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Yarborough v. Bishop

United States District Court, D. Maryland

January 3, 2017

JOHANN YARBOROUGH Petitioner
v.
FRANK B. BISHOP and THE ATTORNEY GENERAL OF THE STATE OF MARYLAND Respondents

          MEMORANDUM

          James K. Bredar United States District Judge.

         Respondents seek dismissal of the above-entitled petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. ECF 11. Petitioner has responded (ECF 12) and the court finds the record is sufficient to determine the issues raised. No hearing is deemed necessary. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2016); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C. § 2254(e)(2)). For the reasons set forth below, the petition shall be dismissed and a certificate of appealability shall not issue.

         State Court Proceedings

         Pre-trial Motion to Suppress

         Prior to trial, defense counsel filed a motion to suppress a photo-array identification made by Trevor Anglin and statements made by Yarborough to police in an initial interview prior to arrest as well as statements made after he was arrested. ECF 11 at Ex. 2. Testimony regarding the photo-array identification was provided by Detective Cynthia Conrad of the Takoma Park Police Department. Id. at pp. 5 - 22. She explained that eight color photographs of males with similar traits of the same race were shown to Anglin after he was located on the street he usually frequents.[1] Id. at pp. 6 and 12. Conrad stated that Anglin had no fixed address and the identification process took place in her unmarked police car. Id. at p. 12. When looking at the array, Anglin said the man he saw on the night of the murder looked like the men depicted in two different photographs, one of whom was Yarborough. Id. at pp. 10 - 11. The trial court denied the defense motion to suppress the identification because there was no evidence that the process was suggestive and, also, Yarborough's picture had not been broadcast on the news at the time of the identification. Id. at p. 22.

         Yarborough spoke to police on November 30, 2006, the day after Tarais Araia was murdered. Detective Richard Poole testified that at that time Yarborough was a suspect and that he and Lt. Tyron Collington went to the Ritz Cab Company in Washington D.C., where Yarborough worked, to talk to him. ECF 11 at Ex. 2, pp. 23 - 25. Prior to arriving, Poole explained he had spoken with Yarborough's boss to get permission to use his office to interview Yarborough. Id. at p. 26. Poole testified that he made this arrangement for purposes of maintaining Yarborough's privacy and stated, “I didn't think it was fair to have everyone know what we were talking about.” Id. at p. 28. Poole further testified that he told Yarborough at the beginning of the interview that he was not under arrest, that he did not have to answer their questions, and that he was free to leave at any time. Id. at p. 27. Poole described the office as slightly cramped but stated that the door was unlocked and that he and Collington were wearing business suits and their service weapons were not visible. Id. at p. 28. Yarborough agreed to talk to Poole and Collington and the tone of the interview was conversational and friendly. Id. at p. 31. Poole stated that Yarborough appeared sober and did not appear to be ill or confused during the interview, which lasted two hours and forty minutes. Id. at pp. 30 - 31. The interview terminated when Yarborough stated “if she is dead then I want a lawyer.” Id. at p. 32. Yarborough then asked Poole if he knew of any lawyers he could call and when Poole said he did not, Yarborough said he would take a polygraph without an attorney present. Id. at pp. 33 and 65.

         A warrant for Yarborough's arrest was issued on December 1, 2006, and executed the following day. ECF 11 at Ex. 2, pp. 33 - 34. Yarborough was arrested in the District of Columbia and waived extradition to Maryland; Poole and Collington traveled from Takoma Park to bring Yarborough back to Maryland on December 6, 2006. Id. at p. 34. Yarborough was brought to the Takoma Park police station where he was processed and then brought into an interview room where Poole and Collington met with him. Id. Poole testified that he used a “rights form” that listed Yarborough's rights under Miranda v. Arizona, 384 U.S. 436 (1966), and that each right was read aloud to Yarborough. Id. at pp. 36 - 38. On that form, Yarborough indicated by initialing each item that he understood his rights; that he was sober; and that his education level was ninth grade with a GED. Id. at p. 36. Yarborough indicated on the form and verbally that he wanted to talk to the police. Id. at p. 43.

