appellate brief (grenness)

IN THE

COURT OF SPECIAL APPEALS OF MARYLAND

SEPTEMBER TERM, 2013

JARED JONES

Appellant

v.

STATE OF MARYLAND,

Appellee

APPEAL FROM THE CIRCUIT COURTFOR BALTIMORE CITY(Thomas Mason, Judge)

BRIEF OF APPELLEE

Esther GrennessAssistant State’s Attorney

Counsel for Appellee

STATEMENT OF THE CASE

Appellant, Jared Jones, was indicted in a two-count Indictment by a Grand Jury sitting

in Baltimore City charging theft of property less than $1,000 and theft of property between

$1,000 and $10,000. The facts of this case arise from an arrest for theft from the Brooks

Brothers Inner Harbor retail store on or about November 29, 2013, a statement Jones made to

police on that date, a conversation that took place between a court intern and a member of the

jury on or about the first day of trial, December 26, 2013, and a note from that juror that the

court answered before notifying counsel of its receipt.

A hearing was held on Appellant’s Motion to Suppress Statements before the Honorable

Thomas Mason on December 23, 2013. The Court issued a Denial Order on the Motion to

Suppress Statements on December 26, 2013. On December 30, 2013, before the verdict was

read, the judge answered a note from a member of the jury. From that note it was discovered a

conversation took place between a court intern and one of the jurors. Appellant then moved

for Mistrial based on an alleged violation of Md. Rule § 4-326(d). The court denied appellant’s

Motion for Mistrial. Appellant timely filed this appeal.

QUESTIONS PRESENTED

I. Motion to Suppress

Was the trial court correct when it denied appellant’s Motion to Suppress Statements

that were made to the police during questioning but prior to appellant’s arrest when those

statements were voluntary?

II. Ex Parte Communication

Was the trial court correct in denying appellant’s Motion for Mistrial when it answered

a juror’s note and the note also revealed a court intern conversed with a member of the jury?

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STATEMENT OF FACTS

I. Motion to Suppress

At approximately 9 a.m. on the morning of Black Friday, November 29, 2013, Officer

Watson was on uniformed duty at Brooks Brothers at the Harbor Place Gallery Mall in

Baltimore. App. 3. There had been reports of thefts at the mall over the course of the last few

weeks. App. 3. Witnesses to the thefts identified three suspects. App. 4. One of the suspects

was described as a brown haired, white male, between 5’6” and 5’11” with medium build, who

wore a brown coat and brown shoes. App. 4.

While on duty, Watson observed Appellant Jared Jones enter the store. App. 4. Jones

has a thin build, is 5’11” with light brown hair, and he was wearing a brown coat. App. 10. As

a brown haired white male wearing a brown coat, Jones matched part of the description of one

of the suspects. App. 4. Noting this, Watson asked Officer Holmes, who was also on duty, to

assist observance of Jones’s activities in the store. App. 4. A larger than average man, Holmes

was wearing regular, plain clothes that day. App. 5. Although armed, Holmes’s weapon was

not likely visible. App. 9.

As the officers watched, Jones removed several items of clothing from the racks and

then picked up a belt. App. 1. He took all the items into one of the dressing rooms. App. 1.

After a few minutes, Jones emerged from the dressing rooms. App. 1. Watson saw Jones

replace the clothing, but he did not notice whether the belt had been returned to the rack. App.

1. Noting this discrepancy, and seeing that Jones was heading to the exit, Watson approached

Jones to ask him some questions. App. 1.

The officers headed to the entrance and stood side by side in front of the door. App. 6.

Watson put his hand up to indicate he wanted Jones to pause. App. 7. Jones was moving at a

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rapid pace, and as a result, collided with Watson’s extended hand. App. 7. Watson dropped his

hand and proceeded to question Jones about his activities and purpose for being in the store.

App 7-8. Jones told them he works nearby and frequents the mall often. App. 12. Jones

testified he had arrived early for his shift at work and decided to browse the mall. App. 11.

Jones accused the officers of questioning him in a hostile and aggressive manner. App.

12. Although possible Watson rested his hand on his weapon while conversing with Jones, he

did not recall doing so. App. 7. Jones claimed that Holmes said, “That’s not good enough,”

when Jones said he was in the store just browsing for clothes. App. 12.

