Butler v. State
| Decision Date | 02 February 2017 |
| Docket Number | No. 1004, Sept. Term, 2015,No. 1104, Sept. Term, 2015,1004, Sept. Term, 2015,1104, Sept. Term, 2015 |
| Citation | 153 A.3d 824,231 Md.App. 533 |
| Parties | Clifford BUTLER v. STATE of Maryland Derius Duncan v. State of Maryland |
| Court | Court of Special Appeals of Maryland |
Nancy S. Forster (Forster, Johnson & LeCompte, on the brief) Thomas M. Donnelly (Paul B. DeWolfe, Public Defender, on the brief) all of Baltimore, MD, for Appellant.
Carrie J. Williams (Brian E. Frosh, Atty. Gen., on the brief) all of Baltimore, MD, for Appellee.
Meredith, Graeff, Irma S. Raker (Senior Judge, Specially Assigned), JJ.
These consolidated appeals arise out of the convictions of Derius Duncan ("Duncan") and Clifford Butler ("Butler"), appellants, for various crimes stemming from the murder of Ronald Givens ("Givens") on October 3, 2011. Appellants were jointly tried in the Circuit Court for Baltimore County beginning on April 28, 2015, and were each convicted of first degree murder of Givens, conspiracy to commit Givens's murder, influencing a witness, and use of a firearm in commission of a crime of violence. Their timely appeals were consolidated.
Duncan presents the following three questions for our review:
Butler presents only one question for our review:
4. Did the lower court err in allowing the State to use Mr. Butler's statements made during two proffer sessions against him at trial?
We answer "Yes" to Question 2 and Question 4, and we will reverse both appellants' convictions and remand both cases to the Circuit Court for Baltimore County for new trials. We need not answer Questions 1 and 3.
The events giving rise to this appeal began on March 22, 2011. At around 9:00 p.m. that evening, Baltimore City Police Officer Steffon Scott was on patrol with his partner in southwest Baltimore when he observed a black PT Cruiser automobile parked "in an unusual spot." Officer Scott stopped his patrol car to observe the vehicle, and observed a man "jump out" of the passenger side of the vehicle and run out of sight. The PT Cruiser then drove down the street, prompting Officer Scott to follow, and eventually pull over, the vehicle. Upon pulling the vehicle over, Officer Scott encountered Ronald Givens, who was the driver. There were no other individuals in the vehicle with Givens at this time. During the traffic stop, Officer Scott smelled marijuana and observed marijuana within the vehicle. Officer Scott requested that Givens step out of the vehicle so that he could ask Givens some "routine questions." Officer Scott and his partner then searched the vehicle, including the glovebox, and confiscated the marijuana they found, but they did not issue Givens a citation. Officer Scott concluded the traffic stop by telling Givens that he was "done hacking for the night" and that he needed to leave the area.1
Roughly 25 to 30 minutes later, Officer Scott again observed the same black PT Cruiser traveling in the neighborhood where the first encounter with Givens had occurred. Officer Scott observed the PT Cruiser pull over to the side of the street, at which point an individual approached and entered the vehicle. Officer Scott noticed that the individual was "like holding his waistband." Based on the individual's appearance, Officer Scott believed that it was the same person who had previously jumped out of the passenger side of the vehicle when Officer Scott had first observed Givens's vehicle. Officer Scott followed Givens's vehicle, and initiated a second traffic stop by turning on his lights and siren. Officer Scott additionally activated a "spotlight" on his vehicle so that he could "clearly see anything [that was] going on inside the vehicle." As Officer Scott approached the vehicle on foot, he observed the passenger "motion towards the glovebox" and then close the glovebox.
Officer Scott instructed Givens and the passenger (later identified as Duncan) to exit the vehicle. Officer Scott searched the glovebox, and found a loaded black handgun which had not been in the glovebox during the search of the vehicle 30 minutes earlier. Duncan was arrested and later charged with illegal possession of the handgun. Duncan's trial on those charges was scheduled for October 26, 2011.
On the morning of October 4, 2011, a neighbor of Ronald Givens found him lying face down on his front lawn with no pulse. The neighbor testified at appellants' trial that she had heard what she thought was a series of "cherry bombs" at roughly 9:00 p.m. the previous evening, but thought nothing more of it after the sounds ceased. After discovering Givens on the morning of October 4, the neighbor called 9–1–1. A Baltimore County police officer dispatched in response to the call discovered that Givens had multiple bullet wounds
in his torso.
Detective Brian Wolf, from the Homicide Division of the Baltimore County Police Department, was assigned to be the lead detective for the investigation of Givens's death. Detective Wolf arrived at the crime scene at approximately 8:15 a.m. on October 4. Once at the crime scene, Detective Wolf spoke with Givens's mother. During their conversation, Givens's mother provided Detective Wolf a subpoena Givens had received from the Circuit Court for Baltimore City. The subpoena ordered Givens to appear as a witness for the State in the case of "State of Maryland v. Derius Duncan" on October 26, 2011. During the course of Detective Wolf's investigation, he later learned that Duncan was on probation at the time he was charged with illegal possession of the handgun, and was therefore facing fifteen years of additional incarceration if found to be in violation of conditions of his probation.
After investigating the crime scene and meeting with Givens's mother, Detective Wolf contacted the "Diagnostic Center" in Baltimore City, where Duncan was being held pending his trial for the illegal handgun charge. Detective Wolf requested that the officers at the Diagnostic Center search Duncan's cell. After the search was completed, Detective Wolf was provided with copies of documents found in Duncan's cell. This included a piece of paper with "a lot of phone numbers," in addition to "a name with two addresses underneath of that." The name written down by Duncan was "Dave," which Detective Wolf later determined was a reference to Butler's nephew David Johnson.
Detective Wolf also obtained a subpoena for records of phone calls made by Duncan while he was incarcerated. Detective Wolf listened to over 100 calls Duncan had made during his incarceration. The Detective determined that 19 of the calls were relevant to the investigation of Givens's murder. Clifford Butler's voice was heard on several of the calls made by Duncan.
Detective Donald Anderson was assisting Detective Wolf in his investigation of Givens's murder. At the time Detective Anderson first interviewed Clifford Butler regarding Givens's death, Butler was not incarcerated, and had not been subpoenaed to appear for any matter. Nevertheless, counsel for Butler contacted Detective Anderson and requested a meeting to discuss the Givens case. That contact resulted in Butler entering into a proffer agreement with the State which provided, in relevant part:
(Emphasis added.)
The proffer agreement was read and explained to Butler, and was signed and dated by Butler, his attorney, and the prosecutor during a proffer session on December 1, 2011. A copy of the agreement was again read and initialed at a second proffer session on December 5, 2011.
During the first proffer session, Butler was not "completely truthful and candid with the State." Butler had indicated that three individuals were involved in the murder of Givens: Derius Duncan, Darren Thomas, and Keon Beads. Toward the beginning of the December 1 proffer session, Butler indicated that he had not been personally involved in the murder. Butler explained that the jail calls on which his voice could be heard, and a letter exchanged between him and Duncan, concerned a drug transaction and trying to persuade Givens to provide exculpatory testimony at Duncan's trial on the handgun charge, but did not include discussions of...
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