         Defense counsel argued that once Yarborough invoked his right to an attorney during the November 30th interview, police were obligated to cease all questioning under Miranda and its progeny. ECF 11 at Ex. 2, pp. 55 - 59. He further argued that the invocation of his right to an attorney extended to the date of the interrogation that occurred after he was arrested and brought to Maryland. Id. In defense counsel's view, Yarborough, or a reasonable person in his position, would not have felt free to leave the November 30th interview, making the interview custodial under Miranda and Edwards.[2] Id. Counsel stated, “On December 6 they know he's asked for a lawyer, ” but initiated conversation with Yarborough in violation of Edwards. Id. at pp. 59 and 61.

         The trial court denied the motion to suppress Yarborough's statements made during both interviews. ECF 11 at Ex. 2, pp. 66 - 68. The court stated:

Most of the cases that involve the issue of statements taken after an initial invocation of the fifth amendment right, involve a contiguous set of events where the police have spoken with someone and do one of two things. Either, one, continue to engage in discussion or conduct that is designed to wear the defendant down to perhaps get the defendant to change his or her mind about giving the statement. That didn't happen in this case. There are also those cases where the proverbial good cop/bad cop scenario occurs and that is where one police officer talks to an individual. He or she invokes the fifth amendment right to counsel and decides that they don't want to speak and another officer, either the good one or the bad one depending upon what the order is, goes in and attempts to get a statement from the individual after their rights have been invoked. That didn't happen in this case. There were several days after the initial police contact.
The Court discounts the initial contact for the following reasons. One, the defendant was not in custody. The officer expressly stated you are not under arrest. You can get up and leave at any time. We'd like to talk to you. The reason that we're going to go into a room, the officer testified today was to quite frankly out of respect for the defendant's privacy. It was his workplace. This was a serious investigation. And they didn't want to do the interview out in the open where other employees or even his boss could potentially hear what the conversation was about. The conversation ended by the defendant saying that he wished to talk to a lawyer after he made the comment to the officers, you know, are you telling me she's dead and then he said he wanted a lawyer. And all questioning with respect to the incident that was the subject of this investigation stopped.
Several days later the defendant was arrested. The officers were now going to charge him with the crime of murder. And the TP-50 -- I think it's a reasonable inference is Takoma Park Form 50 was executed. And all it is, is a Miranda rights form where each question was asked that's required under Miranda. And each answer was checked off. The defendant appeared to be alert.
Let me note, parenthetically, that throughout all of these encounters with the police, the defendant appeared to be congenial. The parties were polite to each other. He was polite and courteous. And on the first encounter even shook hands with the detectives when the interview ended. There is not the slightest scintilla -- I suppose that's redundant, but there is not (sic) evidence of any coercion or improper conduct on behalf of the police in this case at this point and there is no basis upon which the Court can find any violation of the defendant's fifth or sixth amendment right to the constitution of the United States. And for those reasons, the motion to suppress is denied.

ECF 11 at Ex. 2, pp. 66 - 68.

         Jury Trial

         After empaneling a jury on February 4, 2008 (see ECF 11 at Ex. 3), trial began on the following day. In her opening statement, the State's Attorney characterized the case as one involving domestic violence and mentioned that the victim, Terhas[3] (“Terry”) Araia, was originally from Eritrea, Africa, and lived with her parents in Takoma Park. ECF 11 at Ex. 4, p. 9.

         The first witness to testify for the State was Michael Hodge, who described himself as a childhood friend of Yarborough. ECF 11 at Ex. 4, pp. 23 - 41. Hodge testified that he saw Yarborough on the evening of November 29, 2006, when he was walking through the neighborhood after getting high. Id. at p. 26. Hodge related that he agreed to go with Yarborough to Takoma Park to see a man who owed Yarborough money. Id. at pp. 26 - 27.

