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Opinions – 2/7/13: Maryland Court of Special Appeals

Civil Procedure

Default judgment

BOTTOM LINE: Plaintiffs were entitled to a default judgment and damages against defendant where the notice of default was mailed to defendant’s “last known address,” as required by Rule 2-613(f), and where defendant had actual notice of the order of default and the hearing on damages and neither moved to vacate the order nor attended the hearing.

CASE: Smith-Myers Corporation v. Sherill, No. 2034, September Term, 2011 (filed Jan. 24, 2013) (Judges KEHOE, Berger & Rubin (specially assigned)). RecordFax No. 13-0124-01, 31 pages.

FACTS: In January 2007, Ada Sherill and James Mills sued Patricia Lawson, Johnny Beans, Smith-Myers Corporation d/b/a Smith-Myers Mortgage Group (Smith-Myers), and Beltway Title & Abstract, Inc., alleging that the defendants engaged in a fraudulent scheme to deprive them of the equity value of their home.

Sherill and Mills’ original complaint stated that the mailing address of Smith-Myers was 9700 Basil Court in Largo. However, that address was incorrect. Smith-Myers’ correct mailing address is 9200 Basil Court in Upper Marlboro. However, there was no dispute that Smith-Myers was properly served by personal service.

Herbert Callihan filed an answer on behalf of Smith-Myers but the answer did not correct or otherwise reference the complaint’s use of the 9700 Basil Court address.

Approximately one year later, Callihan withdrew as counsel for Smith-Myers. Larry Burch entered his appearance for Smith-Myers.

In April 2008, Burch filed a request to withdraw his appearance from the case. Attached to this request was a certificate of service indicating that he had mailed a copy of his motion to Jeffrey Smith, the president of Smith-Myers, at the 9200 Basil Court address. Also attached to the request as an original document exhibit was Smith-Myers’ consent to withdraw which listed 9200 Basil Court as the address for Smith-Myers. On May 19, 2008, the circuit court granted Burch’s request.

The clerk’s office mailed a copy of the order to Smith at the 9200 Basil Court address. There was no dispute that Smith-Myers received a copy of this order. In addition, there was no dispute that, at the time of his withdrawal, Burch advised Smith-Myers to retain new counsel.

However, no attorney entered an appearance on behalf of Smith-Myers for approximately ten months. During this period, the circuit court held three status conferences all of which Smith-Myers failed to attend. Notices of these conferences were sent to Smith-Myers at the 9700 Basil Court address.

On December 11, 2008, Sherill and Mills filed a motion for default judgment, in which they asserted that Smith-Myers’ last known address was 9700 Basil Court in Largo.

The circuit court issued an order of default against Smith-Myers. This order was mailed to 9700 Basil Court, but a copy of the order was also mailed to Callihan. According to Smith-Myers, Callihan informed the company that an order of default had been issued against it. However, Smith-Myers did not move to vacate the order of default on a timely basis.

The circuit court entered a default judgment against Smith-Myers in the amount of $627,277 plus costs. Smith-Myers filed a motion to vacate default judgment, which the circuit court denied.

Smith-Myers filed an appeal although the circuit court had not yet resolved the claims against the other defendants. See Smith-Myers Corp. v. Sherill (Smith-Myers I), No. 2234, September Term, 2009, filed April 6, 2011. The Court of Special Appeals dismissed the appeal as premature and remanded the case to the circuit court. On remand, the circuit court dismissed the claims against the other defendants, thus rendering the judgment against Smith-Myers final.

The Court of Special Appeals affirmed.

LAW: “If the time for pleading has expired and a defendant has failed to plead…, the court, on written request of the plaintiff, shall enter an order of default. The request shall state the last known address of the defendant.” Rule 2-613(b). The clerk must issue a notice informing the defendant that the order of default has been entered and that the defendant has 30 days in which to move to vacate the order. The notice shall be mailed to the defendant at the address stated in the request and to the defendant’s attorney. Rule 2-613(c).

Rule 2-613(f) provides that if a motion to vacate is not filed or was filed and denied, the court may enter a judgment by default that includes a determination as to liability and all relief sought, if it is satisfied (1) that it has jurisdiction to enter the judgment and (2) that the notice required by section (c) was mailed.

