McNamee v. State
| Decision Date | 23 April 2018 |
| Docket Number | No. 1381,1381 |
| Parties | NICHOLAS WAYNE MCNAMEE v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Prince George's County
UNREPORTED
Meredith, Leahy, Zarnoch, Robert A. (Senior Judge, Specially Assigned)0, JJ.
Opinion by Meredith, 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.
Nicolas Wayne McNamee, appellant, was convicted by a jury in the Circuit Court for Prince George's County, Maryland, of robbery with a dangerous weapon, use of a firearm in a crime of violence, two counts of illegal possession of a regulated firearm and other related counts. He was sentenced to twenty years, all but fifteen years suspended, for robbery with a dangerous weapon, to be followed by a consecutive five years for illegal possession of a firearm, as well as concurrent sentences on the remaining handgun offenses. Mr. McNamee timely appealed, asking us to address the following questions:
We agree with Mr. McNamee's argument (relative to question 4) that the court erred in ordering the amount of restitution, and we shall vacate the restitution order and remand the case for further proceedings as to that issue only. But we conclude that, otherwise, all judgments are affirmed.
Mr. McNamee's pretrial motion to suppress challenged two separate warrantless searches of Apartment 4 at 6234 Maxwell Drive in Suitland, Maryland, that took place within hours of each other on April 30, 2014, and May 1, 2014. Sergeant WilliamClifford and three other officers from the Prince George's County Police Department first went to this location because a vehicle registered to Tyricka Cofield, a resident of that apartment, was observed near the scene of a robbery that had occurred in Oxon Hill at 10:30 a.m. on April 30, 2014.
Upon their arrival at the apartment, one of the officers knocked on the door, and Ms. Cofield answered. Sergeant Clifford testified: Sergeant Clifford noticed that Ms. Cofield had an infant with her. Ms. Cofield advised the officers that other children were upstairs sleeping. No other adults were home at this time. When Sergeant Clifford was asked to describe Ms. Cofield's demeanor, he testified that Ms. Cofield seemed a "little shocked, but she was fine." Sergeant Clifford also testified that he stood in the doorway while Ms. Cofield was seated in the living room with the infant.
Ms. Cofield told the officers that Mr. McNamee also lived with her in that apartment. Sergeant Clifford testified that the police then asked Ms. Cofield if there were any weapons inside the house, and Ms. Cofield replied that, to her knowledge, there were none.
The officers then asked if Ms. Cofield would consent to them checking the apartment for weapons, and they presented her with a Prince George's County Police Department consent-to-search form. Ms. Cofield replied, "that would be fine," but shealso asked the police to go over the form with her. Sergeant Clifford discussed the consent form with Ms. Cofield. He testified that he He said that Ms. Cofield appeared to understand the form, did not ask any questions, and ultimately signed the form. Sergeant Clifford further testified that no threats or promises were made to Ms. Cofield to induce her to agree to the search. He also testified that he did not say, or hear any other officer say, anything to Ms. Cofield about her children. The consent form was admitted into evidence at the motions hearing.1
During the officers' search, a handgun was recovered from on top of a cupboard in the kitchen. Sergeant Clifford testified that Ms. Cofield expressed shock that a weapon was found in her home. According to Sergeant Clifford, the search also resulted in the recovery of "clothing that matched . . . the description of the clothing the person was wearing in our earlier commercial robbery" in Oxon Hill.
Sergeant Clifford also testified that the officers used a "very soft" tone of voice with Ms. Cofield so as not to wake the children she said were sleeping. And SergeantClifford said he never saw a child wake up while the police were there. He further testified that Ms. Cofield was not a suspect in the case.
On cross-examination, Sergeant Clifford testified that neither he nor the other officers informed Ms. Cofield that Mr. McNamee was already in custody when they spoke with her. Additionally, Sergeant Clifford testified that there was never a discussion with Ms. Cofield about obtaining a search warrant or what would happen if the police were required to obtain one.
