Burgess v. State
| Decision Date | 19 February 2021 |
| Docket Number | No. 19,No. 1053,19,1053 |
| Parties | WILLIAM ALFRED BURGESS, IV v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Howard County
Case Nos.: C-13-CR-18-000097 C-13-CR-18-000620
UNREPORTED
Nazarian, Gould, Wright, Alexander (Senior Judge, Specially Assigned), JJ.
Opinion by Wright, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Appellant William Alfred Burgess IV was indicted in the Howard County Circuit Court (Case Number C-13-CR-18-0000970) and charged with attempted armed robbery and several other related counts. Prior to trial, the court heard and denied appellant's motion to suppress evidence seized following an investigative stop. Appellant then entered a not guilty plea on an agreed statement of facts and was found guilty of attempted robbery. Appellant was sentenced to 15 years, with all but seven years suspended, with credit for time served, to be followed by three years supervised probation. The remaining counts were placed on the stet docket.
Appellant also was indicted in Case Number C-13-CR-18-000620 and charged with illegal possession of a regulated firearm after being previously convicted of a crime of violence, in relation to the same incident previously described. Appellant renewed and incorporated the previously argued motion to suppress, and that motion was again denied. Appellant entered a not guilty plea on an agreed statement of facts and was found guilty as charged. He was sentenced to five years without possibility of parole and consecutive to the sentence to be served in Case Number 000097, as set forth above. Timely appeals from both of these two cases were consolidated by this Court in an order dated November 25, 2019.
Appellant presents the following question for our review:
Did the suppression court err in denying the motion to suppress in both cases?
For the following reasons, we shall affirm.
November 13, 2018 hearing - Case Number C-13-CR-18-000097 On May 6, 2018, at approximately 11:45 p.m., Howard County 911 received a call from a then unidentified male and female reporting that an African American man, wearing an Orioles sweatshirt with black and orange colors, pointed a gun at them as they sat in a car parked at the Lake Elkhorn parking lot near Columbia, Maryland. The callers indicated that the man was walking towards them, then ran at them with the gun, and that their car hit a sign or a curb when they escaped the parking lot in a car traveling at a high rate of speed.1
About five minutes after the 911 call was received, Howard County Police Sergeant Lisa Franks was on uniformed patrol in her marked Dodge Charger when she overheard dispatch report an incident in the Lake Elkhorn area. The dispatch "described a black male wearing an Oriole shirt or jacket." She testified that "[a]t the time the only information that the dispatcher had relayed to us was that something had occurred in the parking lot as far as a subject in an Orioles jacket running at or coming towards a couple in the parking lot." She agreed that she had no other identifying information concerning the subject, such as height, weight, age, or other items of clothing.2
After hearing the dispatch report, Sergeant Franks parked at a park-and-ride parking lot, located near the intersection of Route 32 and Broken Land Parkway, and begansurveillance of the area. This included another nearby parking lot for Lake Elkhorn, located about a quarter mile to the north of her location. A 23-year police veteran assigned to this part of Columbia for the past three years, the sergeant was aware that there had been a number of vehicle break-ins in that particular parking lot.
Almost as soon as she set up surveillance, again, within five minutes of the original 911 call, Sergeant Franks saw a "black male subject walking but most importantly he had an Orioles jacket on." Further testifying that there were no other people around, and that it was late on a Sunday night, Sergeant Franks explained that this individual was approaching her location, on foot, and was walking east on the westbound shoulder.
After informing dispatch that she saw a subject matching the description, the individual then walked past her marked vehicle, talking on a cell phone. Testifying that she did not know if a crime had occurred at that time, Sergeant Franks pulled her car near him and asked to speak to him. She explained she was using a casual tone and spoke to him while driving her car parallel to where he was walking.
Early on in the exchange, Sergeant Franks turned on her "left alley light," which she described as a square, stationary light situated at the end of the light bar on top of her patrol car, in order to get his attention. She agreed, on cross-examination, that when she turned on this light, it illuminated the appellant. She identified appellant, in court, as that same individual.
Asked several times what she said to him specifically as she was driving, Sergeant Franks testified that she stated: During cross-examination, she referred to herpolice report and testified that she stated that she "needed to speak to him" about "what happened up by the lake." She testified that the individual initially replied, "okay," but kept on walking, against traffic in his original direction along Broken Land Parkway towards, and eventually across, the Route 32 overpass. He continued in this path, all the while still talking on his cell phone.
As appellant continued to walk unimpeded across the Route 32 overpass, Sergeant Franks continued to try speaking to him, while still in her patrol car. She confirmed that she "shouted" at some points but explained that any shouting was due to the traffic travelling underneath them on Route 32.
As she was not able to pull over on the overpass, and as there was at least one other vehicle in the area, Sergeant Franks drove ahead and pulled her vehicle over on the other side of the bridge in the gore area near the on ramp.3 She estimated that the distance between when she first saw appellant walking along Broken Land Parkway near the park and ride lot, to the point across the Route 32 overpass when she stopped her vehicle, was approximately one-quarter mile.
Once appellant was across the Route 32 overpass, he slowed his pace momentarily, and "his left shoulder kind of dipped down in a weird way," according to Sergeant Franks. He then eventually crossed over Broken Land Parkway to Sergeant Franks' side of theroad. Sergeant Franks maintained that, at this point, she had not given appellant any commands or orders "[b]ecause I still didn't know if any crime had occurred." She also testified she did not order him to cross the street, and that she
At around this time, PFC Christopher Martin arrived in another patrol car and parked behind Sergeant Franks' vehicle. Officer Martin activated his rear flashers to warn traffic but did not activate his emergency lights.
The two police officers then got out of their respective patrol cars and Officer Martin asked appellant for his identification. Officer Martin also testified at the hearing and indicated that they spoke to appellant in front of their vehicles and that he asked appellant where he was coming from. Appellant replied that he was coming from his residence and was walking to his girlfriend's house. Officer Martin further testified that he asked appellant if he had seen anything in the Lake Elkhorn parking lot and, according to the officer, appellant replied as follows:
He told me he was, again, walking from his house to his girlfriend's house. He saw a car in the parking lot, was thinking that they were smoking marijuana and was going to ask them if they had any that he could have. As he got closer to the vehicle the vehicle backed up, took off, and he kept walking on his way.
After this conversation, neither Sergeant Franks nor Officer Martin believed that appellant had committed any crime. Sergeant Franks testified that appellant was "cooperative" and "very relaxed," and "[g]ave no indication of being deceitful." Instead, Sergeant Franks testified that they had Officer Martin added that appellant's "story made sense" because that parking lot was known for marijuana use. Appellant seemed "cool, calm, collected," and that it was a "normal conversation" and that appellant "never gave us any indication that he had done anything wrong or was nervous about what had gone on."
Appellant was not frisked or restrained in any way, nor was he accused of committing a crime. Officer Martin did, however, check appellant for outstanding warrants, and after about 10 minutes, when that came back negative, appellant left the scene. Sergeant Franks confirmed that she offered appellant a ride. Asked by defense counsel whether she offered appellant a ride because that would allow her to pat him down before he got into her car, she agreed "[t]hat's partly the reason."
Approximately five minutes later, after appellant walked away and was no longer in their view, Sergeant Franks and Officer Martin received additional information from Officer Brian Bochinski. Officer Bochinski spoke to the individuals who called 911. He then spoke to Officer Martin and told him, according to Officer Martin, "[t]hat the suspect from Lake Elkhorn possibly had a firearm on him that he had pointed at the victims over there." Sergeant Franks further testified that she learned "that the subject in the Orioles jacket had pointed a handgun" at the couple who called...
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