Williams v. State

CHARLES E. MOYLAN, JR., J. (Retired, Specially Assigned). The appellant, Frank Theodore Williams, was convicted in the Circuit Court for Baltimore County by a jury, presided over by Judge Robert E. Cahill, Jr., of premeditated murder in the first degree, conspiracy to commit first-degree murder, and the use of a handgun in the commission of a crime of violence. On this appeal he raises the four contentions, 1. that Judge Cahill erroneously denied his pretrial motion to suppress physical evidence obtained from an examination of his cellphone; 2. that Judge Cahill erroneously failed to suppress a statement he gave to the police; 3. that Judge Cahill abused his discretion in permitting police officers to narrate what they saw on surveillance videos; and 4. that Judge Cahill abused his discretion in denying his motion for a mistrial made during the State’s rebuttal argument.

A Gang-Related Public Execution The appellant does not challenge the legal sufficiency of the evidence to prove his guilt. The four contentions he does make could readily be resolved in an evidentiary vacuum. Some factual context may nonetheless help to convey the outrageous character of a retaliatory execution perpetrated in the parking garage of the Towson Town Mall during the busy pre-Christmas season. ²⁴⁰ Rodney Pridget, the 19-year-old murder victim, would have appeared to be an ordinary Christmas shopper, as he spent the afternoon of December 19, 2011, at the Towson Town Mall with his 17-year-old girlfriend, Nautica Reynolds. They arrived by bus, entered the mall through Macy’s, and then spent time at the Build-a-Bear store and the Downtown Locker Room.

The twosome took a brief break at the Food Court and then went downstairs to Hollister. Their final shopping destination was Nordstrom’s. Little did they realize that throughout the afternoon their locations in the mall had been observed by no less than five persons stalking their every move who were in immediate cellphone communication with each other. Something, however, did catch Pridget’s eye.

As he and Nautica left the second floor of Nordstrom’s for the connecting parking garage at 6:30 p.m., he told Nautica that he did not like the looks of “the nigger behind me.” In the garage, he handed all of the shopping bags to her and told her to walk close to the wall. Suddenly a gunshot rang out. When Nautica looked up, she saw Pridget lying on the ground and heard a volley of gunshots. She described the shooter, tall and wearing a mask, who then ran deeper into the garage.

A woman nearby called the police, who arrived a short time later. The autopsy revealed that Rodney Pridget died of eight gunshot wounds, one to the head, one to the chest, three in the back, one to the right side of his body, one to the right arm, and one to the left arm. Baltimore County Police Officer Kurt Parker was among the first officers to respond. His immediate assignment was to secure the perimeter of the mall parking garage between Joppa Road and the actual mall at the rear of 204 East Joppa Road.

He first encountered Officer Daniel Burns, who pointed out an individual, later identified as the appellant, who was frantically running up and down steps in the parking garage, was wearing a gray and black hoodie with a black hat, and was talking into his cellphone as he ran. With weapon drawn, Officer Parker caught up with the appellant and ordered him to lie prone on the ground. The ²⁴¹ officer conducted a quick frisk of the appellant and noticed that he was sweaty and hot to the touch. The appellant still held his cellphone in his hand and Officer Parker seized it.

The appellant was placed in handcuffs. Within a minute or two, Officer Brian Jednorski arrived on the scene as backup for Officer Parker. A witness then was brought to where the appellant was being held for an attempted identification. When the results of that attempt were negative, the appellant’s handcuffs were promptly removed.

The officer still wanted to talk to him, however, and Officer Jednorski transported him to the station house. At the station house, Officer Jednorski turned the appellant over to detectives but he himself kept possession of the appellant’s cellphone. The initially murky picture only became clear when Jermell Brandon, who had been arrested the day after the murder and charged with the murder, was persuaded to cooperate with the prosecution. He agreed to enter a guilty plea in federal court and to accept a sentence of 20 years without possibility of parole.

