Thomas v. State

KENNEY, J. Appellant, Garrison Thomas, was convicted of murder and robbery, and sentenced to life in prison. He presents two questions on appeal: 1. Did the trial judge err in ruling that the State had not committed a discovery violation when it disclosed to the defense counsel, one week before the beginning of the second trial, the existence of a statement allegedly made by Appellant to the arresting officer during processing? 2. Under the facts of this case, did the trial judge err in ruling that testimony that Appellant resisted attempts to ⁶⁸⁶ draw his blood was admissible as evidence of “consciousness of guilt”?

For the following reasons, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL HISTORY This case arises from the murder of Beverly Renee Mitchell (“the victim”) in March 1995. In June 1999, appellant was tried and convicted of the victim’s murder and robbery. We affirmed his conviction in an unreported opinion.

The Court of Appeals reversed, however, holding that “the trial court erred in admitting the testimony regarding petitioner’s refusal to submit to blood testing to show consciousness of guilt.” Thomas v. State, 372 Md. 342, 349 , 812 A.2d 1050 (2002) (“Thomas I ”). In February 2004, appellant was again tried and convicted of the victim’s murder and robbery. The following facts were gleaned from the record of the second trial. On March 22, 1995, Ann Porter, the victim’s aunt, called Marva Mitchell, the victim’s mother, from West Virginia, and asked her to bring some money to her husband, James Porter.

Mitchell stopped at the Porter house in Southeast Washington, D.C., on her way home from work that evening, and told Mr. Porter that the victim would likely bring him some money that night. Appellant, who was living in the basement of the Porters’ house, was present during the conversation. The victim left her mother’s house around 9:00 p.m. March 22, stating that she was going home after going to the Porters’ house to give the money to Mr. Porter.

According to Porter, she arrived at his house around 9:30 p.m. She woke him when she came into the house. She gave him $10, and they spoke briefly. He stated that he watched from a window as she drove away.

When the victim had not returned to her apartment by 10:00 a.m. on March 23, 1995, her roommate reported to the police that she was missing. Later that afternoon, a passerby found the victim’s body in a field near a wooded area in La Plata. He reported his finding to the Charles County Sher ⁶⁸⁷ iffs Office. According to Dr. James Locke, the Assistant State Medical Examiner who performed the autopsy, the victim died from “strangulation and blunt force injuries of the head.” In his opinion, the manner of death was homicide.

On March 24, 1995, a woman who had heard a news story describing the victim’s vehicle, a white Mitsubishi, informed the Metropolitan Police that she had seen the vehicle. She directed the police to the 1100 block of 10th Street, S.E., in Washington, D.C., where they located the car. According to Detective Robert Saunders, it appeared that someone had tried to set fire to the inside of the car, but “it was just smoked out.” The inside of the car had a strong smell of gasoline, and police found a plastic jug containing liquid. A witness informed Detective Saunders that the person who had been driving the car could be found at 917 Potomac Avenue.

At that address, the police met Novella Harris. According to Harris, in the early morning hours on March 23, 1995, a man wearing a dress and a wig, and calling himself “Cookie,” came to Harris’s house and asked about purchasing cocaine. Harris had seen him before, but on the previous occasion he had been dressed as a man and called himself “David.” Cookie had arrived in a white Mitsubishi, which he later refused to drive. Harris, Cookie, and others smoked crack cocaine throughout the day and the following night.

At one point in the evening, Cookie attempted to wipe his fingerprints from the interior of the car. Concerned that he had not successfully removed his fingerprints, he decided to burn the vehicle. He and Harris went to a gas station, where he filled a plastic jug with gasoline. Later that night, Harris watched from a window as Cookie started a fire in the car and ran away from it.

Shortly thereafter, she saw him throw a key on the ground, and discard a set of keys in a trash can. He left Harris’s house around 8:00 a.m. on March 24. Harris directed police to the trash can, where they found a set of keys, and to a field, where they found a Mitsubishi key. It was later verified that the white Mitsubishi near Harris’s house was the victim’s car.

Investigators discovered a hair from a wig in the ⁶⁸⁸ vehicle. They also found two sets of fingerprints inside. One belonged to the victim. The other could not be identified.

