A jury in the Circuit Court for Charles County convicted Donald Edward Browne, Jr., the appellant, of two counts of robbery with a dangerous weapon, two counts of use of a handgun in the commission of a felony or crime of violence, two counts of first-degree burglary, one count of false imprisonment, one count of conspiracy to commit robbery with a dangerous weapon, and one count of possession of a firearm after conviction of a qualifying crime. The executed portions of the sentences imposed by the court totaled 40 years in prison.
The appellant poses five questions for review, which we have reordered and reworded as follows:
I. Did the trial court err in denying his motion for mistrial made after the jury reported for the second time that it was deadlocked?
II. Did the circuit court err in denying his motion to suppress DNA evidence?
III. Did the circuit court err in denying his motion to suppress his oral statement to Sergeant Scott Fetterolf?
IV. Must one of the convictions and sentences for first degree burglary be vacated?
V. Must the sentence for false imprisonment be merged into the sentence for one of the robbery with a dangerous weapon convictions?
For the following reasons, we answer Question I in the affirmative, and on that basis shall reverse the judgments and remand the case to the circuit court for further proceedings. We address Questions II and III for judicial efficiency. Given our disposition, Questions IV and V are moot.
FACTS AND PROCEEDINGS
This appeal stems from a home invasion that took place on August 18, 2009, in Newberg, a town in Charles County. At about 8:15 p.m., Royce Miller, who owns and operates the Maryland International Raceway in St. Mary’s County, drove into the garage of his house, where his wife, Linda, was placing items in the trunk of her car. Suddenly, the Millers were confronted by two masked men who entered the garage. One was holding a gun. Both men were wearing gloves and black clothing that covered them completely. Only the skin under the eye holes of their ski masks was visible.
The men ordered the Millers into the house. In the mudroom, the unarmed man pushed Mrs. Miller to the ground, taped her hands behind her back, and took her diamond wedding ring. The man with the gun forced Mr. Miller into the kitchen
The gunman and Mr. Miller went upstairs. Mr. Miller showed the man where Mrs. Miller’s jewelry box was located. As Mr. Miller was trying to figure out what to do next, the Millers’ son Christopher drove up the driveway. The man downstairs yelled, “We’ve got to go!” The gunman ran downstairs, and the two men ran across the Millers’ property, jumping over their fence and damaging the top of it. Mr. Miller retrieved his gun, and as the men fled he fired two shots outside, from a balcony, and yelled, “The next one’s through your skull!” The men made off with the cell phone and cash from the kitchen counter, and the wedding ring.
Christopher saw the two men running away and jumping over his parents’ fence. One of the men pointed a gun at him. Christopher went inside the house and found his mother; he removed the duct tape from her wrists. Mrs. Miller called 911, and the police responded to the scene.
The next day, Mr. Miller walked through the neighborhood to see if he could find any evidence related to the crime. He was accompanied by a neighbor, Carroll Walker, who usually walked through the neighborhood twice a day. Mr. Walker told Mr. Miller that he had seen two gloves near a goat pen owned by Charles Harley, another neighbor. The Millers went to look at the gloves, and recognized them as the ones that had been worn by the man who had forced Mrs. Miller to the ground and had taken her wedding ring. Members of the Sheriffs Department and an evidence technician came to the property where the gloves were found and collected them. According to Mr. Walker and Mr. Harley, the gloves had not been on that property between 6:30 and 7:30 the evening before, when the men last had checked that area to make sure the goats were safe.
The gloves were provided to Bode Technology for testing. On January 29, 2010, experts there obtained DNA profiles from the gloves. The DNA profiles were uploaded into CO-DIS (the Combined DNA Index System). As we shall explain, that eventually led to a DNA match to the appellant’s DNA, which then led to the appellant’s arrest and indictment.