Here, Smith-Myers did not dispute that the circuit court mailed a document containing the information required by Rule 2-613(c) to the address indicated in the request for order of default — 9700 Basil Court, Suite 100. Smith-Myers asked the Court to interpret Rule 2-613(f) as imposing an additional requirement upon a circuit court; namely, to satisfy itself that the last known address designated in the request for an order of default is, in fact, the defaulting party’s correct mailing address.

“When construing a rule, we must first look to the words of the rule, giving them their ordinary and natural meaning. Generally, it is only when the words of the rule are ambiguous that we must look toward other sources to glean the intent of the rule. Furthermore, we must give effect to the entire rule, neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the words actually used.” In re Victor B., 336 Md. 85, 94 (1994).

Applying these principles of interpretation to Smith-Myers’s argument, there is nothing in Rule 2-613 that suggests that the circuit court carries the burden of ensuring that the order of default was sent to the defaulting party’s correct mailing address.

Furthermore, the history of Rule 2-613 underscores that the plain language of the rule is contrary to Smith-Myers’s interpretation. “As originally drafted, Rule 2-613 provided that the notice of order of default be mailed to the defaulting defendant at the address provided for him in the complaint without regard for whether he might have a more current mailing address.” Armiger Volunteer Fire Co. v. Woomer, 123 Md. App. 580, 590-91 (1998).

In 1983, the Comment Review Committee recommended that this requirement be amended to take account of the fact that at the time of requesting an order of default the plaintiff may have a more recent or accurate address for the defendant than was provided in the complaint. Thus, the Rule was amended to read as it does today.

Nowhere does this history suggest that Rule 2-613 requires, or was intended to require, a court to independently determine whether “the last known address” supplied by the moving party is, in fact, the correct mailing address of the party in default.

Thus, Rule 2-613(f)’s requirement that the court satisfy itself that the appropriate notice has been mailed to the defaulting party’s last known address is met when the record is clear that the notice was mailed to the address indicated in the request for an order of default. It is incumbent upon the party seeking the order of default to supply the circuit court with the defaulting party’s last known mailing address.

Accordingly, the next issue was whether the address to which the Rule 2-613(c) notice was sent — 9700 Basil Court — was Smith-Myers’s “last known address.”

The last use of Smith-Myers’s correct address (prior to the default judgment) was in 1) the certificate of service and the consent to withdraw attached to Burch’s motion, and 2) the May 19, 2008 order granting Burch’s motion to withdraw. At that time, however, nothing in the record indicated that 9700 Basil Court was not also a correct address for Smith-Myers. Smith-Myers failed to inform the court that the 9700 address was incorrect until its motion to vacate the default judgment, which was filed approximately two years and two months after Smith-Myers was served with the original complaint.

A party has “a continuing obligation to furnish the court with her most recent address.” Estime v. King, 196 Md. App. 296, 306 (2010). This obligation may be satisfied by filing a “pleading” or a “paper” with the court listing the correct address. Id. at 304-07.

The record contained only four instances where the correct 9200 address was listed — the affidavit of the process server, the certificate of service and consent to withdraw attached to Burch’s motion to withdraw appearance, and the May 2008 order striking Burch’s appearance. Neither the affidavit of the process server nor the order was filed by Smith-Myers. Thus, these documents did not satisfy Smith-Myers’s obligation to provide a correct address. Likewise, the only pleading filed by Smith-Myers — its answer — did not list an address for Smith-Myers. Therefore, the determination rested on whether either the certificate of service or the exhibit attached to Burch’s motion to strike his appearance constitutes a “paper” under the rule.

Rule 1-323 provides that: “The clerk shall not accept for filing any pleading or other paper requiring service, other than an original pleading, unless it is accompanied by an admission or waiver of service or a signed certificate showing the date and manner of making service.” On its face, this rule distinguishes between a “pleading or other paper” and a certificate of service. See Duckett v. Riley, 428 Md. 471 (2012). Thus, the certificate of service attached to the notice of withdrawal and substitution of counsel is not a paper under the Rules.