Detectives encountered appellant at the Porters’ house on March 24, 1995, while they were interviewing James Porter. In their view, appellant fit Harris’s description of Cookie. In response to police questioning, appellant said that he was alone on the evening of March 22, 1995, and that he had spent the night in a bus station. Nevertheless, there were several indications that appellant and Cookie are the same person, including Harris’s identification of a photograph of appellant as “Cookie,” and statements by the victim’s cousin and appellant’s former wife that they had seen him dressed in women’s clothing.

Additionally, police found an identification card on appellant’s person that listed his gender as “F.” It is unclear why the police did not arrest appellant in 1995. The lead detective on the case was promoted in June 1996, and no longer worked on the investigation. In the fall of 1997, Detective Shane Knowlan of the Charles County Sheriffs Office was placed in charge of the case. He was assisted by a “Cold Case Homicide Squad” comprised of agents from the Federal Bureau of Investigation and detectives from the District of Columbia Metropolitan Police Department.

According to Detective Knowlan, after he “reviewed the case file,” he “felt there was some things that could be done with the case.” He “[ijdentified some additional witnesses, spoke to them, got some additional information[,][r]eaddressed or re-interviewed some of the witnesses involved and examined physical evidence for possible testing.” Detective Knowlan’s investigation led to appellant’s arrest in December 1998. After a three-day trial in February 2004, the jury convicted appellant of first degree felony murder, second degree specific intent murder, and robbery. On February 19, 2004, the court sentenced him to life imprisonment. He noted an appeal to this Court on March 3, 2004.

Additional facts will be presented as necessary in our discussion of the issues raised in this appeal. ⁶⁸⁹ DISCUSSION I. Discovery Violation Appellant argues that the State committed a discovery violation when it did not inform the defense until a week before the second trial of an alleged statement by appellant to a federal law enforcement officer in December 1998. Prior to the trial, appellant moved to suppress testimony by Bradley Purscell. Purscell, an FBI agent who was a member of the “Cold Case Homicide Squad,” assisted in appellant’s arrest in December 1998. In a pretrial hearing, he testified that after his arrest appellant engaged him in a brief exchange: Then, as we were transporting him, and I want to say we were walking down a hallway, [appellant] asked me if I had found Jesus and if I was a Christian, to which I replied I was.

He then stated to me, God has already forgiven me. And my response to him was, that’s nice because the State of Maryland hasn’t. Agent Purscell testified that he did not write a report of the conversation in 1998, that he had not been subpoenaed for the first trial, and that he only informed the State’s Attorney of appellant’s statement shortly before the hearing: [THE STATE]: When’s the first time you spoke to a member of the State’s Attorney’s Office about this statement? [PURSCELL]: I had received a subpoena back at my home station, [Flagstaff], Arizona, and I called and got the number for the State’s Attorney, approximately a week ago. And that’s when I was introduced to yourself. [THE STATE]: And that’s the first time you told somebody in the State’s Attorney’s Office about this statement? [PURSCELL]: Correct.

According to the State, the State’s Attorney’s office disclosed Agent Purscell’s statement to defense counsel the same day they received it. On cross-examination, Agent Purscell acknowledged that appellant had made no reference to the charges against him, ⁶⁹⁰ but merely stated that God had forgiven him. Asked by defense counsel whether appellant’s statements could have been an attempt to convert Agent Purscell to Christianity, he responded: “Yes. Because as I recall he was a pastor of a church which he had in his residence.” Defense counsel argued that the timing of the State’s disclosure of the statement resulted in a discovery violation.

The State responded that it met its obligation to promptly inform the defense of new information, and that it was within the court’s discretion to allow the testimony. The court concluded: Based on these circumstances and what I’ve heard, I do not find there’s a discovery violation. There’s no indication that this statement was known to the State prior to a week ago. There’s no bad faith on the part of the State.

