Sweeney v. State

Panel: Nazarian, Arthur, Shaw Geter, JJ. Nazarian, J. ^{167 783} Patrick Joseph Sweeney was convicted in the Circuit Court for Montgomery County of second-degree theft and burglary. Mr. Sweeney was found guilty of breaking into a church pastor's garden shed and taking, among other smaller items, a John Deere riding lawn mower and twenty-five pairs of sneakers that had been donated to the church. The State presented its case against Mr. Sweeney on a first-degree principal theory of liability, but the jury convicted Mr. Sweeney only after the circuit court provided a supplemental instruction on accomplice liability after deliberations had begun, in response to a note from the jury.

Mr. Sweeney contends that the supplemental instruction was not generated by the evidence at trial and unfairly prejudiced him because he had no opportunity to defend against an accomplice theory of liability. He also challenges the circuit court's decision to admit a collection of "burglary tools" into evidence, and the court's denial of his motion to suppress evidence obtained from a GPS tracker affixed to his truck. We agree with Mr. Sweeney's first two arguments, reverse, and remand for further proceedings. ¹⁶⁸ I. BACKGROUND Ronnie Morales is a pastor who resides in a church-owned property in Silver Spring. On the morning of June 25, 2016, Mr. Morales's landscaper informed him that the church's John Deere riding lawnmower was not in its usual spot in a shed at the back of the property.

Mr. Morales checked the shed, which he kept closed but unlocked, and found "many items" missing including the riding mower, "small tools[,]" and boxes of sneakers that had been donated to the church. Mr. Morales estimated the total value of the missing items at about $5,000. Mr. Morales's nephew contacted the Montgomery County Police Department ("MCPD") to report the burglary. Weeks before the church shed burglary, on May 27, 2016, the Howard County Police Department ("HCPD") had responded to a different burglary.

That victim reported that a neighbor had approached him to let him know that he had seen a suspicious person at 5:15 that morning loading a lawnmower into the bed of a red pickup truck with Washington D.C. plates. The neighbor described the suspicious person as "a black male between 30 [and] 40 years old" and noted a partial license plate number containing the numbers 5035. The victim called the police after noticing several items, including an "ATV, power washer, and a chainsaw," missing from his shed. Detective Kenneth Drummond of HCPD investigated and discovered that a 2003 red Dodge pickup truck with Washington D.C. registration ENV5035 was registered to a Patrick J. Sweeney.

His investigation further revealed that Mr. Sweeney had recently used his driver's license in a pawn shop transaction and that he had been charged with burglary several times before, most recently in 2009. Based on the information he learned in his investigation, Detective Drummond secured a warrant to attach a GPS tracking device to Mr. Sweeney's truck for thirty days. HCPD attached the device to Mr. Sweeney's truck while it was parked at a Days Inn in Silver Spring, where Mr. Sweeney was living at the time. After thirty days, HCPD removed the tracker and Detective Drummond reviewed the data.

He then ¹⁶⁹ shared the tracker data with Detective Joseph Vitaletti of MCPD. Detective Vitaletti forwarded the data to Detective Scott Sube of MCPD, an expert in electronic surveillance, who reviewed it. The data revealed that on June 25 th , Mr. Sweeney's truck left the Days Inn around 1:17 a.m. The truck drove to the vicinity of ⁷⁸⁴ Norwood Road and remained stationary on a side street from 2:12 a.m. to 4:43 a.m.

It moved to the area of 321 Norwood Road (the Morales residence) and remained stationary again from 4:50 a.m. to 5:08 a.m. The truck then left the area, drove to Washington D.C., and returned to the Days Inn at 5:43 a.m. On August 18, 2016, Detective Vitaletti executed a search warrant for Mr. Sweeney's truck and hotel room. In the truck, he found a collection of tools, including bolt-cutters, Allen wrenches, a hammer, a bicycle pump, a chisel, a small shovel, a pair of gardening gloves, and a set of binoculars.

Detective Vitaletti also found a pair of distinctively colored sneakers that matched the description of sneakers stolen from Mr. Morales' shed. The Detective arrested Mr. Sweeney for the Morales burglary. Mr. Sweeney was tried by a jury on November 13 and 14, 2017. Detectives Drummond, Sube, and Vitaletti each testified about their role in the investigation.

Multiple detectives testified that although they had seen Mr. Sweeney driving his truck on other occasions, none had seen him on the day of the alleged burglary. Detective Vitaletti testified that he could not rule out the possibility that someone "either borrowed or stole [Mr. Sweeney's] truck and was in Silver Spring at Mr. Morales's using his truck[.]" Mr. Morales testified at trial that he hadn't seen anything the night of the burglary, but that there were tire tracks on the road and in the grass leading up to his shed the following morning. He identified the sneakers recovered from Mr. Sweeney's hotel room as a pair that had been in his shed. The tools found in Mr. Sweeney's truck, which the State characterized as "burglary tools," were admitted into evidence over Mr. Sweeney's objection.