Similarly, Rule 2-311(c) distinguishes between a “motion,” on one hand, and exhibits attached to the motion, on the other. Thus, exhibits attached to a motion are not “papers” and cannot provide a basis to satisfy a defendant’s obligation to furnish the court with its most recent address. Therefore, the consent to withdraw exhibit is not a paper. See also Rules 1-301; Rule 1-311(a).

Ultimately, having filed no pleadings or papers listing the 9200 address, Smith-Myers failed to fulfill its obligation to furnish its correct address to the court. Accordingly, it could not be said that 9200 Basil Court, as opposed to 9700 Basil Court, was Smith-Myers’s “last known address.”

Therefore, Sherill and Mills fulfilled their obligation to provide the court with Smith-Myers’s last known address when they provided the 9700 Basil Court address in their motion. Furthermore, the circuit court did not err in mailing the order of default to the 9700 address.

Furthermore, even though the order of default may have been mailed to the wrong address, Smith-Myers conceded that it still had actual notice through Callihan of the order of default and the hearing on damages. Despite this actual notice, Smith-Myers did not move to vacate the order of default, and did not attend the hearing on damages.

COMMENTARY: A default order will be vacated if there is a “substantial and sufficient basis for an actual controversy as to the merits of the action” and it is “equitable to excuse the failure to plead.” Rule 2-613(e).

Smith-Meyers met the first requirement through the allegation in Jeffrey Smith’s affidavit that Smith-Myers did not authorize, condone or know about any of the purported actions of the defendants, which was attached as an exhibit to the motion to vacate default judgment.

Smith-Myers blamed its failure to vacate the order of default and its failure to appear at the hearing on damages on Peter Maignan, who Smith-Myers had retained Maignan to represent them at the commencement of this case. However, Maignan had been indefinitely suspended or disbarred from the practice of law in Maryland. Although Smith-Myers knew that Callihan, and then Burch, had withdrawn appearances in the case, it asserted that it believed that both Callihan and Burch had worked for Maignan, and that Maignan was its attorney of record.

Nonetheless, even if Smith-Myers was informed by Maignan that he would represent it and Smith-Myers relied on Maignan’s statement, as the litigation unfolded, this reliance clearly became unreasonable. The circuit court’s May 19, 2008 order striking Burch’s appearance informed Smith-Myers that as a corporation they must be represented by a Maryland attorney.

Furthermore, in an affidavit filed in support of Sherill and Mills’s opposition to Smith-Myers’s motion to vacate, Burch stated that he advised Smith-Myers prior to the time of its withdrawal from representation that Maignan was not licensed to practice law in Maryland.

In the approximately ten months from the time Burch withdrew his appearance until the date of the entry of the order of default, Smith-Myers did nothing to assure itself that it had counsel. Moreover, its reliance on Maignan was unreasonable in light of his inaction and Burch’s warning that Maignan was suspended or disbarred. Finally, when it received notice of the order of default from Callihan, it did nothing other than to contact Maignan.

Because Smith-Myers did not establish an “equitable [basis] to excuse the failure to plead,” Rule 2-613(e), the circuit court did not err in denying the motion to vacate.

PRACTICE TIPS: “A default judgment is considered more akin to an admission of liability than to a punitive sanction.” Porter Hayden Co. v. Bullinger, 350 Md. 452, 472 (1998).

Criminal Law

Sufficiency of evidence 

BOTTOM LINE: The evidence presented at trial was sufficient to sustain defendant’s convictions for assault and gun-related charges beyond a reasonable doubt; however, the circuit court erred in failing to merge defendant’s sentence for wearing, carrying or transporting a handgun, with the sentence imposed for using a handgun during the commission of a crime of violence.

CASE: Holmes v. State, No. 2128, September Term, 2011 (filed Jan.24, 2013) (Judges Kehoe, BERGER & Rubin (specially assigned)). RecordFax No. 13-0124-04, 42 pages.

FACTS: Keytwan Deputy and his father, Debro Muhammad, were visiting Standsberry Lee in his home. In addition to Deputy, Muhammad, and Lee, a handful of other individuals were present at Lee’s house, including Bruenell Coleman, a man identified as “K.J.,” and another man that was referred to as “Q.” Also at Lee’s house, arriving subsequent to Deputy and his, was Dewam Holmes.