So, as far as that goes, I find that the State promptly reported to defense counsel its intent to use the statement by [appellant]. Agent Purscell testified at trial with regard to his alleged conversation with appellant: [THE STATE]: Now at the end of processing, did there come a time when [appellant] engaged you in what struck you as an unusual conversation? [PURSCELL]: Yes; there was. [THE STATE]: Tell us where that happened. [PURSCELL]: After he had been processed myself and, I believe it was an FBI agent that I was working with, in the process of transporting [appellant] from the FBI Office to the Metropolitan Police lockup; during that time [appellant] asked me if I had accepted Jesus Christ as my Lord and Savior and if I was a Christian. [THE STATE]: Now were you asking him any questions at that point? [PURSCELL]: No. [THE STATE]: Who initiated that conversation? ⁶⁹¹ [PURSCELL]: [Appellant] did. [THE STATE]: And what did you respond to him? [PURSCELL]: I replied that yes, I was. [THE STATE]: What did he say next? [PURSCELL]: He looked at me and stated words of the effect of God has forgiven me. [THE STATE]: No other questions. On cross-examination, Agent Purscell acknowledged that appellant had not made reference to the charges against him, but merely stated that God had forgiven him. Appellant contends that, “[b]ecause the State’s Attorney for Charles County had an obligation to disclose the information, [the state] had an obligation to make timely investigation to see if any statements had been made.” He asserts that the circuit court “misconstrue[d]” the rules of discovery in allowing the testimony.

The State responds that the rules of discovery do not clearly require it to disclose the statement. Moreover, even if it was required to disclose the statement, the State contends that it did so promptly, as required by the rules. Discovery in the circuit court is governed by Maryland Rule 4-263, which provides in pertinent part: (a) Disclosure without request. Without the necessity of a request, the State’s Attorney shall furnish to the defendant: (2) Any relevant material or information regarding: (A) specific searches and seizures, wire taps or eavesdropping, (B) the acquisition of statements made by the defendant to a State agent that the State intends to use at a hearing or trial, and (C) pretrial identification of the defendant by a witness for the State.

(b) Disclosure upon request. Upon request of the defendant, the State’s Attorney shall: ⁶⁹² Ht Hi Hi (2) Statements of the defendant. As to all statements made by the defendant to a State agent that the State intends to use at a hearing or trial, furnish to the defendant, but not file unless the court so orders: (A) a copy of each written or recorded statement, and (B) the substance of each oral statement and a copy of all reports of each oral statement; Hi Hi Hi (e) Time for discovery. The State’s Attorney shall make disclosure pursuant to section (a) of this Rule within 25 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 4-213.

Any request by the defendant for discovery pursuant to section (b) of this Rule, and any request by the State for discovery pursuant to section (d) of this Rule shall be made within 15 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 4-213. The party served with the request shall furnish the discovery within ten days after service. (g) Obligations of State’s Attorney. The obligations of the State’s Attorney under this Rule extend to material and information in the possession or control of the State’s Attorney and staff members and any others who have participated in the investigation or evaluation of the action and who either regularly report, or with reference to the particular action have reported, to the office of the State’s Attorney.

(h) Continuing Duty to disclose. A party who has responded to a request or order for discovery and who obtains further material information shall supplement the response promptly. ⁶⁹³ We review de novo whether a discovery violation occurred. Cole v. State, 378 Md. 42, 56 , 835 A.2d 600 (2003). Appellant argues that the State violated its discovery obligations under Maryland Rule 4-263 by failing to disclose his statement to Agent Purscell until the week before the motions hearing.

Maryland Rule 4-263(a)-(b) plainly requires the State to “furnish to the defendant” information relating to “statements made by the defendant to a State agent that the State intends to use at a hearing or trial.” We will focus on the Rule’s requirements that the statement be one made to a “State agent,” and that it be a statement “that the State intends to use at a hearing or trial.” 1 ⁶⁹⁴ Maryland Rule 4-263(g) clarifies that the disclosure requirement applies to any statement that is “in the possession or control of the State’s Attorney and staff members and any others who have participated in the investigation or evaluation of the action and who either regularly report, or with reference to the particular action have reported, to the office of the State’s Attorney.” The State’s Attorney is clearly “accountable” for information known to police officers who meet the requirements of the Rule. Williams v. State, 364 Md. 160, 177 , 771 A.2d 1082 (2001). See also Robinson v. State, 354 Md. 287, 304 , 730 A.2d 181 (1999) (stating that, under Jencks 2 and Carr 3 a prosecutor is responsible for “ ‘all seemingly pertinent facts related to the charge which are known to the police department who represent the local subdivision that has jurisdiction to try the case’ ”) (quoting State v. Giles, 239 Md. 458, 470 , 212 A.2d 101 (1965), rev’d on other grounds, 386 U.S. 66 , 87 S.Ct. 793 , 17 L.Ed.2d 737 (1967)). The Court of Appeals has determined that the State’s discovery obligations extend to information known to a representative of another sovereign.

