Payne v. State

Decision Date18 December 2019
Docket NumberNo. 1649, Sept. Term, 2017,1649, Sept. Term, 2017
Citation221 A.3d 997,243 Md.App. 465
Parties Korey Vaugh Hamilton PAYNE v. STATE of Maryland
CourtCourt of Special Appeals of Maryland

Submitted by: Amy E. Brennan (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Submitted by: Cathleen C. Brockmeyer (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: Graeff, Arthur, J. Frederick Sharer (Senior Judge, Specially Assigned), JJ.

Sharer, J.

Having been charged with, and convicted of, five counts of possession of child pornography,1 Korey Vaugh Hamilton Payne raises three challenges to rulings of the Circuit Court for Anne Arundel County.2

In his brief, Payne asks:

1. Did the motions court err in denying [his] motion to suppress his statement?
2. Did the circuit court err, or abuse its discretion, in admitting other bad acts evidence?
3. As a matter of first impression in Maryland, did the circuit court err in imposing separate sentences for each of five images of child pornography where each image was possessed at the same time and place?

Finding neither error nor abuse of discretion by either the motions court or the trial court, we affirm the judgments of the Circuit Court for Anne Arundel County.


Because our review does not implicate the sufficiency of the evidence adduced at trial, we need not recite the facts underlying the charges, other than to provide context for our discussion of the issues presented. Whitney v. State , 158 Md. App. 519, 524, 857 A.2d 625 (2004) (citing Craig v. State , 148 Md. App. 670, 674 n. 1, 814 A.2d 41 (2002) ). See also , Teixeira v. State , 213 Md. App. 664, 666, 75 A.3d 371 (2013) (quoting Fitzpatrick v. Robinson , 723 F.3d 624, 628 (6th Cir. 2013) ); Washington v. State, 190 Md. App. 168, 171, 988 A.2d 61 (2010).

1. Motion to Suppress

Payne filed a timely motion to suppress a statement he made to police, in his home, on the day of the execution of a search warrant. He challenges the voluntariness of the statement, asserting that he was in custody at the time and that his rights under Miranda3 and its progeny had been violated when he had unequivocally invoked his right to counsel, but the police persisted in questioning him thereafter.

The Suppression Hearing

The suppression court conducted a hearing on April 5, 2017. In his brief, Payne has included a summary of the testimony developed at the suppression hearing, which, in its brief, the State accepts. We reproduce the summary, with occasional non-substantive editing.4

On July 29, 2016, Detective Erick Patterson, of the Anne Arundel County Police Department, executed a search warrant at Payne's home in Hanover, Anne Arundel County, where Payne lived with his mother. The execution of the warrant was in connection with a child pornography investigation. Patterson was with ten other officers who were members of the child abuse unit, the sex offense unit, and the digital forensic unit. The officers knocked on the door, announced their presence, and identified themselves as county police officers with a search warrant for the residence. Payne answered the door. The officers were dressed in Class C uniforms, consisting of navy-blue cargo work pants and a polo shirt displaying a police badge. They wore tactical or ballistic vests with "Police" on the back of the vests. They were armed with firearms, but there was no testimony that guns were ever drawn. All the officers entered the house at about the same time.

Payne was asked to step outside, where an officer stood with him while other officers went inside to determine the possibility of other occupants. Patterson testified that he did not know if Payne was handcuffed at that time.

After finding no one else in the home, Patterson met Payne in the living room. Payne was not in handcuffs and Patterson did not see Payne restrained in any way. Patterson identified himself to Payne and asked if Payne would speak with him.

Patterson testified that he made Payne aware that he was not under arrest. He asked if Payne would accompany him to an upstairs bedroom for an interview. Patterson testified that he would have allowed Payne to leave if he had asked to do so.

A female officer, Detective Kristine Mays,5 was present for the interview which lasted for approximately 45 minutes. According to Patterson, Payne consented to an audio recording of the interview. Neither Patterson nor Mays drew their weapons at any time, nor did Patterson raise his voice or become aggressive during the interview.

Patterson testified that he made no promises or threats, nor did he offer Payne inducements in return for his statement. He did not detect that Payne was under the influence of any substance and he did not have concerns about Payne's mental health. Patterson advised Payne of his Miranda rights. Payne was not arrested that day and charges were not filed until October 3, 2016, more than two months later.

