Odum v. State

• Decision Date: 07 April 2004
• Docket Number: No. 0953,0953
• Citation: 156 Md. App. 184,846 A.2d 445
• Parties: Robert Alan ODUM, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

846 A.2d 445

156 Md. App. 184

Robert Alan ODUM, Jr. v. STATE of Maryland.

No. 0953, Sept. Term, 2002.

Court of Special Appeals of Maryland.

April 7, 2004.

Peter F. Rose (Stephen E. Harris, Public Defender on the brief), Baltimore, for Appellant.

Diane E. Keller (J. Joseph Curran, Jr., Attorney General on the brief), Baltimore, for Appellee. Panel: MURPHY, C.J., LAWRENCE F. RODOWSKY (retired, specially assigned) and JAMES S. GETTY (retired, specially assigned), JJ.

LAWRENCE F. RODOWSKY, Judge, retired, specially assigned.

A Prince George's County grand jury indicted the appellant, Robert Alan Odum, Jr. (Odum), on two counts of murder, of robbery with a deadly weapon, of kidnapping, and of using a handgun in a crime of violence, as well as on single counts of armed carjacking and conspiracy to commit murder. The theory of the State's case was that Odum participated with four other persons in committing these offenses involving two victims. A jury found Odum guilty on both kidnapping charges. He was sentenced to thirty years confinement for each offense, with the sentences to run consecutively. In this appeal Odum challenges the sufficiency of the evidence, the voluntariness of his statement, the admissibility of certain evidence, and the propriety of the prosecutor's closing argument. As explained below, because of the absence of specific factual findings necessary to determine the weight to be afforded the delay in presenting Odum before a Commissioner in the voluntariness analysis, we vacate and remand for a new suppression hearing and a new trial.

Odum's alleged four co-felons were Aaron Hollingsworth (Hollingsworth), Eric Thomas (Thomas), Marco Scutchings, also known as Marco Butler or Marco Scutchings-Butler (Butler), and Cortez Carroll (Carroll). All five subjects lived in the same general neighborhood in the Fort Washington area of Prince George's County. Odum had known Hollingsworth, Thomas, and Carroll for approximately ten years and had known Butler for approximately two years. At the time of the offenses charged, Sunday, June 10, 2001, Odum was twenty-three years of age, married, and the father of an infant daughter. He has a G.E.D. His friends were, respectively, aged nineteen, twenty-two, eighteen, and twenty.

On Saturday night, June 9, 2001, there was a large party in the neighborhood, at which some of the guests, including Odum and Hollingsworth, consumed alcoholic beverages and smoked marijuana. When the party broke up about midnight, the five fell in together, smoking marijuana cigarettes while walking on Lampton Lane toward the Fort Washington United Methodist Church (the Church). The Church's property faces on Lampton Lane, which is its western boundary, and is bounded on the south by Old Fort Road and on the east by Indian Head Highway. The Church's parking lot, which was not illuminated in the middle of the night of June 9-10, lies south of the church building. Between the parking lot and Old Fort Road is a driveway into the parking lot and a lawn area landscaped with bushes.

At trial, the principal proof of Odum's participation was in the testimony of Hollingsworth, who had plea bargained with the State, and in Odum's statement. Odum did not testify at trial.

Also on Saturday night, June 9, the victims, Michael Eugene Patten (Patten), age twenty-nine, and Lea Ann Brown (Brown), age twenty-four, together with friends, had been patronizing Lulu's nightclub in Washington, D.C. Patten was employed by Riggs Bank in Waldorf, Maryland, where he lived. Since childhood, Patten had been a member of the Church congregation. Brown was a yeoman third-class petty officer in the United States Navy, assigned to general administrative duties at the Washington Naval Yard. Patten and Brown left Lulu's together about 2:30 a.m. on June 10. Patten was driving his 1990 Acura Legend. Meanwhile, when the five subjects had arrived at the Church, Thomas announced that he was going to find someone to rob, and he separated himself from the others in order to stand along the west side of Indian Head Highway, north of its intersection with Old Fort Road. Hollingsworth, Butler, and Carroll remained on the Church property near the driveway into the parking lot. In his statement Odum said that he crossed to the south side of Old Fort Road and sat on a pile of rocks west of Indian Head Highway. Sometime near 3:00 a.m. Patten drove the Acura into the Church parking lot and stopped in the parking row nearest the church building. Brown stepped out from the passenger side and urinated.

