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Payne v. State

Court of Special Appeals of Maryland

December 18, 2019


          Circuit Court for Anne Arundel County No. C-02-CR-16-002447

          Graeff, Arthur, Sharer, J., Frederick (Senior Judge, Specially Assigned), JJ.


          Sharer, J.

         Having been charged with, and convicted of, five counts of possession of child pornography, [1] Korey Vaugh Hamilton Payne raises three challenges to rulings of the Circuit Court for Anne Arundel County.[2]

In his brief, Payne asks:
1. Did the motions court err in denying [his] motion to suppress his statement?
2. Did the circuit court err, or abuse its discretion, in admitting other bad acts evidence?
3. As a matter of first impression in Maryland, did the circuit court err in imposing separate sentences for each of five images of child pornography where each image was possessed at the same time and place?

         Finding neither error nor abuse of discretion by either the motions court or the trial court, we affirm the judgments of the Circuit Court for Anne Arundel County.


         Because our review does not implicate the sufficiency of the evidence adduced at trial, we need not recite the facts underlying the charges, other than to provide context for our discussion of the issues presented. Whitney v. State, 158 Md.App. 519, 524 (2004) (citing Craig v. State, 148 Md.App. 670, 674 n. 1 (2002)). See also, Teixeira v. State, 213 Md.App. 664, 666 (2013) (quoting Fitzpatrick v. Robinson, 723 F.3d 624, 628 (6th Cir. 2013)); Washington v State, 190 Md.App. 168, 171 (2010).


         1. Motion to Suppress

         Payne filed a timely motion to suppress a statement he made to police, in his home, on the day of the execution of a search warrant. He challenges the voluntariness of the statement, asserting that he was in custody at the time and that his rights under Miranda[3]and its progeny had been violated when he had unequivocally invoked his right to counsel, but the police persisted in questioning him thereafter.

         The Suppression Hearing

         The suppression court conducted a hearing on April 5, 2017. In his brief, Payne has included a summary of the testimony developed at the suppression hearing, which, in its brief, the State accepts. We reproduce the summary, with occasional non-substantive editing.[4]

         On July 29, 2016, Detective Erick Patterson, of the Anne Arundel County Police Department, executed a search warrant at Payne's home in Hanover, Anne Arundel County, where Payne lived with his mother. The execution of the warrant was in connection with a child pornography investigation. Patterson was with ten other officers who were members of the child abuse unit, the sex offense unit, and the digital forensic unit. The officers knocked on the door, announced their presence, and identified themselves as county police officers with a search warrant for the residence. Payne answered the door. The officers were dressed in Class C uniforms, consisting of navy-blue cargo work pants and a polo shirt displaying a police badge. They wore tactical or ballistic vests with "Police" on the back of the vests. They were armed with firearms, but there was no testimony that guns were ever drawn. All the officers entered the house at about the same time.

         Payne was asked to step outside, where an officer stood with him while other officers went inside to determine the possibility of other occupants. Patterson testified that he did not know if Payne was handcuffed at that time.

         After finding no one else in the home, Patterson met Payne in the living room. Payne was not in handcuffs and Patterson did not see Payne restrained in any way. Patterson identified himself to Payne and asked if Payne would speak with him. Patterson testified that he made Payne aware that he was not under arrest. He asked if Payne would accompany him to an upstairs bedroom for an interview. Patterson testified that he would have allowed Payne to leave if he had asked to do so.

         A female officer, Detective Kristine Mays, [5] was present for the interview which lasted for approximately 45 minutes. According to Patterson, Payne consented to an audio recording of the interview. Neither Patterson nor Mays drew their weapons at any time, nor did Patterson raise his voice or become aggressive during the interview.

         Patterson testified that he made no promises or threats, nor did he offer Payne inducements in return for his statement. He did not detect that Payne was under the influence of any substance and he did not have concerns about Payne's mental health. Patterson advised Payne of his Miranda rights. Payne was not arrested that day and charges were not filed until October 3, 2016, more than two months later.

