Savoy v. State

RAKER, J. Ottus Savoy, appellant, was convicted in the Circuit Court for Baltimore City of second degree murder and use of a handgun in the commission of a crime of violence. Before this Court he presents the following questions for our review: ¹³⁵ “1. Did the trial court err in admitting Appellant’s statements to the police? 2. Did Appellant knowingly and intelligently [sic] waive the right to testify? 3.

Did the trial court err in admitting into evidence photographic arrays which included a photograph of Appellant?” We shall affirm. I. Appellant was indicted by the Grand Jury for Baltimore City with first degree murder, use of a handgun in the commission of a crime of violence, and wearing, carrying, and transporting a handgun. 1 He proceeded to trial before a jury in the Circuit Court for Baltimore City. During the evening of August 1, 2011, at approximately 11:15 p.m., Sean Ames 2 was shot and killed in Baltimore City outside of the residence of Troy Harkless and his then-girlfriend Amber Buschman. Appellant had been staying at the residence temporarily.

According to the two eyewitnesses at the scene, Janice Jay and Ms. Buschman, appellant emerged from a taxi and demanded to know why Mr. Ames was on the steps. When Mr. Ames replied that he was selling DVDs and awaiting Mr. Harkless’ return, appellant ran into the house, retrieved a handgun, and returned outside. Appellant then shot Mr. Ames on the steps, and when Mr. Ames attempted to flee, appellant chased him up the street and shot him several more times, killing him. The police recovered the gun from the roof of a garage adjoining Mr. Harkless’ residence.

Although the defense called no witnesses in the case, the defense’s theory of the case was that Mr. Harkless, not appellant, killed Mr. Ames. Mr. Harkless testified for the ¹³⁶ State that he had arranged for Mr. Ames to sell him DVDs outside his residence. Mr. Harkless then walked to a neighborhood Seven-Eleven. Upon returning, he learned that Mr. Ames had been killed.

Mr. Harkless found the murder weapon, which was his own gun wrapped in a towel, and tossed it from the window onto a nearby garage roof out of fear that he would be linked to the homicide. Detectives testified that Mr. Harkless provided them with a receipt from the Seven-Eleven and that the surveillance video maintained by the store depicted Mr. Harkless before the murder occurred. It was unclear whether Mr. Harkless had sufficient time to travel from the store to his home to perpetrate the killing. On August 25, 2011, the police arrested appellant and brought him to the homicide unit.

The police interviewed him at two different times. Detective Moynihan testified that when appellant was questioned after his arrest, he wrote on a piece of paper, “If you all can get me twenty to twenty-five years with a lawyer I will take the plea.” When told by a detective that they would need more information to take to the State’s Attorney, appellant replied, “The blank[ 3 ] flinched, act[ed] like he was reaching. I will tell you all how the whole situation happened in front of the State’s attorney.” The court admitted, over defense objection, photo arrays in which Ms. Jay and Ms. Buschman had identified appellant as the perpetrator, and Mr. Harkless had identified appellant as a person he knew. After the close of the State’s case, the following colloquy took place between appellant and defense counsel regarding appellant’s right to testify: “[DEFENSE COUNSEL]: At this point in time the State has rested and the defense would choose whether or not it wants to put a case on or not.

I do not believe we have any witnesses that we want to put on. So the question is do you want to testify or not, which you do not have to answer but ¹³⁷ I have to advise you that you have a right to testify. You have a right to remain silent. If you choose to remain silent I have asked this court already to give an instruction to this jury they cannot even consider the fact you chose to remain silent as evidence against you.

They can’t even discuss or talk about it and that will be the instruction that the Court will read to the jury at the end of instructions. If you choose to testify, you are giving up that Fifth Amendment right, all right, and you have a right to do that if you want but if you get up on the stand you can’t just say one thing. If you get up on the stand and want to testify, then you’re giving up that right and the State can ask you any questions about this case that they want to. Also it’s my understanding that you have a prior conviction with first, degree a,ssault.

It’s my understanding that this is an impeachable offense and if you get on the stand and testify, the State can ask you questions about that offense if they so desire to try to show that you are somebody that should not be believed. You do not have to testify. It’s completely your choice, do you understand your choice? THE DEFENDANT: Yes. [DEFENSE COUNSEL]: Do you understand your right to testify and your right not to testify?