         Yarborough drove a maroon and gray taxi cab and Hodge rode in the passenger seat. Id. Hodge described Yarborough moving the car several times when they reached Takoma Park and testified that Yarborough got out of the car more than once. Id. When a bus came down the street, Hodge stated that Yarborough got out of the car once again, crossed the street, and was walking toward a female. Id. at p. 34. Hodge related that Yarborough had taken something with him when he left the car. Id. Shortly thereafter, Hodge heard the woman screaming “no, no, ” and Hodge moved from the passenger seat to the driver's seat because he had plans to leave the area. Id. at p. 35. As Hodge moved the car, he saw Yarborough looking for the car and stopped to let him in. Id. at p. 36. Hodge continued to drive and said that Yarborough gave him directions to get out of the area, but did not answer his questions about what he had just done. Id. Shortly after driving away, Yarborough asked Hodge to stop the car and Yarborough got out of the car and threw something towards a wooded area. Id. at pp. 36 - 37.

         When he was initially questioned by the police, Hodge denied any knowledge of the incident and denied being with Yarborough on the date of the murder. ECF 11 at Ex. 4, pp. 41 - 61 (cross-examination). Hodge explained that he was scared to admit what had happened because he did not want to be implicated as a get-away driver. Id. at pp. 61 - 63 (redirect).

         Travis Anglin, an eyewitness to the murder, testified for the State. ECF 11 at Ex. 4, pp. 68 - 98. Anglin testified that he was sitting on a wall on a street near the scene with two friends when he saw the taxi-cab drive up. He said it caught his eye because the car was parked in an unusual spot and because it was moved several times. He stated that after his two friends left, he kept an eye on the car and saw a man get out of the passenger side of the car after the bus arrived and people got off. Anglin said the man was following a woman up to the apartment building with something behind his back. Id. at p. 84. At first Anglin said he thought the man was going to surprise her with flowers, but when the man reached the woman, Anglin saw him raise a hammer over his head and strike her in the head. Id. at p. 85. Anglin said when the assault began, the assailant was striking the victim with the claw side of the hammer, then spun the hammer around and used the other side. Id. at p. 85. Anglin testified he saw this man strike the victim five times and that the victim was screaming for help. He described the assailant as short and stocky, African American, wearing a white shirt and blue jeans. Id. at p. 90. Anglin saw the assailant run from the scene and get back into the same taxi cab on the passenger side. Id. at p. 105 - 06.

         When asked if he saw the same man in the courtroom, Anglin was reluctant to identify Yarborough, insisting that he did not “point fingers.” ECF 11 at Ex. 4, pp. 88 - 90. Anglin identified the color of the shirt and tie Yarborough was wearing in the courtroom, and the trial court permitted that testimony to be an in-court identification of Yarborough over objection by defense counsel. Id. Additionally, Anglin was asked about the photo-array he was shown by police and testified that he identified two pictures as resembling the man he had seen beating Araia with a hammer.

         On cross-examination, Anglin insisted that the man he saw attacking Araia had exited from the passenger side of the cab prior to the attack. ECF 11 at Ex. 4, pp. 105 - 06. Anglin also testified that he had a better look at the passenger in the cab than he had at the driver. Id. at p. 111. During redirect, Anglin was asked if Yarborough was the man he saw that night and, over objection, was permitted to confirm that he was the same man.[4] Id. at p. 107.

