Norwood v. State , 222 Md. App. 620 ( 2015 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2718
September Term, 2011
BRITTANY NORWOOD
v.
STATE OF MARYLAND
Berger,
Nazarian,
Leahy,
JJ.
Opinion by Berger, J.
Filed: April 29, 2015
On the morning of March 12, 2011, Brittany Norwood (“Norwood”), appellant, and
her co-worker, Jayna Murray (“Murray”), were discovered in the Lululemon Athletica retail
store in Bethesda, Maryland, the apparent victims of a violent attack. Murray was found
deceased, having suffered approximately 331 individual injuries. Norwood was found bound
with zip-ties, with a laceration on her forehead and scratches on her abdomen. Norwood’s
pants were torn at the crotch. A check of Norwood’s neck, back, and extremities revealed
no injuries. Norwood was placed on a stretcher and transported to a hospital for medical
treatment.
Over the course of the next several days, authorities investigated the incident and
subsequently came to view Norwood as a suspect rather than a victim. Norwood was
ultimately arrested on March 18, 2011 and was subsequently charged with murder.
Following an eight-day trial in the Circuit Court for Montgomery County, the sole charges
submitted to the jury were first-degree premeditated murder and second-degree specific
intent to kill murder. On November 2, 2011, the jury found Norwood guilty of first-degree
murder. On January 27, 2012, the court sentenced Norwood to life imprisonment without
the possibility of parole.
Norwood presents two issues for our review on appeal, which we have rephrased and
reordered as follows:
1. Whether the trial court erred by denying Norwood’s motion
to suppress statements she made to the police on March 16
and 18, 2011.
2. Whether the trial court abused its discretion by permitting a
witness to testify about a laceration he saw on Norwood’s
hand and about knife wounds he had seen in the past.
For the reasons stated herein, we shall affirm the judgment of the Circuit Court for
Montgomery County.
FACTS AND PROCEEDINGS
Many of the underlying facts of this case are not relevant to the rather limited issues
raised on appeal. We set forth the facts significant to the issues presented and further facts
that are relevant to the overall context in the light most favorable to the prevailing party.
Norwood and Murray were co-workers at the Bethesda Lululemon Athletica retail
store. They had worked together at the store on the night of March 11, 2011. After closing
the store, both Norwood and Murray left the building. At 9:51 p.m., Norwood telephoned
Eila Rab, another sales associate at Lululemon, and told her that she had left her wallet at the
store. Norwood asked Ms. Rab for Murray’s telephone number so that she could call Murray
and ask her to meet her at the store to let her in. Ms. Rab sent Murray’s phone number to
Norwood via a text message.
Norwood telephoned Murray, and Murray agreed to meet Norwood at the store. Once
Norwood and Murray met at the Lululemon store, a violent encounter occurred which
resulted in Murray’s death. Employees at the Bethesda Apple Store, which adjoined the
Lululemon store, heard noises coming from the Lululemon store shortly after 10:00 p.m.,
including sounds of dragging, grunting, thudding, and high-pitched squealing. One Apple
2
Store employee asked a security guard to check the nature of the disturbance and spoke to
another manager about the noises. The employee continued to hear noises, including
screaming and yelling. The employee heard one female voice which sounded hysterical and
another female voice saying, “Talk to me. Don’t do this. Talk to me. What’s going on?”
The employee heard additional screaming, yelps, and yells, and heard a voice say, “God help
me. Please help me.” She did not believe the voice pleading to God was the same voice that
had said, “Talk to me. Don’t do this.” The employee left the Apple Store shortly after 11:00
p.m.
Norwood attacked Murray with multiple weapons, causing approximately 331
individual injuries and ultimately Murray’s death. Murray had injuries to her head, face,
neck, back, and extremities. According to the medical examiner, Murray was alive when she
incurred the majority of her injuries. A stab wound to the back of Murray’s head hastened
her death.
Norwood doctored the scene in order to make it appear that a robbery had occurred
and that both Murray and Norwood had been victims of an attack. Norwood used a pair of
men’s size fourteen Reebok tennis shoes to create bloody footprints at the crime scene.1
Norwood moved Murray’s car to a parking lot further from the Lululemon store and moved
various items in the Lululemon store in an attempt to make it appear that a robbery had
1
The shoes were kept in the Lululemon store for customers to use when trying on
Lululemon clothing.
3
occurred. Norwood opened the safe in the store and removed three bags of money from it.
Norwood inflicted various superficial injuries upon herself, cut a slit in the crotch of her
pants, bound her hands and feet with zip ties, and laid on the floor. Norwood then waited to
be discovered the following morning.
