White v. State

MURPHY, Chief Judge. In the Circuit Court for Baltimore County, a jury (the Honorable John Grayson Turnbull, II, presiding) convicted Troy White, appellant, of first degree felony murder and related offenses, including use of a handgun in the commission of a felony. The State’s evidence was sufficient to establish that he committed each of those offenses. This appeal involves appellant’s challenges to the admissibility of that evidence and to Judge Turnbull’s felony murder instruction.

Appellant presents us with three questions: I. Did the trial court err in declining to suppress evidence derived from conversations regarding the crime of robbery which were intercepted during a narcotics wiretap?

II

Did the trial court err in declining to suppress appellant’s statements to homicide detectives which were made after he had invoked his right to counsel?

III

Did the trial court err in refusing to grant appellant’s requested instruction on felony murder? For the reasons that follow, we shall affirm the judgments of the circuit court. Factual Background About 11:00 a.m. on February 7, 2000, appellant and three other men participated in a robbery at J. Brown Jewelers, a store located on Reisterstown Road. 1 Bruce Prothero, an off-duty Baltimore County police sergeant, working as a security guard at the store, was fatally shot by one of the robbers. ⁵²⁵ Approximately 30 watches, worth about $400,000, were stolen in the robbery. On the day after the robbery, appellant was arrested by Baltimore County detectives who were able to identify him as a result of telephone calls that he made to a telephone number that was the subject of a wiretap order issued by a judge of the Circuit Court for Baltimore County.

On January 14, 2000, the monitoring officers had intercepted an incoming telephone call from an individual identified as “Fats” (later identified as appellant) to Marcel Walton, one of the wiretap targets. During this call, “Fats” discussed his participation in a “smash and grab” jewelry store robbery in Tysons Comer, Virginia, during which expensive watches had been stolen. On February 7, 2000, while “working” the Walton wiretap, Detective Izaac Hester learned about the J.Brown “smash and grab” robbery and the murder of Sergeant Prothero. Suspecting that “Fats” might be involved in that robbery, Detective Hester immediately notified the supervising judge that the detectives monitoring Walton’s telephone calls might overhear a discussion about the robbery.

The supervising judge directed the officers to continue “spot monitoring” of incoming calls, in conformity with the “minimization” requirement of the wiretap order. The monitoring officers proceeded to intercept a series of calls between Walton and appellant. In one of the intercepted conversations, appellant informed Walton “that he had some Cartiers and Rolexes.” Through the use of the court ordered surveillance equipment, the detectives were able to determine that “Fats” made one of the calls from a phone located at 1013 North Ellamont Street in Baltimore City, and a surveillance was set up outside that address. At about 1:15 p.m. on February 8, 2000, appellant emerged from 1013 North Ellamont Street, walked in one direction, then in the other direction, crossed the street, looked into the surveillance van, and began running.

After appellant was captured, the police searched the residence with the consent of its occupant, Rachel Potts (“Potts”). A search of the living room turned up a plastic bag containing watches. ⁵²⁶ The bag had been stuffed into a couch. 2 On the day of his arrest, appellant initially invoked his right to counsel, but when Detective Phillip Marll advised him that he was being charged with first degree murder, he responded, “How can you charge me with murder? I didn’t kill nobody.” Appellant was presented with a statement of charges, and at this point stated that he “went in, broke a few display cases, stole some watches, but ... did not kill anyone.” Appellant thereafter executed a written acknowledgment of his Miranda rights and waiver of his right to counsel. Eventually, he made a full statement, admitting that he “played a part in it,” but emphasizing that he did not have a gun and stated several times that “[n]o one was supposed to get hurt.” Appellant claimed that, at the time Sergeant Prothero was shot, he and Donald White had already “pulled off the lot going to the rear of the store,” and that he did not even know who fired the fatal shot until later that day, when he “saw it on the news about the police officer,” at which point “Tony (Richard Moore) told [appellant] that [Moore] had to shoot the man.” Appellant also told the detectives where they could find the cars used in the robbery, where they could find the clothes he wore during the robbery, and where he purchased the mauls used to break the display cases.

Discussion I. Appellant argues that, even though his conversations were intercepted during the execution of a wiretap order that had been issued in strict compliance with all of the applicable Maryland and federal statutory requirements, 3 we must apply ⁵²⁷ the fruit of the poisonous tree doctrine to the discovery of his identity and whereabouts because that information was derived from the interception of the telephone calls he placed on February 7, 2000. 4 There is no merit in that argument. According to appellant, because the wiretap order authorized only the interception of conversations involving violations of the Maryland Controlled Dangerous Substances Act — and had not been amended at anytime thereafter — surveillance of appellant’s conversations about the February 7th robbery violated his Fourth Amendment and statutory rights. This argument is based on the proposition that, because the monitoring officers intercepted prior conversations about robberies, there was nothing “unanticipated” about the phone calls he placed on February 7, 2000, and the information derived from the interception of those phone calls must be suppressed because the monitoring officers had failed to “apply” as soon as practicable after January 14th for judicial authorization to intercept the now “expected” conversations regarding the crime of robbery. Appellant argues in his brief that the police were required to apply “as soon as practicable” for judicial authorization to continue to listen to the now expected conversations regarding the crime of robbery.