         Bryan Hughes was at the Deauville Apartment building where the murder took place and where Araia lived, on the evening Araia was killed. ECF 11 at Ex. 4, p. 114 - 23. He testified that he was there to visit a friend, Linda Jones, who lived on the seventh floor of the building. Id. at pp. 114 - 15. Hughes stood outside the apartment building for approximately 15 minutes smoking a cigarette, waiting for Jones to finish getting dressed. While waiting, Hughes observed a heavy-set black man walking up and down the street and described him as wearing a white shirt and blue jeans. After arriving in Jones's apartment, Hughes said he and Jones heard a scream and a loud thud that he thought could have been a gunshot. Id. at pp. 116 - 17. Hughes looked out the window and then went outside to see if the woman he heard screaming was okay. Id. Hughes testified that when he arrived downstairs he saw a man running away and identified him as the same man he saw earlier walking on the street before he went to Jones's apartment. Id. at pp. 118 - 19. Hughes described the man running away as a black male, heavy-set without much hair, wearing a white shirt and blue jeans. Id. at p. 118. Hughes stated that the man did not look like he knew where he was going because he was zig-zagging across the street. Id. Hughes called the police and stayed with Araia, attempting to keep her conscious. Id. at p. 119. Although Hughes went to grade school with Araia and described her as a friend, he testified that he did not recognize her due to the large amount of blood on her face. Id. at p. 120. When Hughes realized who she was, he went to her side, waited for the police, and flagged them down when he saw them arrive. Id.

         Linda Jones, a resident of the apartment building where Araia lived and where the murder occurred, testified for the State. ECF 11 at Ex. 4, pp. 124 - 136. Jones explained she lives on the top floor of the seven-story building and her windows wrap around the front corner of the building. Id. at p. 126. On the evening of November 29, 2006, Jones stated she had the windows in her apartment cracked open because she was a smoker. Id. at p. 129. She testified that because she has a very good view of the area surrounding her building, she had a habit of looking out at the street below to see what was going on. Id. at p. 130. Jones had lived in the apartment since 1985 and testified that she knew everyone in the neighborhood. Id. She testified that prior to Hughes's arrival at her apartment, she was looking out of her window and observed a stocky man wearing a white t-shirt and blue jeans walking up and down the street three to four times. Id. Jones said the man caught her eye because she did not know who he was. Id.

         Jones explained that very soon after Hughes got to her apartment they heard a scream and she ran to the window. Id. at p. 131. Jones saw the same stocky man she had seen earlier, running from the building toward the police station. Id. at pp. 132 - 33. Jones observed that it appeared the man had something large, like a weapon, in his pants that was preventing him from running faster. Id. Jones admitted that she wears prescription contact lenses and was not wearing them at the time, preventing her from identifying the man she saw beyond the general description provided. Id.

         The two police officers who were the first to respond to the scene, Walter Smith and Jerome Erwin, testified for the State. ECF 11 at Ex. 4, pp. 139 - 50; 151 - 162. Smith's role was to render aid to the victim; he verified photographs of the crime scene during his testimony. Id. at pp. 147 - 48. Smith also testified that he secured the crime scene, which he described as widely splattered with blood and brain matter from the victim. Id. at pp. 146; 149 - 50. Under cross-examination, Smith confirmed that the victim was lying underneath an overhang located at the front door of the apartment building. Id. at pp. 150 - 51.

         Erwin, who was Smith's partner and the sergeant in charge of the night shift, spoke with Bryan Hughes when they arrived at the scene. Id. at pp. 151 - 56. Erwin described Hughes's demeanor as upset and said he was waving his arms at them as they pulled up to the scene. Id. at p. 156. Erwin testified that he asked Hughes who had Dated this to Araia and, over objection by defense counsel, related that Hughes said, “heavy-set male with a white t-shirt.” Id. at p. 158. When asked where the man had gone, Erwin testified that Hughes pointed up Lee Street, a street that intersects with Maple Avenue where the apartment building is located. Id.

         Erwin further testified that the EMTs arrived shortly after the officers arrived; that Araia was still breathing, had a pulse, and was making subtle movements when the ambulance arrived; and that she was taken to the hospital very quickly. ECF 11 at Ex. 4, p. 160. In his capacity as shift commander, Erwin called for additional officers to canvass the area and called the Criminal Investigations Division. Id. Erwin also explained he took Hughes to the police station to interview him and related that Hughes was visibly shaken and very upset because he knew Araia. Id. at pp. 161 - 62.