At trial, the State called Mr. and Mrs. Miller; Mr. Walker, Mr. Harley, and Laureen Haynes, all neighbors of the Millers; Christopher Miller; Sergeant Scott Fetterolf, Detective Chris Shankster, Detective Charles Gass, Technician James Ammons, and Sergeant Erica Budd, all of the Charles County Sheriffs Office; Tiffany Keener and Dr. Leslie Mounkes, forensic DNA experts with the Maryland State Police; and Stephanie Sivak, Tiffany Meadows, and Michelle Donahue, forensic DNA analysts with Bode Technology. The defense did not call any witnesses. The police officers testified about interviews they conducted with the appellant.
Mr. Miller testified that the appellant’s father owns a paving company that in the past several years had done six to eight jobs for the speedway Mr. Miller owns. About 75% to 80% of the business transacted by the speedway is paid in cash, and Mr. Miller had paid the appellant’s father in cash. The appellant had accompanied his father on some of those jobs, and had
We shall include additional facts as pertinent to the issues.
DISCUSSION
I.
The appellant contends the trial court abused its discretion by denying his motion for mistrial made after the deliberating jurors revealed for a second time that they were deadlocked, identifying a particular juror who was holding out for a not guilty verdict (and who previously had identified himself to the court as the single holdout juror). We review the denial of a mistrial motion for abuse of discretion. Dillard v. State,
The facts relevant to this issue are as follows. The jury retired to deliberate at 5:10 p.m., after closing arguments on the second day of trial. At 6:50 p.m., the foreman sent a note saying, “The jury is deadlock [sic] on all counts we will not be able to reach a verdict.” The trial judge told counsel about the note and proposed to instruct the jurors to keep deliberating, given that they had not been deliberating long. Counsel agreed. The jurors were returned to the jury box and were so instructed by the court.
Immediately after the judge stopped speaking, Juror No. 281 asked to approach the bench, and was allowed to do so. That juror and counsel convened at the bench and the judge asked, “Okay, what’s the situation?” The juror replied, “Mam, [sic] I’m the one that, I can not, with the evidence that’s been presented here say that Mr. Browne was----” The judge interrupted, and the following colloquy took place:
THE COURT: Okay, I’m going to stop you.
JUROR: Yes mam [sic].
THE COURT: Because you have not been deliberating very long.
JUROR: Yes mam.
THE COURT: You need to go back, listen to your fellow jurors, consider all of the evidence very, very carefully. And can you continue your discussions. I’m not arguing with you, I’m just simply saying ...
JUROR: No mam, no mam, I don’t take that way [sic].
THE COURT: ... it really has not been very long.
JUROR: Yes mam.
THE COURT: Okay ... Counsel have any suggestions, comment?
[DEFENDANT’S ATTORNEY]: Just to remember what the instructions were at the beginning of the case.
THE COURT: They are.
[DEFENDANT’S ATTORNEY]: All of the instructions.
THE COURT: I’m simply asking you to review all of the evidence. Look through the written jury instructions yourself.
JUROR: Yes mam.
THE COURT: Consider everything. Consult and discuss with your fellow jurors and we’ll see where we are.
JUROR: Yes mam.
(Emphasis added).
Juror No. 281 returned to the jury box and the jurors were escorted to the jury room, where they resumed deliberations.
The court presented the note to counsel and asked for suggestions and comments. The prosecutor suggested that the jurors be sent home for the night so they could return the next morning to “start fresh.” Defense counsel moved for a mistrial, stating, “since they’re unable to reach a verdict I would be asking for a mistrial at this time,” and that “they’ve already been instructed to go back since, with the same issue.”
The court denied the mistrial motion, ruling:
We’ve had a two day trial with a lot of evidence presented today. And in the overall scheme of things they have been deliberating three hours at the most since it also involved ordering dinner and a couple of smoke breaks and making phone calls before they even started. So, I think it’s appropriate to bring them back tomorrow morning. I’ll ask them to be in at 9 a.m. So let’s bring them back in and say so.
The jurors were returned to the courtroom and were told only that they were being sent home for the night and to return in the morning.
Deliberations resumed the next day at 9:32 a.m., after the judge advised the members of the jury to “[p]lease take your time. It’s a good idea to go back to the definitions of the crimes that were charged and go through each one of the elements one by one.” At 10:35 a.m., the foreman sent a note stating that the jury had reached a verdict. The verdict was returned and confirmed by polling.