THE DEFENDANT: Yes. [DEFENSE COUNSEL]: And it is my understanding that you would like to hold onto that and make that election tomorrow after you had enough time to digest this and figure this out; is that correct? THE DEFENDANT: Yes.” At the next day’s proceedings, trial counsel stated as follows: “Your Honor, I’ve spoken to my client, Mr. Savoy, and Mr. Savoy, at this time, would like to invoke his Fifth Amendment Right and not testify.” Although the defense called no witnesses in the case, the defense’s argument was that Mr. Harkless, not appellant, killed Mr. Ames. ¹³⁸ The jury convicted appellant of second-degree murder and use of a handgun in the commission of a crime of violence. The court sentenced appellant to a term of incarceration of thirty years for second-degree murder and a consecutive term of incarceration of twenty years for the use of a handgun. This timely appeal followed.

II

We turn first to appellant’s request that we review for plain error the denial of his motion to suppress and the admission of his pre-trial statements to the police. Appellant argues that the trial court committed plain error in allowing the admission of the incriminating statements he made to the police because they were statements made in the context of settlement negotiations and appellant offered to plead guilty in return for a specified sentence. He argues plain error in the admissibility of his statements also because the detectives violated his rights under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), in that the detectives failed to scrupulously honor his right to remain silent. The State maintains that appellant’s arguments regarding the suppression hearing were waived and precluded from plain error review.

Particularly interesting is the State’s argument that plain error review is not available when a defendant affirmatively waives issues subject to Rule 4-252, i.e., mandatory motions to suppress. The State argues in the alternative that plain error review is unwarranted because appellant did not identify any clear and obvious error by the trial court. First, the State argues that Rule 5-410 is inapplicable to the admissibility of the statements at issue because that Rule applies only to plea discussions with an attorney for the prosecuting authority and it has no application to statements a defendant may have made to law enforcement alone. Second, as to the merits of the Miranda issue, the State argues that the detectives scrupulously honored appellant’s initial invocation of the right to remain silent. ¹³⁹ When reviewing the denial of a motion to suppress, we review the record of the suppression hearing, not the record of the trial.

Byndloss v. State, 391 Md. 462, 477 , 893 A.2d 1119, 1128 (2006). The following facts were adduced at the pre-trial suppression hearing. Appellant was arrested on August 25, 2011, and the police interviewed him that day. Detective Moynihan conducted the interview, while a fellow detective was present as a witness.

Detective Moynihan read appellant his Miranda warnings, see Miranda, 384 U.S. at 436 , 86 S.Ct. 1602 , and appellant waived both his Miranda rights and his right to prompt presentment. During this phase of the interview, appellant mentioned that some members of a rock and roll band might be able to provide an alibi for him. Appellant then stated, “I’m finished talking.” Detective Moynihan terminated the interview, and checked out the asserted alibi. The members of the rock and roll band provided no exculpatory information.

After two-and-one-half hours had passed, Detective Moynihan questioned appellant again, accompanied by the same detective. Detective Moynihan restated the Miranda warnings, appellant waived his Miranda rights and he agreed to speak with the detectives. Appellant asked for a piece of paper and wrote: “If you all can get me 20 to 25 years with a lawyer, I will take the plea.” The other detective told appellant that they would need more information to take to the State’s Attorney. Appellant replied, “The [blank] flinched, act[ed] like he was reaching.

I will tell you all how the whole situation happened, in front of the State’s attorney.” At the suppression hearing, appellant argued only that the statements were involuntary because they were the product of coercive tactics. In particular, appellant argued that he denied initially his involvement in the murder, but that the detectives continued to press him and intimidate him until he made the statements. The court rejected this argument and denied the motion to suppress, explaining as follows: ¹⁴⁰ “[W]hile there is a repetitive sort of stick-to-it-ness on the part of the detectives, they are not—they’re unrelenting in returning to the issue. And [appellant’s] demeanor, as it’s presented through the audiotape is, at least in the Court’s opinion, is aggressive, assertive, not intimidated in any way, and combative. [T]here’s certainly nothing here, to the Court, that rises to a constitutional level where he should—any of these statements—any of them—should be suppressed, at this point, on that legal point.

So your motion is denied[.]” Before this court, appellant abandons the argument he made in the trial court that the statements were involuntary because of police coercion and instead argues that the statements were inadmissible because they were part of plea negotiations and taken in violation of Miranda . He states in his brief as follows: “Defense counsel argued that the statements were involuntary, and the hearing judge rejected that argument. Appellant now abandons that argument as nonviable, but respectfully requests that this Court exercise its discretion to recognize plain error ... upon two different theories: That the statements were inadmissible under Rule 5-410 as statements made in the course of plea negotiations, and that they were obtained through failure to ‘scrupulously honor’ [see Michigan v. Mosley, 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975) ] Mr. Savoy’s invocation of the right to remain silent.” He asks us to review the matter for plain error. The State counters that appellant affirmatively waived these arguments by not presenting them at the suppression hearing, and therefore, plain error review is not available.