While at Lee’s house, Holmes and Deputy got into an altercation. Holmes left. Moments later, however, Deputy heard a knock at the door. K.J. answered the door and Holmes re-entered the house. Deputy testified that when Holmes came in, he shut the door behind him. He lifted his shirt up and began drawing a handgun. After Holmes revealed the revolver, Deputy began running through the residence away from Holmes. Deputy ran into a bedroom and straight through a glass window.

After running for a few blocks, Deputy hid behind a house. Deputy eventually was able to find someone who alerted the paramedics. While being inspected for injuries on a porch, Deputy was told that he was shot. Thereafter, Deputy was transported to a hospital and treated for a gunshot wound to his right leg, along with other cuts from the shattered glass.

Holmes was convicted of first-degree assault; using a handgun during the commission of a crime of violence; wearing, carrying, or transporting a handgun; possessing a regulated firearm after having been convicted of a disqualifying felony; and discharging a firearm within the city limits of Baltimore City.

The trial court sentenced Holmes to 15 years imprisonment for first-degree assault; 15 years for using a handgun in the commission of a crime of violence (concurrent with the assault sentence); three years for wearing, carrying, or transporting a handgun (also concurrent with the assault sentence); five years for possessing a regulated firearm after having been convicted of a disqualifying felony (consecutive to the assault sentence); and one year for discharging a firearm within Baltimore City limits (concurrent with the assault sentence), for a total of 20 years of imprisonment.

The Court of Special Appeals affirmed the judgments of the circuit court. It, however, merged Holmes’s sentence for wearing, carrying, or transporting a handgun into Holmes’s sentence for use of a handgun during the commission of a crime of violence.

LAW: When reviewing the sufficiency of the evidence in a criminal trial, the Court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

At trial, the court instructed the jury that “a firearm is a weapon that propels a bullet or missile or projectile by gunpowder or some similar explosive.” Under the Maryland Code, a handgun “means a pistol, revolver, or other firearm capable of being concealed on the person.” CL §4-201(c)(1). To qualify as a “handgun,” a device must be a “firearm.” Further, in order to qualify as a “firearm,” it “must propel a missile by gunpowder or some such similar explosive” or “be readily or easily converted into a device capable of so propelling a missile.” Wright v. State, 70 Md. App. 616, 620 (1987). Accordingly, the circuit court’s instruction to the jury on the use of the term “firearm” was consistent with the law.

Deputy testified that when Holmes returned to Lee’s residence, Holmes “lift[ed] his shirt up” and “at the same time [he was] lifting his shirt up he [drew] a handgun. It was a revolver from his waistband. Moreover, Deputy described the handgun as a “357,” “long, long nose” that appeared to have a “western type butt of a gun.” Deputy further testified that he did not hear the shot inside the residence. Deputy identified Holmes as the individual possessing a firearm. Furthermore, evidence was presented that both Lee and Coleman provided statements to police officers in which they stated that they saw Holmes with a firearm that evening.

Although Lee testified at trial that the individual who came back with the gun was not Holmes, that was not what he told police, both Lee and Coleman’s prior statements to police indicated that Holmes was in possession of a handgun. As such, the prior statements could be used as substantive evidence that Holmes was in possession of a handgun, which was properly before the jury. Accordingly, the jury had every right to weigh and consider all of the evidence submitted at trial in reaching its verdict. State v. Mayers, 417 Md. 449, 466 (2010). Therefore, the evidence adduced at trial provided a sufficient basis from which the jury could conclude that Holmes was in possession of a handgun on the evening in question.

Furthermore, the record revealed that the parties stipulated that Holmes had been convicted of a crime that disqualified him from possessing a handgun. Accordingly, the evidence was sufficient to sustain Holmes’s conviction for possession of a regulated firearm after having been convicted of a disqualifying felony.