On the morning of March 12, 2011, manager Rachel Oertli arrived at the Lululemon
store shortly before 8:00 a.m. She noticed that the door was unlocked and initially believed
that someone had arrived just before her and had forgotten to lock the door. When she
entered the store, the lights were on and things were out of place, leading her to believe an
altercation had occurred. Ms. Oertli called out and heard someone moaning. She left the
store and immediately called 911. Ms. Oertli saw a man, Ryan Haugh, waiting outside the
Apple Store2 and asked him if he would accompany her into the Lululemon store. Although
he did not know Ms. Oertli, Mr. Haugh agreed to enter Lululemon with her. After they
entered, Mr. Haugh went toward the back of the store by himself at Ms. Oertli’s request. Mr.
Haugh saw a body lying face down and called out to Ms. Oertli to call the police because it
appeared as if someone was dead. As Mr. Haugh walked back toward Ms. Oertli, he saw a
second person who was tied up but breathing. Mr. Haugh told Ms. Oertli that there was one
person who was dead and another person who was alive and appeared to have been sexually
assaulted. Ms. Oertli called police for a second time.
2
The Apple Store did not open until 10:00 a.m. Nevertheless, Mr. Haugh had arrived
early because he was waiting to purchase a second-generation iPad that had been released
the previous day.
4
Several officers arrived shortly thereafter. When the police approached Norwood, she
appeared to be unresponsive. The police found Murray face down in a pool of blood with
no pulse. An ambulance arrived at approximately 8:00 a.m. Norwood was placed on a
stretcher and transported to Suburban Hospital. Officer Colin O’Brien was working
part-time for Suburban Hospital performing security work as a uniformed police officer on
March 12. He met the ambulance carrying Norwood when it arrived and followed her
stretcher into the trauma bay. Officer O’Brien observed a number of cuts on Norwood’s
chest, legs, arms, and forehead. In particular, Officer O’Brien noticed a one to two-inch
laceration on Norwood’s right hand that ran parallel to Norwood’s thumb. While at the
hospital, Norwood was examined by a sexual assault nurse examiner. The examination
revealed no evidence of sexual assault.
Over the next several days, multiple police officers engaged in various conversations
with Norwood. Norwood’s statements to police officers during conversations were later the
subject of a motion to suppress. Specifically, Norwood sought to suppress statements made
on March 12, 14, 16, and 18.3
The March 12 Interview
Detective Deana Mackie of the Montgomery County Police Department met with
Norwood at Suburban Hospital at 10:25 a.m. on March 12, 2011 for approximately forty-five
3
On appeal, Norwood challenges the trial court’s ruling with respect to the interviews
that occurred on March 16 and 18.
5
to fifty minutes. After her conversation with Norwood, Detective Mackie went to the
Lululemon store before returning to Suburban Hospital at approximately 2:35 p.m. to speak
with Norwood further. Detective Mackie viewed Norwood as a victim and spoke with her
to obtain information in order to develop a suspect. Norwood spoke freely and responded
appropriately to Detective Mackie’s questions during both sessions. Norwood told Detective
Mackie that she and Murray had been attacked by two men wearing masks. She described
an attack by two men in significant detail. Norwood told Detective Mackie that she had been
raped and sexually assaulted with a clothing hanger. In addition to speaking with Norwood,
while at Suburban Hospital, Detective Mackie spoke with various medical professionals.
The March 14 Interview
On March 14, 2011, at approximately 8:00 p.m., Detective Dimitry Ruvin and
Detective James Drewry met with Norwood at her residence. The detectives were wearing
plainclothes attire. The meeting had been arranged through telephone conversations with
Norwood’s family members. The detectives’ purpose in visiting Norwood was to introduce
themselves and inquire as to whether Norwood remembered any additional details of the
incident. Detective Ruvin testified that he still considered Norwood a victim during the
March 14 interview.
When the detectives arrived, they met several of Norwood’s family members.
Norwood emerged and the detectives introduced themselves and told her that they wanted
to see if she had remembered anything else. At Norwood’s suggestion, the detectives and
6
Norwood went downstairs to her living area and sat around a table in the living room area.
Norwood recounted her story regarding the events of March 11-12, 2011 while the detectives
took notes and recorded a portion of the interview.4 The atmosphere of the conversation was
very casual, and Norwood was coherent and cooperative. Norwood told the detectives that
she was sexually assaulted. Norwood explained that the attacker told her that the only reason
she was not killed was because she was “fun to fuck.” Norwood said that one attacker
pushed her onto Murray’s body. Norwood told detectives that the attackers knew her name
and address, which she presumed the attackers found on Comcast and Washington Gas bills
which had been in her purse. Norwood told detectives that the attacker swore at her and
called her a “dirty slut” and a racial epithet while sexually assaulting her.
Detective Ruvin testified that Norwood became emotional during the conversation
about the sexual assault. She had tears in her eyes and looked down a lot, but continued to
talk to the detectives. At the end of the interview, Norwood spoke with the detectives about
4
An approximately 4-minute segment of the interview was recorded. The recorded
portion included an explanation of when the two men entered the Lululemon store and what
occurred thereafter. Norwood explained how Murray was struck by one man and she was
attacked by another man. Norwood told the detectives that the man who attacked her was
wearing black clothing, a ski-type mask and gloves, and that, based upon his voice, Norwood
thought the attacker was in his mid-twenties and Caucasian. She told the detectives that he
was approximately five feet five inches tall with a medium build. Norwood told detectives
that she heard her attacker unzip his pants.