The State argues alternatively that we should not review for plain error because appellant fails to identify any clear and obvious error by the court. ¹⁴¹ We shall consider appellant’s appeal arguments separately because, as we shall explain infra, the standard of review of his Rule 5-410 plea negotiation argument is different from that applicable to his Miranda violation argument. We address his Miranda violation argument first. There is no dispute in this case that appellant did not preserve the issue for our review, and waived the arguments he is now raising. See Rule 8-131 and Rule 4-252.

It is well established that, absent good cause, Rule 4-252 4 prohibits a criminal defendant from raising a theory of suppression on appeal that was not argued in the circuit court. See Ray v. State, 435 Md. 1, 19 , 76 A.3d 1143, 1153 (2013); Joyner v. State, 208 Md.App. 500, 519 , 56 A.3d 787, 798-99 (2012); Carroll v. State, 202 Md.App. 487, 513 , 32 A.3d 1090, 1104 (2011), aff'd, 428 Md. 679 , 53 A.3d 1159 (2012). Rule 8-131(a) provides that “[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court.” Rule 4-252 provides that in the circuit court, a motion claiming an unlawfully obtained admission, statement, or confession must be raised in conformity with the Rule, shall be in writing unless directed otherwise by the court and shall state the ¹⁴² grounds upon which it is made. Rule 4-252(a)(4), (e).

Unless a defendant shows good cause to excuse lack of conformity with the rule, it is waived. Rule 4-252(a). This Rule applies to a failure to file a motion to suppress as well as to a failure to include on the trial level the specific theory raised on appeal. Ray, 435 Md. at 19 , 76 A.3d at 1153 (“Maryland Rule 4-252 dictates that Petitioner, by failing to advance before the Circuit Court the theory that his unlawful arrest requires suppression of all evidence that was the fruit of that unlawful arrest, waived the right to have that claim litigated on direct appeal.”).

See also United States v. Lockett, 406 F.3d 207, 212 (3d Cir.2005) (“[I]n the context of a motion to suppress, a defendant must have advanced substantially the same theories of suppression in the district court as he or she seeks to rely upon in this Court.”). Before this Court, appellant offers no reason for the failure to raise the issue below, other than possibly appellate after-thought, which is insufficient. See Appellant’s Brief, n.3. 5 Because appellant did not raise his Miranda theory of suppression in the circuit court, we hold that pursuant to Rule 4-252, that argument is affirmatively waived. Recognizing that under Rule 4-252 his Miranda argument is waived, appellant relies upon Maryland Rule 8-131 and plain error as his life raft.

While Rule 8-131(a) provides that “[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court,” it allows for the possibility of plain error review. There is tension, however, between Rule 8-131, which allows for plain error review, and Rule 4-252, which provides that grounds for suppression not argued at the suppression hearing are affirmatively waived. The language of affirmative waiver suggests that plain error review is unavailable, and ¹⁴³ that an appellant seeking review must instead show good cause for the failure to raise the issue in the circuit court. We hold that because appellant failed to raise his arguments at the hearing below, they are affirmatively waived and we will not review for plain error.

We considered this issue in Carroll v. State, 202 Md.App. 487, 513 , 32 A.3d 1090, 1104 (2011), aff'd, 428 Md. 679 , 53 A.3d 1159 (2012). In Carroll , the defendant filed a motion to suppress, but withdrew the motion before trial and hence, the trial court never held a suppression hearing. On appeal, appellant argued that the trial court’s admission of the evidence was plain error. After examining the history of Rule 4-252, and the interplay between Rule 8-131 and 4-252, we held that Rule 4-252 trumps 8-131, and that plain error review is not available to a defendant who fails to conform to the requirements of 4-252.

Writing for the panel in Carroll , Judge Kathryn Graeff pointed out that Rule 4-252, previously Rule 736, was patterned after Rule 12 of the Federal Rules of Criminal Procedure. Both rules are similar in providing that motions to suppress must be filed pre-trial and a failure to raise timely objections to the admissibility of an alleged illegal confession constitutes a waiver. Kohr v. State, 40 Md.App. 92, 98 , 388 A.2d 1242, 1246 (1978). Where a Maryland rule is similar to or patterned on the federal rule, federal interpretation of the rule is persuasive.

