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Butler v. State

Court of Special Appeals of Maryland

February 2, 2017

CLIFFORD BUTLER
v.
STATE OF MARYLAND DERIUS DUNCAN
v.
STATE OF MARYLAND

          Circuit Court for Baltimore County Case No. 03-K-12-004853 (Butler) Case No. 03-K-12-004851 (Duncan)

          Meredith, Graeff, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Meredith, J.

          These consolidated appeals arise out of the convictions of Derius Duncan ("Duncan") and Clifford Butler ("Butler"), appellants, for various crimes stemming from the murder of Ronald Givens ("Givens") on October 3, 2011. Appellants were jointly tried in the Circuit Court for Baltimore County beginning on April 28, 2015, and were each convicted of first degree murder of Givens, conspiracy to commit Givens's murder, influencing a witness, and use of a firearm in commission of a crime of violence. Their timely appeals were consolidated.

         QUESTIONS PRESENTED

         Duncan presents the following three questions for our review:

1. Whether the trial court erred in denying severance of [Duncan's] trial from his co-defendant [Butler] when the State intended to introduce a confession of the non-testifying co-defendant that implicated Appellant during the trial[.]
2. Whether the trial court erred in denying [Duncan's] multiple motions for mistrial after the State used a non-testifying co-defendant's confession during trial that implicated [Duncan.]
3. Whether the trial court erred in permitting admission of other crimes evidence in the form of a handgun allegedly possessed by [Duncan] in an unrelated crime and permitting that handgun to be shown to the jury[.]

         Butler presents only one question for our review:

4. Did the lower court err in allowing the State to use Mr. Butler's statements made during two proffer sessions against him at trial?

         We answer "Yes" to Question 2 and Question 4, and we will reverse both appellants' convictions and remand both cases to the Circuit Court for Baltimore County for new trials. We need not answer Questions 1 and 3.

          FACTUAL & PROCEDURAL BACKGROUND

          The Traffic Stops of Ronald Givens and Derius Duncan

         The events giving rise to this appeal began on March 22, 2011. At around 9:00 p.m. that evening, Baltimore City Police Officer Steffon Scott was on patrol with his partner in southwest Baltimore when he observed a black PT Cruiser automobile parked "in an unusual spot." Officer Scott stopped his patrol car to observe the vehicle, and observed a man "jump out" of the passenger side of the vehicle and run out of sight. The PT Cruiser then drove down the street, prompting Officer Scott to follow, and eventually pull over, the vehicle. Upon pulling the vehicle over, Officer Scott encountered Ronald Givens, who was the driver. There were no other individuals in the vehicle with Givens at this time. During the traffic stop, Officer Scott smelled marijuana and observed marijuana within the vehicle. Officer Scott requested that Givens step out of the vehicle so that he could ask Givens some "routine questions." Officer Scott and his partner then searched the vehicle, including the glovebox, and confiscated the marijuana they found, but they did not issue Givens a citation. Officer Scott concluded the traffic stop by telling Givens that he was "done hacking for the night" and that he needed to leave the area.[1]

         Roughly 25 to 30 minutes later, Officer Scott again observed the same black PT Cruiser traveling in the neighborhood where the first encounter with Givens had occurred. Officer Scott observed the PT Cruiser pull over to the side of the street, at which point an individual approached and entered the vehicle. Officer Scott noticed that the individual was "like holding his waistband." Based on the individual's appearance, Officer Scott believed that it was the same person who had previously jumped out of the passenger side of the vehicle when Officer Scott had first observed Givens's vehicle. Officer Scott followed Givens's vehicle, and initiated a second traffic stop by turning on his lights and siren. Officer Scott additionally activated a "spotlight" on his vehicle so that he could "clearly see anything [that was] going on inside the vehicle." As Officer Scott approached the vehicle on foot, he observed the passenger "motion towards the glovebox" and then close the glovebox.