Norwood described Murray’s attacker as approximately six feet tall with an average
build. According to Norwood he was also wearing black clothing, a ski-type mask, and,
based upon his voice, Norwood thought he was Caucasian.
7
what she was going to do in the future. Norwood told the detectives that her family wanted
her to move back to Seattle, but that she had been recently offered a new job in Bethesda,
which she planned to begin after she recovered.
The detectives recommended that Norwood inform her family members that the
attackers knew her address. She told her family members in front of the detectives.
Detective Ruvin testified that Norwood’s family members were “very, very concerned.” The
detectives advised Norwood’s family members to contact the police if they saw anything
suspicious. Detective Ruvin testified that at the end of the March 14 interview, he still
viewed Norwood as a victim.
The March 16 Interview
The detectives met with Norwood a third time on March 16, 2011. Norwood came
to the police headquarters at the request of Detective Drewry. By this time, Detective
Drewry had begun to view Norwood as a suspect. Detective Drewry asked Norwood to come
to headquarters in order to provide elimination fingerprints and hair samples. Detective
Drewry testified at the hearing on the motion to suppress that Norwood was asked to come
in both to provide elimination prints and because “it was also a ruse to get her to come in”
to talk to the detectives. Norwood arrived at approximately 5:00 p.m. with two of her
siblings. Norwood’s siblings left to get something to eat and Norwood was asked to sit in
an interview room.
8
The interview, which was video recorded, took place in an interview room at police
headquarters.5 The interview room had two doors, one of which was often left open and the
other of which was occasionally open. During the first approximately one hour of the
interview, Norwood spoke informally with Detective Drewry while waiting for evidence
technicians to take hair samples, photographs, and fingerprints. Norwood again described
being attacked by two assailants. When asked whether she knew the type of car Murray
drove, Norwood replied that she did not know. At the end of the interview, Norwood left the
station with her family.
The following day, Norwood’s brother, Chris Norwood, and sister, Marissa Norwood,
contacted the detectives via telephone. Norwood’s siblings explained that Norwood had
been withholding information from the detectives because she was afraid that the suspects
would harm her. Specifically, one of Norwood’s siblings told Detective Drewry that the
attackers had forced her to move Murray’s car. An additional interview was scheduled, at
Marissa Norwood’s request, for March 18, 2011 at 10:00 a.m.6
The March 18 Interview
On March 18, Norwood arrived at police headquarters accompanied by her siblings,
Marissa and Chris Norwood. Norwood went into an interview room with Detectives Drewry
and Ruvin. At the beginning of the interview, Norwood discussed her plans for the future,
5
The video recording is two hours and fifty-five minutes.
6
The Norwoods said that it would be inconvenient to meet on March 17 but agreed
to meet on March 18, at 10:00 a.m. at police headquarters.
9
including the possibility of moving back to her hometown of Seattle to move in with her
brother, Chris. Norwood told Detective Drewry that her “only concern” with respect to
moving to Seattle was that she wanted to be reachable by police during the investigation.
Unprompted, Norwood initiated a conversation regarding Murray’s car, saying, “All
right, I’m here because . . . .” Norwood told detectives that prior to the sexual assault, the
attackers made her move Murray’s car to a different parking lot. According to Norwood, the
attackers told her they would be watching her the entire time and threatened to kill her if she
talked to anyone. She explained that she went, alone, to move Murray’s car. While moving
Murray’s car, Norwood saw a police officer in a patrol vehicle but did not flag down the
officer or attempt to contact him because she was too afraid. When asked why she returned
to the Lululemon store after moving Murray’s car instead of driving away and attempting to
contact police, Norwood explained that she was “afraid for [her] life” and that the attackers
knew where she lived.
At one point during the interview, Norwood expressed, “we’ve been over this.”
Detective Drewry responded, “Yeah, but every time we go over it something else comes out
or changes a little so I’m just trying to get it as straight as possible.”7 The trial court
suppressed the statements made after this exchange.
7
On the DVD reviewed by this Court, this exchange occurred at 44:55, according to
the counter on the Court’s computer. The trial court stated that according to its counter, this
exchange occurred at 44:29. Regardless, the court discussed what was being said by the
parties at the point at which it found Miranda warnings were required, and the trial transcript
reproduces the part of the recording which was played at trial.
10
Eventually, Detective Drewry told Norwood that he did not believe her story and
explained to her why the evidence demonstrated that her story was a lie.8 Norwood’s siblings
were brought into the interview room, and Detective Drewry explained to them why he
believed Norwood had murdered Murray. Ultimately, Norwood was placed under arrest later
that day.