One of the five subjects, who had a handgun, went up to the driver's side of the car and ordered Patten to get out. Hollingsworth took thirty dollars from Patten's pocket. Other subjects were on the passenger side of the car, asking Brown for money. Carroll went through Brown's purse and found her ATM card. Brown yelled out her PIN number. When Patten started to go to the passenger's side of the car, Hollingsworth beat Patten with his fists and, after Patten fell to the ground, Hollingsworth stepped on his neck to prevent him from getting back up. Someone in the group said, "`Put them in the trunk[.]'"

Hollingsworth, with the assistance of either Odum or Butler, put Patten, who was unconscious, into the Acura's trunk. Brown was ordered into the trunk, where Hollingsworth pushed her head down, and Carroll struck her in the head with a pistol when she popped her head back up. The trunk lid was slammed shut on the victims, and all five subjects drove off in Patten's car. Thomas was driving, with Odum in the front right passenger seat.¹ Carroll, Hollingsworth, and Butler were seated in the rear.

The five subjects transported the victims to a secluded, wooded area in Accokeek. The victims were taken from the trunk. Patten was shot twice in the back of the head and once in the upper back.² Carroll shot Brown twice in the neck.

The five subjects got back into the Acura. Thomas initially took the wheel, but he swerved off the road, almost hitting trees. At that point Odum took over driving, with Thomas in the front passenger seat. (Odum's fingerprint was found on the interior rearview mirror of the Acura). At some point on the drive either to or from Accokeek, Hollingsworth gave five dollars to each of the other four from the money that he had taken from Patten. Odum drove the group to a location in southeast Washington, D.C. in order to buy marijuana. Hollingsworth made the purchase, after collecting back from each of the other four the five dollars that he had distributed previously to each of them. Odum then drove the band to a gasoline station where they bought blunts into which they rolled the marijuana for smoking.

Odum next drove the group to Eighth and H Streets in northeast Washington where one of them used Brown's ATM card to withdraw twenty dollars. Odum then drove the group back home to Fort Washington. Hollingsworth was the first to be dropped off, at his house.

The victims' bodies were found on the afternoon of June 10. As a result of a tip from a citizen, the Acura was found several days later, abandoned in a residential neighborhood.

Additional facts will be stated in the discussion of the particular issues raised by Odum on this appeal. Those issues, which we have reordered, are:

"[1] Whether the evidence was insufficient to sustain the convictions[;]

"[2] Whether the trial court erred in refusing to suppress Mr. Odum's statements as involuntary[;]

"[3] Whether the trial court erred in admitting evidence regarding the alleged murder weapon[;]

"[4] Whether the trial court erred in admitting the autopsy photographs[; and]

"[5] Whether the trial court erred in failing to grant the motion for a new trial."

I. Evidentiary Sufficiency

Odum contends that the evidence was insufficient to support a verdict of guilty of kidnapping. This argument is based on the way in which Hollingsworth testified. He repeatedly referred generally to his "co-defendants," or the "others," but, with one possible exception, he did not describe Odum as acting affirmatively until Odum began driving the Acura. Odum submits that mere presence is insufficient to establish guilt as a principal in the second degree and that, at best, the State proved Odum to have been an accomplice after the fact. Thus, says Odum, citing Osborne v. State, 304 Md. 323, 499 A.2d 170 (1985), overruled on other grounds by State v. Hawkins, 326 Md. 270, 604 A.2d 489 (1992),

the maximum sentence that could have been imposed on him for each of the two kidnapping convictions was five years imprisonment. Odum's argument fails on Hollingsworth's testimony alone, even though we could consider Odum's statement as well on this issue. See Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

A person may be guilty of a felony, as a principal in the second degree, by aiding, counseling, commanding, or encouraging, either actually or constructively, the commission of the felony in the person's presence. State v. Hawkins, 326 Md. 270, 280, 604 A.2d 489, 494-95 (1992); State v. Ward, 284 Md. 189, 197, 396 A.2d 1041, 1046-47 (1978).

Hollingsworth was unsure whether Odum or Butler assisted Hollingsworth in putting Patten into the trunk, but the ambiguity is immaterial. Of significance is that either Butler or Odum could have assisted in moving Patten's unconscious body because both were present and participating generally.

In addition, after the victims had been placed in the trunk of the Acura, Carroll, Hollingsworth, and Butler jammed themselves into the back seat of the car and left the front passenger seat for Odum. From this the jury could infer that the other subjects recognized Odum as a participant who would join in the escape from the initial crime scene and in transporting the victims.

Odum's five dollar share in the fruits of the robbery of Patten also demonstrates that he was present, aiding and abetting. In McCullers v. State, 233 Md. 202, 195...