         Officer Scott instructed Givens and the passenger (later identified as Duncan) to exit the vehicle. Officer Scott searched the glovebox, and found a loaded black handgun which had not been in the glovebox during the search of the vehicle 30 minutes earlier. Duncan was arrested and later charged with illegal possession of the handgun. Duncan's trial on those charges was scheduled for October 26, 2011.

         Ronald Givens's Death

         On the morning of October 4, 2011, a neighbor of Ronald Givens found him lying face down on his front lawn with no pulse. The neighbor testified at appellants' trial that she had heard what she thought was a series of "cherry bombs" at roughly 9:00 p.m. the previous evening, but thought nothing more of it after the sounds ceased. After discovering Givens on the morning of October 4, the neighbor called 9-1-1. A Baltimore County police officer dispatched in response to the call discovered that Givens had multiple bullet wounds in his torso.

          Detective Brian Wolf, from the Homicide Division of the Baltimore County Police Department, was assigned to be the lead detective for the investigation of Givens's death. Detective Wolf arrived at the crime scene at approximately 8:15 a.m. on October 4. Once at the crime scene, Detective Wolf spoke with Givens's mother. During their conversation, Givens's mother provided Detective Wolf a subpoena Givens had received from the Circuit Court for Baltimore City. The subpoena ordered Givens to appear as a witness for the State in the case of "State of Maryland v. Derius Duncan" on October 26, 2011. During the course of Detective Wolf's investigation, he later learned that Duncan was on probation at the time he was charged with illegal possession of the handgun, and was therefore facing fifteen years of additional incarceration if found to be in violation of conditions of his probation.

         After investigating the crime scene and meeting with Givens's mother, Detective Wolf contacted the "Diagnostic Center" in Baltimore City, where Duncan was being held pending his trial for the illegal handgun charge. Detective Wolf requested that the officers at the Diagnostic Center search Duncan's cell. After the search was completed, Detective Wolf was provided with copies of documents found in Duncan's cell. This included a piece of paper with "a lot of phone numbers, " in addition to "a name with two addresses underneath of that." The name written down by Duncan was "Dave, " which Detective Wolf later determined was a reference to Butler's nephew David Johnson.

         Detective Wolf also obtained a subpoena for records of phone calls made by Duncan while he was incarcerated. Detective Wolf listened to over 100 calls Duncan had made during his incarceration. The Detective determined that 19 of the calls were relevant to the investigation of Givens's murder. Clifford Butler's voice was heard on several of the calls made by Duncan.

         Butler's Offers of Cooperation

         Detective Donald Anderson was assisting Detective Wolf in his investigation of Givens's murder. At the time Detective Anderson first interviewed Clifford Butler regarding Givens's death, Butler was not incarcerated, and had not been subpoenaed to appear for any matter. Nevertheless, counsel for Butler contacted Detective Anderson and requested a meeting to discuss the Givens case. That contact resulted in Butler entering into a proffer agreement with the State which provided, in relevant part:

1. Except as otherwise provided in paragraphs two and three, no statements made or other information provided by you or your attorney during the proffer will be used against you in any criminal trial.
2. You agree that the State may make derivative use of, and may pursue, any investigative leads suggested by any statements made or other information provided by you or your attorney during the proffer.
3. Your complete truthfulness and candor are express material conditions to the undertaking of the State set forth in this letter. Therefore, the State may use statements made or other information provided by you or your attorney during the proffer under the following circumstances. . . .
* * * b. If the State should ever conclude that you have knowingly withheld material information from the State or otherwise have not been completely truthful and candid with the State, the State may use any statements made or other information provided by you or your attorney during the proffer against you for any purpose. If the State does ever so conclude, it will notify you prior to making any such use of any such statements or other information.

(Emphasis added.)

          The proffer agreement was read and explained to Butler, and was signed and dated by Butler, his attorney, and the prosecutor during a proffer session on December 1, 2011. A copy of the agreement was again read and initialed at a second proffer session on December 5, 2011.