         Smita Topiwama, Payne's neighbor, testified that, on the day of the warrant execution, she looked out from her window, and saw five or six police cars, and officers "run into the [sic] Korey's house." Her kitchen window faces Payne's front door. She saw officers taking pictures of the house before they went to the door. Significantly, she testified that she saw an officer place Payne in handcuffs.

         The Ruling

         After hearing the testimony and arguments of counsel, the court held the matter sub curia and issued a Memorandum Opinion and Order on April 24, 2017, ruling that Payne was not in custody at the time he talked with police. Therefore, the court concluded, the question involving the right to counsel was not implicated.

         In its Memorandum Opinion, the court indicated a thorough review of the testimony, made findings of fact, to which it applied appropriate case law, both Maryland and federal, and concluded that Payne had not met his burden of proving that he was in custody for purposes of Miranda applicability:

Before the questioning occurred …, the officers asked the Defendant to go outside while they conducted a search of his home. At that [time], the Defendant had no obligation to stay and could have left the scene. Additionally, Detective Patterson asked the Defendant if he would speak with him, he was not ordered to do so. Once the Defendant agreed, the Defendant led the officers to a bedroom on the third floor, he was not escorted by the Officers or required to comply. Further, only two officers were present in the bedroom at the time of questioning; one was a female detective who sat on the floor, and another was Detective Patterson who sat on a piece of furniture, not blocking or locking the door. Although Detective Patterson read the Defendant his Miranda rights, he testified at the suppression hearing that he always gives Miranda warnings and he did not believe the Defendant to be in custody or under arrest. Additionally, after listening to the recording of the interview, the conversation was calm, the officers did not ask leading questions, there were no threats, inducements, or any promises made to the Defendant, the conversation only lasted about 45 minutes, and Detective Patterson made it clear that it was up to Defendant if he wished to stop. Further, the Defendant was not arrested at or near the time of the interview. The defendant was not placed under formal arrest until October 4, 2016, about 3 months after the questioning occurred.
When taking all of the factors together, the Defendant did not prove that he was in custody for purposes of Miranda applicability. Accordingly, after review of the evidence presented and consideration of the relevant case law, the Court finds that Miranda did not apply at the time of the questioning ….

         Standard of Review

         We review a circuit court's denial of a motion to suppress on "'only the evidence contained in the record of the suppression hearing.'" Gupta v. State, 452 Md. 103, 129 (2017) (quoting Rush v. State, 403 Md. 68, 82-83 (2008)). "[W]e 'extend great deference to the findings of the motions court as to first-level findings of fact and as to the credibility of witnesses, unless those findings are clearly erroneous.'" Jones v. State, 213 Md.App. 483, 496 (2013) (quoting Padilla v. State, 180 Md.App. 210, 218 (2008)). In our consideration, "we 'review the evidence and the inferences that may be reasonably drawn in the light most favorable to the prevailing party,' in this case, the State." Id. (quoting Bost v. State, 406 Md. 341, 349 (2008)). However, we review the suppression court's legal conclusions de novo by undertaking our own "independent constitutional appraisal of the record by reviewing the law and applying it to the facts …." found by the suppression court. Gupta, 452 Md. at 129 (internal quotations and citation omitted). Moreover, a defendant must show that he was in custody and subject to interrogation as a condition of entitlement to the protection of Miranda. Smith v. State, 186 Md.App. 498, 519-20 (2009). Accord Moody v. State, 209 Md.App. 366, 380 (2013) (the burden of showing custody and interrogation lies with the movant).

         The issue before us is whether Payne established to the suppression court that he was in custody at the time of the statement given to police. Payne argues:

Considering the totality of the circumstances in this case, particularly the entry of eleven officers armed and in uniform, the searching of the premises, the request to remove to an upstairs bedroom for an interview with two detectives and the failure any officer to tell Mr. Payne that he was free to leave, the circuit court erred in determining that the interrogation was not a custodial one. Because Mr. Payne was "in custody" and was questioned, he had the right to be free from compelled self-incrimination.