Because Rule 4-252 is patterned after the federal rule, we look to federal decisions addressing the effect of a failure to raise a suppression issue pursuant to Fed.R.Crim.P. 12. Federal courts have rejected plain error review of a suppression issue that was not raised below, holding that the failure to comply with Fed.R.Crim.P. 12 constitutes a waiver of the issue on appeal. See e.g., United States v. Burke, 633 F.3d 984, 991 (10th Cir.2011), cert. denied, - U.S. -, 131 S. Ct. 2130 , 179 L.Ed.2d 919 ; United States v. Rose, 538 F.3d 175 (3d Cir.2008); United States v. Wright, 215 F.3d 1020, 1026 (9th Cir.2000), cert. denied, 531 U.S. 969 , 121 S.Ct. 406 , ¹⁴⁴ 148 L.Ed.2d 313 ; United States v. Chavez-Valencia, 116 F.3d 127, 129-33 (5th Cir.1997), cert. denied, 522 U.S. 926 , 118 S.Ct. 325 , 139 L.Ed.2d 252 . In Rose , the United States Court of Appeals for the Third Circuit considered whether a criminal defendant who failed to raise a reason to suppress evidence before the District Court may raise the reason on appeal.

The court held that absent good cause, he cannot and that such a suppression issue is waived under Fed.R.Crim.P. 12, which trumps Rule 52(b)’s 6 plain error standard in the context of motions to suppress. Rose, 538 F.3d at 182-83 . The defendant advanced on appeal different arguments for suppression than he raised at the trial level. The court held that the “holding applies not only where the defendant failed to file a suppression motion at all in the district court, but also where he filed one but did not include the issues raised on appeal.” Id. at 182 .

The court stated as follows: “[I]n the context of a motion to suppress, a defendant must have advanced substantially the same theories of suppression in the district court as he or she seeks to rely upon in this Court—in other words, a litigant cannot jump from theory to theory like a bee buzzing from flower to flower.” Id. at 179-80 (internal quotation marks omitted). The court surveyed other federal circuits and noted that although not universal, “the prevailing rule is that the failure to assert a particular ground [for suppression] operates as a waiver of the right to challenge the admissibility of the evidence on that ground.” Id. at 180 , quoting 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.2(a) (4th ed. 2004) (modification in original). The court noted that even when the suppression hearing record is developed sufficiently for the appellate court to address plain error, it should decline to do so because of the language of the Federal Rule. Id. at 183 n. 8. ¹⁴⁵ In the case sub judice, the argument appellant raises before us on appeal is totally different from the arguments he raised below.

He raised no Miranda issue below, and appellant has not shown any cause, no less good cause, for his failure to do so. Pursuant to Rule 4-252, his Miranda argument that his right to remain silent was not “scrupulously honored” was affirmatively waived, and plain error review is not available. We turn to appellant’s other argument: that his statements were inadmissible at trial because they were made during plea negotiations within the purview of Rule 5-410, and therefore, nothing that transpired there was admissible in evidence. This argument was not affirmatively waived in the same sense as appellant’s Rule 4-252 argument is waived because appellant’s 5-410 argument is a trial evidentiary one, not a mandatory motion falling within the ambit of Rule 4-252.

He was required, however, to raise the issue below as required by Rule 8-131. He failed to do so. He is not barred, however, from seeking plain error review. Plain error review “is reserved for those errors that are compelling, extraordinary, exceptional or fundamental to assure the defendant of a fair trial.” Robinson v. State, 410 Md. 91, 111 , 976 A.2d 1072, 1084 (2009).

It involves four prongs: (1) the error must not have been “intentionally relinquished or abandoned”; (2) the error must be clear or obvious, not subject to reasonable dispute; (3) the error affected appellant’s substantial rights, which means he must demonstrate that it affected the outcome of the court proceeding; (4) the appellate court has discretion to remedy the error, but this ought to be exercised only if the error affects the fairness, integrity, or public reputation of judicial proceedings. State v. Rich, 415 Md. 567, 578 , 3 A.3d 1210, 1216 (2010). We hold that although appellant’s argument is not procedurally barred from plain error review, it does not meet the threshold for plain error review—that is, it is not compelling, extraordinary, exceptional or fundamental to assure a fair trial. Moreover, it is not even error. ¹⁴⁶ Appellant argues that both his statements to the detectives should have been excluded because they were made in the context of settlement negotiations.

He cites Rule 5-410(a), which provides as follows: “Except as otherwise provided in this Rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions: * * * (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or nolo contendere or which result in a plea of guilty or nolo contendere which was not accepted or was later withdrawn and vacated.” (emphasis added). Rule 5-410(a)(4) is inapplicable here. The statements at issue that appellant made were not to “an attorney for the prosecuting authority” but to two police detectives. Appellant’s conduct did not come within the ambit of the Rule.

