Owens v. State

• Decision Date: 07 September 2006
• Docket Number: No. 2397, September Term, 2004.,2397, September Term, 2004.
• Citation: 906 A.2d 989,170 Md. App. 35
• Parties: Marcus Dannon OWENS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

906 A.2d 989

170 Md. App. 35

Marcus Dannon OWENS v. STATE of Maryland.

No. 2397, September Term, 2004.

Court of Special Appeals of Maryland.

September 7, 2006.

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Peter F. Rose (Nancy S. Forster, Public Defender, on brief), for appellant.

Mary Ann Ince (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel HOLLANDER, KENNEY, EYLER, DEBORAH S., JJ.

HOLLANDER, J.

In this case, we must consider, among other things, whether the Circuit Court for Howard County erred in denying a new trial to Marcus Dannon Owens, appellant, after it was discovered that a foreign national sat on the jury that convicted Owens of second-degree depraved heart murder of his two-year old stepson, Kevonte Davis, as well as first degree assault and child abuse.¹ Appellant presents three issues, which we quote:

1. Whether the trial court erred in failing to grant the motion for a new trial.

2. Whether the trial court erred in failing to suppress Appellant's statements to police.

3. Whether the evidence was insufficient to sustain the convictions.

For the reasons set forth below, we shall affirm.

I. Factual Summary

A. Trial

The following evidence was adduced at the trial in June 2004.

Kenesha Davis married appellant on July 25, 2003, five days before Kevonte's death on July 30, 2003. The couple lived with Ms. Davis's two children, Dacquan Davis, then four, and Kevonte, as well as the couple's seven-month-old son, Kemari Owens.

In July 2003, Ms. Davis worked weekdays at a warehouse from 7 a.m. until 5:30 p.m.; appellant was unemployed. Appellant and Ms. Davis shared a Honda Civic, so each morning they would bring the children to Yvette Edmunds, a day-care provider, and then appellant would take Ms. Davis to work. At the end of the work day, appellant would pick up the children as well as Ms. Davis. However, the children did not go to Ms. Edmunds on July 30, 2003.

Ms. Davis testified that, on the morning of July 30, 2003, appellant dropped her off at work with the children. At the time, Kevonte "was active and normal. . . ." At around 5 p.m., when appellant arrived to pick up Ms. Davis, she noticed that Kevonte's eyes were closed, he was "foaming at the mouth," his hands were cold, and he was "moaning like he was in pain." She and appellant took Kevonte to Howard County General Hospital (the "Hospital"), where he died.

Lisa Zovko, a patient care technician in the Pediatric Emergency Room of the Hospital, was on duty when Kevonte arrived. Ms. Zovko saw "blood and foam" were coming from Kevonte's mouth, and he was "posturing," a "movement that can be described as arching and your limbs kind of go stiff and bend backwards," reflective of "central nervous system damage." Zovko "started suctioning the blood out of [Kevonte's] mouth, because [she] didn't want [Kevonte's] airway to be compromised any more."

Zovko summoned Doctor Jackson Tsai, who then rushed Kevonte to the "code room." While chest compressions were performed, Zovko noticed "an abrasion, like a rug burn," on Kevonte's chest. Resuscitation efforts were unsuccessful, however. According to Ms. Zovko, both parents were upset by Kevonte's death.

Dr. Tsai treated Kevonte as "a priority one patient." While Dr. Tsai was attempting to resuscitate Kevonte, he observed the victim's chest and noticed "some ecchymosis or bruising . . . right below the ribs." In addition, he saw "some bruising over the right side of [Kevonte's] face . . . around the eyeball," as well as "[t]he liver spleen area." He also reported that the child's "belly was sort of distended."

According to Dr. Tsai, appellant did not provide a history as to the source of trauma that would explain the child's injuries. Dr. Tsai noted that the "history" provided by appellant was that Kevonte was eating "peanut butter that afternoon" and that "[t]here was no history of trauma. No history of fall. Or a thud that, that was heard by [appellant]. No history of ingestions."

Dr. David Monroe, the Director of the Hospital's pediatric emergency room, recalled that Kevonte was "bleeding from his mouth," had "a very large bruise on his upper abdomen, lower chest," and bruising on his face and the upper back. Dr. Monroe spoke with appellant to obtain a medical history for Kevonte. Owens told Dr. Monroe that he thought "everything was fine until somewhere between four and four thirty." In Dr. Monroe's view, appellant's "story didn't match at all what we saw in the room. I mean, something, some serious trauma had happened to this child. The story I was given right then was nothing happened."