In exchange, he testified as a State’s witness against the other conspirators. Brandon knew the appellant, William Ward, and Tyrone Brown as members of the Black Guerilla Family (“B.G.F.”), although Brandon denied being a member of the B.G.F. himself. That may have been self-serving. He did know that in order to obtain rank in the B.G.F., one had to have killed someone.

He testified that Tyrone Brown was just a member of the B.G.F., but that William Ward held the rank of Bushman and that the appellant was a Commander. Brandon was also aware that earlier in the month of December there had been a shooting of one Dustin Smith by the ultimate murder victim, Rodney Pridget. Dustin Smith was the cousin of the appellant. Brandon was later present with the appellant, William Ward, and Tyrone Brown, as they all joined together to discuss the shooting of Dustin Smith and to decide what to do about it.

The appellant went on Facebook and showed all of the others a photograph of their target, Rodney Pridget. They then debated who was going to draw the assignment of killing Pridget. It was the appellant who ²⁴² gave the order of retaliation on Pridget. Brandon agreed to participate.

Brandon went on to describe how on December 19, 2011, he, William Ward, Tyrone Brown, and the appellant, along with several companions, showed up at the Towson Town Mall in several cars and how they located and kept track of Rodney Pridget. As Pridget was leaving Nordstrom’s to enter the parking garage, it was William Ward and Tyrone Brown who followed him to do the actual shooting. When they came back into Nordstrom’s several minutes later, Brandon asked what had happened and William Ward reported, “We tore his ass up.” Brandon and Ward let Brown leave first and then they left. It was Tyrone Brown who had originally arrived at the mall with the appellant and who was assigned to drive the appellant away.

Frantic messages then started coming in that the appellant could not find the burgundy Lexus in which he was supposed to leave with Tyrone Brown. They all waited a short time but when the appellant still could not find the getaway car, William Ward, by cellphone, ordered Tyrone Brown to leave without the appellant. Detective Chris Hodnicki testified as an expert on the discipline and the behavior of street gangs. He authenticated that the appellant, William Ward, and Tyrone Brown were all members of the Black Guerilla Family.

He testified that Rodney Pridget was shot in the face in retaliation for the shooting of Dustin Smith. The appellant does not now challenge any of this evidence. His challenges are purely procedural and peripheral. Telephone Records and Independent Source He first challenges the warrantless seizure of his cellphone.

Whether the appellant was literally and formally under arrest when the police subjected him to a hard “take down” in the parking garage is highly problematic. The short-term restraints were as severe as any self-respecting arrest might wish to boast. The longer-term status, on the other hand, trailed off into elusive uncertainty. The reality, of course, is that when the police are still in a combat mode, they are in no ²⁴³ position to think in legalistic terms.

They react by instinct. As Officer Parker ran through the parking garage, adrenaline pumping and weapon in hand, the last thing on his mind was the paradigm of a good search incident to lawful arrest. When the smoke clears, lawyers construct the theory of the case after the fact, a theory that seldom plays out so neatly on the ground. Was the appellant arrested?

To be handcuffed while lying prone on the ground was, to be sure, a step in that direction. To have a witness at a one-on-one show-up say, “That’s not the shooter,” and then to be un-handeuffed was decidedly a step in the opposite direction. It was but a short step in the opposite direction, however, as he was, with no say in the matter, transported to the police station in a squad car. In the midst of chaos, clarity is seldom realistically attainable.

At least a fictive clarity is imperative, however, if something was seized in the din of chaos but the reasonableness of that seizure depends upon whether or not it was incident to a lawful arrest. It is clear that the appellant was un-arrested as of the time Detective Lambert finished his “interview” (“interrogation”?) of the appellant at shortly after midnight and graciously had the appellant transported to any destination of his choice. What is not at all clear is whether the appellant had been continuously un-arrested from his initial detention at 6:30 p.m. throughout the evening or whether, at some later magical moment, he crossed the critical meridian between arrest and non-arrest. The State is understandably in a bit of a quandary on this issue, because while arrest status would work to its advantage on the search incident to arrest issue, it would work to its disadvantage on the Miranda custody issue.