Meanwhile, Detective Joseph Bellino, who was assigned to the homicide unit for the Prince George's County Police Department, was on duty on April 30/May 1, 2014, when he responded to Prince George's County Hospital and met with Mr. McNamee.2 Detective Bellino was called because Mr. McNamee, who had been arrested in connection with a commercial armed robbery, had said that he had information regarding three unrelated murders.
After Mr. McNamee was released from the hospital by the doctors, he was transported back to the homicide unit at the police station. During the ensuing conversation, Mr. McNamee told Detective Bellino that he lived at 6234 Maxwell Drive, with his girlfriend, i.e., Ms. Cofield, and at least one child. Mr. McNamee informed the detective that "the actual weapon that was used in these other murders was still at hisresidence." Detective Bellino testified that he asked Mr. McNamee whether he was "willing to bring us back to [his] house so we can recover this gun, [and] he said that he was." According to Detective Bellino, he did not know Mr. McNamee prior to receiving the call from the hospital, and he did not promise Mr. McNamee anything.
During the interview in the homicide unit, Detective Bellino asked Mr. McNamee to sign a consent-to-search form. The detective read the form to Mr. McNamee, and Mr. McNamee appeared to understand the form. Mr. McNamee also read the form for himself and did not ask any questions.
When Detective Bellino was asked if he threatened or promised Mr. McNamee anything, the detective testified as follows:
I discussed with him that information he gave to me I would provide to the State's Attorney's Office. As far as what type of agreement the State's Attorney's Office would make with him, I made no promises nor could I make any promises to him about what the State's Attorney would do.
After Mr. McNamee signed the consent form, Detective Bellino and two other Prince George's County officers (and possibly some officers from the F.B.I.) took Mr. McNamee back to the apartment he shared with Ms. Cofield. Mr. McNamee knocked on the door, and Ms. Cofield opened the door. A small child was present at the time.
After Mr. McNamee spoke to Ms. Cofield, Detective Ben Brown, of the Prince George's County police, also spoke to her in the kitchen area. Detective Bellino testified that he witnessed Ms. Cofield sign yet another consent-to-search form, i.e., the third form purporting to give consent to search this same apartment. Detective Bellino did not hearDetective Brown promise Ms. Cofield anything, nor did he hear anyone else promise her or threaten her to obtain her consent to search the apartment. Detective Bellino further testified that he did not hear Mr. McNamee threaten Ms. Cofield. When asked why the police again asked Ms. Cofield for her consent, Detective Bellino testified it was "protocol" due to an "abundance of caution," because Ms. Cofield also lived there and "she has a reasonable expectation of privacy in the residence."
Detective Bellino acknowledged that Ms. Cofield seemed "emotional because of the circumstances," noting the presence of the small child. However, Ms. Cofield seemed "more concerned about [Mr. McNamee]." Detective Bellino testified that, "if she was emotional, it was due to the circumstances of the defendant being in custody in her home, but she wasn't emotional in signing" the consent form. The consents signed by Mr. McNamee and Ms. Cofield were admitted into evidence at the motions hearing.
The police searched the apartment, and another firearm was located. Based on information provided by Mr. McNamee, this firearm was found in an air duct, located over a hot water heater in a closet. Detective Bellino testified that he did not believe police would have found that weapon without Mr. McNamee's cooperation. Detective Bellino said that Mr. McNamee was not threatened, and was not promised anything in exchange for telling police where this firearm was located.
On cross-examination, Detective Bellino testified that Mr. McNamee was taken from the hospital and interviewed in the homicide unit because he was a witness in three unsolved murders. Detective Bellino agreed that Mr. McNamee asked if providinginformation would assist him in his separate robbery case, but the detective maintained that Mr. McNamee was told only that the information would be shared with the State's Attorney's Office.
The defense called Ms. Cofield at the motions...
To continue reading
Request your trial