The State did not provide any witnesses ¹⁷⁰ to the crime, DNA evidence, fingerprint evidence, or boot track evidence. Mr. Sweeney offered two witnesses in his defense. Orca Stewart testified that he had known Mr. Sweeney for fifteen years and that Mr. Sweeney had occasionally performed odd jobs for him, such as hauling and landscaping. Mr. Stewart confirmed that Mr. Sweeney drove a red pickup truck and that he had seen other people driving it on multiple occasions.

He could not account for Mr. Sweeney's whereabouts the day of the alleged burglary, though, and testified that he had not employed Mr. Sweeney during the summer of 2016. Camille Tilley testified that she was a childhood friend of Mr. Sweeney's and had been a passenger in Mr. Sweeney's truck. She stated that Mr. Sweeney kept a variety of tools in the vehicle to use for "the kind of work that he did, or he needed gloves for ... hauling trash. [ ] [W]orker's tools." Ms. Tilley testified that she knew Mr. Sweeney to rent out his truck for income because he was unable to work full time due to a back injury. Ms. Tilley stated that she had spent the night of the alleged burglary with Mr. Sweeney at the Days Inn, where they were "organizing the work that has to be done for getting ready for the [ ] Fourth of July." Before closing arguments, the trial judge instructed the jury.

Both parties stated, when asked, that they were satisfied with the instructions. After deliberations had begun, the trial judge received a note from the jury, and discussed it with the parties on the record: THE COURT: [The note] says [']if two people engage in the crime of burglary but only [one] enters the shed are both guilty of the crime[?'] And, I think the answer is yes, but I guess the definition of, of engage would be if he aided or abetted. There's an instruction on that ⁷⁸⁵ deals with aiding and abetting which I guess it's called accomplice liability ... which I might propose[ ] to read. What's the State's position[?] [THE STATE]: Well, initially my response [ ] was that your [sic] only considering charges against Mr. [Sweeney], but ¹⁷¹ then as I've been sitting here I looked at the note again, I realized that the answer to that question is yes.

So, I would, if the Court's inclined to say the answer is yes and then give them that instruction I would be satisfied with that, Your Honor. THE COURT: ... What's the defense position on that? [MR. SWEENEY'S COUNSEL]: Your Honor, the defense position is that this wasn't charged and hasn't been argued as an aiding and abetting theory.

This would be the first time we had heard of that and I don't think that's the case that, that the State's tried to argue here. Certainly, that wasn't something we ever had an opportunity to try to respond to or rebut and our request would be that the Court reiterate [ ] the instruction that was given[.] * * * It's not what [the State] argued in [its] closing and not something we've ever had a chance to address ... either as a matter of bringing up certainly any legal objection we might have to it and certainly not had an opportunity to address the jury on why we don't think the specific elements of aiding and abetting would be satisfied here. The trial judge disagreed with Mr. Sweeney and gave the jury a supplemental instruction on aiding and abetting. The jury subsequently convicted Mr. Sweeney of second-degree burglary and theft.

We supply additional facts below as needed.

II

DISCUSSION Mr. Sweeney raises three issues on appeal. 1 He argues first that the trial court committed reversible error by instructing ¹⁷² the jury, after deliberations had begun, on an accomplice liability theory not generated by the State's evidence at trial. He argues second that the trial court abused its discretion by admitting irrelevant and unduly prejudicial evidence of "burglary tools" that Mr. Sweeney had in his truck. ⁷⁸⁶ He argues third that the court erroneously found probable cause to grant the GPS tracker warrant for Mr. Sweeney's truck because the underlying affidavit contained material misrepresentations of fact, and that the circuit court erred by denying his motion to suppress the resulting evidence. We agree with Mr. Sweeney's first two arguments, reverse his convictions and, for guidance on remand, find that the circuit court properly denied his motion to suppress the GPS data. A. The Circuit Court Erred By Giving A Supplemental Jury Instruction On Accomplice Liability.

Mr. Sweeney was convicted of second-degree burglary and theft after the trial judge gave the jury a supplemental instruction on accomplice liability over Mr. Sweeney's objection. He contends now that the supplemental instruction was not generated by the evidence and that the court's decision to give the instruction in mid-deliberation left him no opportunity ¹⁷³ to respond to a new alternative theory of liability. We agree on both points. 1. The accomplice liability jury instruction was not generated by the evidence presented at trial.