On that issue, the State argues fervently that the appellant’s conversation with Detective Lambert was nothing more than a voluntary and non-custodial “interview.” It is hard to have it both ways, but, of course, the appellant is impaled on the horns of the same dilemma, except facing in the opposite direction. The appellant contends that his cellphone was unconstitutionally seized and that whatever was learned by the police in ²⁴⁴ the course of examining it, along with the more derivative evidence to which it led, should have been suppressed. The State responds by opening the Fourth Amendment cornucopia of search incident to lawful arrest, consent, and the plain view doctrine. The only one of those stabs at reasonableness that deserves further comment is search incident to lawful arrest.

A lawful arrest requires more than significant and sustained physical restraint. It even requires more than probable cause to make a warrantless arrest. Even with unassailable probable cause to make an arrest, an officer is still required to go forward and actually to make the arrest. 1 Even with all other factors satisfied, the officer must actually intend to make an arrest. He must, moreover, somehow communicate to the arrestee that he is being arrested.

The State makes no mention of these requirements but simply makes a leap of faith to its desired landing place of a lawful arrest. Even if, purely arguendo, one would agree with the State that the appellant was under lawful arrest when the police handcuffed him and took his cellphone, where does the State go from there? Contrary to what the appellant argues, we agree with the State that a cellphone may be seized and searched (examined) as a valid search incident to lawful arrest. This Court recently made that clear in Sinclair v. State, 214 Md.App. 309 , 76 A.3d 442 (2013). 2 The right to search a ²⁴⁵ cellphone as an incident of a lawful arrest does not confer a right to search the cellphone of a person who is no longer under arrest.

The twin exigencies that justify a warrantless search incident to arrest no longer abide. If the thing seized as an incident of an arrest turns out to be an instrumentality of crime (a weapon), a fruit of crime (stolen goods), contraband, or other evidence, it may be retained even after the arrest to which its search and seizure were incident has itself come to an end. If none of those categories is satisfied before the arrest is terminated, however, there is no longer a justification for retaining the property of the former arrestee. The property should be returned and is not vulnerable to further examination.

At that point, what warrant would the State have to continue to hold and to examine a defendant’s property? The State’s position is that once the witness failed to identify the appellant at the one-on-one show-up and the appellant was un-handcuffed, the appellant’s status reverted from one of arrest to one of non-arrest. If that was so, the lawful arrest and its generating power for producing attendant incidents were thus at an end. It was only then that the appellant’s cellphone was handed by Officer Parker, who had seized it, to Officer Jednorski, who then retained it.

It was only later that evening, when Officer Jednorski was in the screening room to observe the appellant’s interview with Detective Lambert, that Officer Jednorski looked down at the cellphone whenever it would ring and then jotted down the numbers from which the calls had been placed. This was hours after, according to the State’s thesis, the arrest had ²⁴⁶ come to an end. The State points to no legal authority justifying such a belated examination of property as a continuing incident of an earlier but now terminated lawful arrest. The State’s theory of the case has obvious problems.

Fortunately, there come riding into this Stygian uncertainty Murray v. United States, 487 U.S. 533 , 108 S.Ct. 2529 , 101 L.Ed.2d 472 (1988), and Segura v. United States, 468 U.S. 796 , 104 S.Ct. 3380 , 82 L.Ed.2d 599 (1984), and the problem-solving clarity of independent source. In Murray, 487 U.S. at 537 , 108 S.Ct. 2529 , Justice Scalia fully described the independent source doctrine: Almost simultaneously with our development of the exclusionary rule, in the first quarter of this century, we also announced what has come to be known as the “independent source” doctrine. See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 , 40 S.Ct. 182, 183 , 64 L.Ed. 319 (1920). That doctrine, which has been applied to evidence acquired not only through Fourth Amendment violations but also through Fifth and Sixth Amendment violations, has recently been described as follows: “[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred....

