Zarnoch, Graeff, Raker, Irma S.JJ [*]
Ottus Savoy, appellant, was convicted in the Circuit Court for Baltimore City of second degree murder and use of a handgun in the commission of a crime of violence. Before this Court he presents the following questions for our review:
"1. Did the trial court err in admitting Appellant's statements to the police?
2. Did Appellant knowingly and intelligently [sic] waive the right to testify?
3. Did the trial court err in admitting into evidence photographic arrays which included a photograph of Appellant?"
We shall affirm.
Appellant was indicted by the Grand Jury for Baltimore City with first degree murder, use of a handgun in the commission of a crime of violence, and wearing, carrying, and transporting a handgun. He proceeded to trial before a jury in the Circuit Court for Baltimore City.
During the evening of August 1, 2011, at approximately 11:15 p.m., Sean Ames was shot and killed in Baltimore City outside of the residence of Troy Harkless and his then-girlfriend Amber Buschman. Appellant had been staying at the residence temporarily. According to the two eyewitnesses at the scene, Janice Jay and Ms. Buschman, appellant emerged from a taxi and demanded to know why Mr. Ames was on the steps. When Mr. Ames replied that he was selling DVDs and awaiting Mr. Harkless' return, appellant ran into the house, retrieved a handgun, and returned outside. Appellant then shot Mr. Ames on the steps, and when Mr. Ames attempted to flee, appellant chased him up the street and shot him several more times, killing him. The police recovered the gun from the roof of a garage adjoining Mr. Harkless' residence.
Although the defense called no witnesses in the case, the defense's theory of the case was that Mr. Harkless, not appellant, killed Mr. Ames. Mr. Harkless testified for the State that he had arranged for Mr. Ames to sell him DVDs outside his residence. Mr. Harkless then walked to a neighborhood Seven-Eleven. Upon returning, he learned that Mr. Ames had been killed. Mr. Harkless found the murder weapon, which was his own gun wrapped in a towel, and tossed it from the window onto a nearby garage roof out of fear that he would be linked to the homicide. Detectives testified that Mr. Harkless provided them with a receipt from the Seven-Eleven and that the surveillance video maintained by the store depicted Mr. Harkless before the murder occurred. It was unclear whether Mr. Harkless had sufficient time to travel from the store to his home to perpetrate the killing.
On August 25, 2011, the police arrested appellant and brought him to the homicide unit. The police interviewed him at two different times. Detective Moynihan testified that when appellant was questioned after his arrest, he wrote on a piece of paper, "If you all can get me twenty to twenty-five years with a lawyer I will take the plea." When told by a detective that they would need more information to take to the State's Attorney, appellant replied, "The blank flinched, act[ed] like he was reaching. I will tell you all how the whole situation happened in front of the State's attorney."
The court admitted, over defense objection, photo arrays in which Ms. Jay and Ms. Buschman had identified appellant as the perpetrator, and Mr. Harkless had identified appellant as a person he knew.
After the close of the State's case, the following colloquy took place between appellant and defense counsel regarding appellant's right to testify:
"[DEFENSE COUNSEL]: At this point in time the State has rested and the defense would choose whether or not it wants to put a case on or not. I do not believe we have any witnesses that we want to put on. So the question is do you want to testify or not, which you do not have to answer but I have to advise you that you have a right to testify. You have a right to remain silent. If you choose to remain silent I have asked this court already to give an instruction to this jury they cannot even consider the fact you chose to remain silent as evidence against you. They can't even discuss or talk about it and that will be the instruction that the Court will read to the jury at the end of instructions. If you choose to testify, you are giving up that Fifth Amendment right, all right, and you have a right to do that if you want but if you get up on the stand you can't just say one thing. If you get up on the stand and want to testify, then you're giving up that right and the State can ask you any questions about this case that they want to.
Also it's my understanding that you have a prior conviction with first degree assault. It's my understanding that this is an impeachable offense and if you get on the stand and testify, the State can ask you questions about that offense if they so desire to try to show that you are somebody that should not be believed. You do not have to testify. It's completely your choice, do you understand your choice?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: Do you understand your right to testify and your right not to testify?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: And it is my understanding that you would like to hold onto that and make that election tomorrow after you had enough time to digest this and figure this out; is that correct?
THE DEFENDANT: Yes."
At the next day's proceedings, trial counsel stated as follows: "Your Honor, I've spoken to my client, Mr. Savoy, and Mr. Savoy, at this time, would like to invoke his Fifth Amendment Right and not testify." Although the defense called no witnesses in the case, the defense's argument was that Mr. Harkless, not appellant, killed Mr. Ames.
The jury convicted appellant of second-degree murder and use of a handgun in the commission of a crime of violence. The court sentenced appellant to a term of incarceration of thirty years for second-degree murder and a consecutive term of incarceration of twenty years for the use of a handgun.
This timely appeal followed.
We turn first to appellant's request that we review for plain error the denial of his motion to suppress and the admission of his pretrial statements to the police. Appellant argues that the trial court committed plain error in allowing the admission of the incriminating statements he made to the police because they were statements made in the context of settlement negotiations and appellant offered to plead guilty in return for a specified sentence. He argues plain error in the admissibility of his statements also because the detectives violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966), in that the detectives failed to scrupulously honor his right to remain silent.
The State maintains that appellant's arguments regarding the suppression hearing were waived and precluded from plain error review. Particularly interesting is the State's argument that plain error review is not available when a defendant affirmatively waives issues subject to Rule 4-252, i.e., mandatory motions to suppress. The State argues in the alternative that plain error review is unwarranted because appellant did not identify any clear and obvious error by the trial court. First, the State argues that Rule 5-410 is inapplicable to the admissibility of the statements at issue because that Rule applies only to plea discussions with an attorney for the prosecuting authority and it has no application to statements a defendant may have made to law enforcement alone. Second, as to the merits of the Miranda issue, the State argues that the detectives scrupulously honored appellant's initial invocation of the right to remain silent.
When reviewing the denial of a motion to suppress, we review the record of the suppression hearing, not the record of the trial. Byndloss v. State, 391 Md. 462, 477, 893 A.2d 1119, 1128 (2006). The following ...