State v. Jones

• Decision Date: 26 April 2001
• Docket Number: No. 2254,2254
• Parties: STATE of Maryland v. Thomas Wayne JONES.
• Court: Court of Special Appeals of Maryland

771 A.2d 407

138 Md. App. 178

STATE of Maryland v. Thomas Wayne JONES.

No. 2254, Sept. Term, 1999.

Court of Special Appeals of Maryland.

April 26, 2001.

Celia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Jack Johnson, State's Atty. for Prince George's County of Upper Marlboro, on brief), for appellant.

Fred Warren Bennett (Michael E. Lawlor and Bennett & Nathans, LLP on the brief) Greenbelt, for appellee.

Argued before MOYLAN,¹ HOLLANDER, and JOHN J. BISHOP (Retired, specially assigned) JJ. HOLLANDER, Judge.

In this appeal brought by the State, we must decide whether the Circuit Court for Prince George's County erred in granting post-conviction relief to Thomas Wayne Jones, appellee, pursuant to the Maryland Post Conviction Procedure Act (the "Act"), Md.Code (1957, 1996 Repl.Vol., 2000 Supp.), Art. 27, §§ 645A-645J.² The circuit court's ruling stemmed from Jones's trial in December 1996 for the murders of Jamal Johnson and Gary Gulston in 1993, and numerous related offenses involving Michelle and Jeannette Gulston.³ A jury in the Circuit Court for Prince George's County convicted Jones of kidnaping and first degree felony murder of Gary Gulston, as well as robbery with a deadly weapon, robbery, and use of a handgun in the commission of a felony. As to Jeannette's residence, Jones was found guilty of housebreaking. With regard to Michelle, he was convicted of robbery and robbery with a deadly weapon. The jury did not reach a verdict against Jones as to Johnson's murder, and those charges were subsequently nol prossed.

On January 31, 1997, the trial court sentenced Jones to life without parole for Gulston's murder, and imposed consecutive sentences of twenty years each for the handgun offense and the armed robbery of Michelle. The other convictions were merged for sentencing purposes. In an unreported opinion authored by Judge Harrell, we affirmed Jones's convictions. See Jones v. State, 119 Md.App. 817 (1998) ("Jones I"). Jones did not seek certiorari.

On November 12, 1998, Jones filed a Petition for Post Conviction Relief (the "Petition") pursuant to the Act, claiming numerous errors that constituted ineffective assistance of trial counsel and appellate counsel, as well as trial court error.⁴ A primary issue concerned the admission at trial of an inculpatory written statement that Derrick Smith provided to police, which included an incriminating declaration attributed to Don Lowell Gutrick.

After a hearing held on May 20, 1999, the court granted Jones's Petition on August 19, 1999, based on findings of ineffective assistance of trial and appellate counsel, as well as trial court error. Accordingly, the court granted Jones a new trial and a belated appeal.

Thereafter, the State filed an Application for Leave to Appeal, which was granted by Order dated April 12, 2000. On appeal, the State presents one issue for our consideration:

Did the post conviction court err in granting Jones a new trial and a new appeal?

Appellee subsequently moved to strike a portion of the State's reply brief, claiming that the State belatedly raised an argument to support the admission of Gutrick's statement. We shall address the motion to strike, and the State's response to it, in the course of our discussion. For the reasons set forth below, we shall neither affirm nor reverse the post-conviction court. Instead, we shall remand to the post-conviction court for further proceedings.

FACTUAL BACKGROUND

A. The Trial

On July 16, 1993, sixteen-year-old Jamal Johnson and Gary Gulston, who was twenty-three years of age, were brutally murdered in Prince George's County. Johnson's body was found by Prince George's County Police Officer Etiene Jones, who responded at 1:54 p.m. to Michelle's apartment in District Heights, where she lived with her cousin, Gary Gulston. Johnson's body was on the floor of a bedroom, face down in a pool of blood, with a blanket nearby that contained bullet holes and powder burns. Ballistics analysis revealed that he had been shot in the back with a.25 caliber semiautomatic handgun, and in the head with a .45 caliber semiautomatic handgun.

After speaking with Michelle, the police proceeded to the single family home of Jeannette, the mother of Gary Gulston, who resided in Forestville. Gulston's body was found in the basement. He suffered a fatal gunshot wound to the back of his head. Although the police observed that the front door to the residence was ajar, there was no sign of forced entry. A washtub in the basement was found to contain Gutrick's fingerprint.

