Little v. State

• Decision Date: 13 June 2018
• Docket Number: No. 1255,1255
• Parties: AVERY LITTLE v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

AVERY LITTLE v. STATE OF MARYLAND

No. 1255

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

June 13, 2018

Circuit Court for Baltimore City

Case No. 114057027

UNREPORTED

Meredith, Beachley, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

Opinion by Beachley, 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.

On June 8, 2017, a jury in the Circuit Court for Baltimore City found appellant Avery Little guilty of: second-degree murder; use of a firearm in the commission of a crime of violence; and wearing, carrying or transporting a handgun. The court sentenced appellant to thirty years' incarceration for murder, and twenty years consecutive for use of a handgun in the commission of a crime of violence. The remaining handgun charge merged for sentencing purposes. Appellant timely appealed and presents the following three issues for our review:

1. Did the circuit court err in denying Appellant's motion to suppress his statement to the police?

2. Did the court err in admitting statements by the anonymous 911 caller?

3. Did the court err in excluding evidence that the victim was struck by bullets fired by a gun different than the one recovered near Appellant?

We perceive no error and affirm appellant's convictions.

FACTS AND PROCEEDINGS

On January 28, 2014, Baltimore Police Officers James Dill and Donald Burns were patrolling the Northwest District of Baltimore near the 5200 block of Denmore Avenue when they observed "trouble brewing" among a group of approximately twelve individuals. After five to ten minutes, the group dispersed, and the officers received a call from another officer requesting assistance. While speaking with that officer, dispatch reported to Officers Dill and Burns that a shooting had just occurred at the 5200 block of Denmore Avenue.

Heading back to the location of the shooting, the officers observed appellant "walking really fast" and "constantly looking behind him back toward Denmore." As Officer Dill put his patrol vehicle in reverse, appellant took off running, and Officer Burns exited the police vehicle to chase appellant on foot while Officer Dill pursued appellant by vehicle. Eventually, Officer Burns caught and restrained appellant. When Officer Dill arrived, he noticed blood on appellant despite the fact that neither he, Officer Burns, nor appellant appeared to be shot or injured. This caused Officer Dill to conclude that the blood came from someone else. After escorting appellant to the paddy wagon, Officer Dill retraced appellant's steps during the chase, and found a .38 revolver and a green lighter on top of the snow-covered ground. Also in the snow was a single set of footprints consistent with appellant's escape path leading to where Officer Burns ultimately arrested appellant.

Meanwhile, Officer Burns returned to the 5200 block of Denmore. There, he came upon two victims: Derrill Crawley and Steven Melton. Crawley, who was lying on the porch of 5220 Denmore, Apartment B, had been shot three times, stabbed, and had suffered blunt force trauma injuries. Melton, who was lying on the sidewalk in front of 5220 Denmore, Apartment A, had been shot once. Whereas Melton survived his gunshot wound, Crawley died from his injuries. On the ground near the porch of 5220 Denmore, police found a fully-loaded .22 caliber handgun. At the time, appellant lived at 5220 Denmore Avenue, Apartment B.

The State charged appellant with first-degree murder, use of a firearm in the commission of a crime of violence, and wearing, carrying or transporting a handgun. Priorto trial, appellant moved to suppress a statement he made to police following his arrest, as well as a 911 call made by an anonymous witness. After the suppression court rendered an unclear basis for excluding portions of the 911 call, the State appealed and this Court remanded for clarification. See State v. Little, No. 247, Sept. Term, 2016 (filed Aug. 16, 2016). On remand, the suppression court again provided an unclear basis for suppressing portions of the call, the State appealed, and our Court again remanded for clarification. State v. Little, No. 1910, Sept. Term, 2016 (filed Mar. 15, 2017). Eventually, the suppression court denied appellant's motion to suppress the 911 call, and the case proceeded to trial. As stated above, a jury convicted appellant of second-degree murder, and two related weapons offenses. We shall provide additional facts as necessary to resolve the issues on appeal.

DISCUSSION

I. Appellant's Statement to Police

Appellant first argues that the suppression court erred in denying his motion to suppress his statement because he unambiguously and unequivocally invoked his rights to counsel and to silence at the outset of his interrogation by the detectives. Specifically, appellant contends that he invoked his rights when he made the following two statements prior to interrogation: "But maybe if I need a lawyer if you all are trying to charge me with something, maybe now would be a good time if you're trying to[;]" and "I wouldn't even want to say anything because I don't know what's going on."