The appellant argues that under the circumstances that existed the trial court abused its discretion by denying his motion for mistrial. He maintains that the judge’s individual instruction to the self-identified holdout juror, combined with her merely sending the jurors home for the night after the second deadlock note, in which the foreman singled out the self-identified holdout juror as the cause of the jury’s inability to reach a verdict, was coercive. He takes the position that a mistrial should have been granted to prevent a verdict that was the product of jury coercion.
The State counters that by denying the mistrial motion the trial court properly exercised its broad discretion to assess whether the jury in fact was hopelessly deadlocked. It points out that, under Mayfield, a trial judge is not required to declare a mistrial simply because an apparently deadlocked jury voluntarily reveals its numerical split.
The right to a jury trial in a criminal case is guaranteed by the Sixth Amendment to the federal constitution and by Article 21 of the Maryland Declaration of Rights.
One of the requirements embodied in the right to a jury trial is that of a unanimous verdict. With respect to unanimity [the Court of Appeals has] stated: “The verdict is the unanimous decision made by a jury and reported to the court, on the matters lawfully submitted to them in the course of the trial. Unanimity is indispensable to the sufficiency of the verdict.” Smith v. State,
Several Maryland appellate opinions addressing the potential for judicial coercion of a verdict in a criminal case involve the giving of an Allen-type instruction to a deliberating jury after the jury has revealed that it is deadlocked.
When a jury reveals that it is deadlocked and volunteers the numerical breakdown of its split, there is an increased risk that the trial judge’s remarks in response will be coercive. In Smoot v. State,
The second note reporting a deadlock came after the jurors had had dinner for almost two hours and then spent slightly more than an hour deliberating. It repeated the same breakdown (eight in favor of guilty and four in favor of not guilty). Defense counsel again moved for a mistrial. The trial judge told counsel he simply would tell the bailiff to let the jurors know they should continue deliberating.
About an hour later, not in response to any new note, the trial judge called counsel to the bench and said he was going to bring the jurors into the courtroom and give them the ABA-recommended Allen charge. Defense counsel objected, arguing that, after five hours of actual deliberation time and two notes reporting a clear split among the jurors, allowing the jurors to deliberate further would be coercive. Defense counsel again moved for a mistrial. The court denied the motion and gave the jurors the modified Allen charge. About fifty minutes later the jury returned a guilty verdict.
On appeal, this Court held that the trial judge had exercised coercive influence on the verdict by telling the jury, in the face of a disclosed split, that he would not accept their deadlock; by giving an Allen-type instruction after the jury’s second note revealed it still could not agree and again gave the majority/minority split; and by not admonishing the jury to refrain from disclosing the details of their division after they already had done so. On this last point, we opined:
[T]he jury twice volunteered the details of their division. After the first disclosure, they should have been admonished by the court, and counselled [sic] against any repetition. In the absence of such a cautionary instruction, the second disclosure of their split ... was even more explicit and more improper.
In response to the plaintive inquiry on the “bottom line” of their note, “What do we do now?”, the trial court, under the circumstances then existing in this case, should have granted the [defendant’s] motion for a mistrial and sent them home. To require, as he did, anotherhour of deliberation and then sua sponte to administer the Allen-type charge ... was an abuse of discretion....
Id. at 151-52,
In Mayfield v. State,
In that case, after deliberating for about five hours, the jurors sent a note listing the vote breakdown on each count and stating that they could not reach a unanimous verdict. On four counts, the breakdown was eleven for guilty and one for not guilty. On the remaining count the split was nine for guilty and three for not guilty. The note did not identify the individual juror’s votes.