         During the first proffer session, Butler was not "completely truthful and candid with the State." Butler had indicated that three individuals were involved in the murder of Givens: Derius Duncan, Darren Thomas, and Keon Beads. Toward the beginning of the December 1 proffer session, Butler indicated that he had not been personally involved in the murder. Butler explained that the jail calls on which his voice could be heard, and a letter exchanged between him and Duncan, concerned a drug transaction and trying to persuade Givens to provide exculpatory testimony at Duncan's trial on the handgun charge, but did not include discussions of actually harming or killing Givens. However, later during the December 1 proffer session, Butler stated that he had been in contact with Darren Thomas on Duncan's behalf regarding the Givens case. By the end of the first proffer session, Butler acknowledged that he had, in fact, asked Darren Thomas to either harm or kill Givens. Butler further stated that he had been told that the murder of Givens had been carried out by Keon Beads.

         Based on Butler's statements during the December 1 proffer session, Detective Anderson took numerous steps to try to corroborate the information provided by Butler, including interviewing Darren Thomas, subpoenaing phone records, and eventually, issuing a grand jury subpoena for Thomas. Based on their investigations following the first proffer session, Detectives Anderson and Wolf believed that Butler had made false statements during the first proffer session.

         But, at the request of Butler's attorney, a second proffer session was held on December 5, 2011. According to Detective Anderson, Butler was made aware at the outset of the second proffer session that, "if he'd already lied that the [proffer agreement] would in some sense already be breached." Detective Anderson testified that Butler was told that, if he "continued to lie, " the State would be able to use his statements against him. But Detective Anderson also acknowledged in his testimony at a hearing regarding the use of Butler's statements that everyone "started fresh" on December 5:

Q [COUNSEL FOR BUTLER]: So wouldn't you say, detective, at this point in time you started fresh? You believed that Mr. Butler had told you a lie, you asked him to tell you the truth in the second proffer; correct?
A [DETECTIVE ANDERSON]: Yes.
Q: And you said if he didn't tell you the truth now the State could use it against him; correct? Correct?
A: Yes, it's in the agreement.

         A second proffer agreement - which appears to be a photocopy of the December 1 proffer agreement - was initialed by all parties at the beginning of the second session and dated "12/5/11."

         At the December 5 proffer session, Butler told Detective Anderson that Keon Beads had offered Givens drugs and money to induce Givens to change his testimony or not show up in court for Duncan's trial on the handgun charges. Butler also changed his account of Darren Thomas's role in Givens's murder. Butler told Detective Anderson at the December 5 session that Thomas had refused to be involved in the Givens matter, and that Butler had asked his nephew David Johnson to carry out the murder. Butler told Detective Anderson that he had given Johnson certain information pertaining to Givens, such as a description of his car and his address, during a meeting to plan the murder. Butler also told Detective Anderson that he had received two letters, rather than one, from Duncan discussing hurting or killing Givens. According to Detective Anderson, Butler also changed his prior statement regarding the identity of the person who had told him of Givens's murder, stating at the December 5 proffer that he learned of the murder from David Johnson himself, not Keon Beads. Following the December 5 proffer session, Detective Anderson concluded that Darren Thomas had no involvement in the murder of Givens, and Anderson believed that, in addition to Duncan and Butler, David Johnson and Keon Beads had been involved in the murder as Butler had said on December 5.

         The Charges, Request for Severance, and Trial

         Duncan and Butler, as well as David Johnson and Keon Beads, were all charged with various crimes arising out of the October 4, 2011, murder of Givens. On April 7, 2015, a pretrial hearing was held in the Circuit Court for Baltimore County, at which time the court considered Duncan's motion for severance of his trial from the trials of both Butler and Johnson. The State agreed that severance of Johnson's trial was appropriate, but argued that there was no need to conduct separate trials of Duncan and Butler. As we will discuss in more detail later in this opinion, based upon assurances from the prosecutor, the circuit court denied Duncan's motion for severance of his trial from that of Butler.

