McIntyre v. State

• Decision Date: 28 April 2006
• Docket Number: No. 2206, September Term, 2004.,2206, September Term, 2004.
• Citation: 168 Md. App. 504,897 A.2d 296
• Parties: George Raymond McINTYRE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

897 A.2d 296

168 Md. App. 504

George Raymond McINTYRE v. STATE of Maryland.

No. 2206, September Term, 2004.

Court of Special Appeals of Maryland.

April 28, 2006.

COPYRIGHT MATERIAL OMITTED

John L. Kopolow (Nancy S. Forster, Public Defender, on the brief), Baltimore, for appellant.

Devy Patterson Russell (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Panel: SALMON, KENNEY, THEODORE G. BLOOM (Ret., Specially Assigned), JJ.

SALMON, J.

George McIntyre was convicted by a jury in the Circuit Court for Wicomico County of forty-seven counts of possession of child pornography and two counts of distribution of child pornography.¹ The court imposed a one-year sentence as punishment for McIntyre's conviction of one of the possession of child pornography counts but imposed no sentence for the conviction of the remaining forty-six possession counts. The court merged the two distribution of child pornography counts for purposes of sentencing and imposed a sentence of three years on that count but suspended all but one year of that sentence and ran it concurrently with the sentence imposed for the conviction on the possession count.

In this appeal, McIntyre makes five main arguments as to why his convictions should be reversed, viz.,

1. The motions court erred in denying his motion to suppress the statement he gave to a Maryland state police officer on the morning the police searched his home.

2. The trial court erred in denying his counsel's motion for judgment of acquittal as to the counts in the indictment charging him with possession of child pornography because there was insufficient evidence that he ever possessed the two computer disks depicting child pornography.

3. The trial court committed reversible error when it denied McIntyre's counsel's motion for mistrial that was based on the fact that a Maryland state trooper gave testimony suggesting that McIntyre previously had been accused of misconduct similar to that for which he stood trial.

4. The trial court committed reversible error when it denied McIntyre's motion for judgment of acquittal due to the fact that the prosecution failed to offer any evidence that the images for which he was being prosecuted were, in fact, images of real children.

5. The trial court committed reversible error when it failed to instruct the jury that it could not convict the defendant of any crime unless it found that the images depicted in various pictures that he either possessed or distributed were, in fact, pictures of real children.

I. BACKGROUND FACTS²

Detective Joe Delfeirro, a peace officer employed by the City of Irving, Texas, Police Department, was assigned, in March 2003, to undertake a special investigation of internet child pornography. On March 20, 2003, Detective Delfeirro logged onto an America Online (AOL) chat room entitled "VY," an acronym for "very young." Based on his experience, the detective knew that the VY chat room had been set up specifically for the use of internet trading of child pornography news. The chat room also made available a list that was compiled in order to facilitate the exchange of child pornography.

Detective Delfeirro entered his email address onto the list on March 20 and immediately received an email with five images from an AOL user known as "DontTestMe197." The images were received by Detective Delfeirro on his computer in his office in Irving, Texas.³ The five images he received were of young females and males engaging in sexual conduct.

Detective Delfeirro subpoenaed information from AOL regarding the owner of the account using the name "DontTestMe197." He learned that the owner was one Linda McIntyre, who lived at 33157 Shavox Road, in Parsonburg, Wicomico County Maryland. Detective Delfeirro turned over the information he had received to Corporal Scott Cook of the Maryland State Police Department. Corporal Cook then obtained a warrant to search 33157 Shavox Road.

On May 13, 2003, the search warrant was executed at the 33157 Shavox Road address, which was a trailer approximately sixteen-feet wide and forty-feet long. Residing at that address on the date that the search warrant was executed were appellant, age twenty; appellant's mother, Linda McIntyre; his father, William McIntyre; and appellant's sister, Ashley McIntyre, age seventeen.

The trailer had two bedrooms—a master bedroom where appellant's mother and father slept and a second bedroom that belonged to Ashley. The home also contained common areas, including a kitchen and a living room. On the date the search warrant was executed, appellant had been living at his parents' home for approximately six weeks. Appellant regularly slept on a couch in the living room.

