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Martin v. State

Court of Special Appeals of Maryland

July 30, 2014

CHARLES BRANDON MARTIN
v.
STATE OF MARYLAND

Krauser, C.J., Graeff, Hotten, JJ.

OPINION

Krauser, C J.

Convicted, after a jury trial in the Circuit Court for Anne Arundel County, of attempted first-degree murder, [1] Charles Brandon Martin, appellant, presents seven issues for our review. Divested of argument, they are:

I. Whether the circuit court erred in failing to suppress text message evidence obtained by law enforcement officers from the victim's cell phone;
II. Whether the circuit court erred in allowing a State's DNA expert to testify regarding the results of DNA tests she did not personally perform;
III. Whether the circuit court erred in not requiring the State to provide the defense with a bill of particulars after the State purportedly changed its prosecution theory;
IV. Whether the circuit court erred in finding that there was sufficient evidence to convict appellant of attempted first-degree murder;
V. Whether the circuit court erred in instructing the jury that appellant was charged with being an accessory before the fact rather than an aider and abettor;
VI. Whether the circuit court erred in accepting purportedly inconsistent verdicts; and
VII. Whether the circuit court erred in considering evidence of a letter allegedly written by appellant and then purportedly sentencing appellant for a crime of which he had been acquitted.

After argument before this Court, the parties filed a joint motion to stay any further action by this Court, until Williams v. Illinois, No. 10-8505, had been decided by the Supreme Court, and Dzikowski v. State, No. 15, September Term, 2011, by the Court of Appeals, as those pending decisions might affect the resolution of the issues presented in the instant case. Because those cases did, in fact, involve many of the same issues presented by this appeal, we granted their motion and deferred a decision in this matter.

Subsequently, the Supreme Court rendered a decision in Williams, 567 U.S.___, 132 S.Ct. 2221 (2012), as did the Court of Appeals in Dzikowski, 436 Md. 430 (2013). We therefore now consider the issues raised by this appeal in light of those decisions.[2]

FACTS [3]

On October 27, 2008, Jodi Lynne Torok, the victim, was found at her home in Crofton, Maryland, with a gunshot wound to her head. Having survived that wound, the victim testified, at the trial below, that she had been in a romantic relationship with Martin, who was married to someone else, and that about eight or nine weeks before the shooting, she had become pregnant with his child. After the victim informed Martin of her condition, he angrily demanded that she obtain an abortion. Although she had, at first, agreed to do so, she later changed her mind and decided to have the baby. Upon informing Martin of her change of mind, the victim advised him of her intention "to go to court and take him for child support." Predictably, that advisement led to cooling of their relationship.

Subsequently, on the day of the shooting, at about 3:00 p.m., the victim was talking on the phone, at her home, with a close friend, Blair Wolfe, [4] when a man, purporting to be a salesman, knocked on her front door. She then ended the call to respond to the "salesman, " but thereafter never called Ms. Wolfe back or answered any of Wolfe's subsequent telephone calls. Growing increasingly concerned but unable to take any action on her own, [5] Ms. Wolfe telephoned Jessica Higgs, the victim's roommate, and requested that she leave work and return home to make sure that the victim was safe. Upon arriving at the residence that she shared with the victim, Ms. Higgs found the front door unlocked and the victim lying on the foyer, unconscious and bleeding from a gunshot wound to her head. Higgs immediately called "911."

When the first police officer arrived at the victim's residence, he secured the scene. Then, upon entering the residence, he found the victim, Ms. Torok, "laying in the doorway, " "fully clothed, " still breathing, but unresponsive. There were no signs of forcible entry or that the victim's personal property had been disturbed.

When paramedics arrived at the scene, they transported the victim to the Shock Trauma Center at the University of Maryland Hospital in Baltimore City, where she remained for nearly a month. As a result of the gunshot wound, the victim's pregnancy was terminated, and she suffered severe and disabling injuries. Neither during that time nor thereafter could she recall the events that took place, from the end of her telephone conversation with Ms. Wolfe on October 27th until Thanksgiving, one month later.

The evidence recovered by the police at the scene of the shooting included a Gatorade bottle, which appeared to be fashioned into a home-made silencer;[6] a spent projectile as well as a spent shell casing; and the victim's Blackberry cell phone.

