rights and given a written statement as to each of the robberies. During this period the police learned that Williams gave a false name when arrested and that there were warrants outstanding against him for three murders. ¹⁹⁸ A homicide detective began interviewing Williams at 1:23 p.m. on July 30 concerning the murders.

That detective was relieved by a second detective at around 6:30 p.m. By 9:57 p.m. Williams had completed , a statement concerning one of the murders and by 12:13 a.m. on July 31, 2000, he had completed a statement concerning the other two murders. Thereafter he was left overnight in the eight foot by eight foot interview room to sleep on the floor.

At 10:21 a.m. a third detective, who had reviewed the statements from the night before, interviewed Williams concerning the first murder and obtained the name of Williams’s accomplice. Williams then was taken in a van on an unsuccessful search for the accomplice. At 1:04 p.m. he identified a photograph of the accomplice, and between 4:08 and 5:51 p.m. on the 31st he gave an additional statement concerning the first murder. Prosecution for that murder was the subject of the reported opinion.

At 8:30 p.m. on the 31st he was taken to “District 3” for processing and was presented to the Commissioner at 3:07 a.m. on August 1. Reviewing the history of CJ § 10-912 and Rule 4-212(e) and (f) (the latter dealing with the procedure following the execution of warrants on persons in custody), the Court of Appeals explained that CJ § 10-912 altered the rule of Johnson v. State, 282 Md. 314 , 384 A.2d 709 (1978), and McClain v. State, 288 Md. 456 , 419 A.2d 369 (1980), under which a violation of Rule 4-212, in and of itself, resulted in suppression of a statement. “The goal of the statute was simply to eliminate a Rule violation as an independent ground, separate from voluntariness, for rendering a confession inadmissible.” Williams, 375 Md. at 429 , 825 A.2d at 1092 . In Williams , the police “had all of the basic information they needed to present [Williams] to a Commissioner” on the two robbery charges by 12:42 p.m. on July 30, that is, in just over three hours after the interrogation had begun. Id at 423, 825 A.2d at 1089.

At that time the police could have taken Williams before a Commissioner on the robbery charges “and then returned him to the station for questioning as to the homicides.” Id (footnote omitted). ¹⁹⁹ The Williams Court then considered whether the interrogation for the homicides was for an “appropriate,” i.e., necessary, purpose and held that it was not, saying: “There were no apparent administrative functions to be performed that required further questioning, and, to the extent there were any, it does not appear that the ensuing questioning was for that purpose. The homicides had been committed on July 21—nine days earlier. Petitioner had already been charged in at least one of them. There was no concern about possible harm to other people or property, and it does not appear that the police were focusing on the identity or location of other persons.

Petitioner was not questioned about an accomplice until sometime after 10:21 a.m. on July 31, some 21 hours after the homicide interrogations began.” Id. at 424 , 825 A.2d at 1089. The Court concluded that “[t]he sole, unadulterated purpose of the subsequent interrogation was to obtain incriminating statements[ .]” Id. at 424, 825 A.2d at 1090. Citing Young v. State, 68 Md.App. 121, 134 , 510 A.2d 599, 606 , cert. denied, 307 Md. 599 , 516 A.2d 569 (1986) (quoting Meyer v. State, 43 Md.App. 427, 434 , 406 A.2d 427, 433 (1979)), the Court held that such a purpose was “not a proper basis upon which to delay presentment.” Williams, 375 Md. at 424 , 825 A.2d at 1090 . Then, addressing the relationship to voluntariness of that type of “unnecessary” delay that has as its sole purpose an interrogation seeking incriminating statements, the Court said: “[I]f the police ... deliberately delay presentment in order to conduct a custodial interrogation, any resulting confession must be regarded as laden with suspicion.

The violation of the Rule in such a circumstance will have to be given very heavy weight, by both the suppression court and by the trier of fact, in determining the overall voluntariness of the confession. Obviously, the longer any unlawful delay, the ²⁰⁰ greater is the weight that must be given to the prospect of coercion.” Id. at 433 , 825 A.2d at 1095. Summing up, the Williams Court concluded: “We hold that any deliberate and unnecessary delay in presenting an accused before a District Court Commissioner, in violation of Rule 4-212(e) or (f) must be given very heavy weight in determining whether a resulting confession is voluntary, because that violation creates its own aura of suspicion. The violation does not, of itself, make the confession involuntary or inadmissible.

It remains a factor to be considered, along with any others that may be relevant, but it must be given very heavy weight. There was such a violation here, and we are convinced from the record that the trial court did not give that violation the proper weight and did not instruct the jury to do so. It is for those reasons that we reverse.” Id. at 434 , 825 A.2d at 1095. The Court remanded the Williams prosecution for a new trial.

In Facon v. State, 375 Md. 435 , 825 A.2d 1096 , the delay in presentment before a Commissioner, measured from the time when the accused was brought to the central processing facility in Prince George’s County from Washington, D.C., was twelve and one-half hours. The Court of Appeals found that “[t]he delay was solely for the purpose of interrogation.” Id. at 453 , 825 A.2d at 1106. Under those circumstances, the accused was entitled to have the suppression court “accord such violation very heavy weight in considering whether [the accused’s] confession was voluntary.” Id. at 454, 825 A.2d at 1107. Because the suppression court had considered only the time that the accused spent with the interrogating officer, and had not given any weight to the total time spent in custody in Maryland, the judgment of conviction was reversed, and the case was remanded for a new trial.

Id. Hiligh v. State, 375 Md. 456 , 825 A.2d 1108 , was authored for the Court of Appeals by Judge Wilner, who had written for the Court in Williams. Hiligh was a post-conviction case in ²⁰¹ which the discussion of delayed presentment was addressed in the context of the adequacy of trial counsel’s representation. Hiligh had been arrested at about 11:00 p.m. on March 20, 1995, for armed robbery.

By 3:30 a.m. on March 21 the charging documents were completed to process Hiligh for that crime. Interrogation of Hiligh regarding Prince George’s County robberies began at 8:35 a.m. on March 21 and continued until approximately 6:00 p.m. During that period a series of statements were taken from him, only the first of which was the subject of the reported case. Hiligh was then interrogated by officers from Anne Arundel and Howard Counties concerning robberies in those jurisdictions.

It was not until 10:30 p.m. on March 21, some twenty-three and one-half hours after he was first brought to the police station, that he was taken before a Commissioner. The Hiligh Court described its decision in Williams as concluding that “when a delay in presentment was not only unnecessary but deliberate and for the sole purpose of extracting incriminating statements, it must be given special weight by a suppression court.” 375 Md. at 472, 825 A.2d at 1117.