Morris v. State

CourtCourt of Special Appeals of Maryland
Citation153 Md. App. 480,837 A.2d 248
Decision Date04 December 2003
Docket NumberNo. 1302,1302
PartiesDonta MORRIS and Gregory Everett v. STATE of Maryland.

837 A.2d 248
153 Md.
App. 480

Donta MORRIS and Gregory Everett
STATE of Maryland

No. 1302, Sept. Term, 2002.

Court of Special Appeals of Maryland.

December 4, 2003.

837 A.2d 251
Brian J. Murphy, Michael R. Braudes (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant

Steven L. Holcomb (J. Joseph Curran, Jr., Att. Gen., on the brief), Baltimore, for appellee.

Argued before JAMES R. EYLER, ADKINS, and CHARLES E. MOYLAN, JR. (Retired, specially assigned), JJ.

837 A.2d 249
837 A.2d 250

837 A.2d 252
CHARLES E. MOYLAN, JR., Judge, Retired, Specially Assigned

A Baltimore City jury, presided over by Judge Joseph P. McCurdy, Jr., convicted one of the appellants, Gregory Everett, of second-degree murder and an attendant handgun offense. Everett received consecutive sentences totaling 50 years. The same jury convicted the other appellant, Donta Morris, of first-degree assault and an attendant handgun offense. Morris received consecutive sentences totaling 45 years. On this joint appeal, both appellants raise the following five contentions:

1. That Judge McCurdy erroneously denied their pretrial motion to suppress six projectiles taken in a search of 1115 Abbott Court;
2. That Judge McCurdy erroneously denied their motions to strike prospective jurors for cause;

3. That Judge McCurdy erroneously admitted hearsay evidence;

4. That the court's instructions to the jury and the prosecutor's closing argument gave the jurors a mistaken understanding of the "beyond a reasonable doubt" burden of persuasion; and
5. That Judge McCurdy erroneously denied their motion to dismiss the charges because of a violation of Maryland Rule 4-271.

The appellant Morris alone raises yet a sixth contention:

6. That Judge McCurdy erroneously denied him the right to view certain exhibits that were shown to the jury.

I. The Pretrial Motion to Suppress

The appellants' claim that Judge McCurdy erroneously denied their pretrial motion to suppress six projectiles recovered in the search of 1115 Abbott Court is two-pronged. One subcontention challenges the issuance of the warrant. The other challenges the execution of the warrant.

A. Fine-Tuning the Standard of Appellate Review

It is a commonplace that, before arguing or before deciding a contention challenging the ruling of a suppression hearing, appellate lawyers and appellate opinion writers alike routinely recite a familiar paragraph about the standard of appellate review. The drill is so automatic that it has been reduced to a "scissors and paste" modality. As long as the ritualistic words have a respectable precedential pedigree, no one pauses to inquire what they actually mean or whether they actually make complete good sense.

Switching onto automatic pilot, the solemn incantation routinely begins, "We accept the facts as found by the hearing judge unless it is shown that those findings were clearly erroneous." In Re Tariq A-R-Y, 347 Md. 484, 489, 701 A.2d 691 (1997); McMillian v. State, 325 Md. 272, 281-82, 600 A.2d 430 (1992); Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990). Without a pause for breath, the ceremonial chant invariably continues, "We view the facts in the record in the light most favorable to the ... prevailing party on the motion." State v. Green, 375 Md. 595, 607, 826 A.2d 486 (2003); Riddick v. State, 319 Md. at 183, 571 A.2d 1239; Cherry v. State, 86 Md.App. 234, 237, 586 A.2d 70 (1991).

How often has an opinion suddenly stopped at that point and demanded, "Hey, wait a minute! Which one?" Boilerplate recitations can be a curse. Two rules of interpretation, of apparent equal dignity, have been announced; yet those rules may on occasion actually contradict each other. Except with respect to certain ultimate conclusory facts, an appellate court, of course, is never free to pick and choose the

837 A.2d 253
facts that it will consider. With respect to which lower-level, non-conclusory, constituent facts may enter into its ultimate reckoning, the appellate court is bound by rigid rules of interpretation, but which of those rigid rules is paramount?

What should the appellate court do, for instance, when a non-clearly-erroneous finding of fact by the hearing judge is something other than that version of the evidence most favorable to the prevailing party? Does deference to the judge's fact-finding "trump" the putting together of that version of the evidence most favorable to the prevailing party? Or does being in "the light most favorable to the prevailing party" outshine judicial fact-finding?

