Pryor v. State

PAUL E. ALPERT, J. (Retired, Specially Assigned). Scott Allen Pryor, appellant, was convicted at a bench trial in the Circuit Court for Howard County of first-degree arson, first-degree assault, two counts of second-degree assault, first-degree burglary, and two counts of reckless endangerment. 1 The court subsequently sentenced appellant to a total of 63 years of imprisonment: 25 years for arson; a consecutive 25 years for first-degree assault; a concurrent ten years for burglary; a consecutive eight years for second-degree assault; and a consecutive five years for reckless endangerment. His remaining convictions were merged for sentencing purposes.

Appellant presents three questions for our review: I. Did the trial court err when it denied appellant’s motion to suppress?

II

Did the trial court err in not granting appellant’s motion for judgment of acquittal for each of his convictions?

III

Did the trial court err when it refused, for sentencing purposes, to merge appellant’s conviction for first-degree assault into his conviction for first-degree arson? We answer each of the above questions in the negative and shall affirm the judgments. SUPPRESSION HEARING FACTS Prior to trial, appellant moved to suppress two statements he made to the police and tangible evidence the police seized ³¹⁹ after his first statement. Appellant made the first statement to the police at his house on the evening of the arson.

He made the second statement a few days later at a police station following his arrest. At the suppression hearing, three detectives from the Howard County Police Department testified for the State: Corporal Aaron Dombrowsky, the lead investigator; Clay Davis, who assisted Detective Dombrowsky during appellant’s first statement; and Edward Upton, who assisted Detective Dombrowsky during appellant’s second statement. The facts elicited at the suppression hearing, which appellant did not dispute, showed the following. Around 7:00 a.m. on November 19, 2007, a fire consumed an end-unit townhouse at 5769 Flagflower Place in Columbia, Maryland.

The townhouse belonged to Sheryl Alman, appellant’s ex-girlfriend. Ms. Alman’s daughter, Breanna, and the daughter’s boyfriend, Andrew Lee, were injured in the fire; Breanna was critically injured. It was determined that an accelerant, a flammable liquid used to ignite or accelerate a fire, was used, and appellant was a potential suspect. After the fire was extinguished, Detective Dombrowsky spoke with the firefighters and officers involved in extinguishing the fire and several arson investigators.

Around 8:30 p.m. on the day of the fire, Detectives Dom-browsky and Davis went to appellant’s home in Essex to interview him in connection with the arson. Detectives Dom-browsky and Davis, dressed in plain clothes but wearing their service revolvers, knocked on the front door of appellant’s home. When appellant opened the door, the detectives identified themselves as police officers and asked if they could come inside and talk to him. Appellant invited the detectives inside and the three sat around a dining room table.

Detective Davis recorded the ensuing conversation on a handheld digital audio recorder that was in his pocket. Both detectives consented to the recording of their voices; appellant did not know that the conversation was being recorded. The detectives testified that during their conversation with appellant they did not threaten him, make any promises, or ³²⁰ yell at him. They testified that they had no physical contact with appellant and never displayed their weapons to him.

During the conversation, appellant expressed little emotion and said nothing when informed of the fire or that Breanna, Ms. Alman’s twenty-one year old daughter, had been injured in the blaze. After the conversation, appellant consented to a search of his car. Detective Dombrowsky smelled gasoline coming from the trunk of the car but decided not to arrest appellant at that time. The detectives then left appellant’s home.

The detectives returned to the police station, conferred with several arson investigators, and obtained a search warrant for appellant and his home. Around 1:00 a.m. the next day, November 20, the detectives returned to appellant’s home with an accelerant trained dog. The detectives knocked on the door, but no one answered. The detectives took the dog to appellant’s parked car where the dog alerted for the presence of an accelerant.

The detectives seized the car. Around 5:00 a.m. the following day, November 21, appellant was arrested and taken to a police station. Around 6:00 a.m., he was placed in an interview room that measured approximately eight feet by five feet and contained a table and three chairs. The room was wired for video and sound.

Appellant was not handcuffed. After appellant waived his Mirandat 2 rights, Detective Dombrowsky and Detective Upton questioned appellant. The detectives testified that they did not wear their service revolvers, and did not threaten appellant, make any promises, or have any physical contact with him during the interview. Detective Dombrowsky testified that they spoke with appellant for about 30-40 minutes, during which appellant admitted to setting the fire.