Watson asked Jones about his belt and requested Jones show it to him. App. 6. Jones

agreed, and Watson directed a corner of Jones’s bulky coat to the side for greater visibility.

App 6-7. He then asked Jones to remove the belt for closer examination. App. 12. Jones stated

that he had tried the belt on but forgot to take it off. App. 6. Watson noted the belt was in

brand new condition but with no tags. App. 1. At this juncture, Jones accompanied the officers

to the dressing rooms. App. 1.

The officers asked Jones which dressing room he had used. App. 1. He stated he used

the second room. App. 1. Even though the rooms were small, Jones entered each dressing

room with the officers. App. 8. He laughed as he watched Watson on hands and knees

searching the floor while Holmes directed the search. App. 13. Tags matching the belt were

discovered on the floor of the fourth dressing room. App. 1.

Once the tags were discovered, Jones was placed under arrest and his Miranda rights

were read to him. App. 6. Watson testified that Jones had been free to leave until the tags were

discovered in the dressing room. App. 8. Although Watson and Holmes never stated he was

free to leave, Jones never asked whether he could go. App. 8. The entire interaction between

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Officers Watson and Holmes and Appellant Jones lasted for approximately 15-20 minutes.

App. 5. During the period before his arrest, Jones was not physically restrained at any time.

App. 5. Officer Watson never told Jones that he matched the description of a possible suspect

in the thefts. App. 5.

II. Ex Parte Communication

On or about the first day of trial, December 26, 2013, a court intern spoke with one of

the jurors about her own pregnancy and the juror’s daughter’s pregnancy. App. 16. During the

conversation, the juror stated “that she hoped trial would not last very long,” but she also said

that the “down time” afforded by her jury duty was fortunate because it allowed her to “finish

knitting the booties” she had been working on for her daughter’s baby. App. 17.

The intern was serving an internship with the court. App. 17. Her internship was

unpaid, and the experience provided her with an opportunity to observe the court proceedings.

App. 18. The clerk generally oversaw the intern’s work and assignments. App. 18. The intern

had no prescribed duties; she was free to do nothing more than simply “sit there and watch the

proceedings” with impunity. App. 18.

The juror’s note merely referenced the conversation with the intern. App. 15. The

juror’s note contained nothing to indicate that she may have had any concern about serving on

the jury at the time she told the intern about her daughter’s baby. App 15. There was no

indication from the jury that the juror who wrote the note had rushed them into making a

decision. App. 18. The jury had already reached a verdict when the juror sent the note, and the

note only addressed how much time the juror would have to stay after the verdict was read.

App. 15.

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The judge stated on the record that he saw no harm had occurred as a result of the

conversation between the intern and the juror. App 16. Appellant’s counsel believed the court

could answer its questions about the conversation “just as well” as the intern. App. 17. There

was opportunity to call the intern to the stand, but appellant’s counsel instead waived the

opportunity and stated, “Thank you, Your Honor. I don’t believe we need to put your intern on

the stand.” App. 18. The verdict had not yet been read, so the jury was not yet dismissed. App.

15. However, the juror who wrote the note was not called in for questioning about the note and

her state of mind at the time of her conversation with the intern. App. 15-16. The jury had

already reached a verdict when the judge answered the juror’s question. App. 15-16.

ARGUMENT

I. The trial court was correct when it denied appellant’s Motion to Suppress

Statements because appellant was not in custody at the time he made the statement.

Standard of Review

When reviewing trial courts’ decisions on motions to suppress statements where no

Miranda warnings were proffered, the court “review[s] the record of the suppression hearing in

the light most favorable to the State as the prevailing party.” Moody v. State, 209 Md. App.

366, 379 (2013) (internal citations omitted). Unless the trial court’s “first-level factual

findings” were “clearly erroneous,” appellate courts accept those findings. Id. However, even

when those findings are accepted, the court then “conduct[s its] own independent constitutional

appraisal of the record to determine if, on the facts found, the defendant was ‘in custody’” for

Miranda purposes. Id. (quoting Buck v. State, 181 Md. App. 585, 609 (2008)).

