Moore v. State Of Md..
| Decision Date | 03 September 2010 |
| Docket Number | No. 1737, Sept. Term, 2008.,1737, Sept. Term, 2008. |
| Citation | 4 A.3d 96,194 Md.App. 327 |
| Parties | Khiry Montay MOORE v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
194 Md.App. 327
4 A.3d 96
Khiry Montay MOORE
v.
STATE of Maryland.
No. 1737, Sept. Term, 2008.
Court of Special Appeals of Maryland.
Sept. 3, 2010.
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Allison P. Brasseaux (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.
Cathleen C. Brockmeyer (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.
Panel: HOLLANDER, ARRIE W. DAVIS (Retired, Specially Assigned), LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.
ARRIE W. DAVIS, J. (Retired, Specially Assigned).
Appellant, Khiry Montay Moore, was convicted by a jury in the Circuit Court for Prince George's County of first-degree felony murder, involuntary manslaughter, conspiracy to commit robbery, three counts of attempted robbery with a dangerous weapon and three counts of use of a handgun in the commission of a crime of violence. Appellant appeals his convictions and presents the following questions:
I. Did the trial court err in denying appellant's motion to suppress his confession?
II. Did the prosecutor engage in improper and prejudicial closing argument when he called [appellant] a “cold-hearted thug” and a “gangster”?
III. Did the trial court err in failing to merge appellant's sentence for attempted robbery with a dangerous weapon with the first-degree felony murder conviction?
IV. Did the trial court err in sentencing appellant for first-degree felony murder instead of involuntary manslaughter?
For the reasons that follow, we answer the first, second and fourth questions in the negative. We answer the third question in the affirmative. Accordingly, we affirm appellant's convictions, but merge the conviction for attempted robbery.
Appellant was charged with first-degree murder, attempted robbery with a dangerous weapon, use of a handgun in the commission of a crime of violence and other related offenses arising out of the attempted robbery and murder of Maurice Powell and the attempted robbery of Powell's two friends, Thomas Gilbert-Turner and Tyrelle White. On March 11, 2007, Powell, Gilbert-Turner and White went to see a movie in Georgetown and took the Metro home to Prince George's County. They got off at the Addison Road Metro Station at approximately 1:00 a.m. and began walking toward Powell's home. As the three passed the Central Gardens Apartments, they noticed a group of four or five people begin to follow them.
They crossed the street and the group continued to follow them. They planned to run to Powell's home once they reached the top of the hill on Daimler Drive. A member from the group that was following yelled, “hey, hey” and then Gilbert-Turner and White heard three shots. They ran to Powell's home and told his father that they had been shot at
and they did not know what happened to Maurice. Powell's father found his son lying in the street. He
was pronounced dead by emergency crews when they arrived on the scene.
Charles Dutch, a co-defendant who testified pursuant to a plea agreement, explained that some members of the group were drinking that evening in the apartment complex when they observed Powell and his friends walk by. According to Dutch, another co-defendant, Steve Scott, said “You seen [sic] them three dudes right there, they look fresh, let's go rob them.” 1 Dutch testified that appellant and Scott led the group toward Powell and his friends. Dutch heard two gunshots and ran. Afterward, Dutch heard another co-defendant, Tavon Burke, ask appellant if he shot Powell and appellant admitted that he did, “on accident.”
Appellant was arrested on March 21, 2007 at approximately 1:00 a.m. He was taken to police headquarters, where he was interrogated and ultimately confessed. Appellant moved to suppress his confession, which the trial court denied. The videotape of his confession was played for the jury and, as noted, he was convicted of first-degree felony murder, involuntary manslaughter, conspiracy to commit robbery, three counts of attempted robbery with a dangerous weapon and three counts of use of a handgun in the commission of a crime of violence.
Appellant initially contends that the trial court erred in denying his motion to suppress his confession made while in police custody, which he claims was involuntary as a result of the delay in prompt presentment to a Court Commissioner, a requirement pursuant to Maryland Rule 4-212(e). The following evidence was presented at the suppression hearing.