See Maryland Code, Courts and Judicial Proceedings Article (1998 Repl.Vol.) Section 10-407(e); ... ... What would be “reasonable under the circumstances,” then, would be for the police to follow both their strict ⁵²⁸ written minimization guidelines and the statutory mandate of Courts and Judicial Proceedings Article, Section 10-407(e) and seek an amended court order authorizing the interception of robbery conversations. Even though Md.Code (1998 Repl.Vol.), Cts. & Jud. Proc., section 10-407(e) (and its federal counterpart, 18 U.S.C. 2517(5)) is of no consequence to the issue of whether a wiretap order should be amended to authorize the future interception of conversations pertaining to crimes that were not specified in the original wiretap order, 5 “we have no difficulty discerning the precise nature of appellant’s contention.” Sherman v. State, 288 Md. 636, 640 , 421 A.2d 80 (1980).

We must decide whether there is merit in appellant’s contention that the State was required to petition for an amendment to the- wiretap order that would authorize interception of conversations relating to the crime of robbery.. Md.Code (1998 Repl.Vol.), Cts. & Jud. Proc., section 10 408(e)(3), provides in pertinent part that [e]very order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon ⁵²⁹ as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this subtitle, and must terminate upon attainment of the authorized objective, or in any event in 30 days. The minimization requirement exists “to prevent unnecessary intrusion into the privacy of the surveillance target ...” Ezenwa v. State, 82 Md.App. 489, 508 , 572 A.2d 1101 (1990)(quoting Poore v. State, 39 Md.App. 44, 64 , 384 A.2d 103 , cert. denied, 282 Md. 737 (1978)).

In State v. Mazzone, 336 Md. 379, 383 , 648 A.2d 978 (1994), the Court of Appeals confirmed that compliance with the minimization mandate in an intercept authorization order is a “post condition,” that is, an action “that must be taken after a valid wiretap order has been issued.” Unlike violations of a precondition, which are evaluated under a “strict compliance” standard and which require the suppression of all evidence derived from the wiretap, post conditions are evaluated under a “substantial compliance” standard. Id. at 383-84 , 648 A.2d 978 . The Court explained: In the context of minimization, the substantial compliance standard is actually a reasonable compliance standard, which evaluates “the overall reasonableness of the totality of the conduct of the monitoring agents in light of the purpose of the wiretap and the information available to the agents at the time of the interception.” Id. at 384 , 648 A.2d 978 (quoting Spease v. State, 275 Md. 88, 99 , 338 A.2d 284 (1975)). The Mazzone Court “emphasize[d] that minimization is not prohibition” and stated that “spot monitoring” may be necessary to determine if a communication falls within the scope of the authorization order.

Id. at 391 , 648 A.2d 978 . When deciding a motion for suppression based on a “failure to minimize” argument, the court must consider ten factors: (1) the nature and scope of the crime being investigated; (2) the sophistication of those under suspicion and their ⁵³⁰ efforts to avoid surveillance through such devices as coded conversations; (3) the location and the operation of the subject telephone; (4) government expectation of the contents of the call; (5) the extent of judicial supervision; (6) the duration of the wiretap; (7) the purpose of the wiretap; (8) the length of the calls monitored; (9) the existence of a pattern of pertinent calls, which the monitoring agents could discern so as to eliminate the interception of non-pertinent calls; (10) the absence of monitoring of privileged conversations. Id. at 393-94 , 648 A.2d 978 . The Mazzone Court also noted that, even if a monitoring officer’s actions are found to be unreasonable, “the sanction would not be to suppress all communications intercepted by the monitoring agents.

The maximum sanction for violation of the reasonable compliance standard, in the circumstances of [that] case, would require suppression of only the conversations that were unreasonably intercepted.” Id. at 398 , 648 A.2d 978 . It is well settled that the plain view doctrine is applicable when an officer executing a court authorized wiretap for drug related conversations overhears conversations related to other offenses. Appellant’s Fourth Amendment rights were not violated because, “even though inadvertence is a characteristic of most ‘plain view5 seizures, it is not a necessary condition.” Horton v. California, 496 U.S. 128, 130 , 110 S.Ct. 2301, 2304 , 110 L.Ed.2d 112 (1990). See also Sanford v. State, 87 Md.App. 23, 28-31 , 589 A.2d 74 (1991), and Wengert v. State, 364 Md. 76, 89 , 771 A.2d 389 (2001) (both holding that inadvertence is not a requirement of the “plain view” doctrine).