         (Footnote omitted).

         In support of his argument, Payne refers us to Thompson v. Keohane, 516 U.S. 99 (1995), wherein the Supreme Court reiterated that a determination of "in custody" involves two "discrete inquiries":

[F]irst, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve "the ultimate inquiry": "[was] there a formal arrest or restraint [of] freedom of movement of the degree associated with a formal arrest."

516 U.S. at 112 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)).

         In that respect, courts have determined factors to be considered in determining custody including:

"[W]hen and where it occurred, how long it lasted, how many police were present, what the officers and the defendant said and did, the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door, and whether the defendant was being questioned as a suspect or as a witness. Facts pertaining to events before the interrogation are also relevant, especially how the defendant got to the place of questioning whether he came completely on his own, in response to a police request or escorted by police officers. Finally, what happened after the interrogation whether the defendant left freely, was detained or arrested may assist the court in determining whether the defendant, as a reasonable person, would have felt free to break off the questioning."

Owens v. State, 399 Md. 388, 429 (2007) (quoting Whitfield v. State, 287 Md. 124, 141 (1980)).

         The uncontroverted testimony of Detective Patterson, relied on by the suppression court, was that Payne was not restrained, that he was cooperative, that no weapons were shown or drawn, that he responded to Patterson's request for an interview, that he was not coerced or forced to speak, that no promises or inducements were made, that he was advised that he was not under arrest, that he would have been permitted to leave the interview had he so requested, that the interview lasted about 45 minutes, after which, and after the search ended, the police left Payne in his home. He was not formally arrested until after the charges were filed in October 2016.

         We do not overlook the testimony of Ms. Topiwama, who testified that she observed Payne, while outside his home, in handcuffs. The suppression court found her not to be credible because of inconsistencies in her account of the event, vis-à-vis the testimony of Patterson.[6] We do not disturb the hearing court's credibility assessments unless clearly erroneous.

         It was Payne's burden to prove custody. Smith, 186 Md.App. at 519-20. Payne opted to remain silent at the suppression hearing; therefore, we have been provided no contrast to the evidence given by Detective Patterson, upon which the court reasonably relied.

         We agree with the reasoning of the suppression court that Payne, at the time of the interview with, and statement to, Detectives Patterson and Mays, was not in custody. Because the circumstances were non-custodial, we need not reach his contention that he was denied the right to counsel.[7]

         We shall not disturb the suppression court's rulings.

         2. Other Bad Acts Evidence

         The search conducted by police at Payne's home resulted in the seizure of several data storage devices, which the State characterized in its brief as "USB thumbdrives and ScanDisc cards."[8] Collectively, those devices contained more than 3, 000 images, of which 527 were identified by the State's witnesses as either child pornography or child erotica. Of those images so identified, the State's Attorney selected five as the basis of the possession charges. Those five images were found on the same data stick but depicted five different children. Over objection, the State's witness, Detective Joshua Williams, described images stored on other storage devices. Williams was asked:

[THE STATE]: You indicated that there were other things on the data stick other than child pornography. What, if any, data did you observe on that thumb drive?

[WITNESS]: Again, it had similar images that had pictures of the defendant taking selfies. It had some captures of the defendant in these video chats. It had some pictures of teen girls. This one also had a video that depicted the defendant setting up a recording device and masturbating next to a sleeping woman.[9]

         It is that response that forms the basis of Payne's claim that the trial court erred in permitting that "other bad acts" evidence, contrary to Rule 5-404.[10] His trial counsel argued that the Williams' testimony about the existence of a video of Payne masturbating next to a sleeping woman was not relevant to the charges of possession of child pornography and while characterized as admittedly "unsavory" and "repulsive" it was unnecessary to prove the State's case and, therefore, prejudicial.