Detective Dombrowsky then stepped outside the interview room to check the video equipment. Detective Upton, who remained in the room with appellant, asked appellant if he wanted to write an apology letter. ³²¹ Appellant indicated that he did, and he was given a pen and paper. During the break in the interview, which Detective Dom-browsky estimated lasted about ten minutes and Detective Upton estimated lasted a few minutes, it was learned that the audio portion of the video system had failed to record. Detective Dombrowsky re-entered the interview room with a han-dheld digital recorder and asked appellant to repeat what he had said.

Appellant reiterated that he had set the fire. That interview lasted ten minutes. During the break, appellant never asked for an attorney nor ever stated that he did not want to talk anymore. The tape and a transcription of the conversation appellant had with the police at his home was entered into evidence at the suppression hearing.

The tape and a transcription of appellant’s second statement to the police at the police station, as well as his letter of apology, were likewise introduced into evidence at the suppression hearing. At the conclusion of the testimony, defense counsel argued that appellant’s first statement to the police on November 19, 2007, should be suppressed because it was taken in violation of: 1) Maryland’s wiretap law, and 2) Miranda because appellant was in custody while questioned in his home. Defense counsel also argued that the seizure of appellant’s car and the evidence contained in it, and appellant’s second statement to the police on November 21, 2007, should be suppressed because they were the fruits of the illegal first statement. Additionally, defense counsel argued that appellant’s second statement to the police on November 21, 2007, should be suppressed because it was taken in contravention of Miranda because there was a break in custody and appellant was not re-advised of his rights to remain silent and to have counsel present.

The trial court denied the motion. DISCUSSION I. Appellant argues that the suppression court erred in denying his motion to suppress and raises the same arguments that ³²² he raised below. We find no error by the suppression court. We shall address each argument in turn.

A. November 19th Statement — Wiretap Statute Appellant argues that his November 19th statement should have been suppressed because it was taken in violation of the Maryland Wiretapping and Electronic Surveillance Act (“Maryland’s Wiretap Act”). Md.Code (2006), Courts & Judicial Proceedings (CJ), §§ 10-401 through 414. Specifically, appellant argues that his statement, which was recorded without his consent, was illegal because the State failed to show that when the recording was made there existed a risk to public safety as required by the statute. Appellant is legally wrong.

Maryland’s Wiretap Act generally prohibits the interception or recording of oral communications except under certain enumerated circumstances, including exceptions for police officers investigating certain crimes. See CJ § 10-402(a). Specifically, the Act makes it lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication in order to provide evidence: 1. Of the commission of: ...

I. A felony under Title 6, Subtitle 1 of the Criminal Law Article[.] Section 10 — 402(c)(2)(ii). Arson and burning crimes are contained in the listed title and subtitle. See Md.Code Ann., Crim. Law §§ 6-101 through 6-111.

Appellant argues that the State failed to show that “at the time the recording was made[ ] there existed a risk to public safety.” Appellant cites no support for such an interpretation. Certainly, the explicit wording of the statute contains no such requirement, nor are we aware of or has appellant cited any case law that suggests such a requirement. The only time the Maryland Wiretap Act requires a showing of public safety is when a police officer utilizes a “body wire” to intercept an oral ³²³ communication. 3 See § 10-402(c)(6). In those circumstances, the statute requires a reasonable belief that “a law enforcement officer’s safety may be in jeopardy.” Id.

Here, a hand held recorder was used, not a body wire. Thus, contrary to appellant’s argument, there was no requirement that the State show that there was a public safety risk at the time of the recording. B. November 19th Statement — Miranda Appellant next argues that his statement on November 19, 2007, should have been suppressed because it was taken in violation of Miranda. Although the trial court found that appellant was not in custody when he was interviewed at his home, appellant challenges that conclusion.

He argues that when he was questioned by the detectives there was a coercive quality as evidenced by: (1) the detectives interviewed him at his house around 8:30 p.m., (2) the detectives were armed with their service weapons, (3) appellant was questioned by two detectives, and (4) appellant was isolated while he was questioned. We find no error by the trial court. In the landmark case of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), the United States Supreme Court held that statements obtained during “custodial interrogation” were not admissible unless the suspect had been previously informed of certain constitutional rights. The Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of ³²⁴ action in any significant way.” Miranda, 384 U.S. at 444 , 86 S.Ct. 1602 (footnote omitted).

In making that determination, “a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Stansbury v. California, 511 U.S. 318, 322 , 114 S.Ct. 1526 , 128 L.Ed.2d 293 (1994) (quotation marks, brackets, and citation omitted). The interrogation is to be judged by an objective standard and “not the subjective views harbored by either the interrogating officers or the person being questioned.” Id. at 323 , 114 S.Ct. 1526 . The Court of Appeals had set forth several factors that may be relevant in determining whether a person is in custody for purposes of Miranda , including: when and where [the interrogation] occurred, how long it lasted, how many police were present, what the officers and the defendant said and did, the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door, and whether the defendant was being questioned as a suspect or as a witness. Facts pertaining to events before the interrogation are also relevant, especially how the defendant got to the place of questioning — whether he came completely on his own, in response to a police request, or escorted by police officers.