Bailey v. State, 303 Md. 650 , 496 A.2d 665 (1985). “Otherwise, the purpose of [Maryland Rule 4-263] is defeated where agents of a sovereign, other than Maryland, have been involved in investigating the case.” Id. at 656 , 496 A.2d 665 . In Bailey , the Court held that the State was required to ⁶⁹⁵ disclose information relating to statements made by Bailey to a New Jersey State Trooper. Id. at 655 , 496 A.2d 665 . Nevertheless, Maryland Rule 4-263(g) applies to an investigator who “regularly report[s]” to the State’s Attorney’s office, or who “ha[s] reported” “with reference to the particular action.” As an FBI agent, Purscell clearly did not “regularly report” to the State’s Attorney.

Moreover, he did not report with respect to this case until he contacted the State’s Attorney’s office shortly before the pretrial hearing. He testified that he “was never subpoenaed for the first trial,” and that, after he received a subpoena for the second trial, he “called and got the number for the State’s Attorney” and informed the State of appellant’s alleged statement. Thus, statements made by appellant to Agent Purscell did not fall within the State’s disclosure obligation until Purscell first “reported” to the State’s Attorney. With respect to the State’s intention to use the statement at trial, Armstrong v. State, 69 Md.App. 23 , 515 A.2d 1190 (1986), is helpful to our analysis.

In Armstrong , the defendant had been released on bail prior to his trial on charges of possession of marijuana and unlawful possession of a handgun. In an “apparently chance encounter” with a police officer, Armstrong admitted that the gun in question belonged to him. Id. at 31-32 , 515 A.2d 1190 . The officer did not inform the prosecutor of the statement until the morning of the suppression hearing, at which time the prosecutor disclosed the statement to defense counsel.

Id. at 32 , 515 A.2d 1190 . At the hearing, Armstrong argued that the State’s late disclosure of the statement constituted a violation of Maryland Rule 4-263. The trial court ruled that there had been no violation, and the statement was admitted into evidence at Armstrong’s trial. On appeal, we determined that, although disclosure was required pursuant to Rule 4—263(b)(2), “it is not at all clear in the first instance that there was a discovery violation.” Id. at 32 , 515 A.2d 1190 .

We noted that “[t]he State’s Attorney informed the court that he first learned about the conversation ⁶⁹⁶ with [the officer] that very morning and that he disclosed it to defense counsel within 10 minutes,” and reasoned that “[h]e obviously could not have intended to use the statement before he knew of it.” Id. at 32-33 , 515 A.2d 1190 . We further concluded that, even if the State’s disclosure was a violation of the Rule, the trial court had not abused its discretion in refusing to suppress the evidence. In this case, the State was not aware of appellant’s statement to Agent Purscell until Purscell telephoned the State’s Attorney. The State could not have intended to use the statement at trial until the day it learned of the statement.

In our view, under the circumstances of this case, the timing of the State’s discovery obligation is governed by Maryland Rule 4-263(h): “A party who has responded to a request or order for discovery and who obtains further material information shall supplement the response promptly.” We view the State’s disclosure of the statement the same day that it learned of it as sufficiently prompt. Appellant also asserts that the State “had an obligation to make timely investigation to see if any statements had been made.” Echoing the appellant’s argument in Williams v. State, 152 Md.App. 200 , 831 A.2d 501 , aff'd, State v. Williams, 392 Md. 194 , 896 A.2d 973 (2006) (filed April 14, 2006), appellant states that “ ‘[w]ilful blindness by the State of its discovery obligations’ should not excuse a lack of due diligence.” He contends that, because the statement was in the possession of an investigator long before it was disclosed to the defense, the State violated the timing requirements of Maryland Rule 4-263(e). In Williams, a jailhouse snitch testified at trial that Williams had confessed to the murder for which he was later convicted. The State had informed the defense that the informant had received nothing in return for the information, and the informant so testified at trial.