The search warrant was executed at 6 a.m., while all occupants of the house were asleep.⁴ After the police announced their presence, appellant's mother, Linda McIntyre, answered the door. Corporal Cook advised Mrs. McIntyre that he had a search and seizure warrant for her residence and asked her if she knew why a warrant had been issued. She said that she did not, which prompted the corporal to advise her that the warrant concerned child pornography that had been disseminated from her computer to an undercover police officer. When she heard this, she immediately said, "My son, Georgie." She went on to explain that appellant had had "this problem" in the past and as a result AOL had closed their account because he had downloaded, or attempted to download, child pornography.

Upon entry into the residence, Corporal Cook saw appellant asleep on the couch in the living room. Two or three police officers then conducted a sweep of the house for purposes of officer safety, while appellant, his mother, and Ashley waited in the living room. Shortly thereafter, other officers commenced a search of the trailer looking for child pornographic material.

Approximately twelve minutes after the police had entered the trailer, Corporal Cook asked appellant to come outside with him so that they could talk. At that point, Corporal Cook considered appellant his "prime suspect," based upon what appellant's mother had said about his previous connection with child pornography.

Appellant agreed to go outside with Corporal Cook. At Corporal Cook's suggestion, the two agreed to talk in Corporal Cook's unmarked police vehicle. While walking to the vehicle, Corporal Cook asked appellant "if he knew what this was all about." When appellant said that he did not, Corporal Cook informed him that it concerned child pornography on the computer in the trailer. The two then got into Corporal Cook's vehicle, with Corporal Cook seated behind the steering wheel and appellant in the passenger seat.

Corporal Cook told appellant "that child pornography was . . . children engaged in sexual acts with themselves, with other children, with adults." Appellant was also told that the investigation had begun when an undercover police officer in Texas received images of child pornography. Appellant admitted that "DontTestMe197" was his password-protected screen name and that he had sent and received approximately one hundred child pornography images. Corporal Cook then asked appellant to explain how a Texas police officer received images from appellant's DontTestMe197 account. To this inquiry, appellant responded that it must have been sent accidentally.

During the interview, appellant also said "that he had maintained a list of the people on the internet that he had traded the child pornographic images with." Appellant added that he had kept the list in a file labeled "keep" but had recently deleted the list because he "didn't want to get in trouble for this shit."

Based on Corporal Cook's conversation with appellant's mother in which he had been advised that appellant previously had been in "trouble for downloading child pornography," the corporal asked appellant to explain his prior brush with child pornography law. Appellant told Corporal Cook, "I kind of know what you mean about the kids' stuff." He continued, "Some sick people sent me pictures of kids, and I sent it right back."

The conversation in Corporal Cook's automobile lasted from ten to twelve minutes. After the conversation concluded, the two walked back into the trailer. Once inside the trailer, Corporal Cook told appellant to sit on the couch with his mother and sister, and appellant complied.

During the May 13, 2003, search of the trailer, the police confiscated a computer from Ashley McIntyre's bedroom. The computer was owned by appellant's father, William McIntyre. Child pornography was found on the hard drive of that computer. The jury acquitted appellant of all charges concerning the images on that hard drive.

The police also seized three computer disks located next to the microwave oven in the kitchen. Two of the disks contained child pornography images and supplied the basis for appellant's conviction of fortyseven counts of possession of child pornography.

Additional evidence will be discussed in order to answer the questions presented.

II. THE FIRST ISSUE

As shown in Part I, supra, appellant made several highly incriminating statements when he spoke to Corporal Cook on the morning of May 13, 2003. Prior to making those statements, appellant was not advised of his right to silence or his right to have a lawyer represent him during his interrogation. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant filed a motion to suppress the statements he made to Corporal Cook, based on the fact that he was never advised of his Miranda rights.

A suppression hearing was held on September 14, 2004. The sole issue in dispute was whether Corporal Cook subjected appellant to custodial interrogation when he questioned him in the police cruiser. Corporal Cook was the only witness who testified at the suppression hearing. The defense produced no exhibits, nor did they introduce any other evidence to contradict the...