Finally, what happened after the interrogation — whether the defendant left freely, was detained or arrested — may assist the court in determining whether the defendant, as a reasonable person, would have felt free to break off the questioning. State v. Rucker, 374 Md. 199, 209 , 821 A.2d 439 (2003) (citations omitted). Here, the questioning took place around 8:30 p.m. at the dining room table in appellant’s home. The two detectives had knocked on the door, identified themselves as police officers, and were invited in.

The detectives did not threaten, promise inducements, or yell at appellant during the question ³²⁵ ing. Although they were armed, the detectives did not display their weapons. Appellant was not restrained in any way — he was not handcuffed at any time and the detectives did not come into physical contact with him at any time before or during the questioning. After the questioning was over, the detectives left appellant’s home — he was not arrested.

Under the circumstances, we are persuaded that appellant was not in custody while questioned. Cf. Rucker, supra (no custody where accused was stopped by police officer at 5:20 p.m. in a public parking lot of a shopping center where detention was less than an hour from picking up informant to accused giving statement, three officers were on scene but two had backed away and only one asked questions, license and registration were taken but return was not conditioned on the accused’s cooperation, there was no drawing of weapons, and the accused was not handcuffed or actually restrained). The facts here are easily distinguishable from the two cases cited by appellant where custody was found.

In Orozco v. Texas, 394 U.S. 324, 325 , 89 S.Ct. 1095 , 22 L.Ed.2d 311 (1969), four police officers entered the suspect’s bedroom in a boarding house at 4:00 a.m. and woke him from his sleep to question him. In Bond v. State, 142 Md.App. 219, 223-24 , 788 A.2d 705 (2002), three police officers entered the suspect’s bedroom of his trailer sometime after 10:30 p.m. and questioned him while he was sitting in bed with his shirt off. In contrast, we find the facts here similar to those in Beckwith v. United States, 425 U.S. 341, 343-44, 347 , 96 S.Ct. 1612 , 48 L.Ed.2d 1 (1976). In that case, the United States Supreme Court found no custody where two IRS agents came to the defendant’s home at 8:00 a.m., were invited in, interviewed the defendant around his dining room table, and the defendant was not arrested when the police left.

C. Fruit of the Poisonous Tree Appellant next argues that because his November 19th statement was taken in violation of Miranda , all the subsequent evidence gathered by the police — the evidence obtained from the search of his car and his statement two days later— ³²⁶ should have been suppressed under the “fruit of the poisonous tree” doctrine. See Wong Sun v. United States, 371 U.S. 471, 485-88 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963). We can quickly dispose of appellant’s argument for two reasons. First, as discussed above, the trial court properly denied appellant’s motion to suppress his statement on November 19th because there was no custody so as to trigger Miranda .

Thus, there was no poisonous tree. Second, even if there had been a Miranda violation, the fruit of the poisonous tree doctrine would not apply because Miranda violations are not constitutional violations. See Smith v. State, 186 Md.App. 498, 515 , 974 A.2d 991 (2009) (“[B]oth this Court and the Court of Appeals have recognized this pivotal difference between a constitutional violation itself which will trigger the ‘fruit of the poisonous tree’ doctrine and a ‘mere Miranda ’ violation which will not trigger that doctrine.”) (quotation marks and citation omitted), aff'd, 414 Md. 357 , 995 A.2d 685 (2010). B. November 21st Statement — Miranda Lastly, appellant argues that his November 21st statement should have been suppressed because there was a break during the interrogation and he was not re-advised of his Miranda rights when the interrogation resumed.

We are inclined not to address his argument because appellant fails to cite any case law in an area saturated with case law — he fails to cite the standard by which we review this issue, the factors to be applied, or the facts of any case he finds persuasive. See Md. Rule 8-504(a)(5), (c) and Klauenberg v. State, 355 Md. 528, 552 , 735 A.2d 1061 (1999) (if a point germane to the appeal is not adequately raised in a party’s brief or presented with particularity an appellate court may, and ordinarily should, decline to address it.). We shall, however, address his argument but find it devoid of merit. “In determining whether a defendant should have been re-advised [of his Miranda rights during a break between interviews,] courts look to the totality of the circumstances.” Harper v. State, 162 Md.App. 55, 86 , 873 A.2d 395 (2005) (citing State v. Tolbert, 381 Md. 539, 551 , 850 A.2d 1192 , cert. ³²⁷ denied, 543 U.S. 852 , 125 S.Ct. 263 , 160 L.Ed.2d 85 (2004)). A non-exhaustive list of factors include: (1) the length of time between the giving of the first warnings and the subsequent interrogation ...; (2) whether the warnings and the subsequent interrogation were given in the same or different places ...; (3) whether the warnings were given and the subsequent interrogation conducted by the same or different officers ...; (4) the extent to which the subsequent statement differed from any previous statements ...; (5) the apparent intellectual and emotional state of the suspect.