Holmes maintained that there was no physical evidence that he discharged a firearm because there was no firearms evidence found at or near the location of the incident. Holmes failed to provide any basis or reason as to why such evidence would be found or detected in Lee’s residence. Deputy testified Holmes was in possession of a revolver. No evidence was presented at trial to dispute that the firearm was a revolver or that a revolver would leave behind “shell casings” or “ballistics evidence” if discharged. In addition, because Deputy was treated at a different location, a search of Lee’s residence might not contain any ballistics evidence.

Moreover, the mere fact that Deputy did not witness Holmes discharge a firearm is not dispositive. Deputy testified that after he ran through the bedroom window, he immediately heard a gunshot while he was outside of Lee’s house. Based on the evidence, it was reasonable for the jury to infer that Holmes was the only individual in possession of a firearm that evening. Thus, the jury was presented with ample circumstantial evidence to infer that it was Holmes who fired the handgun.

Therefore, there was sufficient evidence for the jury to infer that Holmes discharged a firearm within the jurisdictional limits of Baltimore City, violating the Baltimore City Code. Baltimore, Md., Police Ordinances art. 19, §59-2(a).

The evidence was also sufficient to establish that Holmes carried a handgun on his person and that the handgun was available for his immediate use. CL §4-203. Accordingly, Holmes’s conviction for wearing, carrying, or transporting a handgun was affirmed.

The jury was presented with two theories under which it could find Holmes guilty of first-degree assault. The jury was instructed that it could convict Holmes of first-degree assault if it found that Holmes: (1) caused an offensive touching that was intentional and to which Deputy did not consent; (2) used a firearm to commit the assault; and (3) intended to cause serious physical injury in the commission of the assault. According to the record, evidence was sufficient to prove that Holmes caused an offensive touching through the use of a firearm by aiming and shooting at Deputy. Further, the jury could infer that shooting at a person would cause serious physical injury. Accordingly, the evidence was sufficient to support a conviction for first-degree assault under this theory.

The jury was also instructed that it could convict Holmes of first-degree assault if it found that: (1) Holmes committed an act with the intent of placing Deputy in fear of an immediate physical contact; (2) Holmes had the apparent ability to bring about that contact; (3) Deputy reasonably feared that contact; (4) the assault involved the use of a firearm; and (5) Holmes intended to cause serious physical injury in the commission of the assault.

Deputy testified that Holmes returned to Lee’s residence with two unidentified individuals after engaging in an argument with Deputy. Deputy further testified that Holmes removed a handgun from his waistband making a threatening remark towards Deputy. As a result, there was sufficient evidence for the jury to infer that Holmes’s act was done for the purpose of placing Deputy in fear of harm or contact. Similarly, by removing the handgun from his waistband, Holmes had the ability to cause Deputy serious physical injury. Deputy testified that he ran quickly out of the room and took exceptional measures by crashing through a bedroom window in an effort to avoid being shot by Holmes. Further, Holmes’s display of the firearm was in relatively close proximity to Deputy, which was sufficient for the jury to infer that such a display would cause Deputy serious physical injury if he attempted to flee. Accordingly, the evidence was sufficient to support a conviction for first-degree assault under either of the theories presented to the jury.

The evidence was also sufficient for the jury to find that Holmes used a handgun during the commission of a crime of violence. CL §4-204. The jury was instructed that a crime of violence included both first and second-degree assault. Indeed, there was sufficient evidence to establish that Holmes was in possession of a handgun. Moreover, because the evidence was sufficient to establish that Holmes committed first-degree assault, the evidence was sufficient for the finder of fact to infer that Holmes committed a crime of violence.

Holmes was sentenced to 15 years imprisonment for his conviction for use of a handgun in the commission of a crime of violence. Holmes was also sentenced to three years for his conviction of wearing, carrying, or transporting a handgun. CL §4-203(a)(1)(I).

It is well settled that when convictions for use of a handgun in the commission of a crime of violence, and wearing, carrying, or transporting a handgun are based upon the same acts, separate sentences for those convictions will not stand. Wilkins v. State, 343 Md. 444, 446-47 (1996).

Thus, under the rule of lenity, Holmes’s three-year sentence for wearing, carrying, or transporting a handgun was merged into his 15-year sentence for use of a handgun in the commission of a crime of violence. See, e.g., Abeokuto v. State, 391 Md. 289, 356 (2006).