Gatorade bottle/silencer

From the Gatorade bottle, police evidence technicians extracted "a human hair" of "Negroid origin"[7] and saliva from the mouth of the bottle. DNA testing of both linked the bottle to Martin.[8]

The victim testified that neither she nor Ms. Higgs drank Gatorade, but that Martin did and often.[9] Martin's fondness for Gatorade was later confirmed by the officer who drove him to the Anne Arundel police station, who testified that, on the way to the station, he and Martin stopped at a convenience store, where Martin purchased a bottle of Gatorade to drink.

Granted immunity from prosecution for the shooting and possibly for other unrelated charges, Michael Bradley testified that, on the day of the shooting, he; his brother, Frank Bradley; Martin; and Jerry Burks, an acquaintance of Martin, were together at Maggie McFadden's house "about noon" and that he observed Frank Bradley carrying "some white . . . medical tape" and a Gatorade bottle upstairs to McFadden's bedroom, where he was joined by Martin. Then, according to Michael Bradley, Martin and Burks left together, "approximately 1:30, 2:00" p.m., and returned after 3:00 p.m. but before 6:30 p.m. the same day.[10]

Finally, Sheri Carter, one of Martin's former girlfriends, [11] testified that Martin, approximately one month before the shooting, while at her residence, used a computer to conduct internet research on how to assemble a home-made silencer. She further stated that, during the first week of November 2008, approximately one week after the shooting and shortly after Martin had been questioned by police, Martin took the computer from her apartment, telling her "that [they] had looked up so many crazy things on the internet that in case [Carter's] apartment got searched [Martin] didn't want it found there." Martin, in her words, then "got rid of" the computer.

Ballistic evidence

The bullet recovered by police, a .380 caliber bullet, and the shell casing that was found, could have been fired, according to a State's expert witness, from a semi-automatic firearm. Such a firearm could have been manufactured by any one of sixteen different manufacturers, which was consistent with Martin's purchase, in 2003, of two .380 caliber semi-automatic handguns made by Bryco Arms, one of those sixteen manufacturers.[12]Moreover, Sheri Carter testified that, in September and October of 2008, the time period just before the shooting, she had observed Martin carrying a "small, silver, [black-handled], semi-automatic" handgun.

The firearm itself was never found. The testimony of Michael Bradley suggested why that was so. According to Michael Bradley, when Martin returned to McFadden's home the evening of the shooting, he saw Martin give a brown paper bag to Frank Bradley and tell Bradley to "get rid of this."

Victim's cell phone

Finally, the last of the four items found at the victim's residence was her Blackberry cell phone. Text messages extracted from that phone by police confirmed that Martin had exchanged several text messages with the victim on the day of the shooting.[13]

Martin's statement

The day after the shooting, Martin gave a statement to police. During the interrogation, Martin downplayed his relationship with Ms. Torok, the victim, telling detectives that he did not know her last name and that he was unsure where she lived, but he conceded that he had previously been to her house. And, although he was "highly doubt[ful]" that he was the father of the victim's baby, since they "hadn't had any contact, " he admitted to police that he had agreed to provide money to her to "help her out." Finally, Martin claimed that, on the day of the shooting, he was at home with his wife and children until mid-day and that later he had visited "Frankie" and "Mike" Bradley, who were friends of his, arriving at "around" 1:00 p.m., staying with them until about 4:30 p.m., and then returning home.

DISCUSSION I.

Martin contends that the circuit court erred in denying his motion to suppress text messages retrieved by police from the victim's cell phone, in violation of the Maryland Wiretap Act, Maryland Code (1974, 2006 Repl. Vol.), § 10-401 et seq. of the Courts & Judicial Proceedings Article ("CJP").[14] Specifically, Martin claims that, in reading and, later, recording the text messages from the victim's Blackberry cell phone, the police had "intercepted" those text messages and were therefore required, in accordance with the strictures of the Maryland Wiretap Act, to apply for a court order before doing so, which they did not do. CJP § 10-406(a). Furthermore, the State's use of evidence derived from those text messages, maintains Martin, violated the Maryland Stored Communications Act, CJP § 10-4A-01 et seq.