The court informed counsel of the note and its contents and that it was going to give the ABA-recommended Allen charge. Defense counsel moved for a mistrial, which was denied. The court gave the modified Allen charge and the jurors retired to continue deliberating. Defense counsel renewed his mistrial motion twice thereafter, as the jurors continued to deliberate, complaining that by allowing deliberations to continue when there was a revealed eleven to one split in favor of a guilty verdict on most counts, the court was giving the eleven juror majority the opportunity to “ ‘hound my one guy into conviction.’ ” Id. at 628,
As noted, on appeal, the defendant argued that giving a modified Allen charge to a jury that has volunteered its numerical breakdown is coercive as a matter of law. The Court opined, to the contrary, that the particular circumstances of the case will dictate whether a trial judge’s actions amounted to coercion. Interestingly, the Court observed:
It is possible ... that a single minority juror might feel coerced by an ABA approved Allen-type charge when that juror believes that the trial judge is aware that there is only one holdout. On the other hand, if a trial judge in this situation were simply to direct that the jurors continue deliberations, without giving any instruction concerning their responsibilities, the lone holdout might also infer that the directive was aimed at him. An instruction to continue deliberations, without any amplification, may arguably be more coercive upon the minority than the ABA recommended Allen-type charge. Such unexplained instruction would not contain the ABA approved language which emphasizes “individual judgment,” the need to “decide the case for yourself’ and the refusal to “surrender your honest conviction ... because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.”
Id. at 631,
We believe that it would be sheer speculation to conclude that, when a jury becomes deadlocked and voluntarily reveals its numerical split, it is always coercive for the trial judge to give an ABA recommended Allen-type instruction. This is particularly true in light ofthe charge’s repeated stress upon the need for each juror’s individual judgment and the obligation of each juror to adhere to his own convictions.
Id. at 632,
Although different in procedural posture from the case at bar, a series of cases decided by the District of Columbia Court of Appeals concerning judicial coercion of a verdict in the face of a polling breakdown is instructional on the concept of verdict coercion and the best analysis to be used by an appellate court in assessing whether a verdict was the product of coercion. In Crowder v. United States,
return to the jury room for further consideration of your verdict, and when you have reached a unanimous verdict, you may return to the court. If it’s not unanimous, then you continue your deliberations. After you return to the jury room, any member is free to change his or her vote on any issue submitted to you. Each juror is free to change his or her vote until the jury is discharged.
Crowder,
On appeal, the Crowder court held that the trial court had abused its discretion by returning the jurors to deliberate after the poll revealed the exact split in the vote and the identity of the dissenting juror. The court noted that there is an “inevitable increase in potential coerciveness” that happens when the numerical division of the jury vote and the identity of a lone dissenting juror is revealed in open court. Id. at 343. Reasoning that it is the duty of the trial judge to alleviate the potential for coercion of a verdict created by a polling breakdown, the court observed, in a footnote, that the trial judge could have accomplished that by giving an instruction such as the ABA-reeommended Allen charge. Specifically, the court stated that the situation
justified a further attempt to dissipate the potential coerciveness inherent whenever the twelfth juror’s dissent is revealed in open court and the jury is instructed to continue its deliberations. The most obvious danger in such a situation is that the lone recalcitrant juror will conclude that the trial judge is requiring further deliberations in order toeliminate his dissent. To allay any such fears, the trial judge might consider [giving an instruction similar to the ABA recommended Allen charge].
Id. at 342 n. 11.
In Harris v. United States,
When the jurors returned the next morning, the court instructed them, in relevant part:
Each of you is free to change your mind on any count against either defendant if you decide to do so, but you are also free not to change your mind even if other jurors disagree with you, and you should not do so simply for the purpose of reaching a verdict unless you are persuaded to change based on the evidence and your further discussions with your fellow jurors.
Remember that you are not partisans or advocates for any party in this matter. You are judges of the facts, you must decide the case based solely on the evidence, without prejudice, fear, sympathy, or favor for or against any party. To that end, I remind you that in your deliberations in the jury room your purpose should not be to support your own opinion, but to discuss the case with your fellow jurors with an open mind and to ascertain and declare the truth based on the evidence.
Id. at 700.
The jurors deliberated for two more full days, occasionally sending status notes saying they had not yet reached a unanimous verdict. No responses were requested or given.