COMMENTARY: During trial, the trial court received a note from the jury which stated: “We are unable to meet an agreement on three charges. What are our options for next steps in the proceeding?” The trial court instructed the jury to “continue in your deliberations.” Holmes challenged the substance of the language used in the trial court’s response in that it was “impermissibly coercive” because it deviated from the approved language in MPJI-CR 2:01.

“The decision of whether to give supplemental instructions is within the sound discretion of the trial judge and will not be disturbed on appeal absent a clear abuse of discretion.” Sidbury v. State, 414 Md. 180, 186 (2010). Additionally, the determination to have a jury continue deliberating or to declare a mistrial is a matter largely within a trial judge’s discretion. Graham v. State, 325 Md. 398, 412 (1992).

Holmes relied on Stewart v. State, 334 Md. 213, 229 (1994). In Stewart, the Court of Appeals held that the trial court’s instruction to a juror of “go back and continue deliberating and exercise [your] best judgment as to how [your] duty should be discharged” was “woefully inadequate” and “in no way met the requisites of the instruction [the Court of Appeals] indicated would be proper to give a jury having difficulty reaching a verdict.” Id. at 229-30. The supplemental instruction in Stewart was improper because the Court determined that the trial judge’s motive was to obtain unanimous verdicts of the jury on the offenses charged. Id. The Court further determined that Stewart was prejudiced by the judge’s errors. Id. Critically, Stewart was denied the chance to evaluate the “judge’s solution to the problem and make such objection and suggestions as he deemed to be advisable.” Id.

Here, the record was devoid of any indication that the trial judge’s motive was to ensure a unanimous verdict or was otherwise improper. The abbreviated instruction did not charge the juror to defer to the majority or communicate to the jury that nothing short of a unanimous verdict would be accepted. See, e.g., Goodmuth v. State, 302 Md. 613, 618 (1985). Indeed, the trial court’s limited instruction made it clear that the jury was to simply continue its deliberations.

Unlike in Stewart, Holmes was afforded the opportunity to evaluate the “judge’s solution to the problem.” Holmes and the court shared an exchange concerning the specific jury instruction, which resulted in an agreement that the court would simply instruct the jury to continue deliberating. Therefore, the trial court did not abuse its discretion in responding to the note from the jury.

PRACTICE TIPS: Where a defendant refuses to express remorse or accept responsibility for his or her crimes after the jury’s verdict has been rendered, that lack of remorse and failure to accept responsibility may be considered in the formulation of an appropriate sentence. See, e.g., Jennings v. State, 339 Md. 675, 688 (1995).

Criminal Procedure

Miranda warnings 

BOTTOM LINE: The circuit court erred in denying defendant’s motion to suppress statements she made, without the benefit of Miranda warnings, to detectives during a custodial interrogation.

CASE: Moody v. State, No. 2018, September Term, 2010 (filed Jan. 23, 2013) (Judges Zarnoch, GRAEFF & Moylan (retired, specially assigned)). RecordFax No. 13-0123-02, 25 pages.

FACTS: Kimberly Moody’s convictions stemmed from her role in the March 7, 2009, assault of three women in the parking lot of Coconuts Café after an altercation involving her friend, Sharone Newton. The State’s theory was that, after the altercation inside the club, Newton left the club, but Moody subsequently drove her back to the club at closing time. It presented evidence that, at approximately 2:00 a.m., Newton attacked Sheray Belt and Brendi Simms with a metal pipe. Newton then retrieved a gun from her vehicle and fired shots. Belt was shot in the head, Simms was shot in the chest, and Sctario Edwards, a bystander, was shot and killed. During these crimes, Moody watched and maneuvered the vehicle for their getaway. When Newton ran out of bullets, she returned to the vehicle, and Moody drove away.

After interviewing witnesses at the club and reviewing surveillance video of the area during the altercation, Baltimore City investigators identified Newton as the suspected shooter. They obtained an arrest warrant for Newton and a search and seizure warrant for her home.

