Wimbish v. State

• Decision Date: 29 September 2011
• Docket Number: No. 1672,Sept. Term,2009.,1672
• Parties: Daymar Lydell WIMBISHv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

201 Md.App. 239

29 A.3d 635

Daymar Lydell WIMBISH

v.STATE of Maryland.

No. 1672

Sept. Term

2009.

Court of Special Appeals of Maryland.

Sept. 29, 2011.

Benjamin C. Sutley, Baltimore, MD, for Appellant.Diane E. Keller (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.Panel: KRAUSER, C.J., GRAEFF, and HOTTEN, JJ.KRAUSER, C.J.

Convicted, after a jury trial in the Circuit Court for Howard County, of attempted robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and multiple weapons offenses,¹ appellant, Daymar Lydell Wimbish, presents the following questions for our review:

I. Did the circuit court err in denying his motion to suppress his statements to police?

II. Did the circuit court err in admitting evidence of his gang affiliation?

III. Did the circuit court err in instructing the jury that he had previously been convicted of a “crime of violence”?

IV. Did the circuit court err in propounding certain questions during voir dire?

V. Did the cumulative effect of “inadmissible and admissible prejudicial evidence” deny him a fair trial?

VI. Did the circuit court err in failing to merge his three convictions arising out of his possession of a firearm?

For the reasons that follow, we shall reverse the judgment of the conviction for possession of a regulated firearm by a person under the age of twenty-one and affirm all other judgments.

Background

Early on the morning of May 17, 2008, appellant, a member of the “Bloods” gang, led members of that gang in an attempted armed robbery of the occupants of a vehicle driven by a Jason Batts. The attempted robbery ended in the shooting and killing of that young man. But, Batts was not the intended target of the shooting. A passenger in Batts's car named Elijah Jackson was. He had purportedly given information to police about another member of the Bloods, Ronald McConnell.

The events leading up to the shooting began when McConnell learned that Elijah Jackson was “snitching” on him to the police. So, on the evening of May 16th, McConnell, who lived in Columbia, Maryland, telephoned his cousin, Lamont Johnson, while Johnson was at appellant's apartment, in Baltimore County, with another member of the Bloods, Ms. Jazmica Johns. McConnell instructed Lamont Johnson to come to Columbia for the purpose of robbing Elijah Jackson. Johnson and Jazmica Johns then met McConnell and other Bloods at a Columbia apartment which was used as a staging area for drug- and gang-related activities. There, McConnell gave Johnson a “12–gauge sawed-off” shotgun, which would later be used in the shooting.

Later that evening, during a telephone conversation, Lamont Johnson asked appellant to meet him in Columbia. Appellant left for Columbia, taking with him another member of the Bloods, Kevin Jennings. On the way to Columbia, appellant told Jennings that the purpose of the trip was to “handle business” that related to someone who had “snitched on our OG's ² cousin.” Although the precise rank of each of the gang members is not entirely clear, the testimony suggested that appellant occupied a higher position in the Bloods than either Jazmica Johns, Lamont Johnson, or Kevin Jennings.

Once in Columbia, the group telephoned Elijah Jackson. In an attempt to find out where he was, they told Jackson that they wanted to buy drugs from him. When Jackson indicated that he was not interested, appellant, Johnson, Jennings, Ms. Johns, and an unidentified fifth Blood set out in Jennings's car to try to find him. Appellant decided that Lamont Johnson would carry the gun because, as appellant put it, Johnson knew “how to handle a shotgun.”

After driving around Columbia for approximately thirty minutes, the group spotted Elijah Jackson, in a car, with two other people. When that car pulled into a parking lot, Jennings followed and parked nearby. At that point, appellant instructed Ms. Johns to approach the vehicle and “distract” its occupants by asking to use a cell phone. As directed, Ms. Johns walked to the parked vehicle. As she approached the passenger's side of the car, Batts was in the driver's seat, Elijah Jackson was in the front passenger's seat, and Jackson's sister was seated behind him.