         The State responded to defense counsel's prejudice arguments by asserting that the evidence was admissible under the identity exception in Rule 5-404(b) because Payne's defense, in part, was that the pornographic images were the property of his mother's companion and were not in his possession.[11]

         Payne is correct that Rule 5-404 is a rule of relevance, requiring a finding of special relevance to the crime(s) charged in order to admit otherwise inadmissible evidence of other bad acts. See generally Streater v. State, 352 Md. 800 (1999). See also Rules 5-401 through 5-413 (governing "Relevancy and its Limits" for the admissibility of evidence). Thus, "[e]xcept as otherwise provided by constitutions, statutes, or [the Maryland Rules], or by decisional law not inconsistent with these rules, all relevant evidence is admissible." Rule 5-402.

         We have said "'a bad act is an activity or conduct, not necessarily criminal, that tends to impugn or reflect adversely upon one's character, taking into consideration the facts of the underlying lawsuit.'" Brice v. State, 225 Md.App. 666, 692 (2015) (quoting Klauenberg v. State, 355 Md. 528, 549 (1999)). Because of the significant risks associated with the admission of such evidence, it is admissible only when the bad acts evidence "has 'special relevance-that it is substantially relevant to some contested issue.'" Smith v. State, 218 Md.App. 689, 710 (2014) (quoting Wynn v. State, 351 Md. 307, 316 (1998)). Accord Wilder v. State, 191 Md.App. 319, 343 (2010) (explaining that "[t]his Rule and 'the common law preclude the admission of other crimes [or other acts] evidence, unless the evidence fits within a narrowly circumscribed exception.'" (quoting Carter v. State, 366 Md. 574, 583 (2001))). Rule 5-404(b) provides the "special relevancy" exceptions to the limited admissibility of bad acts evidence, allowing admission of such evidence for the purpose of proving "motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident." See Smith, 218 Md.App. at 710 (citations omitted).

         We review a trial court's ruling on the admissibility of other crimes/bad acts evidence by following the "Faulkner standard," a three-step process:

First, the court determines whether the evidence falls into one of the recognized exceptions[]…. This is not a matter of discretion, and we review that categorization de novo. Second, if the evidence falls into a category of exceptions, the court decides by clear and convincing evidence whether the defendant was involved in the prior … bad act, and we review that finding for sufficiency of the evidence. Third, the court balances the probative value of the evidence against the danger of unfair prejudice, a determination we review for abuse of discretion.

Bellard v. State, 229 Md.App. 312, 342-43 (2016) (emphasis in Bellard) (citing State v. Faulkner, 314 Md. 630, 634-35 (1989)).

         Under the first prong, the State's justification for the admissibility of the testimony concerning the masturbation video is the "identity" exception to the rule. The State argues that the video having been found in close proximity to the proscribed images, in Payne's home, serves to establish his ownership or control of the images for which he was charged, indeed of all of the storage devices that were recovered together in the same white box. In support of its position, the State points to defense counsel's comments in his opening statement:

[DEFENSE COUNSEL]: … you're going to hear they found child porn in that house without a doubt. But it didn't belong to Mr. Korey Payne. And the government won't prove that it did because it belonged to somebody else.
You heard the government tell you who lived in that home. It was Korey Payne, his mother, Gloria Payne, and her fiancé, Antonio Kohl. You're going to hear evidence that, in fact, it was not Korey Payne's pornography. It was somebody else's. It was his mother's fiancé's.

         Those comments, the State argues, placed "the issue of identity as to the possessor of the child pornography contained on the storage devices found in the white box … squarely before the jury[, ]" and that "'the test of relevance is whether, in conjunction with all other relevant evidence, the evidence tends to make the proposition asserted more or less probable.'" (Quoting Donati v. State, 215 Md.App. 686, 736 (2014)).

         While denying its relevance, Payne concedes that the masturbation video constitutes an "act" as contemplated by the rule, thereby satisfying the ...

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