On March 20, 2009, police went to Newton’s home to execute both warrants. Newton arrived with Moody at the residence. The officers drew their weapons, approached the vehicle, and ordered the two women to exit the vehicle. When the two women complied, the police “sat them down” and handcuffed them.

While some officers were executing the search warrant for Newton’s residence, Detectives Ryan Felker and Vernon Parker transported Moody to police headquarters. At 10:20 p.m., they placed her in a holding room and removed the handcuffs. Moody was not told that she was free to go, and the door to the holding room was locked.

At 11:00 p.m., two hours after Moody was first detained, the two detectives moved her to an interview room and, without giving her Miranda warnings, questioned her about the shootings. Moody was not told that she was free to leave.

Moody initially stated that the last time she was at Coconuts was the weekend after Valentine’s Day, that she did not know if Newton went to Coconuts on March 7, that she did not know anything that led her to believe that Newton was involved in the shootings that night, and that she had never seen Newton with a gun.

Eventually, Moody admitted that she was with Newton on the night of the incident, driving Newton’s truck. According to Moody, she could not find Newton in the crowded club that night. When she went outside, she found Newton down the street, angry about something and wanting to leave. Between 12:45 and 1:00 a.m., they left the club with another woman who had come with them. Moody drove to her home on Washington Avenue, about a half hour away.

Moody moved to suppress her statements to police. The court denied Moody’s motion to suppress, ruling that she was not in custody when she first talked with the detectives.

Moody was convicted of first degree assault and conspiracy to commit first degree assault. Moody was sentenced to twenty years, with all but ten years suspended, for the assault, and a concurrent twenty years, with all but ten suspended, for the conspiracy conviction.

The Court of Special Appeals reversed and remanded.

LAW: When reviewing the denial of a motion to suppress statements made without the benefit of Miranda warnings, the Court reviews the record of the suppression hearing in the light most favorable to the State as the prevailing party. State v. Tolbert, 381 Md. 539, 548 (2004). The Court accepts the suppression court’s first-level factual findings, unless they are clearly erroneous, but then it conducts its own independent constitutional appraisal of the record to determine if, on the facts found, the defendant was “in custody.” Buck v. State, 181 Md. App. 585, 609 (2008).

Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny require that the police, when they detain a person for questioning in a custodial setting, must inform the person of several rights. “[A]n inculpatory statement elicited in violation of that requirement is inadmissible in the State’s case-in-chief.” Phillips v. State, 425 Md. 210, 212 (2012).

However, “before a defendant can claim the benefit of Miranda warnings, the defendant must establish two things: (1) custody; and (2) interrogation.” Thomas v. State, 202 Md. App. 545, 565 (2011).

In determining whether a person is in custody, the initial step is to ascertain whether, in light of “the objective circumstances of the interrogation” a “reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.” And in order to determine how a suspect would have “gauge[d]” his “freedom of movement,” courts must examine “all of the circumstances surrounding the interrogation.” Howes v. Fields, 132 S. Ct. 1181, 1189 (2012).

In assessing the totality of the circumstances to determine whether a suspect was in custody, “‘[f]acts pertaining to events before the interrogation are…relevant, especially how the defendant got to the place of questioning[,] whether he came completely on his own, in response to a police request or escorted by police officers.’“ Thomas, 202 Md. App. at 568 (quoting Owens v. State, 399 Md. 388, 429 (2007)). “When a defendant is escorted to the police station by the police, that is a factor weighing in favor of a finding of custody.” Id. at 569.

Moody was taken to the police station in a police vehicle after being confronted by multiple police officers, with weapons drawn. Although Moody was not told that she was under arrest, she was immediately handcuffed behind her back and seated on the curb for 30 to 45 minutes, while police began to execute the search and seizure warrant. Moody was then transported in handcuffs to police headquarters. Upon arrival, Moody was released from the handcuffs, but only as she was placed into a small holding cell that was locked from the outside.

At no time during the two hours prior to questioning was Moody told that the police did not consider her a suspect in the crimes, that she was not under arrest, that she was free to leave, or that she was not obligated to talk to the detectives. These circumstances preceding the interview weighed in favor of a finding that Moody was in custody.