Under Maryland Rule 4-325, "[t]he court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding." Rule 4-325(c). Normally, jury instructions are given "at the conclusion of all the evidence and before closing arguments," but the court "may supplement them at a later time when appropriate." Rule 4-325(a). "The decision of whether to give supplemental instructions is within the sound discretion of the trial judge and will not be disturbed on appeal absent a clear abuse of discretion." Sidbury v. State, 414 Md. 180 , 186, 994 A.2d 948 (2010). And "[w]hile we defer to the trial judge's ruling, an improper exercise of discretion may cause prejudice to a party and result in reversible error." Wood v. State , 436 Md. 276 , 293, 81 A.3d 427 (2013) ( quoting Collins v. National R.R. Passenger Corp. , 417 Md. 217 , 228-29, 9 A.3d 56 (2010) ).

Supplemental instructions are often triggered by a jury question. When a jury question involves an issue central to the case, "a trial court must respond ... in a way that clarifies the confusion evidenced by the query." State v. Baby , 404 Md. 220 , 263, 946 A.2d 463 (2008). In that instance, a "helpful response is mandatory." Id. ( quoting Lovell v. State , 347 Md. 623 , 658-59, 702 A.2d 261 (1997) ).

But not all jury questions require an answer-it may also be appropriate for the trial judge simply to tell the jury to rely on the instructions given prior to closing arguments. Brogden v. State , 384 Md. 631 , 651, 866 A.2d 129 (2005). A requested jury instruction, general or supplemental, must be given when the following three requirements are satisfied: first, it must be a correct statement of the law; second , the instruction must apply to the facts of the case; and third , it must not be "fairly covered elsewhere" in the jury ¹⁷⁴ instructions as a whole. Dickey v. State , 404 Md. 187 , 197-98, 946 A.2d 444 (2008).

We find that the supplemental instruction given at Mr. Sweeney's trial was not generated by the evidence and fails the second requirement. There is no aiding and abetting statute in Maryland, but the common law recognizes that a person "who did not actually commit the crime in question may nevertheless be guilty to the same degree as the person who did." Kohler v. State , 203 Md. App. 110 , 119, 36 A.3d 1013 (2012). A defendant convicted under an aiding and abetting theory is a "principal in the second ⁷⁸⁷ degree." Handy & Bucci v. State , 23 Md. App. 239 , 252, 326 A.2d 189 (1974). "The principal in the second degree differs from the principal in the first degree in that he does not do the deed himself ... but in some way participates in the commission of the [crime] by aiding, commanding, counseling, or encouraging" the principal in the first degree, who is the primary actor.

Pope v. State , 284 Md. 309 , 331, 396 A.2d 1054 (1979). The trial judge's instruction was consistent with the law of accomplice liability: The defendant may be guilty of a second-degree burglary or theft or both as an accomplice even though the defendant did not personally commit the acts that constitute that crime. In order to convict a defendant of second-degree burglary or theft or both as an accomplice, the State must prove that the second-degree burglary or theft or both occurred and that the defendant .... with the intent to make the crime happen knowingly aided, counseled, commanded or encouraged the commission of the crime or communicated to a participant in the crime that he was ready, willing, and able to lend support if needed. The problem isn't the text of the instruction-it stated the law of accomplice liability properly.

The problem is that the evidence at trial didn't generate an aiding and abetting instruction. A jury instruction is generated when a party has produced "some evidence" to support the theory it propounds. Wood , 436 Md. at 293 , 81 A.3d 427 . "Some evidence is not strictured by the test of a specific standard.

It calls for no ¹⁷⁵ more than what it says-'some,' as that word is understood in common, everyday usage. It need not rise to the level of 'beyond a reasonable doubt' or 'clear and convincing' or 'preponderance.' " Id. ( quoting Dykes v. State , 319 Md. 206 , 216-17, 571 A.2d 1251 (1990) ) (cleaned up). The standard is not high, but there has to be some evidence that supports the theory.

"[I]t is axiomatic that in order for a person to be a principal in the second degree [ (an accomplice) ], there must be a crime committed and a principal in the first degree , and it must be shown that the person aided or abetted was connected with the offense." Handy , 23 Md. App. at 252 , 326 A.2d 189 (emphasis added). "The principal in the second degree ... does not do the deed himself ... but in some way participates in the commission of the felony by aiding, commanding, counseling, or encouraging the actual perpetrator." Smith v. State , 415 Md. 174 , 188, 999 A.2d 986 (2010) ( quoting Pope , 284 Md. at 331 , 396 A.2d 1054 ) (emphasis added). The State doesn't have to secure a conviction against the first-degree principal, or even allege the crime was committed by a specific person, to pursue an accomplice theory. Handy , 23 Md. App. at 252 , 326 A.2d 189 .