On the morning of the third day, after deliberating for an hour, the jurors reached verdicts of guilty on all counts against the defendant and guilty on one count against the co-defendant, which were confirmed by polling.
On appeal, the defendant argued that the trial court had abused its discretion by allowing the jurors to deliberate after the initial poll revealed a single holdout juror, and that, in that circumstance, the verdict
the degree of isolation of a dissenting juror (or jurors), whether the identity of a dissenting juror (or jurors) is revealed in open court as opposed to in a note, whether the exact numerical division of the jury is revealed, whether the judge knows the identity of a dissenting juror (or jurors) and whether the juror is aware of the judge’s knowledge, whether other jurors may feel “bound” by a vote they have announced, and whether an “anti-deadlock” instruction has been given and, if so, whether this has occurred under circumstances where the potential for coercion is high.
Id. Second, the reviewing court must combine its assessment of the inherent coercive potential “-with an evaluation of how the judge reacted to the situation.” M (Footnote omitted).
Did the judge make affirmative efforts to dispel any coercive potential? Did the judge take a middle course and act (or refrain from acting) in a reasonable and neutral way? Did the judge perhaps compound the problem by actions effectively adding to juror pressure? Did the judge independently create a situation of coercive potential?
Id.
On the first prong of its analysis, the Harris court determined that “[t]he situation itself had a great deal of inherent coercive potential^]”
On the second prong of its analysis, the court concluded that, although there was great inherent coercive potential in the situation, the trial judge “acted with sensitivity and skill to alleviate coercion” by not giving an anti-deadlock instruction after the twelfth juror dissented during polling and by not otherwise singling the juror out; by sending the jurors home after they sent a note saying they were in disagreement; and by giving a charge after the jurors returned the next day that reduced the potential for pressure on the holdout juror to agree to a guilty verdict. Id. at 707.
Recently, in Brown v. United States,
The court stopped the poll and in a bench conference denied Brown’s counsel’s motion for mistrial and said it was going to ask the jurors to continue deliberating as to Brown and the other defendants. The court did so, simply telling the jurors that because they had not reached a unanimous verdict, they were to continue their deliberations.
When the jurors resumed deliberating, Brown’s counsel again moved for a mistrial, arguing that the breakdown during polling would have a coercive effect on the deliberations. The court denied the motion again, but agreed to the government’s request for a written instruction to the jurors stating:
In the polling of the jury, it has become apparent that you may not have reached a unanimous verdict. For this reason, I am asking you to return to the jury room for further consideration of your verdict. If you are unanimous, your foreperson should send me a note indicating that, and I will poll you again. If you are not unanimous, please resume deliberations and see if you can reach a unanimous verdict.
Brown,
The appellate court held that the circumstances of the polling breakdown carried a very high potential for coercion of the jury verdict and that the trial judge did not take adequate steps to dispel that potential. The court observed:
We recognize that for those who have never participated on a jury, the suggestion that there may be pressure of any kind from a trial judge’s unelaborated instruction — as in this case — -to resume deliberations after a jury poll breakdown may seem fanciful. But the reality of participating on a jury is quite different from thinking about it in the abstract.
As our case law makes clear, for the juror exposed in open court as a dissenter from an announced unanimous verdict, the pressure to conform is real when the judge requires further deliberations with virtually unanimous jurors of a contrary mind — unless the judge assures the dissenter, indeed all jurors, that none should surrender honest conviction and that each is free to change his or her mind. The concern here, therefore, is for all jurors. Without a clearer, more specific instruction [than was given], the other jurors, not just the announced dissenter, may be unsure about what options are open to them if the dissenter stands pat.