Following an eight-day trial in late October and early November of 2011, the charges
submitted to the jury were first-degree premeditated murder and second-degree specific
intent to kill murder. The jury found Norwood guilty of first-degree murder. On January 27,
2012, the court sentenced Norwood to life imprisonment without the possibility of parole.
This timely appeal followed.
Additional facts shall be included as necessitated by our discussion of the issues.
DISCUSSION
I.
Norwood maintains that the trial court erred by denying her motion to suppress
statements made during the March 16, 2011 interview and during a portion of the March 18,
2011 interview. Norwood asserts that the circumstances of the March 16 and March 18
interviews would have led a reasonable person to believe that he or she was in custody, and
therefore, Miranda warnings were required. Having reviewed the video recordings of each
interview and the transcript of the motion to suppress, we are persuaded that the trial court
8
This portion of the interview was suppressed by the trial court.
11
correctly determined that Norwood was not in custody and, therefore, Norwood was not
entitled to Miranda warnings during the relevant time periods.
When reviewing the denial of a motion to suppress evidence “we confine ourselves
to what occurred at the suppression hearing.” Gonzalez v. State, 429 Md. 632, 647 (2012)
(quoting Lee v. State, 418 Md. 136, 148 (2011)). Moreover, “[w]e view the evidence and
inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing
party on the motion, here, the State.” Id. “The credibility of the witnesses, the weight to be
given to the evidence, and the reasonable inferences that may be drawn from the evidence
come within the province of the suppression court.” Id. at 647-48 (citing Longshore v. State,
399 Md. 486, 499 (2007)); see also Wilkes v. State, 364 Md. 554, 569 (2001) (“We extend
great deference to the fact finding of the suppression court and accept the facts as found by
that court unless clearly erroneous.”). We review de novo the question of whether, based on
the facts presented, a constitutional right has been violated. Williams v. State, 372 Md. 386,
401 (2002) (citing Wilkes v. State, 364 Md. 554, 569 (2001)). See also Upshur v. State, 208
Md. App. 383, 392 (2012), cert. denied, 430 Md. 646 (2013).
12
The Fifth Amendment to the United States Constitution protects individuals from
being compelled to make self-incriminating statements.9 U.S. Const. Amend. V. In
Miranda v. Arizona, 384 U.S. 436, 467 (1966), the United States Supreme Court recognized
that a “police-dominated atmosphere” can be coercive and potentially “undermine the
individual’s will to resist and . . . compel him to speak where he would not otherwise do so
freely.” The Miranda Court held that, “[i]n order to combat these pressures and to permit
a full opportunity to exercise the privilege against self-incrimination, the accused must be
adequately and effectively apprised of his rights and the exercise of those rights must be fully
honored.” Id. at 467. The Court of Appeals described the warnings required by Miranda as
follows:
The prophylactic measures developed in Miranda are the
now-familiar warnings that law enforcement personnel are
required to convey to a suspect before embarking on any
custodial interrogation:
[A suspect] must be warned prior to any questioning that
he has the right to remain silent, that anything he says
can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot
afford an attorney one will be appointed for him prior to
any questioning if he so desires.
9
The Fifth Amendment to the United States Constitution provides:
No person shall . . . be compelled in any criminal case to be a
witness against himself.
U.S. Const., Amend. V.
13
Gonzalez v. State, 429 Md. 632, 650 (2012) (alteration in original) (quoting Miranda, supra,384 U.S. at 479).
The requirements of Miranda only apply when a defendant is both (1) in custody; and
(2) subject to interrogation. We have explained:
The Supreme Court has recognized, however, that, although
“[a]ny police interview of an individual suspected of a crime has
‘coercive aspects to it,’” the Miranda requirements apply only
to custodial interrogation. J.D.B. v. North Carolina, ___ U.S.
___, 131 S.Ct. 2394, 2401-02, 180 L.Ed.2d 310 (2011). Thus,
before a defendant can claim the benefit of Miranda warnings,
the defendant must establish two things: (1) custody; and (2)
interrogation. Smith v. State, 186 Md. App. 498, 518, 974 A.2d
991 (2009), aff’d, 414 Md. 357, 995 A.2d 685 (2010). The
burden of “showing the applicability of the Miranda
requirements,” i.e., that there was custody and interrogation, is
on the defendant. Id. at 520, 974 A.2d 991.
State v. Thomas, 202 Md. App. 545, 565 (2011), aff’d, 429 Md. 246 (2012) (alteration in
original).
It is undisputed that Norwood was subjected to interrogation during the March 16 and
March 18 interviews. Accordingly, we consider only whether Norwood was in custody.
“‘[W]hether a suspect is ‘in custody’ is an objective inquiry.’” Id. at 565 (quoting J.D.B.,
supra, 131 S. Ct. at 2402). In Thomas, supra, we quoted from the United States Supreme
Court’s opinion in J.D.B., supra, which explained as follows:
“Two discrete inquiries are essential to the determination: first,
what were the circumstances surrounding the interrogation; and
second, given those circumstances, would a reasonable person
have felt he or she was at liberty to terminate the interrogation
and leave. Once the scene is set and the players’ lines and
14
actions are reconstructed, the court must apply an objective test
to resolve the ultimate inquiry: was there a formal arrest or
restraint on freedom of movement of the degree associated with
formal arrest.”
