Phelps v. State

• Decision Date: 12 March 2018
• Docket Number: No. 785,785
• Parties: COREY WILLIAM PHELPS v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

COREY WILLIAM PHELPS v. STATE OF MARYLAND

No. 785

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

March 12, 2018

Circuit Court for Prince George's County

Case No. CT05-0210X

UNREPORTED

Woodward, C.J., Meredith, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.

Opinion by Kenney, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Following a retrial, a jury in the Circuit Court for Prince George's County, Maryland found appellant, Corey William Phelps, guilty of second degree murder of Dwayne McClaine and use of a handgun in commission of a crime of violence.¹ He was sentenced, with credit for time served, to thirty years, all but twenty suspended, for second degree murder and a consecutive twenty years for use of a handgun to be followed by five years supervised probation. In this timely appeal, appellant asks the following questions:

1. Did the trial court err in denying Appellant's motion to suppress evidence?

2. Did the circuit court err in failing to address the requests to discharge counsel and proceed pro se that Appellant made on September 24, 2008 and July 1, 2014?

3. Did the trial court err in allowing the prosecutor to make improper and prejudicial statements at closing argument?

4. Did the trial court err in denying Appellant's motion for mistrial?

For the following reasons, we answer each question "no" and shall affirm.

BACKGROUND

The Motions Hearing

Prior to trial, appellant challenged the seizures of a gun and a jacket from Apartment 302 in the Raleigh Court Apartments located at 4437 23rd Parkway in Temple Hills, Maryland. The State argued that appellant, who was arrested at that address on January 6,2005, did not have standing to challenge a search of the apartment and any resulting seizure.

At the motions hearing, Bruce Branch testified that, beginning sometime in 2003, after a friend working at the apartment complex offered him a "pretty good deal," he lived in Apartment 302. The apartment, however, was leased in the name of his mother, Eleanor Kelly. Ms. Kelly resided in South Carolina and never lived in the apartment.

By January 2005, the lease was on a month-to-month basis. Branch testified on direct examination that he believed that he was current on his rent payments. According to Branch, he stayed at the apartment until mid-January 2005. When he moved out, he left behind some furniture, including a television, a stereo and a couple beds, and permitted several young men, including appellant, to stay in the apartment because the lease had not expired.²

Branch kept one key to the apartment and gave the men a "second key that they were supposed to split among themselves." Branch was aware that instead of using the key, the men would enter the apartment through the broken patio/balcony door.³

The only restriction Branch placed on appellant's use of the apartment was not to bring women or drugs there. Appellant was allowed to have visitors and could deny entry had he so desired. Branch believed that appellant kept clothing in the apartment.

In late January 2005, Branch told appellant that the lease was going to expire at the end of the month and that he had to leave the apartment. He knew that appellant's arrest in this case occurred at around this same time. Branch was never contacted by either the apartment management or the police for permission to search the apartment.

On cross-examination, when presented with documentary evidence from the apartment complex, Branch conceded that his last rental payment was on October 31, 2004 and that eviction was scheduled on February 3, 2005. He also confirmed that neither his name nor appellant's was on the lease and that entry into the apartment could be made through the broken patio/balcony door.

On redirect, the parties stipulated that, at appellant's prior bail review hearing, Branch testified that he told appellant he could stay in the apartment and that, "if he couldn't open the door to go in through the patio door." He also testified at this prior hearing that neighbors had called the police after seeing appellant enter the apartment through the patio/balcony door.

Jeene'A Cannon, the property manager for Raleigh Court Apartments, testified it was the policy of her company that anyone living in the apartments be listed on the lease as either a leaseholder or an occupant. Neither appellant nor Branch were listed as the leaseholders or occupants in 2004 or 2005.