Regarding the appropriate standard of review from the denial of a motion to suppress evidence, the Court of Appeals has stated,

When reviewing the denial of a motion to suppress evidence, we confine ourselves to what occurred at the suppression hearing. We view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion, here, the State. We defer to the motions court's factual findings and uphold them unless they are shown to be clearly erroneous. The credibility of the witnesses, the weight to be given to the evidence, and the reasonable inferences that may be drawn from the evidence come within the province of the suppression court. We, however, make our own independent constitutional appraisal, by reviewing the relevant law and applying it to the facts and circumstances of this case.

Gonzalez v. State, 429 Md. 632, 647-48 (2012) (internal citations and quotation marks omitted). In making our own independent constitutional appraisal, we conclude that appellant did not invoke his rights at the outset of the interrogation.

In Ballard v. State, 420 Md. 480, 482 (2011), the Court of Appeals discussed whether a phrase Ballard uttered during an interrogation constituted an unequivocal invocation of the right to counsel. There, Ballard waived his Miranda¹ rights and agreed to speak with police regarding a homicide investigation. Id. at 483. During questioning, Ballard told a detective, "You mind if I not say no more and just talk to an attorney about this." Id. at 485. The detective replied, "What benefit is that going to have?" Id. Ballard responded, "I'd feel more comfortable with one." Id. The detective continued to interrogate Ballard, who went on to confess to committing the homicide. Id. at 485-86. Prior to trial, Ballard moved to suppress his statement to police, arguing that heunequivocally and unambiguously invoked his rights to counsel and to silence. Id. at 486-87. The suppression court denied Ballard's motion. Id. at 487.

On appeal, the Court of Appeals first established that "The accused's invocation of the right to counsel . . . cannot be equivocal or ambiguous." Id. at 490. The Court explained that the inquiry into whether a defendant invoked his right to counsel is an objective one. Id. (citing Davis v. United States, 512 U.S. 452, 459 (1994)). Turning to Ballard's statement, the Court held that the statement "You mind if I not say no more and just talk to an attorney about this" was an unambiguous and unequivocal assertion of the right to counsel. Id. at 491. In reaching its decision, the Court compared Ballard's statement to the statements uttered in: Davis; Matthews v. State, 106 Md. App. 725 (1995); and Minehan v. State, 147 Md. App. 432 (2002). Id. at 491-92. In Davis, the Supreme Court held that the statement "Maybe I should talk to a lawyer" was an ambiguous invocation of the right to counsel. 512 U.S. at 462. In Matthews, our Court held that "Where's my lawyer?" was an ambiguous assertion of the right to counsel. 106 Md. App. at 737-38. Finally, in Minehan, our Court noted in dicta that "Should I get a lawyer?" would likely constitute an ambiguous request under Davis. 147 Md. App. at 443-44. In holding that Ballard's statement was distinguishable from the statements in Davis, Matthews, and Minehan, the Ballard Court stated,

None of the statements under consideration in those cases—"Where's my lawyer," "Maybe I should talk to a lawyer," or "Should I get a lawyer"—provides any indication that the suspect, at the time the statement was uttered, actually desired to have a lawyer present for the remainder of the interrogation.

420 Md. at 492. The Court also went on to construe the phrase "you mind if . . ." to be a colloquialism rather than Ballard requesting permission to obtain an attorney. Id. at 492-93. Further, the Court noted that Ballard's comment that he would "feel more comfortable" with an attorney present "clarified [Ballard's] desire for an attorney." Id. at 494. The line of demarcation, then, was whether Ballard indicated that he actually desired to have a lawyer present for the interrogation, as opposed to whether he simply mentioned the idea of having a lawyer present during the interrogation.

Appellant argues that, like the petitioner in Ballard, he unequivocally invoked his rights to counsel and to remain silent when he entered the police station's interrogation room.² The basis for appellant's contention that he properly invoked his rights is found in the following colloquy:

MR. LITTLE: I mean, could I ask does anybody know how --

[DETECTIVE]: Just give me one minute. We're going to go over some paper work and then we'll get to the

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