Thomas, supra, 202 Md. App. at 566 (quoting J.D.B., supra, 131 S. Ct. at 2402 (quoting
Thompson v. Keohane, 516 U.S. 99, 112 (1995))).
Courts consider multiple factors when determining whether a defendant is in custody,
considering the totality of the circumstances. Id. at 567. The factors considered include:
[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.
Id. at 567-68 (alterations in original) (quoting Owens v. State, 399 Md. 388, 429 (2007)
(quoting Whitfield v. State, 287 Md. 124, 141 (1980))).
In the present case, the trial court determined that Miranda rulings were required at
approximately fifty-two minutes into the March 18 interview. The trial court concluded that
Norwood was not in custody when she spoke to detectives on March 16 and during the initial
15
portion of the March 18 interview. With respect the March 16 interview, the trial court ruled
as follows:10
The fourth statement that is the subject of challenge is
contained in the video recorded on March 16 which was taken
at police headquarters. And during this period of time, at least
in the initial part, the defendant, who was brought to the police
station by family members and left with them at the end is
fingerprinted and hair samples were obtained from her at that
time.
***
In fact, she chatted quite amiably with the evidence technicians.
***
It was amiable. She was animated. She was polite. She
didn’t appear to be intimidated by anything that happened.
And then the interview that takes place afterwards -- you
know, I’ll remark to you, another thing that was just -- it was
uncanny to me -- besides the facility with which she answered
questions, having been a prosecutor and defense attorney for
many years before coming on the bench and now being on the
bench and watching videos for many years, I’ve seen instances
where the police were interrogating a suspect and then they get
up and leave and the camera is still running.
And you see defendants picking at themselves, moving
around, jumping around, standing up, pounding their fists. I had
to fast forward through several of the intervals when the police
left the room on the 16th to see any movement in the defendant
at all. She didn’t appear to be nervous. She was composed.
10
The trial court ruled on the issue of voluntariness as well as on the issue of Miranda.
Norwood does not raise any issues related to voluntariness on appeal.
16
***
Just, you know, to suggest from that that there was some
overbearing of her will, that these officers were subjecting [her]
to a pressure-filled situation where her will was overborne, to
me is just almost -- it’s almost absurd.
Again, the offering of detail that wasn’t asked for. The
appropriate affect at times when emotions ought to be seen.
Even, you know, “Do you want a glass of water?” I think those
of us who have tried criminal cases always would tell people
who we were defending, “Stop drinking the water. You’re
making yourself look nervous here. And you’re going to have
to go to the bathroom at some point.” She’s offered beverages
a couple of times and doesn’t even want a glass of water.
And you know, I mean, these thing[s] by themselves are not
dispositive. But when you put them together, it just indicates to
me a person who is totally in control of [the] situation. At least
as far as March 16, I think -- and who knows, this is just
surmising, and I’m candid to admit that -- she thought she had
everybody duped.
So I don’t find any Miranda violation on the 16th, you know,
the bathroom, as [the prosecutor] pointed out, she got up and
went to the bathroom. I’ve been in and out of police stations.
You can walk right on through the door. Right on through the
door. Bye-bye.
She came right back. So the sense to me was that she knew
that the police were continuing to investigate this crime. She
was going to play along with it to the extent that she could. And
of course, I’m not the trier of fact here. I’m not convicting her
of this crime. This is for the purpose of the motions only.
But I am saying that, based upon what I saw, this was a
young woman who was totally facile, totally with it, knew what
she was doing, and was not being overborne by police conduct.
So as to the voluntariness of the statement, I find the statement
17
voluntary under both tests and I find that Miranda does not
apply because she was not in custody.
We agree with the trial court that Norwood was not in custody during the March 16
interview. Although the interview occurred at police headquarters, Norwood came to police
headquarters voluntarily, accompanied by her brother and sister. The trial court found that
Norwood spoke casually, calmly, and amiably and did not appear to be intimidated. Based
upon our review of the video recording, we agree with the trial court’s findings regarding
Norwood’s demeanor. Although the interview occurred in a police interview room, the two
doors to the room were left open at various times throughout the interview. When Norwood
requested to use the restroom, she was shown to an employee restroom on the same hall
through which Norwood entered. The same hallway had doors which led to the outside of
the building, through which Norwood could have exited.
Although Detective Drewry acknowledged that he had begun to view Norwood as a
suspect prior to the March 16 interview, he was careful not to convey his suspicions to
Norwood. The circuit court explained:
[T]he test for Miranda is an objective one. And [Detective
Drewry] did a pretty darn good job of not conveying [his
suspicions] to her in my view, because as I said in an offhand
comment he made, he had me convinced, for instance, that he
was hard of hearing. On several occasions during one of the
interviews he says, “I can’t hear you. You have to speak up.”