Later, it was determined that the informant was a paid informant of the Baltimore City Police. His status as a paid informant was known to other members of the State’s Attorney’s office and police ⁶⁹⁷ detectives not involved with Williams’s case. On appeal, we concluded that the State’s failure to disclose the informant’s status as a paid informant constituted a Brady 4 violation. The Court of Appeals affirmed our decision in Williams, holding that “the disclosure obligation imposed by Brady does, in fact, apply to information possessed by other prosecutors in the same office.” Williams, 392 Md. at 211 , 896 A.2d 973 .

In addressing Maryland Rule 4-263(g), the Court observed: [I]t is clear from the language used by the rule that the obligations of the State’s Attorney to disclose encompasses three groups: [1] the State’s Attorney, [2] his or her staff members, and [3] those who are not either of the foregoing, but who have participated, or are participating, in the case itself, by, for example, participating “in the investigation or evaluation of the action,” regularly reporting to the State’s Attorney’s Office, or, with respect to the case under review, have reported to the State’s Attorney’s Office. Id. at 208 , 896 A.2d 973 (quoting Maryland Rule 4-263(g)). The Court concluded that the prosecutor is responsible for disclosing discoverable material in the possession of other members of the State’s Attorney’s Office, but not necessarily information in the possession of those outside the State’s Attorney’s Office: We hold that by referring only to the “State’s Attorney and staff members,” without any restriction, and then including “any others,” restricted to those with a direct present or past involvement with the particular action, Rule 4-263(g) draws a distinction between the State’s Attorney’s Office and those outside the Office who are on the prosecution team. Williams, 392 Md. at 209-10 , 896 A.2d 973 .

The case before us does not involve information in the possession of an attorney or staff member within the State’s Attorney’s Office, but, rather, information possessed by a ⁶⁹⁸ member of a law enforcement agency outside of the State’s Attorney’s Office who does not regularly report to that office. Thus, the State did not have an obligation to disclose the information provided by Agent Purscell until he first “reported” to the State’s Attorney, and the State’s Attorney first “intended” to use the statement at trial. When that happened, the disclosure was “promptly” made. Md. Rule 4-263(b)(2), (g), (h).

Appellant directs us to Williams v. State, 364 Md. 160 , 771 A.2d 1082 (2001), which involved the requirement of Maryland Rule 4-263(a)(2)(C) that the State disclose information relating to a “pretrial identification of the defendant by a witness for the State.” The State had proffered that a police officer could describe the physical features of a person he saw at the crime scene, but could not identify Williams. The trial court allowed the officer’s testimony. At trial, however, the officer identified Williams as the person at the scene. The Court of Appeals held that the Rule applies to a pretrial identification by a police officer, and therefore the State was required to disclose the officer’s identification of Williams.

The Court further determined that the State’s ignorance of the officer’s identification of Williams did not relieve it of its disclosure obligation: We cannot allow the State to be the recipient of the unquestionable windfall that resulted from its own clear violation of the discovery rules. Contrary to the conclusions of the trial judge, “surprise” does not excuse or mitigate the prejudice to the defendant.... [Maryland Rule 4-263(g) ] clearly articulates that the State’s Attorney was accountable for information held by [the officer], as he both “participated in the investigation” and “reported to the office of the State’s Attorney.” ... Therefore, whether the inaccurate representation was a result of willful aforethought or inadvertence is irrelevant because the determination of a discovery violation does not mandate inquiry into a party’s mental state. ⁶⁹⁹ Nor is the effect of the inaccurate representation neutralized simply because the State’s Attorney may have lacked foreknowledge of the ultimate testimony.... If the State’s Attorney’s lack of knowledge could excuse, or even mitigate the prejudicial effect of the undisclosed information, States’ Attorneys would most effectively operate in a vacuum because, by removing themselves from the privity of police testimony and evidence, States’ Attorneys could slip beyond the grasp of discovery rules by claiming ignorance, and thereby force the defendant to enter trial unaware of the evidence to be offered against him.

