Owens v. State, No. 103, September Term, 2006 (Md. App. 6/5/2007), No. 103, September Term, 2006

CourtCourt of Special Appeals of Maryland
Writing for the CourtHarrell
Decision Date05 June 2007
Docket NumberNo. 103, September Term, 2006

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No. 103, September Term, 2006
Court of Appeals of Maryland
Filed: June 5, 2007.

Circuit Court for Howard County Case # 13-K-03-04298 5 IN.

Bell, C.J., Raker, Cathell, Harrell, Battaglia, Greene, Wilner, Alan M. (Retired, specially, assigned), JJ.

Opinion by HARRELL, J.

Trial by jury is lauded as "the very palladium of free government,"1 and a "sacred bulwark of the nation."2 Thomas Jefferson lauded "trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." 3 WRITINGS OF THOMAS JEFFERSON 71 (Washington ed., 1861). Encroachment on this institution by the expanding jurisdiction of the English vice-admiralty courts, the trials of which were conducted without juries,3 was chief among the complaints registered by American colonists in the Declaration of Independence.4 There can be no question that the jury trial is a vital and cherished institution of United States5 and Maryland law.6

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With that historical perspective firmly in mind, we confront the issues concerning this right debated by the parties in the present case. The primary controversy touches on the

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question of whether the empanelling of a non-citizen on a jury in a criminal case abridged Marcus Dannon Owens's right to a jury trial under either the U.S. or Maryland Constitutions. Alternatively, we consider whether empaneling a non-citizen juror violates "merely" Maryland statutory law. In either case, we decide whether Owens waived his opportunity to object to service by the non-citizen on his jury.

The second issue we review is whether Owens was "in custody," as that term is understood in Fifth Amendment jurisprudence, at the time he was questioned, without Miranda7 warnings, by the police at the hospital where his stepson was taken following a medical emergency.


Marcus Dannon Owens was tried in the Circuit Court for Howard County before a presiding judge and a jury of twelve individuals, on charges of murder and child abuse resulting in death. The jury convicted Owens of second degree murder and child abuse resulting in death. The victim of both crimes was Owens's stepson, Kevonte Davis. The trial judge sentenced Owens to two consecutively-running 30 year terms in prison. The facts giving rise to these convictions are not in dispute.

Owens married Kenesha Davis in late July 2003, and lived with her in their Columbia, Maryland, townhouse. Also living with the couple were Davis's two children from a prior relationship: Dacquan Davis, age four; and Kevonte Davis, age 2; as well as the couple's

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seven month-old infant, Kemari Owens. In July 2003, Owens was unemployed, but Davis worked at a warehouse for the distributing firm, Genco, in Columbia where she typically worked from 7:00 a.m. until 5:30 p.m. The couple shared a single car so, each morning, Owens would drive the children to daycare, drop his wife off at Genco, and then return home. At the end of the work day, Owens would pick up the children and his wife and return home.

Owens deviated from that routine on the morning of 30 July 2003 when he took Davis to work directly, without dropping the children at daycare. Davis testified that Kevonte appeared normal when she exited the car. Kevonte, however, did not appear so when Owens picked Davis up from work approximately 10 hours later. Davis noticed that Kevonte had his eyes closed, was foaming at the mouth, had cold hands, and was "moaning like he was in pain." She and Owens took Kevonte to Howard County General Hospital ("the Hospital"), where the child died after approximately thirty minutes of failed attempts to revive him.

A number of witnesses from the Hospital medical staff testified at Owens's trial to the extent and possible causes of the injuries leading to Kevonte's death. The consensus of the testimony was that Kevonte sustained severe trauma on the level of a serious car accident or a fall off a building of several stories.8 Several of the staff members also noted that Owens's explanation of Kevonte's activities during the critical 10 hours on July 23 was not consistent with the extent of his injuries. At about 6:30 p.m., Howard County Police Detectives Eric

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Kruhm and Vicki Shaffer encountered and interviewed Owens for 10 to 15 minutes in the playroom of the Hospital's pediatric ward, where he was tending Dacquan. That conversation, to which Owens was apparently a free participant, yielded some additional background on the day's events. Owens indicated that the two older boys had spent the day playing and watching TV together and seemed relatively normal at lunch time. Around the time the children and Owens picked up Davis, however, Kevonte was "fussy" and difficult to keep awake. When asked how Kevonte received such heavy bruising, Owens attributed it to fighting with his four year-old brother, Dacquan. The detectives noted that Owens seemed nervous during their conversation.9 The interview ended when Owens left the room. At that point, the detectives considered Owens a suspect in Kevonte's death.