I though[t], well, maybe he’s like me. He’s getting old. He
can’t hear well. He says today that’s really not true.
But I didn’t detect in watching the defendant that there was
any sense on her part that he really was of the mind that we now
18
know he was. So while it may be true that as early as March 16
-- and maybe it was earlier. Maybe [defense counsel] is right,
that the police were suspicious. It’s still an objective test as to
what Ms. Norwood believed and I don’t see any evidence at all
that Ms. Norwood believed that she was in custody. And again,
I guess the litmus test is at the end of March 16, she left. Not in
handcuffs. She left.
Our review of the video recording leads us to agree with the trial court that Detective Drewry
did not convey his suspicions to Norwood in any way. Furthermore, as the circuit court
properly found, Norwood was permitted to leave with her brother and sister at the end of the
interview.
We are unpersuaded by Norwood’s contention that she was in custody because at one
point she told the detectives she did not want to talk anymore. Norwood expressed concern
about answering questions posed by the detectives, saying that she was afraid of the two men
who had attacked her at the Lululemon store. After Detective Drewry reassured Norwood
that the attackers were “a million miles away” and that she did not need to be afraid of the
attackers, Norwood agreed to speak with the detectives further. Through this exchange,
Norwood appears to have been attempting to convince the detectives to believe her story
regarding the two attackers. In our view, this exchange does not indicate that Norwood
believed that she was not free to leave.
Based on the totality of the circumstances, we hold that the circuit court did not err
when it concluded that Norwood was not in custody at any point during the March 16
interview. Although the total time Norwood spent at police headquarters was somewhat
19
lengthy,11 that time frame included time when Norwood was chatting casually with detectives
while waiting for the evidence technicians. Furthermore, the time frame included time for
the collection of hair samples and fingerprints. Throughout the interview, Norwood acted
as a victim and appeared to think that she had convinced the police to believe her story.
Norwood was not restrained and was not prevented from exiting the building at any time.
Finally, Norwood left police headquarters and returned home with her family at the
conclusion of the interview. For all these reasons, we agree with the trial court that Norwood
was not in custody.
We reach the same conclusion with respect to the initial portion of the March 18
interview.12 The trial court ruled that Norwood was not in custody during the first
approximately fifty-two minutes of the March 18 interview. The trial court observed that the
March 18 interview was arranged at Norwood’s request because a family member telephoned
the detectives on March 17 and told them that there was additional information that Norwood
wanted to share with them. The detectives agreed to schedule an additional interview on
March 18 rather than on March 17 because that date was more convenient for Norwood.
11
The video recording indicates that Norwood was in the interview room for
approximately two hours and fifty minutes.
12
We express no opinion on whether Norwood was in custody for Miranda purposes
after the first approximately fifty-two minutes of the March 18 interview.
20
The trial court explained its ruling as follows:13
So then we get to [March] 18th . . . this is at the request of
either the defendant or members of her family. And again, I
noted, because there was some small talk in the beginning. And
suddenly, she jumps right into it and says, “All right, I’m here
because . . .”
And she starts to explain why she’s there. Because there was
some information she hadn’t provided to them again.
There is this conversation about her moving to Seattle. And
what I also noted here is -- and I guess this is maybe to sort of
be able to fudge things, continually when she would describe
what had purportedly happened, she would say like in response
to a question -- I’ll give you an example. This is not verbatim,
but like, “well, did you see him?” And she would say, “I feel
like,” or “I want to say,” and I made note of how many times she
said that. “I feel like” such and such happened. Or “I want to
say” such and such. You know, it all just came across as very
calculated. And again, I do not sit here as the trier of fact in this
case. A jury is going to decide this case.
But I only offer it because to me in determining whether this
statement was voluntary or not, it occurs to me that the control
that she takes and manner in which she expresses herself is just
very, very key. And with that viewpoint, it bolsters the
argument the State is making here that these statements were
voluntary simply because she really perceived herself to be in
control of the situation and objectively, at least, because we
don’t know what was going on in her mind, and I’m not
suggesting I do -- objectively at least, she gave that appearance.
13
The trial court issued its ruling with respect to voluntariness in addition to Miranda.
Although we do not address the voluntariness issue on appeal, we include certain
observations made by the trial court which are relevant to both voluntariness and the Miranda
issues.
21
And it was not until . . . towards the end of that session on
March 18, objectively to me it appeared for the first time that
she perhaps was getting a little bit uncomfortable about why this
questioning was persisting.
And -- bear with me one second. It’s at that point she says,
“We’ve been over this.” And Detective Drewry says, “I’m just
trying to get it as straight as possible.” And then there’s another
“And I want to say,” in response to a question that I’ve noted
here. But then the interview doesn’t last much longer, and then
she does say, “Can I go?” And Detective Drewry says
“probably in a couple of minutes.” And that’s where the break
is taken and the State has conceded that thereafter Miranda
should have been administered.