Harper, 162 Md.App. at 86-87 , 873 A.2d 395 (quotations marks and citation omitted). Here, during his interview at the police station, appellant waived his Miranda rights and gave a statement. That interview lasted forty minutes. A ten minute break was taken, after which appellant made a second statement, which lasted ten minutes.

The entire interview process at the police station lasted around an hour. The brevity of the overall encounter and the brief length of time of the break support the conclusion that the police were not required to re-advise appellant of his Miranda rights after the break. See Tolbert, 381 Md. at 554 , 850 A.2d 1192 (re-advisement of Miranda rights not required where two and a half hours passed between advisement of Miranda rights and defendant’s incriminating statement); Harper, 162 Md.App. at 87 , 873 A.2d 395 (re-advisement of Miranda rights not required where two hours passed between advisement of Miranda rights and defendant’s interrogation). Additionally, the two statements took place in the same room, the same detectives were present during both statements, the statements apparently did not differ in their general complicity, and there was no apparent change in appellant’s intellectual and emotional state between the two statements.

Accordingly, we find no error by the trial court in concluding that there was no Miranda violation because the police did not re-advise appellant of his Miranda rights between the two interviews. ³²⁸ II. Appellant argues that the evidence was not sufficient to support his convictions. He argues that because his two statements and the physical evidence seized in connection with the investigation should have been suppressed, the remainder of the State’s case was based on circumstantial evidence which was legally insufficient to support his convictions. As recounted above, however, his motion to suppress was properly denied so both statements were properly admitted at trial along with all the evidence seized in connection with the investigation.

Addressing each conviction, we find no merit to his arguments. When reviewing the sufficiency of the evidence, our task is to determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Taylor v. State, 346 Md. 452, 457 , 697 A.2d 462 (1997) (quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)). “[W]hen evaluating the sufficiency of the evidence in a non-jury trial, the judgment of the trial court will not be set aside on the evidence unless clearly erroneous[.]” State v. Raines, 326 Md. 582 ; 589, 606 A.2d 265 , cert, denied, 506 U.S. 945 , 113 S.Ct. 390 , 121 L.Ed.2d 299 (1992). See also Khalifa v. State, 382 Md. 400, 418 , 855 A.2d 1175 (2004); Md. Rule 8-131(c). This is because we accord deference to the factual findings of the trial judge and give due deference to his ability to observe the demeanor of the witnesses and to assess their credibility.

Wiggins v. State, 324 Md. 551, 567 , 597 A.2d 1359 (1991), cert, denied, 503 U.S. 1007 , 112 S.Ct. 1765 , 118 L.Ed.2d 427 (1992); Bryant v. State, 142 Md.App. 604, 622 , 791 A.2d 161 , cert, denied, 369 Md. 179 , 798 A.2d 552 (2002). As with direct evidence, circumstantial evidence will sustain a conviction when all the facts taken together do not require that the fact-finder to resort to speculation or mere conjecture. Taylor, 346 Md. at 458 , 697 A.2d 462 . “Where it is reasonable for a trier of fact to make an inference, we must ³²⁹ let them do so, as the question is not whether the [trier of fact] could have made other inferences from the evidence or even refused to draw any inference, but whether the inference [it] did make was supported by the evidence.” State v. Suddith, 379 Md. 425, 447 , 842 A.2d 716 (2004) (quotation marks and citation omitted) (brackets in Suddith). A fact-finder is free to believe part of a witness’s testimony, disbelieve other parts of a witness’s testimony, or to completely discount a witness’s testimony.

Muir v. State, 64 Md.App. 648, 654 , 498 A.2d 666 (1985). Contradictions in testimony go to the weight of the testimony and credibility of the evidence, rather than its sufficiency, and we do not weigh the evidence or judge the credibility of the witnesses, as that is the responsibility of the trier of fact. See Longshore v. State, 399 Md. 486, 499-500 , 924 A.2d 1129 (2007); State v. Stanley,