In U.S. v. Williams,
On appeal, Williams argued that, under the circumstances, it was coercive for the trial court to give the modified Allen charge, instead of granting a mistrial. The Court of Appeals agreed. It stated: “When a juror clearly discloses to the [trial] court that she disagrees with the rest of the jury and that she cannot return a different verdict ... the [trial] court cannot give a supplemental instruction instructing the jury to continue deliberating.” Williams,
With these concepts in mind, we return to the case at bar. The right to a jury trial hinges upon unanimity in number and assent. At the same time, because declaring a mistrial when a jury is not hopelessly deadlocked undermines judicial efficiency, it is essential that deadlocked jurors be allowed to continue deliberating when the deadlock may properly be broken, but not when it is likely that the deadlock will be broken by coercion of a holdout juror (or more than one holdout jurors). We find helpful the factors the District of Columbia Court of Appeals determined to be relevant in assessing the inherent potential in a given situation for coercion of a verdict: the degree of isolation of a holdout juror; whether the court knows the numerical breakdown of the deadlock and, more specifically, whether the holdout juror is the sole holdout; whether the holdout juror has been identified to the court and knows that the court is aware of his or her identity; whether the holdout juror has been identified in a note only or in open court; whether the other jurors may feel they are bound to the positions they have taken; and whether a modified Allen charge has been given.
Taking these factors into account, we conclude that the total circumstances that existed when the jurors first were sent back to the jury room to continue deliberating, and especially when they were brought back in the morning to continue deliberating after their second note, created an extremely high inherent potential for coercion of the verdict. After the first deadlock note and the court’s instruction for the jurors to continue to deliberate, Juror No. 281 presented himself to the judge and made clear from his words that he was the only holdout juror (“I’m the one ... ”), and that his reason for holding out against findings of guilt was that he did not think there was evidence sufficient to convict the appellant (“I can not, with the evidence that’s been presented here say that Mr. Browne was ... ”). Thus, at that stage of events, there was a self-identified lone holdout juror, whose identity was known to the other jurors and had become known to the court and counsel, and who knew that everyone knew his identity. As the foreman’s later note made clear, the other jurors knew that Juror No. 281, in approaching the bench, had made his status as the holdout juror
It would have been best had the court not allowed any individual juror to approach the bench when the jury had just reported a deadlock and had been instructed to resume deliberating. It was predictable, given the circumstances, that a juror asking to approach would communicate information about the nature of the deadlock. Juror No. 281 was allowed to approach, however, and we must gauge whether the inherent potential for coercion, which became significant when Juror No. 281 communicated with the judge at the bench, was exacerbated or lessened by the actions of the trial judge in the circumstances as they evolved. Under the Court’s holding in Mayfield, once Juror No. 281 identified himself as the lone holdout, the judge might have sought to decrease the potential for coercion by giving the entire jury the ABA-recommended Allen charge, which emphasizes “individual judgment, the need to decide the case for yourself and the refusal to surrender your honest conviction ... because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.” Mayfield,
Instead, during the bench conference, the judge gave the holdout juror an individual instruction that did not contain the safeguards of the modified Allen charge. The juror should not have been instructed individually. A jury deadlock only can be properly broken by the joint assent of all the jurors. The deadlock is not a personal problem laid at the feet of the holdout juror or jurors. It is a group dynamic problem. Individually instructing a single holdout juror in a deadlock situation can shift that dynamic, creating the impression that the deadlock is of the holdout’s making. Moreover, the individual instruction that was given to Juror No. 281 directed him to listen to his fellow jurors, but did not provide any counterbalancing language informing him that he should not surrender his honest conviction because of his fellow jurors’ opinions. See Taylor v. State,
The events that took place after this faulty directive further increased the likelihood of coercion. As in Smoot, the trial judge in this case did not admonish Juror No. 281, or the jury as a whole, to refrain from again divulging the details of their deadlock. See
By giving no response to the jurors’ second deadlock note other than to send them home for the night with instructions to return in the morning to resume deliberations, the trial judge likely created the impression in Juror No. 281’s mind that further deliberations were being required “in order to eliminate his dissent.” See Crowder,
II.