When the police arrived at the victim's residence, they found, inside her home, her cell phone. Text messages that were later extracted, by law enforcement personnel, from that phone showed, among other things, that Martin and the victim had exchanged several text messages on the day of the shooting. At 8:23 a.m. on the day of the shooting, Martin sent the victim a text message asking, "What time do u work[?]" Less than a minute later, the victim replied, "I'm off." At 9:29 a.m., an hour later, the victim, having received no reply from Martin, sent another text message, stating, "Hello." But that greeting elicited no response from Martin until 5:11 p.m., a little more than two hours after the shooting, when he sent a message stating, "I got some stuff with the kids to about 7 so any time after how much did u need[?]"

Based in part on the text messages retrieved from the victim's cell phone and in part on Martin's own cell phone text messages, search warrants were obtained for Martin's home and vehicle; for Maggie McFadden's home; for Jerry Burks's home and computer; as well as for samples of Martin's saliva and hair. Among the items recovered, upon the execution of those warrants, were Martin's saliva and hair samples, as well as a roll of white medical tape, from McFadden's home, that, in the words of a State expert, "exhibited the same characteristics as" the medical tape found on the home-made Gatorade silencer.

Before trial, Martin filed a "motion to suppress wiretap, " contending that the police had violated the Maryland Wiretap Act by "unlawfully intercept[ing]" the text messages from the victim's cell phone and requesting that the court "suppress the contents of any intercepted wire, oral or electronic communication and evidence derived therefrom." After several hearings were held, the circuit court declined to suppress the text messages recovered from the victim's cell phone, holding that the retrieval of those messages did not violate the Maryland Wiretap Act.[15] It also declined to suppress any derivative evidence, declaring that, even if all of the references to both the victim's and Martin's cell phone text messages had been deleted from the warrant affidavits, there was still probable cause to issue a search warrant for, among other things, Martin's saliva and hair samples.

The Maryland Wiretap Act states that it is "unlawful for any person to . . . [w]illfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication."[16] CJP § 10-402(a)(1). It defines "intercept" as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device, " CJP § 10-401(3), and describes an "electronic communication" as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system." CJP § 10-401(11).[17]

Although there are no Maryland appellate decisions[18] that have specifically construed the term "intercept, " there are a number of federal appellate decisions that have, under the Federal Wiretap Act, 18 U.S.C. § 2510 et seq., the federal analogue of the Maryland Wiretap Act. In language that is largely mimicked by the Maryland statute, [19] the federal act provides that "any person who intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication" commits a crime and is further subject to civil suit. 18 U.S.C. § 2511(1)(a). Both acts define "intercept" and "electronic communication" in nearly[20] identical terms. Compare 18 U.S.C. § 2510(4) and (12) with CJP § 10-401(3) and (11) (defining, respectively, "intercept" and "electronic communication"). See also Davis v. State, 426 Md. 211, 220 & n.3 (2012) (observing that definitions of "intercept" in Maryland and Federal Wiretap Acts are "identical[]."). We therefore turn to the pertinent federal appellate decisions interpreting those terms for guidance. Id. at 223.

We begin with Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457 (5th Cir. 1994). There, the United States Court of Appeals for the Fifth Circuit held that the seizure of a computer, in which were stored private e-mail messages sent from remote computers but not as yet read by their intended recipients, was not an "intercept" of those messages under the federal act, though they were clearly "electronic communications." In addressing the question of what constituted an "intercept" of "electronic communications" at that time, the federal appellate court observed that there was a "[c]ritical" difference in the definitions of two categories of communication, "wire communication" and "electronic communication, " both of which fell within the federal statutory prohibition against unlawful "interception": Both categories of communication included the "transfer" of information, but a "wire communication" further encompassed "any electronic storage of such communication, " (which it no longer does, as we shall later explain), while "electronic communication" did not. Steve Jackson Games, 36 F.3d at 461. This textual difference, the Fifth Circuit believed, evidenced a Congressional intent that the term "intercept" be applied to "electronic communication[s]" only when those communications are in transit and not when they are in electronic storage. Id. at 461-62. ...


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