But to generate an accomplice liability instruction, the State must present evidence that Mr. Sweeney "in some way participate[d] in the commission of the felony by aiding ... [an] actual perpetrator ." Pope , 284 Md. at 331 , 396 A.2d 1054 (emphasis added); see also U.S. v. Horton , 921 F.2d 540 , 543 (4th Cir. 1990) ("inherent in the evolution of the concept of accessory is the idea that the accessory and the principal are ordinarily different persons.") ( quoting U.S. v. Walden , 464 F.2d 1015 , 1020 (4th Cir. 1972) ). Indeed, the Fourth Circuit in Horton characterized as "inapposite" cases in which there was "insufficient evidence that anyone other than the defendant was involved in the crime alleged." 921 F.2d at 544 (cited with approval in Cruz v. State , 407 Md. 202 , 213, 963 A.2d 1184 (2009) ). In this case, the State presented strong circumstantial evidence against Mr. Sweeney, but only against Mr. Sweeney. ¹⁷⁶ His ⁷⁸⁸ truck was tracked by GPS 2 to the scene of the alleged burglary, where tire tracks on the grass led to the shed. A pair of sneakers that the victim recognized as stolen from his shed were found in Mr. Sweeney's hotel room weeks later.

But the State presented no evidence that another person, any other person, was involved in the crime. And in its own brief, the State concedes that it provided "no witnesses, DNA evidence, fingerprint evidence, or boot tracks evidence" that might suggest a second participant. The sole piece of evidence to which the State points to support the accomplice instruction is the size of the stolen tractor-the State theorizes that one person could not have lifted a 450-pound tractor into the bed of a pickup truck by himself, so someone else must have been involved. But that possible inference cannot generate an accomplice instruction by itself.

Nor can the State count its closing argument musings that "he could have been with someone else" and "there could have been people helping him," or defense counsel's comment, also in closing, that it's "frankly absurd" to think that "Mr. [Sweeney] loaded a 450-pound tractor into a truck"-closing arguments are arguments, not evidence. The State even acknowledged in its closing that its suggestions that Mr. Sweeney may have had assistance committing these crimes were mere speculation. As low as the bar for generating jury instructions is, the trial record in this case didn't support the accomplice liability instruction the court gave during deliberations. 2. Mr. Sweeney was prejudiced by the supplemental instruction because the State did not proceed on an accomplice theory of liability and he had no opportunity to respond.

Even if the evidence at Mr. Sweeney's trial had supported the theory that another individual was involved in his alleged crimes, the State did not argue that theory at trial, ¹⁷⁷ and the timing of the instruction left Mr. Sweeney no opportunity to defend against the new theory. Trial judges are not obligated to provide a substantive answer to every question a jury raises during deliberations. Brogden , 384 Md. at 644 , 866 A.2d 129 . The court should not provide supplemental instructions "when those questions deal with aspects of the law that have absolutely nothing to do with the case as presented to that jury .... [T]he jury should be limited in its deliberations to the issues and evidence as presented to it and should not be given answers to inquiries which reach outside of the case as presented at trial." Id.

(emphasis in original). The supplemental jury question in this case did not relate to the theory of the case the State chose. And because Mr. Sweeney was convicted after the alternative theory of liability was presented to the jury, and without an opportunity to respond, the supplemental accomplice instruction prejudiced him unfairly. The context and timing of supplemental instructions creates a particular potential for prejudice.

Supplemental instructions come almost always in response to questions posed by the jury. The mere fact that the jury seeks additional information on a specific point of law reveals the focus of their deliberations. See State v. Bircher , 446 Md. 458 , 483, 132 A.3d 292 (2016) (Watts, J., dissenting). Because supplemental instructions are given in isolation, they draw more attention than individual instructions within a comprehensive set.

Id. Furthermore, supplemental instructions are, as the title suggests, supplemental, ⁷⁸⁹ and are delivered after the parties have made closing arguments. Unless the trial court provides a supplemental opportunity to respond, as in Bircher , 446 Md. at 458 , 132 A.3d 292 , a supplemental instruction that presents a new theory of liability goes unaddressed and, in the jury's mind, unchallenged. The Court of Appeals addressed potentially prejudicial supplemental instructions in Cruz v. State , 407 Md. at 202 , 963 A.2d 1184 (which held a supplemental jury instruction on attempted battery impermissible when the State had previously ¹⁷⁸ stated it would not pursue that theory and the defendant had no opportunity to defend against it) and in State v. Bircher , 446 Md. 458 , 132 A.3d 292 (2016) (which held that prejudice created by a supplemental transferred intent instruction was cured when the court gave the defendant an opportunity to supplement his closing argument in response).

Although the Court reached different conclusions based on the facts of each case, both opinions stand for the principle that "a supplemental instruction should not be given if the accused was unfairly prevented from arguing his or her defense to the jury or was substantially misled in formulating and presenting arguments." Bircher , 446 Md. at 472 , 132 A.3d 292 ( citing Cruz , 407 Md. at 202 , 963 A.2d 1184 ) (cleaned up)). "[A] defendant must have an adequate opportunity to argue his innocence under the [trial] court's instructions in order to be assured a