On March 21, 2007, Corporal James Seger was patrolling the Cindy Lane area of Prince George's County while working for the Special Assignment team. He pulled into an apartment complex and observed a group of young people standing outside. When they saw his police cruiser, they walked away. Because it was 1:00 a.m., Corporal Seger stopped them, suspecting curfew violations. Appellant was among the group. Corporal Seger learned that there was an outstanding warrant for appellant's arrest stemming from a homicide. Appellant was arrested pursuant to the warrant at 1:09 a.m. and taken to the homicide section of the Prince George's County Police Department. They arrived between 1:40 a.m. and 2:00 a.m. Corporal Seger placed appellant in an interview room, pursuant to the instructions of the homicide division. Corporal Seger did not engage in any questioning of appellant at that time. He simply searched appellant, removed his handcuffs and left him in the room. 2
Thereafter, Detective David Morissette, who was working the night shift that evening, called Detective Robert Turner, the lead investigator in the case. Detective Turner instructed Detective Morissette to begin talking to appellant. Accordingly, Detective Morissette entered the interview room shortly after 2:00 a.m. and read appellant his Miranda rights. Appellant initialed beside each advisement and agreed to waive his rights. Detective Morissette began to collect background information from appellant at that time. He learned that appellant was sixteen years old, was
in the ninth grade and had previously been arrested for theft or unauthorized use of a motor vehicle.
Subsequently, at 2:41 a.m., Detective Timothy Cordero entered the interview room and questioned appellant until 3:05 a.m. He testified that he entered the room in order to collect “some preliminary background information” for his partner, who was the lead investigator on the case. Detective Cordero presented appellant with photographs of his co-defendants and
asked appellant if he recognized the individuals. Appellant stated that he did not recognize them. Detective Cordero then presented appellant with the arrest warrant and informed appellant that he was being charged as an adult with murder as a result of the incident that took place on Daimler Drive. At that time, appellant asked to call his mother. Detective Cordero denied his request and informed him that he was going to obtain a search warrant for appellant's home.
Shortly after Detective Cordero exited the interview room, Detective Robert Turner entered the room at 3:20 a.m. to collect “basic booking information.” He then questioned appellant about the shooting. Initially, appellant denied his involvement.
Detective Turner testified that he left the room at approximately 5:05 a.m. and, shortly thereafter, provided appellant with a soda. At approximately 5:18 a.m., Detective Turner re-entered the interview room and spoke with appellant until 6:15 a.m. He informed appellant that multiple people had placed appellant at the scene, whereupon appellant admitted that he was present and that he had a discussion about the robbery with his co-defendants. He continued to deny that he was the shooter.
Detective Turner entered the room once more at 6:48 a.m. and appellant requested to use the restroom. Detective Turner granted the request and he and appellant stepped out of the interview room until approximately 6:55 a.m. It was not until 8:05 a.m. that appellant admitted to Detective Turner that he shot Powell by accident. Appellant further explained that he had been drinking that night, which had impaired his thinking. After obtaining these statements, Detective Turner exited the interview room. At 8:13 a.m., Detective Turner permitted appellant to make a telephone call. He called his girlfriend at that time.
At 8:35 a.m. Detective Turner re-entered the interview room, followed by Sergeant Troy Harding at 8:40 a.m. The two officers went over appellant's confession and exited the room at 8:50 a.m.
Between 9:00 a.m. and 9:05 a.m., Sergeant Harding re-entered the interview room and had a discussion with appellant about the location of the gun used in the shooting. Sergeant Harding left the room again at 9:25 a.m.
At 1:00 p.m., after the search warrant was executed on appellant's home, appellant's mother was transported to the police station and was escorted into the interview room, where she and appellant spoke for approximately fifteen minutes. According to Detective Turner, appellant was “taken to the jail” at approximately 1:30 p.m., but he did not know when appellant was processed, although he knew that there were commissioners at the jail. Detective Turner testified that he did not immediately take appellant to a commissioner because he “wanted the opportunity to speak to him and explain the charges, get his side of the story” and the officers were “preparing a search warrant” during that time. He explained that the search warrant process took approximately two hours. Although Detective Turner wanted to go to the on-call judge's home to get the warrant signed, the commissioner informed him
that the judge's instructions were to wait until he arrived at his office at 8:30 a.m. At that time, the search warrant was signed.
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