[Copyrighted Material Omitted]
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Julia C. Schiller (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant/Cross-Appellee.
James E. Williams (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee/Cross-Appellant.
Panel: ZARNOCH, GRAEFF, and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.
CHARLES E. MOYLAN, JR., J. (Retired, Specially Assigned).
[216 Md.App. 239] The appellant, Frank Theodore Williams, was convicted in the Circuit Court for Baltimore County by a jury, presided over by Judge Robert E. Cahill, Jr., of premeditated murder in the first degree, conspiracy to commit first-degree murder, and the use of a handgun in the commission of a crime of violence. On this appeal he raises the four contentions,
1. that Judge Cahill erroneously denied his pretrial motion to suppress physical evidence obtained from an examination of his cellphone;
2. that Judge Cahill erroneously failed to suppress a statement he gave to the police;
3. that Judge Cahill abused his discretion in permitting police officers to narrate what they saw on surveillance videos; and
4. that Judge Cahill abused his discretion in denying his motion for a mistrial made during the State's rebuttal argument.
A Gang-Related Public Execution
The appellant does not challenge the legal sufficiency of the evidence to prove his guilt. The four contentions he does make could readily be resolved in an evidentiary vacuum. Some factual context may nonetheless help to convey the outrageous character of a retaliatory execution perpetrated in the parking garage of the Towson Town Mall during the busy pre-Christmas season.
[216 Md.App. 240] Rodney Pridget, the 19-year-old murder victim, would have appeared to be an ordinary Christmas shopper, as he spent the afternoon of December 19, 2011, at the Towson Town Mall with his 17-year-old girlfriend, Nautica Reynolds. They arrived by bus, entered the mall through Macy's, and then spent time at the Build-a-Bear store and the Downtown Locker Room. The twosome took a brief break at the Food Court and then went downstairs to Hollister. Their final shopping destination was Nordstrom's. Little did they realize that throughout the afternoon their locations in the mall had been observed by no less than five persons stalking their every move who were in immediate cellphone communication with each other.
Something, however, did catch Pridget's eye. As he and Nautica left the second floor of Nordstrom's for the connecting parking garage at 6:30 p.m., he told Nautica that he did not like the looks of " the nigger behind me." In the garage, he handed all of the shopping bags to her and told her to walk close to the wall. Suddenly a gunshot rang out. When Nautica looked up, she saw Pridget lying on the ground and heard a volley of gunshots. She described the shooter, tall and wearing a mask, who then ran deeper into the garage. A woman nearby called the police, who arrived a short time later. The autopsy revealed that Rodney Pridget died of eight gunshot wounds, one to the head,
one to the chest, three in the back, one to the right side of his body, one to the right arm, and one to the left arm.
Baltimore County Police Officer Kurt Parker was among the first officers to respond. His immediate assignment was to secure the perimeter of the mall parking garage between Joppa Road and the actual mall at the rear of 204 East Joppa Road. He first encountered Officer Daniel Burns, who pointed out an individual, later identified as the appellant, who was frantically running up and down steps in the parking garage, was wearing a gray and black hoodie with a black hat, and was talking into his cellphone as he ran.
With weapon drawn, Officer Parker caught up with the appellant and ordered him to lie prone on the ground. The [216 Md.App. 241] officer conducted a quick frisk of the appellant and noticed that he was sweaty and hot to the touch. The appellant still held his cellphone in his hand and Officer Parker seized it. The appellant was placed in handcuffs. Within a minute or two, Officer Brian Jednorski arrived on the scene as backup for Officer Parker. A witness then was brought to where the appellant was being held for an attempted identification. When the results of that attempt were negative, the appellant's handcuffs were promptly removed. The officer still wanted to talk to him, however, and Officer Jednorski transported him to the station house. At the station house, Officer Jednorski turned the appellant over to detectives but he himself kept possession of the appellant's cellphone.
The initially murky picture only became clear when Jermell Brandon, who had been arrested the day after the murder and charged with the murder, was persuaded to cooperate with the prosecution. He agreed to enter a guilty plea in federal court and to accept a sentence of 20 years without possibility of parole. In exchange, he testified as a State's witness against the other conspirators. Brandon knew the appellant, William Ward, and Tyrone Brown as members of the Black Guerilla Family (" B.G.F." ), although Brandon denied being a member of the B.G.F. himself. That may have been self-serving. He did know that in order to obtain rank in the B.G.F., one had to have killed someone. He testified that Tyrone Brown was just a member of the B.G.F., but that William Ward held the rank of Bushman and that the appellant was a Commander.