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Discussion

The Fifth Amendment to the Constitution provides that no person shall be compelled to

testify against himself in any criminal matter. U.S. CONST. amend. V. Article 22 of the

Maryland Declaration of Rights has a similar safeguard in criminal cases that ensures no one is

forced to provide self-incriminating evidence. MD CONST. DECL. RIGHTS, Art. 22. In Miranda

v. Arizona, the Supreme Court determined that any statements obtained while a person is

subjected to a custodial interrogation are inadmissible. Miranda v. Arizona, 384 U.S. 436, 479

(1966).

A totality of the circumstances test is used to establish whether a person was subjected

to a custodial investigation. Owens v. State, 399 Md. 388, 428 (2007). All circumstances

surrounding the interrogation are entered into the equation. Moody v. State, 209 Md. App. 366,

382-83 (2013) (citing Thomas v. State, 429 Md. 246, 260-61 (2012)). The court reviews

everything that occurred “before, during, and after the interrogation took place.” Thomas v.

State, 429 Md. 246, 260 (2012). However, no single piece is “pars[ed] out” and “treated as its

own totality.” Ransome v. State, 373 Md. 99, 104 (2003). The totality of the circumstances test

applies a reasonable person standard, and it is two-fold. Moody at 382.

The first consideration is whether a reasonable person in the defendant’s position would

have felt free to leave. Moody at 382 (citation omitted). This first consideration is an important

factor, but it is not dispositive for whether there was custody. Id. Because this reasonable

person’s perceived “freedom-of-movement” consideration is merely a necessary rather than a

sufficient condition in the custody analysis, it is not accorded “talismanic power.” Maryland v.

Shatzer, 559 U.S. 98, 112 (2010) (internal citations and quotations omitted).

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The second consideration is “whether a reasonable person would understand that his

freedom of action is restricted to a degree associated with a formal arrest.” Moody at 382. It is

this second consideration that is the “ultimate inquiry” for Miranda purposes. Owens at 428

(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curium)). This second aspect

evaluates whether the defendant’s freedom of action was curtailed to the degree seen in a

formal arrest. Moody at 382. See also Maryland v. Shatzer at 112; State v. Rucker, 374 Md.

199, 211 (2003); Smith v. State, 186 Md. App. 498, 533-35 (2009), aff’d, 414 Md. 357 (2010).

Jones was not in custody at the time the officers questioned him, and a reasonable

person would understand that he was free to terminate the interaction at any time. A

reasonable person would understand that he did not have to answer the questions posed. A

reasonable person would also understand that it was not mandatory for him to accompany the

officers to the dressing rooms. A reasonable person would also have known that his freedom

of action was not restricted.

The reasonable person standard is an objective one, and subjective beliefs are irrelevant.

Stansbury v. California, 511 U.S. 318, 319 (1994). If Jones did feel he was not free to leave,

he never asked if he could go, and neither does the record show he voiced any concerns about

possible arrest. App. 8. Unarticulated thoughts of either the defendant or the law enforcement

officer are not subject to evaluation in the totality of the circumstances test. Moody at 385. As

such, it is irrelevant to the Miranda analysis whatever Jones’s subjective thoughts were about

the intentions the officers may have had for his fate. Stansbury at 324.

Moreover, even Jones’s inculpatory statement that he had “tried [the belt] on and forgot

he was wearing it” is not determinative. App. 6. Confession does not amount to a functional

arrest; it is merely a consideration in the totality of the circumstances analysis. Thomas at 261.

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Significantly, in Thomas, the defendant confessed to having had sex with his fourteen-year-old

daughter. Id. at 266. Despite the fact the defendant went to the police station and was

subjected to extensive, in-depth questioning, the court ruled that he was not in custody, and his

confession was admissible. Id. at 272. Therefore, Jones still would not have been in custody

even had he blurted, “I stole it,” at the moment the police asked him where he got the belt.

Accord Thomas at 252; Smith v. State, 186 Md. App. 498, 516 (2009).

Further, it is immaterial whether or not Jones subjectively believed he would be arrested

should he end the questioning. “[A] belief held by a suspect that police have probable cause to

arrest him or her is not sufficient to render the individual in custody for Miranda purposes.”