During argument on the motion, defense counsel agreed that appellant had only been staying in the apartment for "[a] period of one to two weeks" when he was arrested on January 6th, but that, counsel argued, gave appellant standing to contest the search:

[DEFENSE COUNSEL]: . . . In this case I would argue that Mr. Phelps was able to make use of a week and could bring invitees other guests [sic] over. Whether he was allowed to exclude people from the residence or the apartment, and those are all factors that in this case weigh heavily towards finding that Mr. Phelps was a valid overnight guest and then has standing to challenge the search of the apartment on January 6^th.

Then, there is a second search on the apartment which depending on the Court's ruling would come into play after the search done on January 6^th.[⁴]

Another factor, Your Honor, that Mr. Branch's testimony indicates is that Mr. Phelps was allowed to be in that apartment even when Mr. Branch or a leaseholder was not there. So that's a factor.

THE COURT: He can't - how does he give permission, period? You're saying it's because however he did this and it was under the table in my opinion kind of a lease because he put his mother's name on it knowing that she lived in South Carolina and was never going to live there.

I don't know why he couldn't put his name on the lease. I really wasn't clear as to why he made this arrangement and didn't when he had a personal friend who was giving him this option of staying somewhere else that he had to use his mother's name. That was kind of strange to me to be honest with you.

It goes to credibility. I'm going to be honest with you. It goes to his credibility as to all that he is saying because his name was never on the lease. And then he says he paid rent up until the end, and the record says no. No payments were received for anyone to be in there to be honest with you after October. I wrote it down somewhere. I know he did. October 31^st.

So, that was November, December, January. So, you get permission to someone who you don't even have permission to be in a residence. I don't know how you do that.

You can [sic] say that legally he is an occupant. He is not even listed as an occupant.

After hearing further argument from both appellant and the State, the court agreed to reopen the evidentiary portion of the hearing to let defense counsel call appellant to the stand. Appellant testified that he knew Branch and had visited him in Apartment 302 some time in the summer of 2004. In December of that same year, Branch gave him permission to stay overnight in the apartment. According to appellant, he often visited the apartment, and he had stayed overnight approximately six or seven different times. It was his understanding that he could stay there, without Branch being present, as often as he liked through the end of February.

When asked how he gained entry to the apartment, appellant testified that either he would call first and was let in through the front door, or, as Branch had told him, he "would have to climb on the balcony entrance and get entrance through that way because the door and the balcony were, hum, broken." Appellant confirmed that he had let female guests visit him when he stayed overnight, and that he and Monique Sophia were alone in the apartment on January 6, 2005 when he was arrested.

When asked if Branch was ever present when he stayed overnight, appellant replied, "I can't - I can't really - I can't really recall." He testified that Branch stayed at the apartment prior to December 2004. When asked what his understanding was with respect to staying at the apartment when Branch was not there, appellant testified "my understanding is that I will be safe. I would be safe at his - at his - hum - residence." Appellant understood this to mean that he was allowed to be in the apartment.

On cross-examination, and without objection, appellant was shown testimony from his first 2005 trial. He agreed that his mother, Terry Herring, had testified that appellant stayed with her at her residence at 423 71^st Avenue, Seat Pleasant, Maryland, from December 2004 until January 6, 2005.⁵ On redirect, appellant took issue with his mother's testimony, and testified that he actually was staying overnight at various locations at that time.

After hearing from appellant, defense counsel maintained that it was appellant's understanding that he had permission to stay at Apartment 302 as an overnight guest with an expectation of privacy:

I'm saying in looking at the time span that's an issue here, looking at the number of times he did spend the night, looking at the permission that was given him, looking at his right to exclude people from coming into the apartment, bringing other people to the apartment, his permission to be present when no one else was present, when Mr. Branch was not present, that those are all factors that point to his status as an overnight guest at this apartment, despite the fact that he was not living there, as the Court I think understands it, on a consistent basis, which I would agree with.

I'm only talking about this time span of maybe as much as two weeks but maybe less than that.

The State responded that there was no evidence that appellant was an "overnight guest," because "[a]n overnight guest is simply one that's staying for that night. You don't get to have a perpetual...