DONALD EDWARD BROWNE, JR.
STATE OF MARYLAND
Eyler, Deborah S., Wright, Nazarian, JJ.
Eyler, Deborah S., J.
A jury in the Circuit Court for Charles County convicted Donald Edward Browne, Jr., the appellant, of two counts of robbery with a dangerous weapon, two counts of use of a handgun in the commission of a felony or crime of violence, two counts of first-degree burglary, one count of false imprisonment, one count of conspiracy to commit robbery with a dangerous weapon, and one count of possession of a firearm after conviction of a qualifying crime. The executed portions of the sentences imposed by the court totaled 40 years in prison.
The appellant poses five questions for review, which we have reordered and reworded as follows:
I. Did the trial court err in denying his motion for mistrial made after the jury reported for the second time that it was deadlocked?
II. Did the circuit court err in denying his motion to suppress DNA evidence?
III. Did the circuit court err in denying his motion to suppress his oral statement to Sergeant Scott Fetterolf?
IV. Must one of the convictions and sentences for first degree burglary be vacated?
V. Must the sentence for false imprisonment be merged into the sentence for one of the robbery with a dangerous weapon convictions?
For the following reasons, we answer Question I in the affirmative, and on that basis shall reverse the judgments and remand the case to the circuit court for further proceedings. We address Questions II and III for judicial efficiency. Given our disposition, Questions IV and V are moot.
FACTS AND PROCEEDINGS
This appeal stems from a home invasion that took place on August 18, 2009, in Newberg, a town in Charles County. At about 8:15 p.m., Royce Miller, who owns and operates the Maryland International Raceway in St. Mary's County, drove into the garage of his house, where his wife, Linda, was placing items in the trunk of her car. Suddenly, the Millers were confronted by two masked men who entered the garage. One was holding a gun. Both men were wearing gloves and black clothing that covered them completely. Only the skin under the eye holes of their ski masks was visible.
The men ordered the Millers into the house. In the mudroom, the unarmed man pushed Mrs. Miller to the ground, taped her hands behind her back, and took her diamond wedding ring. The man with the gun forced Mr. Miller into the kitchen and ordered him to get on the ground. He refused. The gunman then directed Mr. Miller to empty his pockets, which he did, placing his wallet, some folded currency, and a cell phone on the kitchen counter. The gunman asked Mr. Miller where their safe was located. The safe was not upstairs, but Mr. Miller told the gunman it was, because he wanted to get the man away from his wife and because he had a gun of his own upstairs and he wanted to access it.
The gunman and Mr. Miller went upstairs. Mr. Miller showed the man where Mrs. Miller's jewelry box was located. As Mr. Miller was trying to figure out what to do next, the Millers' son Christopher drove up the driveway. The man downstairs yelled, "We've got to go!" The gunman ran downstairs, and the two men ran across the Millers' property, jumping over their fence and damaging the top of it. Mr. Miller retrieved his gun, and as the men fled he fired two shots outside, from a balcony, and yelled, "The next one's through your skull!" The men made off with the cell phone and cash from the kitchen counter, and the wedding ring.
Christopher saw the two men running away and jumping over his parents' fence. One of the men pointed a gun at him. Christopher went inside the house and found his mother; he removed the duct tape from her wrists. Mrs. Miller called 911, and the police responded to the scene.
The next day, Mr. Miller walked through the neighborhood to see if he could find any evidence related to the crime. He was accompanied by a neighbor, Carroll Walker, who usually walked through the neighborhood twice a day. Mr. Walker told Mr. Miller that he had seen two gloves near a goat pen owned by Charles Harley, another neighbor. The Millers went to look at the gloves, and recognized them as the ones that had been worn by the man who had forced Mrs. Miller to the ground and had taken her wedding ring. Members of the Sheriff's Department and an evidence technician came to the property where the gloves were found and collected them. According to Mr. Walker and Mr. Harley, the gloves had not been on that property between 6:30 and 7:30 the evening before, when the men last had checked that area to make sure the goats were safe.
The gloves were provided to Bode Technology for testing. On January 29, 2010, experts there obtained DNA profiles from the gloves. The DNA profiles were uploaded into CODIS (the Combined DNA Index System). As we shall explain, that eventually led to a DNA match to the appellant's DNA, which then led to the appellant's arrest and indictment.
At trial, the State called Mr. and Mrs. Miller; Mr. Walker, Mr. Harley, and Laureen Haynes, all neighbors of the Millers; Christopher Miller; Sergeant Scott Fetterolf, Detective Chris Shankster, Detective Charles Gass, Technician James Ammons, and Sergeant Erica Budd, all of the Charles County Sheriff's Office; Tiffany Keener and Dr. Leslie Mounkes, forensic DNA experts with the Maryland State Police; and Stephanie Sivak, Tiffany Meadows, and Michelle Donahue, forensic DNA analysts with Bode Technology. The defense did not call any witnesses. The police officers testified about interviews they conducted with the appellant.
Mr. Miller testified that the appellant's father owns a paving company that in the past several years had done six to eight jobs for the speedway Mr. Miller owns. About 75% to 80% of the business transacted by the speedway is paid in cash, and Mr. Miller had paid the appellant's father in cash. The appellant had accompanied his father on some of those jobs, and had seen Mr. Miller pay his (the appellant's) father in cash amounts of $2, 500 to $3, 000.
We shall include additional facts as pertinent to the issues.
The appellant contends the trial court abused its discretion by denying his motion for mistrial made after the deliberating jurors revealed for a second time that they were deadlocked, identifying a particular juror who was holding out for a not guilty verdict (and who previously had identified himself to the court as the single holdout juror). We review the denial of a mistrial motion for abuse of discretion. Dillard v. State, 415 Md. 445, 454 (2010). It is within the trial judge's discretion to require an apparently deadlocked jury to continue deliberating or to declare a mistrial. Mayfield v. State, 302 Md. 624, 632 (1985). Whether the trial judge abused his or her discretion in denying a mistrial motion in a deadlock situation depends on the circumstances of the particular case. Id.
The facts relevant to this issue are as follows. The jury retired to deliberate at 5:10 p.m., after closing arguments on the second day of trial. At 6:50 p.m., the foreman sent a note saying, "The jury is deadlock [sic] on all counts we will not be able to reach a verdict." The trial judge told counsel about the note and proposed to instruct the jurors to keep deliberating, given that they had not been deliberating long. Counsel agreed. The jurors were returned to the jury box and were so instructed by the court.
Immediately after the judge stopped speaking, Juror No. 281 asked to approach the bench, and was allowed to do so. That juror and counsel convened at the bench and the judge asked, "Okay, what's the situation?" The juror replied, "Mam, [sic] I'm the one that, I can not, with the evidence that's been presented here say that Mr. Browne was . . . ." The judge interrupted, and the following colloquy took place:
THE COURT: Okay, I'm going to stop you.
JUROR: Yes mam [sic].
THE COURT: Because you have not been deliberating very long.
JUROR: Yes mam.
THE COURT: You need to go back, listen to your fellow jurors, consider all of the evidence very, very carefully. And can you continue your discussions. I'm not arguing with you, I'm just simply saying . . .
JUROR: No mam, no mam, I don't take that way [sic].
THE COURT: . . . it really has not been very long.
JUROR: Yes mam.
THE COURT: Okay . . . Counsel have any suggestions, comment?
[DEFENDANT'S ATTORNEY]: Just to remember what the instructions were at the beginning of the case.
THE COURT: They are.
[DEFENDANT'S ATTORNEY]: All of the instructions.
THE COURT: I'm simply asking you to review all of the evidence. Look through the written ...