The choice of rules could be critical in a case in which the appellate court cannot affirm the suppression hearing ruling for the reason given by the trial judge but might be considering affirming it for a different reason, if the facts permitted to it for consideration could establish a prima facie case in support of an alternative rationale. The question might be whether the trial court, in following one path of reasoning, had found facts that might preclude the appellate court from following a different path of reasoning to affirm the trial court. Both rules of interpretation, of course, are valid, and they do not necessarily contradict each other. To avoid the possibility of contradiction, however, we need to determine and to announce which rule is primary and which is only supplemental.

The most basic rule of appellate review of fact-finding is that of extending great deference to the fact finder, be it judge or jury. Appellate judges do not see or hear the witnesses or have the benefit of any sort of non-verbal communication. They are relatively far less able to assess credibility than are the fact finders on the scene. Appellate judges, moreover, are not immersed in the local context and do not get the sometimes inexpressible "feel" of the case. They are relatively far less able to weigh the evidence than are the fact finders on the scene. The basic rule of fact-finding review, therefore, is that the appellate court will defer to the fact-findings of trial judge or jury whenever there is some competent evidence which, if believed and given maximum weight, could support such findings of fact. That is the prime directive.

With respect to the review of a suppression hearing ruling, the problem is that sometimes the fact-finding of the trial judge may be ambiguous, and the appellate court may frequently find it necessary to resolve the ambiguity. It needs an interpretive rule for just such cases. Sometimes the fact-finding of the trial judge may be incomplete. The trial court may have found those facts important to it but have made no findings as to other facts, peripheral to it but perhaps important to the appellate court. Sometimes the hearing judge may simply have made a ruling on suppression without announcing any findings of fact. How then does the appellate court, in reviewing a suppression hearing ruling, fill those fact-finding gaps, partial or total? What does the appellate court do when there is no fact-finding, or incomplete fact-finding, to which to defer?

It is here that the supplemental rule of interpretation comes into play. In determining whether the evidence was sufficient, as a matter of law, to support the ruling, the appellate court will accept that version of the evidence most favorable to the prevailing party. It will fully credit the prevailing party's witnesses and discredit the losing party's witnesses. It will give maximum weight to the prevailing party's evidence and little or no weight to the losing party's evidence. It will resolve ambiguities and draw inferences in favor

837 A.2d 254
of the prevailing party and against the losing party. It will perform the familiar function of deciding whether, as a matter of law, a prima facie case was established that could have supported the ruling.

This is, however, the supplemental rule that is only brought to bear on the record of the suppression hearing when the hearing judge's fact-finding itself is 1) ambiguous, 2) incomplete, or 3) non-existent. The supplemental rule guides the appellate court in resolving fact-finding ambiguities and in filling fact-finding gaps.

We tried to make this hierarchal distinction between the two standards of review in Charity v. State, 132 Md.App. 598, 606, 753 A.2d 556, cert. denied, 360 Md. 487, 759 A.2d 231 (2000), but somehow the non-discriminating incantations continue to drone on.

The one obvious qualification to or modification of a reviewing court's acceptance of the version of the evidence most favorable to the prevailing party, of course, is with respect to findings of first-level fact actually made by the hearing judge. Except in rare cases of clear error, we give great deference to such findings of fact when actually made. The actual findings of fact made by the hearing judge, unless clearly erroneous, "trump" the version most favorable to the prevailing party to the extent to which they might be in conflict.

(Emphasis supplied).

B. The Issuance of the Warrant

The appellants contend that the facts contained in the application for the search warrant failed to establish the probable cause necessary to justify its issuance. We do not agree. The application, in part, recited:

During the course of investigating the crime scene, a concerned citizen approached police personnel and advised that the suspect wanted in this incident was observed running into 1115 Abbott Court.

The concerned citizen provided investigators with a physical description of the shooter, in addition to the location of a public dumpster where the shooter [was] observed discarding parts of his clothing.

(Emphasis supplied).

The police conducted their own independent check of who lived at 1115 Abbott Court. The warrant application went on:

A check of that address [1115 Abbott Court] revealed that the lessees of the address was in the name of Norma Jones. Also residing at this address is a Gregory Everett Jr. and Requell Jackson.


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