         Michele Diagne testified that when she was dropping her child off at a daycare in Takoma Park on November 30, 2006, she noticed a hammer stuck in a fence in front of a wooded area. ECF 11 at Ex. 4, pp. 163 - 70. Diagne notified a school crossing guard nearby, who called the police. Id. Diagne confirmed that neither she nor the crossing guard touched the hammer and identified a hammer produced as evidence as the one she had found. Id. The school crossing-guard, Bernice Toler, also testified and confirmed seeing the “hammer inside of the fence with blood on it” found by Diagne. ECF 11 at Ex. 5, p. 9. Toler stated that she called the police using her cell phone and stayed in the area until the police arrived. Id.

         The State introduced forensic evidence through the testimony of David McGill (ECF 11 at Ex. 5, pp. 10 - 20), Damon Burman (id. at pp. 29 - 50), Katherine Busch (id. at pp. 63 - 87), and Debrah Heller (id. at pp. 94 - 100). McGill, a civilian forensic specialist for the Montgomery County Police Department, processed the taxi cab identified as cab #15, which Yarborough drove home from his workplace on November 29, 2006. ECF 11 at Ex. 5, p. 12; see also Ex. 6, p. 36 (testimony of Rotib Thahir). McGill's task in processing the taxi cab was to identify any areas that may contain blood, test those areas, and collect them for DNA testing. ECF 11 at Ex. 5, p. 14. In doing so, McGill stated that the items collected were the passenger side seat belt and belt buckle. Id. at pp. 18 - 19. McGill testified that the cab was very clean and smelled of bleach. Id. at p. 20. On cross-examination, McGill admitted that none of the tests he performed indicated the age of the stains found. Id. at pp. 20 - 23; 25 - 26.

         Damon Burman, a serologist with the Maryland State Police, testified about the presumptive tests for blood performed on the hammer; swabs taken from the taxi cab's steering wheel, floor mat, and passenger seat; and the seatbelt and buckle from the taxi cab. ECF 11 at Ex. 5, p. 35. Burman revealed that the tests indicated blood on the hammer and the seatbelt. Id. at pp. 39 - 40; 45. Burman stated that those items were packaged for later DNA testing and that the handle of the hammer was swabbed for purposes of testing for DNA. Id. at pp. 42 and 46. On cross-examination, Burman stated that he did not do confirmation tests on the items for the presence of blood, because the real interest was to test the items for DNA and additional tests would have required too much of the sample. Id. at p. 55. Additionally, Burman admitted that the test he performed detects the presence of hemoglobin and does not determine if it is human blood, nor does it reveal the age of the stain. Id. at pp. 53, 55 and 59.

         Katherine Busch, a forensic scientist with the Maryland State Police, testified that DNA found in the stains on the hammer and the seatbelt matched the DNA taken from the known sample of Terhas Araia's blood. ECF 11 at Ex. 5, p. 81. On cross-examination, Busch admitted that the DNA test did not indicate the type of cell from which the DNA was taken. Id. at pp. 88 - 94.

         Debrah Heller, the forensic scientist supervisor for the Maryland State Police, testified as to her role in ensuring that all protocols were followed by lab technicians during the testing process and her review of the test results. ECF 11 at Ex. 5, pp. 99 - 100. She confirmed that she concurred with Busch's conclusions and that two additional DNA analysts reviewed the file both technically and administratively. Id. at p. 100. Heller further stated that after the tests were performed, there was enough material left over for further DNA tests if they were requested. Id. On cross-examination, Heller testified that it is possible to transfer DNA by simply touching an item, but in this case, only one DNA profile was detected. Id. at pp. 101 - 103.

         Michael Miller, a Montgomery County firefighter trained as an emergency medical technician, testified that he drove the ambulance to the Deauville Apartment building on November 29, 2006, in response to a 911 call. ECF 11 at Ex. 5, pp. 105 - 114. Miller explained that they thought Araia had suffered a gunshot wound due to the amount of blood splatter at the scene and because one wound to her head was smaller than the one opposite to it. Id. at pp. 113. Miller testified that Araia had a pulse and was breathing, but her breaths were both deep and shallow, which “doctors consider Aganol [sic] breathing.” Id. at p. 112. Miller was permitted to explain that “Aganol”[5] breathing was “when your body is taking its last breath or your body is still alive, but your brain is not there.” Id. Miller explained that Araia's condition worsened en route to the hospital and that he stayed at the hospital until she was pronounced dead. Id. at p. 113.