***
But I do find that the statement that was given in the morning,
10:52 to 11:44 to be voluntary under both tests. Again, I do not
think she was in custody.
***
But out of an abundance of caution, I’m going to exclude on a
Miranda basis, that testimony that occurred after she said,
“We’ve been over this.” I think it’s really, to be candid with
you, very little . . . [O]ut of an abundance of caution and in
fairness[.]
***
It’s going to be [suppressed] from the point where [Norwood]
says, “We’ve been over this.”
Again, we are in agreement with the trial court that Norwood was not in custody
during the relevant portion of the March 18 interview. The interview was scheduled at
Norwood’s request, when Norwood realized that there was information she had omitted
22
during the previous interview. Norwood arrived at police headquarters for the interview with
her brother and sister, and initiated the conversation, saying “All right, I’m here because
. . . .” Norwood appeared to believe that she was in control of the situation throughout the
relevant portion of the interview. Accordingly, based upon the totality of the circumstances,
we hold that the trial court did not err by concluding that Norwood was not in custody during
the relevant portion of the March 18 interview.
II.
Norwood further contends that a police officer’s testimony regarding a cut on
Norwood’s hand constituted inappropriate opinion testimony under Ragland v. State, 385
Md. 706 (2005). Norwood contends that the trial court erred in admitting an expert opinion
that was based upon the officer’s “specialized training and experience as any army medic”
without providing the defense with required notice. We are unpersuaded.
We review a circuit court’s decisions to admit or exclude evidence applying an abuse
of discretion standard. Kelly v. State, 392 Md. 511, 530 (2006). The Court of Appeals has
explained:
Trial judges are afforded broad discretion in the conduct of trials
in such areas as the reception of evidence. Accordingly, in our
appellate review, we extend the trial court great deference in
determining the admissibility of evidence and will reverse only
if the court abused its discretion.
Id. at 530 (internal quotations and citations omitted). “[O]nce a trial court has made a finding
of relevance, we are generally loath to reverse [the] trial court unless the evidence is plainly
23
inadmissible under a specific rule or principle of law or there is a clear showing of an abuse
of discretion.” Decker v. State, 408 Md. 631, 649 (2009) (alteration in original) (internal
quotation and citation omitted).
“‘[A] ruling reviewed under an abuse of discretion standard will not be reversed
simply because the appellate court would not have made the same ruling.’” Alexis v. State,
437 Md. 457, 478 (2014) (emphasis omitted) (quoting North v. North, 102 Md. App. 1, 14
(1994)). “Rather, ‘[a] court’s decision is an abuse of discretion when it is ‘well removed
from any center mark imagined by the reviewing court and beyond the fringe of what that
court deems minimally acceptable.’” Id. (quoting Gray v. State, 388 Md. 366, 383 (2005)
(quoting Dehn v. Edgecombe, 384 Md. 606, 628 (2005)) (some internal quotation marks
omitted)).
At trial, Officer Colin O’Brien testified for the State. Officer O’Brien was working
part-time for Suburban Hospital doing security work as a uniformed police officer on
March 12, 2011. He met the ambulance in which Norwood was riding, followed her
stretcher into the trauma bay, and began bagging her clothing for evidence. Officer O’Brien
observed cuts on Norwood’s chest, legs, arms, and forehead. He particularly noticed a one
to two-inch cut on the palm of Norwood’s right hand. Officer O’Brien explained that his
attention was drawn to that cut because it was typical of a common injury caused when a
blade slips from one’s grip and slides down the hand. Critically, that portion of Officer
24
O’Brien’s testimony was stricken by the trial court. The trial court instructed the jury as
follows:
THE COURT: All right. Ladies and gentlemen, you just heard
testimony from the witness as to how this particular type of
injury struck him as to how he thinks it happened, you are
instructed to disregard that conclusion. You can certainly judge
the credibility of the witness with regard to the other part of his
statement as to what he saw, but not as to what he thinks that
meant or how it was caused.
At the bench, the trial court stated that Officer O’Brien was not “qualified to say how
that injury occurs” but permitted the State to lay a foundation for Officer O’Brien’s
knowledge about knife injuries. Thereafter, Officer O’Brien testified regarding his
experience with knife injuries as an Army medic. Officer O’Brien testified:
[Officer O’Brien]: A lot of times you can see knife injuries,
particularly when you cause them to yourself, that are
lacerations that are straight to the hand that was holding the
blade. They tend to be clean and typically will run parallel to
the thumb.
***
[The Prosecutor]: When you observed these injuries occur and,
could you tell exactly how that, how you observed those injuries
that, that went parallel to the thumb with the knife, how did it
occur?
[Officer O’Brien]: The blade would slip through a grip and slide
down the hand.
[The Prosecutor]: Now, when you observed Brittany Norwood,
on March 12th of 2011, can you describe the injury you saw on
her thumb?
25
[Officer O’Brien]: There was an approximately one to two inch
laceration on her, on her hand that ran parallel to her thumb.