Smita Topiwama, Payne's neighbor, testified that, on the day of the warrant execution, she looked out from her window, and saw five or six police cars, and officers "run into the [sic] Korey's house." Her kitchen window faces Payne's front door. She saw officers taking pictures of the house before they went to the door. Significantly, she testified that she saw an officer place Payne in handcuffs.

The Ruling

After hearing the testimony and arguments of counsel, the court held the matter sub curia and issued a Memorandum Opinion and Order on April 24, 2017, ruling that Payne was not in custody at the time he talked with police. Therefore, the court concluded, the question involving the right to counsel was not implicated.

In its Memorandum Opinion, the court indicated a thorough review of the testimony, made findings of fact, to which it applied appropriate case law, both Maryland and federal, and concluded that Payne had not met his burden of proving that he was in custody for purposes of Miranda applicability:

Before the questioning occurred ..., the officers asked the Defendant to go outside while they conducted a search of his home. At that [time], the Defendant had no obligation to stay and could have left the scene. Additionally, Detective Patterson asked the Defendant if he would speak with him, he was not ordered to do so. Once the Defendant agreed, the Defendant led the officers to a bedroom on the third floor, he was not escorted by the Officers or required to comply. Further, only two officers were present in the bedroom at the time of questioning; one was a female detective who sat on the floor, and another was Detective Patterson who sat on a piece of furniture, not blocking or locking the door. Although Detective Patterson read the Defendant his Miranda rights, he testified at the suppression hearing that he always gives Miranda warnings and he did not believe the Defendant to be in custody or under arrest. Additionally, after listening to the recording of the interview, the conversation was calm, the officers did not ask leading questions, there were no threats, inducements, or any promises made to the Defendant, the conversation only lasted about 45 minutes, and Detective Patterson made it clear that it was up to Defendant if he wished to stop. Further, the Defendant was not arrested at or near the time of the interview. The defendant was not placed under formal arrest until October 4, 2016, about 3 months after the questioning occurred.
When taking all of the factors together, the Defendant did not prove that he was in custody for purposes of Miranda applicability. Accordingly, after review of the evidence presented and consideration of the relevant case law, the Court finds that Miranda did not apply at the time of the questioning ....
Standard of Review

We review a circuit court's denial of a motion to suppress on " ‘only the evidence contained in the record of the suppression hearing.’ " Gupta v. State , 452 Md. 103, 129, 156 A.3d 785 (2017) (quoting Rush v. State , 403 Md. 68, 82–83, 939 A.2d 689 (2008) ). "[W]e ‘extend great deference to the findings of the motions court as to first-level findings of fact and as to the credibility of witnesses, unless those findings are clearly erroneous.’ " Jones v. State , 213 Md. App. 483, 496, 74 A.3d 802 (2013) (quoting Padilla v. State , 180 Md. App. 210, 218, 949 A.2d 68 (2008) ). In our consideration, "we ‘review the evidence and the inferences that may be reasonably drawn in the light most favorable to the prevailing party,’ in this case, the State." Id. (quoting Bost v. State , 406 Md. 341, 349, 958 A.2d 356 (2008) ). However, we review the suppression court's legal conclusions de novo by undertaking our own "independent constitutional appraisal of the record by reviewing the law and applying it to the facts ...." found by the suppression court. Gupta , 452 Md. at 129, 156 A.3d 785 (internal quotations and citation omitted). Moreover, a defendant must show that he was in custody and subject to interrogation as a condition of entitlement to the protection of Miranda. Smith v. State , 186 Md. App. 498, 519–20, 974 A.2d 991 (2009). Accord Moody v. State , 209 Md. App. 366, 380, 59 A.3d 1047 (2013) (the burden of showing custody and interrogation lies with the movant).

The issue before us is whether Payne established to the suppression court that he was in custody at the time of the statement given to police. Payne argues:

Considering the totality of the circumstances in this case, particularly the entry of eleven officers armed and in uniform, the searching of the premises, the request to remove to an upstairs bedroom for an interview with two detectives and the failure any officer to tell Mr. Payne that he was free to leave, the circuit court erred in determining that the interrogation was not a custodial one. Because Mr. Payne was "in custody" and was questioned, he had the right to be free from compelled self-incrimination.

(Footnote omitted).

In support of his argument, Payne refers us to Thompson v. Keohane , ...

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    ...act that involves sexual molestation or exploitation of a child" and could not "be restricted to only acts made criminal elsewhere."). In Payne v. State, we distinguished the Assembly's use of the articles "a" and "an" from its use of the word "any" in two criminal statutes, CR § 11-207 and......
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