We shall continue our factual summary by setting forth the "Facts" as summarized by the Court in Jones I. We will then supplement those facts with information pertinent to this appeal. In Jones I, the Court said:

FACTS⁵

Michelle Gulston testified that on 16 July 1993 she was in her apartment at 6804 Alpine Street in District Heights, Maryland, with her son. On that day her cousin, Gary Gulston, who also lived in the apartment, received a page on his beeper. Ms. Gulston heard him respond in his return telephone call that he was on his way. Mr. Gulston then left the apartment.

Ms. Gulston was in her bedroom watching television with her son when she heard Mr. Gulston return eight or ten minutes later. Ms. Gulston overheard several people talking, then two men burst into her room yelling that it was a "stick-up." Ms. Gulston testified that she did not see the men's faces clearly because her face was in a pillow and their faces were covered with hoods. The men tied her hands together with a phone cord, and then asked her for money. The men also asked questions about Mr. Gulston, including where he kept his money. She said that she did not know, and the men ransacked her room, taking keys and jewelry.

Ms. Gulston heard other men in the living room asking Mr. Gulston questions about money and drugs. She heard Mr. Gulston say that there was money at his mother, Jeannette Gulston's, house, and that he knew how to disable the alarm at her house. The men took Mr. Gulston with them and left Ms. Gulston's apartment.

Before they left, the men put Jamal Johnson on the bed next to Ms. Gulston's son. Two men remained in the apartment while the others took Mr. Gulston to his mother's house. Fifteen to twenty minutes later, the men returned without Mr. Gulston. Ms. Gulston, whose hands were still restrained by a phone cord, heard someone come into the bedroom, take Mr. Johnson into the living room, turn up the volume on the television, and fire what sounded like two gunshots. Ms. Gulston could not see who fired the shots or how many people were in the apartment because she was still restrained in the bedroom. After the men left the apartment Ms. Gulston freed herself and called police.

After the incident, Mr. Gulston's car, which had been parked in front of the apartment, was found one block away. Ms. Gulston testified that the men had taken Mr. Gulston's car keys and her house keys when they left to go to Jeannette Gulston's house. In addition, a .25 caliber pistol belonging to Ms. Gulston was stolen.

When officers responded to 6804 Alpine Street, they found Mr. Johnson's body with bullet wounds to his back and to the back of his head. At trial, evidence showed that Mr. Johnson was killed by bullets from a .25 caliber pistol. Officers also recovered .25 caliber bullets and shell casings, a scale, 179 grams of suspected crack cocaine, a shoe box containing plastic baggies and razor blades, a pager, and $2,500.00 cash from Ms. Gulston's apartment. Officers checked Mr. Gulston's car for fingerprints but did not recover any prints.

Officers who responded to 6508 Cricket place, Jeannette Gulston's house, discovered Mr. Gulston's body in the basement. Mr. Gulston was lying on his stomach with a pillow over his head, concealing a gunshot wound to the head. At trial, the State introduced evidence that the bullet recovered from Mr. Gulston's body was fired from a .9mm pistol.

Jeannette Gulston testified regarding the condition of her house. She was out of town at the time of the shooting and returned to find her house ransacked and her previously locked safe unlocked. The contents of the safe, including certificates of deposit, $10,000.00 in savings bonds, and approximately $4,000.00 in cash, were missing.

On 2 August 1993, at approximately 7:00 p.m., appellant was arrested after officers stopped the car in which he was a passenger. Appellant was acting strangely; one officer testified that appellant seemed "very hyper." Officers took appellant to the police station and placed him in an interview room. Detective Kenneth O'Berry read appellant his rights and had appellant sign a waiver form. Appellant wrote on the form that he had used PCP and weed (marijuana). Shortly thereafter, Detective Brian Hickey called Detective O'Berry, who had been questioning appellant, out of the interview room and told him that his supervisor wanted to stop questioning appellant until he slept off the effects of the PCP. Detective O'Berry testified that appellant became loud and boisterous several times while in the interview room.

Detective Andrew Rostich testified that he was in the interview room next to appellant's the night of 2 August 1993. Detective Rostich heard appellant causing several disturbances. At one point, the detective removed all the chairs in appellant's interview room because appellant had been throwing them around. Later, at approximately 2:15 a.m. on 3 August, Detective Rostich hear [sic] another disturbance. He discovered appellant trying to climb into the ceiling panels from the table in the interview room. The detective pulled appellant down from the table. As he was falling, appellant hit his head on the table, thereby injuring his left eye.

Detective Hickey testified that at 4:00 a.m. on 3 August 1993, he returned to the interview room with some food for appellant. Appellant stated that he wanted to sleep. Detective

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