Thomas at 252. While it is true police presence can in itself create an intimidating atmosphere,

this does not equate to custody. Smith v. State at 528. Indeed, if Jones felt he was not free to

leave, his level of restriction was akin to that of a person experiencing a traffic stop. Shatzer at

113. Although the person may not feel immediately free to leave, this perceived restriction is

“relatively nonthreatening and temporary,” and it “does not constitute Miranda custody.” Id.

As such, Miranda is not implicated by the mere fact that Jones might have been apprehensive

he would be arrested should he refuse to stop and answer questions. Accord Thomas at 252;

State v. Rucker, 374 Md.199, 221 (2003).

Even more, simple arrest at the end of the questioning does not of itself create a custody

situation. Thomas at 271. Indeed, the defendant in State v. Rucker was considered not in

custody even though he was arrested immediately after he confessed he had something “he was

not supposed to have” in his pocket, which was cocaine. Rucker at 203. Here, Jones admitted

having the belt improperly at the store entrance. App. 6. Once Jones removed the belt and its

brand new condition was observed, the officers had to walk over to the dressing rooms. App. 8.

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It was not until the matching tags were found after a painstaking search on the floor in each of

its four stalls that Jones was arrested. App. 1, App. 13. This allowed Jones plenty of time to

process the clear distinction between his delay and an actual arrest.

Moreover, in order for a restriction to rise to the “significant” level, it must be such that

it is the same as the curtailment one would see in a formal arrest. Moody at 382. The freedom

of action consideration is the “ultimate inquiry” in the totality of the circumstances test.

California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curium). Unlike Jones’s experience, in

State v. Rucker, the defendant was held down in a “prone position” immediately after he

admitted to “having something he shouldn’t have.” Rucker at 203-04. While the defendant was

restrained, the officer put his hand in the defendant’s pocket and recovered the cocaine. Id. at

204. Despite the physical restraint, the court ruled there was no Miranda custody. Id. at 221.

Here, at no time did the officers physically restrict Jones’s freedom of movement. App. 5. The

only contact between Jones and the officer was when Jones ran into the officer’s outstretched

hand and when Jones’s coat was lifted to the side. App. 7.

Finally, Jones’s interview with the police from start to finish lasted only 15-20 minutes,

and it occurred in a mall, which is a public place. App. 3, App. 5. Such a “brief investigatory

stop” that was “conducted in a public place” does not constitute “custody” for Miranda

purposes. Rucker at 222. Unlike Jones’s experience, in Robinson v. State, the defendant was

detained at the police station for over eight hours, placed in a police car with bags over her

hands, photographed upon arrival at the station house, placed in a holding cell until she was

questioned, and her answers recorded. Robinson v. State, 419 Md. 602, 615-16 (2011). Jones

experienced none of these; he was simply asked to pause to answer some questions and

accompanied the officers to the dressing rooms. App. 7, App. 9.

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II. The trial court correctly denied appellant’s motion for mistrial when it determined

there had been no ex parte communication with the jury.

Standard of Review

When appellate courts review denials of motions for mistrials due to communications

with the jury, in order

[t]o determine the existence of reversible error, ordinarily [the court] conduct[s] two inquiries: (1) whether an error occurred in the trial court; and (2) if so, whether that error was harmless beyond a reasonable doubt. With respect to the first inquiry, [the court has] held that there is a presumption of regularity which normally attaches to trial court proceedings.

Black v. State, 426 Md. 328, 337 (2012) (internal quotations and citations omitted).

The burden lies with the appellant to prove error occurred and “overcome the

presumption of regularity or correctness.” Id. However, if error is found to have occurred, the

burden then shifts to the “State to establish that the error was harmless beyond a reasonable

doubt.” Id. at 338 (citation omitted).

Discussion

Maryland Rule 4-326(d) governs communications between the court and the jury. This

Rule is a mandatory one that is in place to protect a defendant’s constitutional and common

law “right to be present at every stage of his trial.” Black v. State, 426 Md. 328, 339 (2012)

(internal citations and quotations omitted). The Rule provides that

[t]he court shall notify the defendant and the State's Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication. All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action. The clerk or the court shall note on a written communication the date and time it was received from the jury.

Md. Rule. 4-326(d).

