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Sweeney v. State

Court of Special Appeals of Maryland

August 1, 2019

PATRICK JOSEPH SWEENEY
v.
STATE OF MARYLAND

          Circuit Court for Montgomery County Case No. 130347

          Nazarian, Arthur, Shaw Geter, JJ.

          OPINION

          NAZARIAN, J.

         Patrick Joseph Sweeney was convicted in the Circuit Court for Montgomery County of second-degree theft and burglary. Mr. Sweeney was found guilty of breaking into a church pastor's garden shed and taking, among other smaller items, a John Deere riding lawn mower and twenty-five pairs of sneakers that had been donated to the church. The State presented its case against Mr. Sweeney on a first-degree principal theory of liability, but the jury convicted Mr. Sweeney only after the circuit court provided a supplemental instruction on accomplice liability after deliberations had begun, in response to a note from the jury. Mr. Sweeney contends that the supplemental instruction was not generated by the evidence at trial and unfairly prejudiced him because he had no opportunity to defend against an accomplice theory of liability. He also challenges the circuit court's decision to admit a collection of "burglary tools" into evidence, and the court's denial of his motion to suppress evidence obtained from a GPS tracker affixed to his truck. We agree with Mr. Sweeney's first two arguments, reverse, and remand for further proceedings.

         I. BACKGROUND

         Ronnie Morales is a pastor who resides in a church-owned property in Silver Spring. On the morning of June 25, 2016, Mr. Morales's landscaper informed him that the church's John Deere riding lawnmower was not in its usual spot in a shed at the back of the property. Mr. Morales checked the shed, which he kept closed but unlocked, and found "many items" missing including the riding mower, "small tools[, ]" and boxes of sneakers that had been donated to the church. Mr. Morales estimated the total value of the missing items at about $5, 000. Mr. Morales's nephew contacted the Montgomery County Police Department ("MCPD") to report the burglary.

         Weeks before the church shed burglary, on May 27, 2016, the Howard County Police Department ("HCPD") had responded to a different burglary. That victim reported that a neighbor had approached him to let him know that he had seen a suspicious person at 5:15 that morning loading a lawnmower into the bed of a red pickup truck with Washington D.C. plates. The neighbor described the suspicious person as "a black male between 30 [and] 40 years old" and noted a partial license plate number containing the numbers 5035. The victim called the police after noticing several items, including an "ATV, power washer, and a chainsaw," missing from his shed. Detective Kenneth Drummond of HCPD investigated and discovered that a 2003 red Dodge pickup truck with Washington D.C. registration ENV5035 was registered to a Patrick J. Sweeney. His investigation further revealed that Mr. Sweeney had recently used his driver's license in a pawn shop transaction and that he had been charged with burglary several times before, most recently in 2009.

         Based on the information he learned in his investigation, Detective Drummond secured a warrant to attach a GPS tracking device to Mr. Sweeney's truck for thirty days. HCPD attached the device to Mr. Sweeney's truck while it was parked at a Days Inn in Silver Spring, where Mr. Sweeney was living at the time. After thirty days, HCPD removed the tracker and Detective Drummond reviewed the data. He then shared the tracker data with Detective Joseph Vitaletti of MCPD. Detective Vitaletti forwarded the data to Detective Scott Sube of MCPD, an expert in electronic surveillance, who reviewed it. The data revealed that on June 25th, Mr. Sweeney's truck left the Days Inn around 1:17 a.m. The truck drove to the vicinity of Norwood Road and remained stationary on a side street from 2:12 a.m. to 4:43 a.m. It moved to the area of 321 Norwood Road (the Morales residence) and remained stationary again from 4:50 a.m. to 5:08 a.m. The truck then left the area, drove to Washington D.C., and returned to the Days Inn at 5:43 a.m.

         On August 18, 2016, Detective Vitaletti executed a search warrant for Mr. Sweeney's truck and hotel room. In the truck, he found a collection of tools, including bolt-cutters, Allen wrenches, a hammer, a bicycle pump, a chisel, a small shovel, a pair of gardening gloves, and a set of binoculars. Detective Vitaletti also found a pair of distinctively colored sneakers that matched the description of sneakers stolen from Mr. Morales' shed. The Detective arrested Mr. Sweeney for the Morales burglary.