The appellant contends the circuit court erred in denying his motion to suppress DNA evidence. In particular, he maintains that evidence that his DNA profile matched the DNA profile obtained from the gloves retrieved from Mr. Harley’s property should not have been admitted into evidence. In his brief, he relies upon King v. State,
In the case at bar, on February 3, 2010, the appellant was arrested in Baltimore County on charges including a crime of violence. These charges were unrelated to the crimes committed against the Millers in Charles County. While under arrest in Baltimore County, the appellant’s DNA was collected by means of a buccal swab. The DNA profile thus obtained was entered into CODIS, and produced a match to the DNA that had been recovered from the glove the Millers identified as having been worn by one of the robbers who perpetrated the home invasion, and that had been uploaded into CODIS on January 29, 2010. Ultimately, the Baltimore County charges against the appellant were nolle prossed.
Based on the CODIS match, Sergeant Fetterolf obtained a search warrant for a buccal swab from the appellant. The swab was performed, a DNA profile was extracted from it, and that DNA profile was shown to match the DNA collected from the glove found on Mr. Harley’s property.
The appellant argues that his Fourth Amendment rights were violated when the
This argument has been superseded by the United States Supreme Court’s decision in Maryland v. King. It is now established law that obtaining a buccal swab DNA sample from a person under arrest for a violent crime is not a violation of that person’s Fourth Amendment rights. Thus, the premise for the appellant’s argument that the DNA evidence against him should have been suppressed is not valid. Accordingly, the circuit court did not err in denying the appellant’s motion to suppress the DNA evidence.
III.
The appellant contends the circuit court erred in denying his second suppression motion, in which he sought to exclude oral statements he made to Sergeant Fetterolf. At the suppression hearing, Sergeant Fetterolf and the appellant testified as follows.
According to Sergeant Fetterolf, on May 18, 2010, he interviewed the appellant at the Baltimore County Detention Center, where the appellant was being held on charges unrelated to the Millers’ home invasion. A detective with the Baltimore County Police Department was present during the interview, which took place in a 10-foot by 10-foot visiting room.
Sergeant Fetterolf testified that he entered the visiting room, where the appellant already was present, and introduced himself. He told the appellant he was investigating a case “where his name had come up.” The appellant asked Sergeant Fetterolf why he was talking to him and how his name had come up. At that point, Sergeant Fetterolf read the appellant his Miranda rights,
talk to a lawyer for advice before I question you and have him with you during questioning. If you cannot afford a lawyer and want one a lawyer will be provided for you at no cost. If you want to answer our questions without a lawyer present you will still have the right to stop answering at any time and request a lawyer.
The appellant responded by saying he did not know what this was about, that he had a lawyer, but that he would talk to the sergeant. The sergeant then said, “Okay. I’m sure gonna give you some paperwork when we are done here and I’m sure you should probably pass that along to your attorney.”
The interview then commenced and lasted ten to fifteen minutes. In response to Sergeant Fetterolfs questions, the appellant denied ever having been in Prince George’s, Charles, Calvert, or St. Mary’s
Sergeant Fetterolf told the appellant that his DNA had been recovered from a pair of gloves near the scene of a home invasion in Charles County. In response, the appellant said, “You have the wrong guy” and then said, “I need to talk to my lawyer.” According to the sergeant, the interview ended at that point.
The appellant testified that after he was read his Miranda rights he told Sergeant Fetterolf that he had a lawyer and that he “would like for him [the lawyer] to be here with me as far as for any questions and for him [the sergeant] to talk with my lawyer about anything he wishes to talk to me about.” According to the appellant, notwithstanding this request, the sergeant proceeded to question him. The appellant denied telling the sergeant that he would talk to him even though he had a lawyer.
The court credited Sergeant Fetterolfs testimony, finding that, after being advised of his Miranda rights, the appellant said he had a lawyer, meaning in connection with the charges in Baltimore County, but also said that he would talk to the sergeant about whatever it was the sergeant was there to discuss. The court found that the appellant voluntarily answered the questions posed by Sergeant Fetterolf until “he saw the handwriting on the wall” and said he wanted to speak to his lawyer; and at that point the interview was halted. Upon these findings, the court denied the motion to suppress the appellant’s oral statements to Sergeant Fetterolf made during the interview (except that the appellant’s statement at the end of the interview that he wanted to talk to his lawyer was not admissible).