When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation. ” Nix v. Williams, 467 U.S. 431, 443 , 104 S.Ct. 2501, 2509 , 81 L.Ed.2d 377 (1984). The dispute here is over the scope of this doctrine. Petitioners contend that it applies only to evidence obtained for the first time during an independent lawful search. The Government argues that it applies also to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality.

We think the Government’s view has better support in both precedent and policy. ²⁴⁷ (Emphasis supplied). And see Segura v. United States, supra. The concept was first sounded by Justice Holmes as far back as Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 , 40 S.Ct. 182 , 64 L.Ed. 319 (1920): Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others[.] Even were we to assume, arguendo, that the police unreasonably obtained information as to the identities of the cellphones making incoming calls to the appellant’s cellphone while it was being retained in police custody, that would not compel the suppression of the mass of information about cellphones independently obtained by the police from the telephone company.

In Kamara v. State, 205 Md.App. 607, 623 , 45 A.3d 948 (2012), Judge Graeff pointed out, quoting from Cox v. State, 421 Md. 630, 652 , 28 A.3d 687 (2011), one of the ways in which even allegedly tainted information may be purged of taint: There are three circumstances, however, in which evidence obtained after initial unlawful conduct can be purged of taint: “... Second, the taint will be purged upon a showing that the evidence was derived from an independent source....” In Williams v. State, 372 Md. 386, 410-11 , 813 A.2d 231 (2002), the Court of Appeals similarly explained: The independent source doctrine ... applies when the evidence actually has been discovered by lawful means. Its focus is on what actually happened—was the discovery tainted by the illegal search? ... [UJnder the independent source doctrine, evidence that was in fact discovered lawfully, and not as a direct or indirect result of illegal activity, is admissible. ²⁴⁸ The information that the appellant argues should have been suppressed falls into two categories. The first is the phone number of the appellant’s cellphone itself.

By itself, it has no inculpatory significance. Derivatively, however, it could have facilitated the police request to the telephone company for the company’s records of the appellant’s cellphone use. When the appellant first sat down for his interview with Detective Lambert, however, the appellant freely provided his cellphone number on the personal information sheet he filled out. When the police subsequently asked the phone company for the appellant’s cellphone records, even assuming they needed his cellphone number to make the initial request, they had it from the independent source as well as from looking at the cellphone itself.

This is a classic application of the independent source principle. The second category of evidence the appellant wanted suppressed consisted of the cellphone numbers, and the identity of the owners of the cellphones, who had called the appellant or whom the appellant had called during the critical late afternoon hours on December 19, 2011. During the late evening of December 19, Officer Jednorski had jotted down the numbers of those calling the appellant. The telephone company, on the other hand, had those numbers and others independently in its own recorded database.

As part of the ongoing investigation of this case, Detective Lambert obtained a judicially issued court order for the phone company to produce the company’s records of calls to and from the appellant’s cellphone. The phone company complied with that order and produced the requested records. At trial, Detective Lambert and Detective Chuck Gruss provided the jury with detailed descriptions of the cellphone records not only of the appellant but also of Jermell Brandon, William Ward, Crystal Harris, and Marilyn “Baby Sis” Hollemand, all of whom were in regular contact with each other before, during, and after the shooting of Rodney Pridget. This detailed analysis was based on the telephone company records, not on the observations of Officer Jednorski.

The source of the information was an independent source not subject to Fourth Amendment ²⁴⁹ exclusion. Thus, the independent source alternative route takes us safely around the search incident quagmire. 3 Evidence of the various phone calls was properly not suppressed. A Statement That Said Nothing The appellant’s second contention is that he was in custody when interviewed by Detective Jim Lambert at police headquarters at approximately 11 p.m. on the evening of the shooting but that he had not been Mirandized. He moved, therefore, to have everything he said to Detective Lambert suppressed.

As intellectually fascinating as it might be, we are not going to entangle ourselves in the web of counteracting factors that determine