          Later, immediately prior to jury selection, the court considered the State's motion in limine for permission to introduce evidence of any statements Butler made during the proffer sessions. The State argued that, because Butler had made false statements to Detective Anderson during the first proffer session, the terms of the proffer agreement permitted use of any statements made during the proffer sessions. Butler opposed the State's motion, arguing that he had been given a "fresh start" at the second proffer session in exchange for the information he provided that proved useful to the State, and that the premise of participating in the second proffer session was that any lies he had told during the first session would be forgiven if he was truthful during the second session. Following a hearing on the matter, the circuit court ruled in favor of the State, finding that Butler had clearly breached the proffer agreement by lying during the first proffer session. Consequently, the court ruled that, under the terms of the proffer agreement, the State could introduce any statements Butler had made.

         Following a multi-day trial, appellants were each convicted of first degree murder, conspiracy to commit murder, influencing a witness, and use of a firearm in commission of a crime of violence. Additional relevant facts arising out of the trial are discussed at greater length later in this opinion. This consolidated appeal followed.

         DISCUSSION

         I. Denial of Duncan's Motion for Severance & Motions for a Mistrial

         A. Standard of Review

         We "will only disturb a trial court's decision to deny a motion for a mistrial if the court has abused its discretion, and it is clear that the accused has been prejudiced." Conyers v. State, 345 Md. 525, 561 (1997). Accord Parker v. State, 189 Md.App. 474, 493-96 (2009). As we explain in the following section, there are some circumstances in which the trial court's discretion is limited by constitutional considerations.

         B. The Bruton Violation

         Duncan contends that, in light of the Supreme Court's holding in Bruton v. United States, 391 U.S. 123 (1968), the circuit court erred in denying both his motion for severance of his trial from Butler's and his multiple motions for mistrial that followed. The Court of Appeals has succinctly summarized the holding of Bruton as follows:

Bruton rights are triggered when testimonial hearsay is introduced into evidence. In Bruton, the Supreme Court addressed "whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a codefendant's confession inculpating the defendant had to be disregarded in determining his guilt or innocence." Bruton, 391 U.S. at 124-25, 88 S.Ct. at 1622, 20 L.Ed.2d at 478. During Bruton's joint trial with Evans, Evans's out of court confession inculpating both defendants had been admitted into evidence. The trial judge had given a limiting instruction to the jury to consider the confession only against Evans, but not against Bruton. The United States Court of Appeals for the Eighth Circuit affirmed. Bruton v. United States, 375 F.2d 355 (8th Cir.1967).
The Supreme Court reversed. The Court held that the trial court's limiting instruction did not sufficiently protect Bruton's Sixth Amendment rights, because Evans had not testified, the introduction of Evans's confession added substantial weight to the Government's case against Bruton, and Bruton could not cross-examine Evans. Bruton, 391 U.S. at 137, 88 S.Ct. at 1628, 20 L.Ed.2d at 485. The Court opined that a limiting instruction was insufficient to protect Bruton's right to cross-examine and that there was no basis upon which to admit Evans's confession against Bruton. When "the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial", the Court concluded, "limiting instructions [were not acceptable] as an adequate substitute for [Bruton's] constitutional right of cross examination." Id. at 135-36, 137, 88 S.Ct. at 1628, 20 L.Ed.2d at 483, 484. Bruton, then, is premised upon the Confrontation Clause of the Sixth Amendment and limits joinder, as well as the efficacy of cautionary instructions when evidence of a testimonial nature is introduced.