There was no error here.

III

We turn to appellant’s constitutional argument that he did “not knowingly and intelligently[ 7 ] waive the right to testify” and his contention that we must reverse because he waived his right to testify based on his trial counsel’s incorrect legal advice. His attorney told him, erroneously, that if he testified, the State could impeach him with his prior conviction for first-degree assault. Appellant argues that because the trial court erred in failing to correct the erroneous advice defense counsel provided him regarding his right to testify, his waiver of that right was not knowing and voluntary. Defense counsel told appellant, in open court, that his prior first-degree assault conviction was admissible for impeachment purposes.

That advice ¹⁴⁷ was incorrect. First-degree assault is not an impeachable conviction. See Christian v. State, 405 Md. 306, 320 , 951 A.2d 832, 840 (2008) (first-degree assault is a statutory replacement for aggravated assaults such as assault with intent to murder or assault with intent to maim and disfigure); Fulp v. State, 130 Md.App. 157, 167 , 745 A.2d 438, 443 (2000) (assault with intent to murder is not an impeachable offense). Appellant argues that trial counsel provided material erroneous advice and that the trial judge, “whose responsibility it was to safeguard appellant’s fundamental rights, failed to correct him.” He says that because the State was the beneficiary of the error, the State has the burden of showing two things: that the incorrect advice did not influence appellant’s election not to testify, and that the court’s error was harmless.

He concludes that because it is highly likely that the misinformation affected his decision not to testify, this Court must reverse. The State’s response is multi-fold. First and foremost, the State maintains that the error was created by appellant’s counsel and it is appellant’s burden to show that the error affected his election not to testify. Moreover, the State continues, even though trial counsel’s advice was facially incorrect advice, and hence the trial court should have taken corrective measures, reversal is not required where there is no evidence that the incorrect advice influenced appellant’s election.

The State’s second argument is the “invited error doctrine.” The State maintains that a party cannot create error and then obtain a benefit, such as a mistrial or reversal, from that error. Finally, the State suggests that, absent evidence of detrimental reliance by appellant on the erroneous advice, claims such as this are best left to post-conviction proceedings. It is clear that a criminal defendant has a constitutional right to testify in his or her defense. Rock v. Arkansas, 483 U.S. 44, 49 , 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987).

The recognition of this right by the United States Supreme Court was a change from the common law view, which disqualified criminal defendants from testifying because of their interest in ¹⁴⁸ the outcome of the trial. Id. See also Jackson v. State, 340 Md. 705, 711-12 , 668 A.2d 8, 11 (1995) (noting that at common law, a person convicted of an infamous crime or a crime involving dishonesty was incompetent to testify). See generally 2 J. Wigmore, Evidence in Trials at Common Law §§ 576, 579 (Chadbourn ed. 1979).

The Supreme Court explained that a defendant’s right to testify at trial, although not found in the text of the Constitution, “has sources in several provisions of the Constitution,” including the Due Process Clause of the Fifth and Fourteenth Amendments, and the Compulsory Process Clause of the Sixth Amendment. Rock, 483 U.S. at 51-52 , 107 S.Ct. 2704 . Additionally, “[t]he opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.” Id. Because the right to testify is fundamental to a fair trial, the defendant must waive that right knowingly and voluntarily.

Gregory v. State, 189 Md.App. 20, 32 , 983 A.2d 542, 549 (2009); Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938). The defendant’s right to testify is a personal right which may be waived only by the defendant, and not by counsel. Tilghman v. State, 117 Md.App. 542, 553 , 701 A.2d 847, 852 (1997). Courts around the country differ in the manner in which the defendant’s right is protected.

Some courts assign the protection of this right to the court, some to defense counsel, and others leave it to the defendant. See, e.g., Brown v. Artuz, 124 F.3d 73, 78-79 (2d Cir.1997). In Maryland, when a defendant is represented by counsel, there is no obligation on the part of the court to advise the defendant of the right to testify. Tilghman, 117 Md.App. at 554 , 701 A.2d at 853 ; Stevens v. State, 232 Md. 33, 39 , 192 A.2d 73, 77 (1963).

Ordinarily, we recognize a presumption, premised on the permitted inference that an attorney, as an officer of the court, follows the law and performs his or her duties, that a represented defendant has been told by counsel of his or her constitutional rights. Tilghman, 117 Md.App. at 554-55 , 701 A.2d at 853 . Moreover, even though the right to testify is personal to the defendant, and must be waived by the ¹⁴⁹ defendant personally, the trial court may assume