Before this Court, the appellant argues that his remarks to Sergeant Fetterolf immediately after being advised of his Miranda rights constituted a request for counsel, and that, under Edwards v. Arizona,
The State counters that the appellant waived his Miranda rights immediately after being advised of them, by telling Sergeant Fetterolf that he had an attorney but would nonetheless talk to him. The State argues that because an invocation of the right to counsel must be clear and unambiguous under Davis v. United States,
In reviewing the denial of a motion to suppress, we look solely to the evidence before the court at the suppression hearing, and view that evidence in a light most favorable to the party that prevailed on the motion. Gonzalez v. State,
Here, the court accepted Sergeant Fetterolfs testimony that, after he advised the appellant of his Miranda rights, the appellant remarked that he had a lawyer in relation to the Baltimore County criminal case, but he would talk to the sergeant anyway. In support of its credibility determination, the court noted that the appellant voluntarily continued to answer questions even after he (supposedly) asked for his lawyer to be present. It also noted that the questioning ceased when the appellant asked to speak with his lawyer later on in the colloquy — a fact with which the appellant agrees — and found that it would be “illogical” for the sergeant to have ended the questioning then but to have ignored an earlier request for counsel.
Assessing the credibility of the sergeant’s testimony was squarely within the court’s discretion. The version of events the court adopted was in evidence, through Sergeant Fetterolf, so the court’s findings were not clearly erroneous. See Washington v. State,
JUDGMENTS REVERSED. CASE REMANDED TO THE CIRCUIT COURT FOR CHARLES COUNTY FOR FURTHER PROCEEDINGS. COSTS TO BE PAID BY CHARLES COUNTY.
Notes
. As framed by the appellant, the questions presented are:
1. Did the circuit court err in denying appellant’s motion to suppress DNA evidence in light of King v. State?
2. Did the circuit court err in denying appellant's motion to suppress his statement made to Sergeant Scott Fetterolf?
3. Did the circuit court abuse its discretion in denying appellant’s motion for a mistrial?
4. Must one of the two convictions and sentences for Erst degree burglary be vacated because only one first degree burglary was committed?
5. Must the sentence for false imprisonment merge into the sentence for robbery with a dangerous weapon pursuant to Snowden v. State?
(Footnotes omitted.)
. The Allen charge gets its name from Allen v. United States,
. Standard 15-5.4, ABA Standards for Criminal Justice: Discovery and Trial by Jury, Third Edition, American Bar Association, 1996. The Standard in the Third Edition contains no substantial deviation from the Standard approved by the Court in earlier editions. Standard 15-5.4 provides:
(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(1) that in order to return a verdict, each juror must agree thereto;
(2) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(3) that each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with the other jurors;
(4) that in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change an opinion if the juror is convinced it is erroneous; and
(5) that no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.
(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in section (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.
. As the Butler Court explained:
In Burnette, the instruction stated, "If your views are contrary to those of the vast majority you should consider whether your views, which make no impression on the minds of so many equally intelligent jurors, are correct.” In response to that language [the Burnette Court] stated: "It is difficult to imagine a minority juror who would not be placed in some discomfort on hearing this instruction. Criticism runs directly to him, and he might understandably conclude that proper 'deference' to the opinions of the majority demands that he abandon his conscientious position."
. Recently, in Hall v. State,
We held that the modified Allen charge given by the trial judge was not legally incorrect. The defendant also had argued that the instruction coerced the verdict, given that there was a revealed split, which likely was eleven to one in favor of guilt. We did not address that issue because the only count on which a split was revealed was the count on which the trial court ultimately declared a mistrial.
. The instruction the Crowder court recommended was:
It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
. Very recently, the Court of Appeals held, on remand from the United States Supreme Court in Maryland v. King, that the DNA search in that case did not violate the defendant’s right to be free from unreasonable searches and seizures under Article 26 of the Maryland Declaration of Rights. King v. State (On Remand),
Accordingly, even if the appellant were to have argued that his rights under Article 26 were violated in this case, the argument would not have had merit.
. Miranda v. Arizona,