While Ms. Johns was speaking to the occupants of Batts's car, Lamont Johnson and appellant approached, walking to opposite sides of the vehicle. Pointing the shotgun at Elijah Jackson, through the car's open window, Johnson said, “You know what time it is.” Then, after telling Elijah Jackson not to “ f'ing move,” Johnson fired the shotgun, twice, through the car window. Missing Jackson, one of the two blasts struck Batts in the back, severing his spinal cord.

Ms. Johns, Lamont Johnson, and appellant then ran back to Kevin Jennings's car, and the group fled in that vehicle. As they drove away, appellant rebuked Johnson, as he would again later that evening, for shooting before they could extract any money from the occupants of Batts's car.

When the group returned to the apartment in Columbia, appellant instructed the others not to tell anyone what had happened. Expecting a lot of police activity in response to the shooting, he added that he, Johns, Johnson, and Jennings would “wait it out” at the apartment before driving back to Baltimore.

When police arrived, at the location of the shooting, they found Batts dead and Elijah Jackson and his sister “close to ... hysterical.” Eventually, their investigation into the shooting led them to appellant, and, on July 2, 2008, they arrested him.

Although charged with one count of first-degree murder, among numerous other counts related to the weapon and attempted robbery, a jury found appellant guilty only of conspiracy to commit armed robbery, the attempted armed robbery of Elijah Jackson, and each of the three weapons counts, that is, possession of a regulated firearm by a person previously convicted of a crime of violence, possession of a regulated firearm by a person under age 21, and possession of a short-barreled shotgun. The circuit court thereafter sentenced him to fourteen years' imprisonment for attempted armed robbery, fourteen years' imprisonment for conspiracy to commit armed robbery, and five years' imprisonment for each of the weapons offenses. Each sentence was to be served consecutively, for a total sentence of forty-three years.

Discussion

I.

Appellant contends that the circuit court erred in denying his motion to suppress the statement he made during his custodial interrogation by police. Insisting that he made two “requests” for an attorney at the outset of his interrogation, he maintains that the police ignored both requests and then interrogated him for nearly three hours.

At a hearing on appellant's suppression motion, the circuit court heard testimony from the interviewing officers and from appellant and watched a video recording of the interview. The court then rejected appellant's claim, finding that he had not invoked his right to counsel until three hours into the interview; at which point, the officers ended their interrogation. Concluding that he had, therefore, waived his Miranda rights, the court denied his motion to suppress.

In reviewing the denial of a motion to suppress, we consider “only those relevant facts produced at the suppression hearing that are most favorable to the State as the prevailing party on the motion.” Wengert v. State, 364 Md. 76, 84, 771 A.2d 389 (2001). While we accept the factual findings of the trial court, unless those findings are clearly erroneous, we “make our own independent constitutional appraisal as to whether an action was proper by reviewing the law and applying it to the facts of the case.” Billups v. State, 135 Md.App. 345, 351, 762 A.2d 609 (2000) (citation and internal quotation marks omitted).

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court put into place “ ‘certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.’ ” Lee v. State, 418 Md. 136, 149, 12 A.3d 1238 (2011) (quoting Florida v. Powell, 559 U.S. ––––, 130 S.Ct. 1195, 1203, 175 L.Ed.2d 1009 (2010)) (internal quotation marks omitted). If a suspect knowingly and intelligently waives his right to counsel during a custodial interrogation, “law enforcement officers are free to question him.” Davis v. United States, 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (citing North Carolina v. Butler, 441 U.S. 369, 372–76, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)). “But, if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation.” Id. (citing Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)).

In Davis, the Supreme Court considered whether a suspect had invoked his right to counsel when, in the course of a custodial interrogation and after waiving his Miranda rights, he stated, “Maybe I should talk to a lawyer.” 512 U.S. at 455, 114 S.Ct. 2350. Although the interviewing agents inquired as to what Davis meant, they did not cease the interrogation at that point. Id. The subsequent statements made by Davis were, thereafter, admitted into evidence at trial, after Davis's motion to suppress them was denied. Id.

In holding that Davis had not invoked his right to counsel before giving the statements at issue and that, therefore, the statements were admissible, the Supreme Court promulgated the standard to be applied in determining whether such an invocation has been made:

Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a...