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Md. Rule 4-326(d) is not even implicated by the facts in this situation. Receipt of juror

communications are only within the meaning of Rule 4-326(d) when the communication

“pertains to the action at a time before the jury renders its verdict.” Black at 342 (emphasis

added). Here, although the juror’s note asking when she could leave after reading the verdict

did pertain to the action, it took place after the jury had rendered a verdict. App. 15. The jury

had decided, and all that was left for them to do was read the note in court. App. 15. As such,

the trial court made no error when the judge disclosed the note after he answered the juror’s

question. App. 16, Black at 341. Because there was no communication with the court within

the meaning of the Rule, there was no violation of Rule 4-326(d). Black at 341.

In addition, the intern was not part of the judge’s staff. “[R]ules pertaining to ex parte

communication apply whether the communication is to the judge or the judge’s staff.” Harris

v. State, 189 Md. App. 230, 243 (2009). Persons defined as the judge’s staff are “court

personnel who are subject to the direction and control of the judge.” Black at 342 (emphasis

added). An unpaid intern who may simply “sit there and watch the proceedings” with no

prescribed duties surely cannot be an employee or court personnel. App. 17-18. As such, the

intern here was not a part of the judge’s staff and therefore cannot be considered an “extension

of the judge” or “included within the meaning of ‘court.’” Harris at 243.

Even if, arguendo, the intern is deemed to be part of the court, Md. Rule 4-326(d) still is

not implicated. Only communications pertaining to the action that are received by the court

fall within the purview of Rule 4-326(d). Black at 342. This is the time at which “the mandates

of the Rule are triggered.” Id. The conversation between the intern and the juror did not

pertain to the action because it was “purely personal” in nature. Graham v. State, 325 Md. 398,

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415 (1992). Rather, it was a conversation about the intern’s pregnancy and the juror’s

daughter’s pregnancy. App. 16-17.

If, however, the conversation is considered a communication with the court and thus an

error, the integrity of the proceedings was unharmed beyond a reasonable doubt. The juror

expressed no concern about her fitness to serve on the jury, and there was no indication from

the jury that the juror who wrote the note was “rushing them” to make a decision. App. 17-18.

Instead of concern about her ability to serve, the juror’s hope that the “trial would not last very

long” was an idle statement. App. 17. Indeed, the statement was qualified with a superseding

comment that the juror was enjoying the “down time” that her jury duty afforded her, which

allowed her to “finish knitting the booties” she had been working on for her daughter’s baby.

App. 17.

This lack of expressed concern is completely different from the facts of Harris v. State

because there the juror expressed concern about his service on the jury as far back as voir dire.

Harris at 236. His concern was that his grandmother was not expected to live, and his fitness

to serve was qualified when he said, “if there’s no funeral, then I’m fine being here.” Id. This

concern resurfaced when the juror asked to be “excused from jury duty for family

preparations” for the funeral. Id. at 238. This note was sent to the judge “shortly after the jury

began deliberating.” Id. A juror who asked to be discharged before deliberations were

complete is a far cry from one who merely inquired how long she was obliged to remain after

the verdict read and her duties discharged. Harris at 240, App. 15.

Additionally, defense counsel did not “believe [it] need[ed] to put [the court’s] intern on

the stand.” App. 18. Evidently, the judge’s second hand knowledge of the conversation

answered the defense’s questions “just as well.” App. 17-18. Certainly, direct questioning of

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the intern would have been more informative as support for appellant’s Motion for Mistrial and

on appeal if appellant truly felt its defense had been undermined in any way.

Finally, even though the verdict had been reached, it had not yet been read when the

judge received the note, which meant the jury was not yet dismissed. App. 15. As such, the

juror could have been questioned about her state of mind at the time of her conversation with

the intern, but appellant’s counsel never exercised this right when there was an opportunity to

ascertain the alleged damage to the defense. App. 15.

CONCLUSION

For the foregoing reasons, the trial court’s denial of both appellant’s Motion to Suppress

Statements and its Motion for Mistrial was proper. As such, the State asks that this Court

uphold both of the lower court’s decisions.

Respectfully submitted,

Esther GrennessAssistant State’s Attorney

Counsel for Appellee

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Supplemental Memorandum was

mailed this ____ day of _______________________, 2014, by first-class, postage pre-paid,

United States Mail to Nicholas Clark, Esquire, 201 N. Charles Street, Suite 4600, Baltimore,

Maryland 21201.

__________________________________Esther Grenness

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