Brandon was also aware that earlier in the month of December there had been a shooting of one Dustin Smith by the ultimate murder victim, Rodney Pridget. Dustin Smith was the cousin of the appellant. Brandon was later present with the appellant, William Ward, and Tyrone Brown, as they all joined together to discuss the shooting of Dustin Smith and to decide what to do about it. The appellant went on Facebook and showed all of the others a photograph of their target, Rodney Pridget. They then debated who was going to draw the assignment of killing Pridget. It was the appellant who [216 Md.App. 242] gave the order of retaliation on Pridget. Brandon agreed to participate.
Brandon went on to describe how on December 19, 2011, he, William Ward, Tyrone Brown, and the appellant, along with several companions, showed up at the Towson Town Mall in several cars and how they located and kept track of Rodney Pridget. As Pridget was leaving Nordstrom's to enter the parking garage, it was William Ward and Tyrone Brown who followed him to do the actual shooting. When they came back into Nordstrom's several minutes later, Brandon asked what had happened and William Ward reported, " We tore his ass up." Brandon and Ward let Brown leave first and then they left. It was Tyrone Brown who had originally arrived
at the mall with the appellant and who was assigned to drive the appellant away. Frantic messages then started coming in that the appellant could not find the burgundy Lexus in which he was supposed to leave with Tyrone Brown. They all waited a short time but when the appellant still could not find the getaway car, William Ward, by cellphone, ordered Tyrone Brown to leave without the appellant.
Detective Chris Hodnicki testified as an expert on the discipline and the behavior of street gangs. He authenticated that the appellant, William Ward, and Tyrone Brown were all members of the Black Guerilla Family. He testified that Rodney Pridget was shot in the face in retaliation for the shooting of Dustin Smith. The appellant does not now challenge any of this evidence. His challenges are purely procedural and peripheral.
Telephone Records and Independent Source
He first challenges the warrantless seizure of his cellphone. Whether the appellant was literally and formally under arrest when the police subjected him to a hard " take down" in the parking garage is highly problematic. The short-term restraints were as severe as any self-respecting arrest might wish to boast. The longer-term status, on the other hand, trailed off into elusive uncertainty. The reality, of course, is that when the police are still in a combat mode, they are in no [216 Md.App. 243] position to think in legalistic terms. They react by instinct. As Officer Parker ran through the parking garage, adrenaline pumping and weapon in hand, the last thing on his mind was the paradigm of a good search incident to lawful arrest. When the smoke clears, lawyers construct the theory of the case after the fact, a theory that seldom plays out so neatly on the ground.
Was the appellant arrested? To be handcuffed while lying prone on the ground was, to be sure, a step in that direction. To have a witness at a one-on-one show-up say, " That's not the shooter," and then to be un-handcuffed was decidedly a step in the opposite direction. It was but a short step in the opposite direction, however, as he was, with no say in the matter, transported to the police station in a squad car. In the midst of chaos, clarity is seldom realistically attainable. At least a fictive clarity is imperative, however, if something was seized in the din of chaos but the reasonableness of that seizure depends upon whether or not it was incident to a lawful arrest.
It is clear that the appellant was un-arrested as of the time Detective Lambert finished his " interview" (" interrogation" ?) of the appellant at shortly after midnight and graciously had the appellant transported to any destination of his choice. What is not at all clear is whether the appellant had been continuously un-arrested from his initial detention at 6:30 p.m. throughout the evening or whether, at some later magical moment, he crossed the critical meridian between arrest and non-arrest. The State is understandably in a bit of a quandary on this issue, because while arrest status would work to its advantage on the search incident to arrest issue, it would work to its disadvantage on the Miranda custody issue. On that issue, the State argues fervently that the appellant's conversation with Detective Lambert was nothing more than a voluntary and non-custodial " interview." It is hard to have it both ways, but, of course, the appellant is impaled on the horns of the same dilemma, except facing in the opposite direction.
The appellant contends that his cellphone was unconstitutionally seized and that whatever was learned by the police in [216 Md.App. 244]
the course of examining it, along with the more derivative evidence to which it led, should have been suppressed. The State responds by opening the Fourth Amendment cornucopia of search incident to lawful arrest, consent, and the plain view doctrine. The only one of those stabs at ...