Neither the Fourth Amendment nor any applicable statute 6 requires law enforcement officers to avoid intercepting all nonrelevant conversations when conducting a wiretap investigation. Scott v. United States, 436 U.S. 128, 136-143 , 98 S.Ct. 1717 , 56 L.Ed.2d 168 (1978). Efforts to minimize nonrelevant conversations must be “objectively rea ⁵³¹ sonable” in light of the circumstances confronting the interceptor. See Scott, 486 U.S. at 137-40, 98 S.Ct. 1717 .

In United States v. McKinnon, 721 F.2d 19 (1st Cir.1983), the United States Court of Appeals for the First Circuit rejected the contention that the appellant was entitled to suppression of intercepted conversations relating to federal firearms offenses because the Massachusetts law enforcement officers who intercepted those conversations were executing a state court-issued wiretap order that authorized the interception of only conversations relating to drug offenses. In its analysis of the “minimization” requirements found in 18 U.S.C. 2518(5), the McKinnon Court held: We do not believe that evidence relating to crimes other than those specified in a wiretap warrant must be discovered “inadvertently” or take officers by “surprise” in order for a court properly to authorize the use of such evidence pursuant to section 2517(5). Congress intended that evidence relating to unauthorized offenses should be given retroactive judicial approval under section 2517(5) if the “original [wiretap warrant] was lawfully obtained, ... was sought in good faith and not as a subterfuge search, and that the communication was in fact incidentally intercepted during the course of a lawfully executed order. (Emphasis supplied).... ...

While an interception that is unanticipated is a fortiori incidental, the converse is not true: something does not have to be unanticipated in order to be incidental. Evidence of crimes other than those authorized in a wiretap warrant are intercepted “incidentally” when they are the by-product of a bona fide investigation of crimes specified in a valid warrant. Congress did not intend that a suspect be insulated from evidence of one of his illegal activities gathered during the course of a bona fide investigation of another of his illegal activities merely because law enforcement agents are aware of his diversified criminal portfolio. 721 F.2d at 22-23 . Our interpretation of the applicable Maryland law is entirely consistent with the McKinnon Court’s ⁵³² interpretation of the parallel federal statute.

The State was not required to amend the wiretap order as a condition precedent to monitoring appellant’s February 7th phone calls. An evaluation of reasonableness “must be ascertained from the facts and circumstances of each particular case.” Spease, 275 Md. at 99 , 338 A.2d 284 . 7 Judge Turnbull was not clearly erroneous in finding that substantial compliance with the minimization requirements was achieved in this case. 8 After the January 14, 2000 conversation indicating that “Fats” had participated in the Virginia “smash and grab” robbery, the monitoring officers informed the supervising judge that they had intercepted a communication regarding an unspecified offense. Thereafter, but prior to February 7, 2000, the monitoring officers presented the supervising judge with logs and reports of ensuing conversations between “Fats” and Walton. Furthermore, on February 7th, after learning about the robbery and murder of Sergeant Prothero, the monitoring officer immediately contacted the supervising judge.

Under these circumstances, we agree with Judge Turnbull that appellant was not entitled to suppression of the fruits of the Walton wiretap. See Scott v. United States, supra, 436 U.S. at 135 , 98 S.Ct. 1717 .

II

Appellant also challenges the denial of his motion to suppress his inculpatory statements to police. Appellant invoked his right to counsel more than once while in a holding ⁵³³ cell, before detectives arrived to interview him. Detective Phillip Marll testified that he therefore consulted with Assistant State’s Attorney Ann Brobst, who agreed that there could be no interrogation because appellant’s assertions of his right to counsel had been clear and unequivocal. The detective then prepared appellant’s statement of charges and informed appellant that he was being charged with murder.

At this point, appellant insisted that he had not killed anyone and that he wanted to tell the police what had happened. Although repeatedly advised that the officers could not talk with him because he had asserted his right to counsel, appellant declared that he understood his rights and that he wished to tell the police who killed the victim. Appellant was then advised of his Miranda rights 9 and signed a waiver, confirming that he wished to speak to the officers. Appellant gave an oral statement, admitting that he participated in the robbery, but insisting that he had not carried a gun and that Tony Moore was the shooter.

Appellant argues that the conduct of the police was designed to “spark” his statement, thereby rendering his waiver a nullity. See Bryant v. State, 49 Md.App. 272 , 431 A.2d 714 , cert. denied 291 Md. 782 (1981), cert. denied, 456 U.S. 949 ,