Several hours later, around 9:48 p.m., the detectives conducted a second interview. The detectives approached Owens, who was in the Hospital parking lot, and asked him to come back inside for another interview. Owens complied with the request and also did not object to the audiotaping of the interview. The two plain-clothes detectives and their suspect, Owens, convened in an empty room in the pediatric ward, several doors down from the playroom where the first interview took place. The detectives took possession of Owens's car keys, but the record is not clear as to whether this occurred before or after the second

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interview.10 During the interview, the detectives asked pointed questions about the circumstances surrounding the death of Kevonte. The interview lasted somewhere between 20 and 30 minutes and was terminated at Owens's initiative. The following exchange took place at the end of the interview:

[Owens]: Is there anything else before I go?

[Detective Kruhm]: You can leave at any time; we're not holding you in here anymore.

[Owens]: All right. See you tomorrow.

The police arrested Owens two days later on 1 August 2003.

A. Non-Citizen Juror Issue

The jury in Owens's trial returned its verdict against him on 10 June 2004. Later that same evening, Steven Merson, the Howard County Jury Commissioner, received a voicemail message from Juror No. 10, Adeyemi Alade. Alade indicated that he was concerned about the propriety of his jury service because he was not a U.S. citizen. On 18 June 2004, the Circuit Court held a hearing regarding this revelation. At the hearing, Merson explained that Alade expressed concern for the status of the case because he had just learned that jury service was restricted to U.S. citizens. Merson testified that Alade indicated that he was

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qualified to serve as a juror on his pre-trial juror questionnaire. According to Merson, his office does not review for accuracy the responses provided by juror candidates unless some information is missing. Merson also confirmed that the videotape shown to potential jurors upon their arrival for service does not include information relating to qualification for service.

Alade testified that his "country of origin" was Nigeria and that he was not a U.S. citizen. Rather, he stated that he had been in the U.S. for two years as a "permanent resident," was attending university, and had obtained a valid Maryland driver's license, listing his Howard County residence address. Alade acknowledged that he checked the box on the juror questionnaire indicating that he was qualified to serve as a juror as an oversight and did not do so deliberately. Apparently, no one inquired into his citizenship status when he reported for possible jury duty and he was never asked about the subject at any point in the trial. For Alade's part, the court found no intent to misrepresent his status to the court.

Owens filed a Motion for a New Trial on the same day as the hearing. The rationale for the motion was that Owens was deprived of a lawful jury because Alade, as a non-U.S. citizen, was not qualified to serve as a juror. The State argued that the citizenship requirement for jurors is confined to the realm of statutory rights, a right which Owens waived by not challenging Alade's service in a timely fashion. The Circuit Court, on 21 July 2004, denied Owens's motion. The court reasoned that neither the U.S. nor Maryland Constitutions mandate a jury composed of U.S. citizens only. As to Owens's contention that

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Alade's non-citizenship status could not reasonably have been discovered because voir dire questions relating to statutory disqualifications are not mandatory, the court pointed out that neither party sought a voir dire question on the subject of citizenship. Had it been proposed, the court ventured that the citizenship question would have been propounded to the jurors and Alade would have been disqualified as a juror.

B. Suppression Issue

Prior to trial, Owens sought to suppress any statements he made to Detectives Kruhm and Shaffer during their two interviews. Owens argued that the conversations between him and the detectives occurred while he was in custody and must be suppressed because the detectives never advised him of his Miranda rights. The Circuit Court denied the motion to suppress the statements made during the interviews based on a totality of the circumstances analysis. The court examined numerous factors in concluding that the interrogation of Owens was not custodial, including: the neutral locations and short length of the interviews, the small number of officers present and their relaxed posture, whether Owens was a suspect and treated as such, Owens's willingness to commence the interviews, the lack of use of physical restraint, the absence of force or...

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