With respect to the circumstances during the interrogation, the following facts are relevant to the custody analysis: “[W]hen and where it occurred, how long it lasted, how many police were present, what the officers and the defendant said and did, the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door, and whether the defendant was being questioned as a suspect or as a witness.” Thomas, 202 Md. App. at 570.

Here, the questioning took place in a police station. The length of the interview here was approximately one hour. During this time, Moody was questioned by two detectives, who elicited incriminating information that Moody was with Newton at Coconuts on the night in question and that she initially lied to them about that. Although this time period was not lengthy, it weighed in favor of a finding of custody. United States v. Cavazos, 668 F.3d 190, 194 n.1 (5th Cir. 2012).

There was no evidence whether the interview room was locked or guarded, but Detective Felker made it clear that Moody would not have been permitted to leave the interview room without a police escort. Moreover, Moody would have required assistance to leave the police station because she did not drive herself to police headquarters.

With respect to “whether the defendant was being questioned as a suspect or as a witness,” this factor is relevant to the custody analysis, but only if it is communicated to the suspect because “‘custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.’“ Thomas, 202 Md. App. at 573 (quoting Stansbury v. California, 511 U.S. 318, 323, 325 (1994)).

Moody knew before the interrogation began that Newton had been arrested and charged with crimes that occurred on March 7. She was not told, however, whether she was or was not under arrest. Cf. Thomas, 202 Md. App. at 572. In such circumstances, a reasonable person might not be able to discern whether she was being questioned as a suspect or as a witness.

A review of the totality of the circumstances leads to the conclusion that Moody’s statements were made while she was in custody. Moody was removed from her vehicle at gunpoint, handcuffed, transported to the police station, and locked in a holding cell pending investigatory questioning. Although the record did not indicate that the manner in which Moody was interrogated over the next hour was coercive, the detectives never informed Moody that she was not a suspect, that she was not under arrest, or that she was free to leave or refuse to answer their questions. A reasonable person in such circumstances would believe that she was in custody.

Therefore, the suppression court erred in denying Moody’s motion to suppress the statements to Detectives Parker and Felker. Accordingly, Moody’s convictions were reversed.

COMMENTARY: The Court reviews “an issue regarding the sufficiency of the evidence in a criminal trial by determining ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’“ Titus v. State, 423 Md. 548, 557 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

First degree assault involves either: (1) intentionally causing or attempting to cause serious physical injury to another; or (2) committing an assault with a firearm. CL §3-202(a). The State’s theory was that Moody aided and abetted the assault committed by Newton.

“Whereas principals in the first degree ‘commit the deed as perpetrating actors, either by their own hand or by the hand of an innocent agent,’ principals in the second degree are ‘present, actually or constructively, aiding and abetting the commission of the crime, but not themselves committing it[.]’ ‘An aider is one who assists, supports or supplements the efforts of another in the commission of a crime.’ ‘An abettor is one who instigates, advises or encourages the commission of a crime.’” Kohler v. State, 203 Md. App. 110, 119 (2012).

The evidence presented supported the jury’s finding that Moody provided aid to Newton by driving her back to the club at closing time, repositioning the vehicle to provide an easy escape, waiting for Newton to complete the assault, and then providing for her escape. The evidence was sufficient to support the conviction for first degree assault.

Conspiracy is defined under as “the combination of two or more persons to accomplish some unlawful purpose, or to accomplish a lawful purpose by unlawful means. The essence of a criminal conspiracy is an unlawful agreement. [Furthermore], the crime is complete when the unlawful agreement is reached, and no overt act in furtherance of the agreement need be shown.” Campbell v. State, 325 Md. 488, 495-96 (1992).

A reasonable fact finder could infer that, after initially leaving Coconuts, Moody and Newton agreed to return to Coconuts and assault Ms. Belt, with whom Newton had an altercation. The evidence, therefore, was sufficient to convict Moody of conspiracy to commit first degree assault.

PRACTICE TIPS: Unless there is good cause for postponing the trial date beyond the 180-day period set forth in CP §6-103(a) and Rule 4-271(a), the court must dismiss the charges. The critical postponement is the one that extends the trial date beyond the Hicks deadline. State v. Hicks, 285 Md. 310, 318 (1979).