         Richard Poole, a detective with the Criminal Investigations Division of the Montgomery County Police, directed the initial canvass of the crime scene area and investigated the crime. ECF 11 at Ex. 5, pp. 115 - 71. Poole testified that he directed officers to talk to the residents of the apartment building to determine if there were any witnesses and that he interviewed Araia's parents. Id. at p. 118. Poole stated he was notified on November 30, 2006, that a hammer had been found and drove to the scene with Detective Cannatella. Id. at p. 119. Upon arriving, Poole stated he observed a bloody hammer hanging over a thin wire fencing covering a wooden fence. Id. at p. 120. Poole collected the hammer as evidence as well as some of the leaves on the ground below because it appeared blood had dripped on them. Id.

         Poole's first contact with Yarborough occurred on November 30, 2006, at the Ritz Cab Company located in Northeast District of Columbia, where Yarborough worked driving taxi cabs to an inspection station for six-month inspections. ECF 11 at Ex. 5, pp. 121 - 128. Poole testified that Yarborough had reported to work at 8:30 that morning and had driven cab #15 to work. Id. at p. 127. During his conversation with Poole and Detective Collington, Yarborough confirmed that Terhas Araia was one of two women with whom he had a relationship. Id. at p. 128. Yarborough denied being in Takoma Park on November 29th and told Poole and Collington that he was drinking that day and remembered watching “Friends” on television that evening. Id. at p. 130. Poole testified that Yarborough identified the episode of the show he watched and stated he was one-hundred percent sure he was home watching that show. Id. at pp. 130 - 31. Poole further testified that Yarborough indicated that he may have called or texted Araia at 10:00 or 10:30 p.m. because that is the time she gets off from work. Id. at p. 131. Yarborough allowed Poole to look through his cell phone during the interview and Poole testified that there were only two text messages on the phone, one of which was sent that morning to Araia telling her to “get up.” Id. at p. 132. Yarborough explained to Poole that he deletes text messages because the box gets full. Id.

         Poole was permitted to testify over objection that when Yarborough was asked if he used drugs on November 29, 2006, he stated that he uses PCP and “smokes dippers” and that he had done so on that day. ECF 11 at pp. 141 - 44. When Poole advised Yarborough that he was identified in a photographic line-up and that his car was seen in the area, he testified that Yarborough replied that he did not know what Poole was talking about. Id. at p. 144. Poole stated that Yarborough said he had told Araia not to call him anymore, but that he had continued to call her. Id. at p. 143. When Poole asked if Yarborough had left a threatening voicemail message for Araia, he told Poole, “I'm not going to beat her up or nothing.” Id. at p. 144. Poole was also allowed to testify over objection that Yarborough told them that on Thanksgiving Day he squirted beer in Araia's face during an argument. Id. at p. 145. Poole stated that Yarborough told them he threw beer on Araia because she was not trying to keep their relationship together. Id. at pp. 147 - 48. Poole further testified that he told Yarborough they knew he had lost control, but they knew he was a good person, and in response Yarborough asked, “Are you telling me she is dead?” Id. at pp. 153 - 54.

         Poole further testified that he checked on Yarborough's alibi by checking the TV Guide for the week of November 27 through December 3, 2006, and that “Friends” was not broadcast on November 29, 2006. Id. at p. 156. The issue of TV Guide was introduced into evidence. Id.

         Poole also testified regarding the execution of the search warrant for Yarborough's house and stated that a bottle of Clorox bleach was found in his bathroom and that the house appeared to be under construction. Id. at p. 158. Under cross-examination, Poole testified that during the November 30 interview he accused Yarborough of doing something wrong, and despite the ...


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