According to Dr. Monroe, the "massive injuries" suffered by Kevonte were similar to those of "someone that fell off a building, several stories. . . . Or a very serious car accident. Or child abuse." Dr. Monroe also testified that the low oxygen level in the child's blood tended to establish that Kevonte had bled to death. Dr. Monroe acknowledged that chest compressions performed on a person with an existing break to the ribs could "aggravate the problem to some extent."

Lavanda Pope, Kevonte's great aunt, responded to the Hospital and thought that appellant seemed "agitated." When appellant saw Ms. Pope, he said: "`They're trying to accuse me of killing Kevonte.'" At the time of that remark, the "detectives were standing behind" him. Ms. Pope told appellant "that the officers were doing their job and at this point he needed to let them do his (inaudible) job, because Kenesha is dealing with the fact that her son is dead." Ms. Pope also saw Kevonte's body, and noticed "a bruise on his face" as well as a "big bruise in the middle of his chest."

Detective Joseph King secured appellant's residence "until a search warrant could be completed." During the execution of the search warrant, he found that the home's telephone was in working order.

Sergeant William Porter was also involved in the search of appellant's home. During the search, he found soiled toddler pants, a soiled diaper in the bathroom, and a soiled wet washcloth in the sink.

Michael DeVilbis, a maintenance employee at Genco at the time of Kevonte's death, testified that he saw appellant pick up Ms. Davis on the evening in question. Mr. DeVilbis heard appellant tell Ms. Davis that "`he been [sic] shaking the kids all day and couldn't get `em up'"

Yvette Edmunds, the children's day-care provider, recalled that appellant called her late on the morning in question, and advised that the children were coming. However, the children never arrived, nor did she hear from appellant again.

Detective Eric Kruhm responded to the Hospital and viewed Kevonte's body, which was bruised on the face and chest. Kruhm first encountered Owens with Dacquan in the playroom of the pediatric ward. At that time, Kruhm and Detective Shaffer had a "conversation" with appellant, who responded "freely" to their questions. Detective Kruhm recounted:

[E]arly that morning, [appellant] had a job prospect that he went to. And that they sent him home. . . . He said he called the babysitter and told her that he would be bringing the children that day. He said he got home. They had breakfast. That his child . . . had diarrhea that day and that he didn't have what he needed for the kids for day-care. So he ended up not taking them that day. . . . That . . . the boys, who would be Dacquan and the victim, played that day. They rode bikes. They watched television. He said that around noontime, they had lunch, all of them. And that the boys went back to the living room to watch TV. He went upstairs to give his son a bottle. And he said that Dacquan and the victim had fallen asleep in front of the television. He said that close to five o'clock . . . he had to wake the boys up. They were still asleep. He said that the victim was very fussy. . . . So he let him lay there. And then he came back and he said he wasn't acting right. And that he was falling back asleep. . . . So he got the kids in the car. He went to his wife's job in Columbia and picked her up. And . . . he said that the victim was dozing off in the car.

Detective Kruhm asked appellant how Kevonte sustained his bruising. According to Detective Kruhm, appellant advised that

it was probably from fighting with his brother Dacquan or that it might have happened at day care. But first he said he wasn't sure. . . . He said that he was the only one with the children that day. He had watched them from the time he got back from dropping his wife until the time he went to pick her up. He said that no one visited the home. He said that they didn't leave the home.

Detective Kruhm also testified: "At one point, [appellant] backed his head against the wall and he said, quote, `Fucking up.' And then at another point in the conversation, between questions he said, `How does this shit happen?'"

At approximately 9:45 p.m., Detective Kruhm had a second "conversation" with appellant at the Hospital, which was recorded by audiotape. The interview was played for the jury and a transcription was admitted in evidence. In the statement, appellant denied responsibility for Kevonte's death.

Doctor Zabiullah Ali, an Assistant Medical Examiner, performed the autopsy on Kevonte. He was admitted, without objection, as an expert "in the field of forensic pathology." During the autopsy, Dr. Ali observed bruising to the victim's right temple, left lip, head, and lower chest/upper abdomen. In addition, Kevonte had four fractured ribs and two injuries to his liver. The doctor opined that the cause of the injury to the ribs and liver was blunt force to the abdomen/chest, which then caused internal bleeding. Kevonte also had "bruising of . . . both lungs [and the] thymus . . . ."

According to Dr. Ali, a small child could not have inflicted the injuries sustained by Kevonte. He claimed that "we usually observe these kinds of injuries in motor vehicle accidents." Dr. Ali also stated that, because...