State v. Payne, 440 Md. 680, 717 (2014) (emphasis added) (alterations in original).[2]

         Prior to trial in this case, the State conceded at the April 7 pre-trial hearing that Butler's statements made during his proffer sessions and phone calls with Duncan "do constitute testimonial statements and therefore trigger the confrontation clause which therefore implicates Bruton." At that hearing, the State also acknowledged that a mere redaction of Duncan's name from any of Butler's communications would not be sufficient to satisfy Bruton, but the State assured the circuit court that a Bruton violation could be avoided and that any Bruton issue "could be remedied" because the State would take greater precautions than those that had been held insufficient in "[Gray v. Maryland, 523 U.S. 185, 197 (1998)] . . . which was a simple deletion."[3]

         The following colloquy then took place regarding the State's assurances that it would avoid the potential Bruton violation without the need for severing Butler's case from Duncan's:

THE COURT: So these proffers by Mr. Butler don't say that he was soliciting and enlisting Mr. Johnson to do Duncan's bidding?
[THE STATE]: They do implicate Mr. Duncan, but the jail calls --
THE COURT: Well, okay so the --
[THE STATE]: -- so there's no doubt about that. But respectfully, the State submits that first of all what we would be referring to is conversations that are on the jail calls themselves.
But secondly, Your Honor, I think this is why we were alluding to the redaction solution, if the court has concerns, and what I was gonna add is if the court has concerns as trial is unfolding as to the substance of those passing references the State would be prepared to agree that what Mr. Butler told detectives about Mr. Duncan's role in that would not be presented to the jury through the detectives.
So in other words the State would present the jail calls to establish Mr. Duncan and Mr. Butler talking together about what they would do. The State would then present the detectives to present what Mr. Butler told them about getting Mr. Johnson and then Mr. Johnson reporting back to them. So that's the only part that . . . implicates the testimonial comments by Mr. Butler, and then the State would return to the jail calls with respect to Mr. Butler reporting back to Mr. Duncan what had happened. So the, the silo of information that would come from the testimonial statements, which is the only category of statements that would implicate Bruton, would be redacted if the, if the court wished and if defense counsel wished to not implicate Duncan.
** *
THE COURT: The State's prepared to, so with respect to the detective's testimony that's how you're presenting this information?
[THE STATE]: That's right Your Honor.
THE COURT: So you're prepared to direct the detectives that in answering questions about what Mr. Butler said to them, they are not to include references to what Mr. Butler said about Mr. Duncan.
[THE STATE]: Exactly your honor.
** *
THE COURT: All right. You're gonna direct the detectives when they testify what Butler said to them at these proffer sessions, said to them about Johnson. They are not to mention Duncan.

(Emphasis added.)

         With that assurance from the prosecution, the court concluded that Duncan could be tried jointly with Butler. Cf. State v. Hines, 450 Md. 352, 369-70 (2016) (recognizing that, in some instances, it may be possible for a trial judge to eliminate any unfair prejudice attributable to non-mutually admissible evidence by "redacting evidence to remove any reference to the defendant against whom it is inadmissible").

         At trial, however, the State introduced statements made by Butler that incriminated Duncan. During the direct examination of Detective Wolf, for example, the State played recordings of jail calls between Duncan and Butler, in which the voices of both defendants could be heard. Detective Wolf testified that, in his opinion, Duncan, whom the State identified by name, was one of the individuals participating in the calls played by the State. Over objections from appellants, the jury was also provided with transcripts of the calls between Duncan and Butler which identified Duncan by name in the left hand column of the transcript as one of the speakers.

         The State then asked Detective Wolf to explain the meaning of various portions of conversations between Duncan and Butler - in essence, translate the coded words used by Duncan and Butler - and Detective Wolf provided those translations based upon the explanations of the meaning of certain words and phrases Butler had provided to Detective Wolf during his proffer sessions. In this manner, the State utilized incriminating statements codefendant Butler had made during the proffer sessions to support its case against Duncan. Those statements Butler made during the proffer sessions were clearly testimonial hearsay which would have been otherwise inadmissible against Duncan.[4]

         After Duncan had made numerous objections to the State's examination regarding Detective Wolf's translation of Duncan's jail calls with Butler, the circuit court sua sponte called a bench conference during which the following exchange occurred:

THE COURT: I'm thinking further about [counsel for Duncan's] objection and it seems that it's appropriate at this time[, a]lthough [counsel for Duncan] didn't request it, to tell the jury that this ...

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