This is intolerable and totally adverse to one of the avowed purposes for the discovery rules: to assist the defendant in preparing his defense and prevent unfair surprise at trial. Williams, 364 Md. at 176-78 , 771 A.2d 1082 (footnote omitted). In Williams, the Court of Appeals determined that the officer’s identification of Williams fell within the State’s discovery obligations because the officer had “both ‘participated in the investigation’ and ‘reported to the office of the State’s Attorney.’ ” Id. at 177, 771 A.2d 1082 (quoting Md. Rule 4-263(g)). Hence, the State’s failure to disclose the identification was a violation of its discovery obligations.

The State’s lack of diligence resulted in a State “windfall” and “surprise” to the defendant at trial. Here, we find no discovery violation. It was not until Agent Purscell informed the State of appellant’s statement that the State became obligated to disclose the information to the defense, and it complied with that obligation promptly in accordance with Maryland Rule 4-263.

II

Evidence of Refusal to Provide a Blood Sample Next, appellant raises the same issue that resulted in the reversal of his first conviction—that the circuit court erred in admitting evidence of his initial refusal to provide a blood sample to police. In the pre-trial motions hearing, Detective Sergeant Shane Knowlan testified that, in June 1998, when the case was still under investigation, police obtained a search warrant authorizing them to collect blood, saliva, and hair samples from appellant. He stated that when they attempted ⁷⁰⁰ to obtain the blood sample, appellant “refused to voluntarily give them. We had to basically hold him down and collect the samples.” When police needed to get a second sample, however, appellant’s “response was we were just going to hold him down and take it anyway, so he gave it to us [willingly].” Appellant argued, inter alia, that Detective Knowlan’s testimony did not raise an inference that he had resisted to conceal evidence or because of a consciousness of guilt, and that the prejudicial effect of the evidence substantially outweighed its probative value.

The court decided to reserve its ruling on appellant’s motion to suppress, stating, “I want to hear the testimony that actually comes out of trial.” Detective Knowlan testified at trial with regard to the blood sample: [THE STATE]: And ultimately you got a search warrant? [KNOWLAN]: Yes. [THE STATE]: Signed by a judge? [KNOWLAN]: Yes. [THE STATE]: And as far as the person of [appellant] go—was concerned, what did that authorize you to do? [KNOWLAN]: Collect hair, saliva, blood, just DNA and physical evidence from him. [THE STATE]: And when did you try to [e]ffect that search warrant? [KNOWLAN]: That was in June of 1998. June 26th, I believe. [THE STATE]: And was [appellant] found related to that search warrant? [KNOWLAN]: Yes. [THE STATE]: And tell us what conversation you had with [appellant] about that search warrant. [KNOWLAN]: When I made contact -with [appellant], he was in an interview room at the Cold Case Homicide Unit in Washington, D.C., their headquarters building. I entered a room in an attempt to gain cooperation in obtaining the samples from him. I explained the search ⁷⁰¹ warrant that was in reference to [the victim’s] death and that I was investigating that now.

That the search warrant was signed by a judge and he was legally bound to give us these items. Voluntary would be my choice, but we would have to take them forcibly if not. [THE STATE]: Did you tell him explicitly which case you were working on? [KNOWLAN]: Yes. [THE STATE]: And you told him what? [KNOWLAN]: I told him this was in reference to [the victim’s] death. [Objection by defense counsel. 5 ] [THE STATE]: All right, Sergeant, you told him that the judge had authorized it, you preferred cooperation but if he didn’t cooperate, what? [KNOWLAN]: That we would basically forcibly take those items. [THE STATE]: What happened? [KNOWLAN]: When I explained it to him, again, I tried to lay it out as simply as possible that you can either voluntarily give them to us or we