United States District Court, D. Maryland
K. Bredar United States District Judge.
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.
Motion to Suppress
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. 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
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
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.
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. 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.
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
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.
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 (“Terry”) Araia, was
originally from Eritrea, Africa, and lived with her parents
in Takoma Park. ECF 11 at Ex. 4, p. 9.
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.
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.
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
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.
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.
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. Id. at p. 107.
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
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.
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.
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.
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.
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 -
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.
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.
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.
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.
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 -
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” 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.
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.
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.
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.
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.
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 ...