         Mr. Sweeney was tried by a jury on November 13 and 14, 2017. Detectives Drummond, Sube, and Vitaletti each testified about their role in the investigation. Multiple detectives testified that although they had seen Mr. Sweeney driving his truck on other occasions, none had seen him on the day of the alleged burglary. Detective Vitaletti testified that he could not rule out the possibility that someone "either borrowed or stole [Mr. Sweeney's] truck and was in Silver Spring at Mr. Morales's using his truck[.]"

         Mr. Morales testified at trial that he hadn't seen anything the night of the burglary, but that there were tire tracks on the road and in the grass leading up to his shed the following morning. He identified the sneakers recovered from Mr. Sweeney's hotel room as a pair that had been in his shed. The tools found in Mr. Sweeney's truck, which the State characterized as "burglary tools," were admitted into evidence over Mr. Sweeney's objection. The State did not provide any witnesses to the crime, DNA evidence, fingerprint evidence, or boot track evidence.

         Mr. Sweeney offered two witnesses in his defense. Orca Stewart testified that he had known Mr. Sweeney for fifteen years and that Mr. Sweeney had occasionally performed odd jobs for him, such as hauling and landscaping. Mr. Stewart confirmed that Mr. Sweeney drove a red pickup truck and that he had seen other people driving it on multiple occasions. He could not account for Mr. Sweeney's whereabouts the day of the alleged burglary, though, and testified that he had not employed Mr. Sweeney during the summer of 2016.

         Camille Tilley testified that she was a childhood friend of Mr. Sweeney's and had been a passenger in Mr. Sweeney's truck. She stated that Mr. Sweeney kept a variety of tools in the vehicle to use for "the kind of work that he did, or he needed gloves for . . . hauling trash. [] [W]orker's tools." Ms. Tilley testified that she knew Mr. Sweeney to rent out his truck for income because he was unable to work full time due to a back injury. Ms. Tilley stated that she had spent the night of the alleged burglary with Mr. Sweeney at the Days Inn, where they were "organizing the work that has to be done for getting ready for the [] Fourth of July."

         Before closing arguments, the trial judge instructed the jury. Both parties stated, when asked, that they were satisfied with the instructions. After deliberations had begun, the trial judge received a note from the jury, and discussed it with the parties on the record:

THE COURT: [The note] says [']if two people engage in the crime of burglary but only [one] enters the shed are both guilty of the crime[?'] And, I think the answer is yes, but I guess the definition of, of engage would be if he aided or abetted. There's an instruction on that deals with aiding and abetting which I guess it's called accomplice liability . . . which I might propose[] to read. What's the State's position[?]
[THE STATE]: Well, initially my response [] was that your [sic] only considering charges against Mr. [Sweeney], but then as I've been sitting here I looked at the note again, I realized that the answer to that question is yes. So, I would, if the Court's inclined to say the answer is yes and then give them that instruction I would be satisfied with that, Your Honor.
THE COURT: . . . What's the defense position on that?
[MR. SWEENEY'S COUNSEL]: Your Honor, the defense position is that this wasn't charged and hasn't been argued as an aiding and abetting theory. This would be the first time we had heard of that and I don't think that's the case that, that the State's tried to argue here. Certainly, that wasn't something we ever had an opportunity to try to respond to or rebut and our request would be that the Court reiterate [] the instruction that was given[.]
***
It's not what [the State] argued in [its] closing and not something we've ever had a chance to address . . . either as a matter of bringing up certainly any legal objection we might have to it and certainly not had an opportunity to address the jury on why we don't think the specific elements of aiding and abetting would be satisfied here.

         The trial judge disagreed with Mr. Sweeney and gave the jury a supplemental instruction on aiding and abetting. The jury subsequently convicted Mr. Sweeney of second-degree burglary and theft. We supply additional facts below as needed.

         II. DISCUSSION

         Mr. Sweeney raises three issues on appeal.[1] He argues first that the trial court committed reversible error by instructing the jury, after deliberations had begun, on an accomplice liability theory not generated by the State's evidence at trial. He argues second that the trial court abused its discretion by admitting irrelevant and unduly prejudicial evidence of "burglary tools" that Mr. Sweeney had in his truck. He argues third that the court erroneously found probable cause to grant the GPS tracker warrant for Mr. Sweeney's truck because the underlying affidavit contained material misrepresentations of fact, and that the circuit court erred by denying his motion to suppress the resulting evidence. We agree with Mr. Sweeney's first two arguments, reverse his convictions and, for guidance on remand, find that the circuit court properly denied his motion to suppress the GPS data.

         A.The Circuit Court Erred By Giving A Supplemental Jury Instruction On ...


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