[The Prosecutor]: And can you describe how it, how it appeared
in relation to the knife injuries that you had observed in the past
that you’ve just described to us?
[Defense Counsel]: Objection, Your Honor. Can we, again,
approach just to put something on the record?
At the bench, defense counsel argued that he was “entitled to notice if they’re going
to elicit an expert opinion from someone in terms of how these injuries occurred.” The trial
court inquired as to the relevance of the evidence, and the prosecutor, apparently anticipating
that the defense might advance a theory of voluntary manslaughter based upon a mutual
affray, answered that counsel had referred in opening statement to “a mutual affray” between
Norwood and Murray. The prosecutor argued that the cause of the injury would be relevant
to whether a mutual affray in fact occurred. With respect to any opinion testimony by Officer
O’Brien, the prosecutor argued that Officer O’Brien’s testimony was not expert testimony
because “it’s not outside the realm of an average person’s ability to, to use everyday life
experience and observe knife wounds.”
The trial court did not permit Officer O’Brien to testify as to the cause of Norwood’s
injury, commenting that any testimony would include “conclusions as to how [the cut]
happened.” The court ruled that Officer O’Brien “can certainly testify he’s seen this type of
wound before and he saw this one. He’s described what it is, so let’s move on from that,
then.” The prosecutor moved to a different line of questioning and did not return to the issue.
26
Norwood asserts on appeal that Officer O’Brien’s testimony was impermissible under
Ragland, supra, 385 Md. 706. In Ragland, the Court of Appeals distinguished between
expert and lay opinion testimony, explaining:
Expert opinion testimony is testimony that is based on
specialized knowledge, skill, experience, training, or education.
Expert opinions need not be confined to matters actually
perceived by the witness. Lay opinion testimony is testimony
that is rationally based on the perception of the witness.
Id. at 717.
The Ragland Court held that police officers’ testimony characterizing a particular
series of observed events as a “drug transaction” was expert testimony because the
characterization was based upon the officers’ specialized knowledge, experience, and
training. Id. at 726. The Court explained that “among the numerous possible explanations
for the events [observed by the officers] on Northwest Drive, the correct one was that a drug
transaction had taken place.” Id.In contrast to expert testimony, lay opinion testimony requires no specialized
knowledge or experience but instead is “derived from first-hand knowledge” and is
“rationally based.” Bruce v. State, 328 Md. 594, 630 (1992). For example, we have
explained that an opinion regarding the odor of marijuana is lay opinion rather than expert
testimony. In re Ondrel M., 173 Md. App. 223, 243 (2007) (“No specialized knowledge or
experience is required in order to be familiar with the smell of marijuana. A witness need
27
only to have encountered the smoking of marijuana in daily life to be able to recognize the
odor.”).
First, we observe that Officer O’Brien never offered any opinion, lay or expert,
regarding the cause of Norwood’s hand injury. His testimony regarding the cause of
Norwood’s injury was stricken by the trial court and the jury was instructed not to consider
“how [Officer O’Brien] thinks [the injury] happened.” Rather, Officer O’Brien testified
about injuries he had observed in the past from slipped knives and described the injury he
observed on Norwood’s hand.
Furthermore, assuming arguendo the testimony was improper, our review of the
record indicates that the error would be harmless beyond a reasonable doubt. See Bellamy v.
State, 403 Md. 308, 332 (2008) (“Once it has been determined that error was committed,
reversal is required unless the error did not influence the verdict; the error is harmless only
if it did not play any role in the jury’s verdict.”) (internal quotation and citation omitted).
The evidence of Norwood’s guilt was overwhelming. Indeed, Norwood conceded that she
intentionally killed Murray by repeatedly stabbing her with a knife and assaulting her with
various other objects. Given Norwood’s concession, the only issue before the jury was
whether Norwood acted with premeditation.14 Evidence suggesting that the knife slipped in
14
Although the State at one point argued that the evidence regarding the knife would
be relevant to rebut a defense theory of voluntary manslaughter based upon the legally
adequate provocation of a mutual affray, the defense never sought a voluntary manslaughter
instruction.
28
Norwood’s hand during the attack is irrelevant to whether Norwood acted with
premeditation.15
Even if the testimony were relevant to premeditation, there is overwhelming evidence
that Murray’s murder was premeditated. Dr. Mary Ripple, the Deputy Chief Medical
Examiner, testified that Murray had at least 331 distinct injuries, including 105 defensive
wounds. Dr. Ripple explained that Murray was alive for much of the assault. The time that
it took Norwood to inflict 331 injuries strongly supports a finding of premeditation. Dr.
Ripple further testified that Murray’s injuries were caused by at least five weapons, including
a wrench, a merchandising peg, a hammer, a box cutter, and an x-acto knife. The time that
it took Norwood to gather the weapons from various locations in the store further supports
a conclusion that Murray’s murder was premeditated. Finally, we note that employees of the
neighboring Apple Store heard sounds of a confrontation coming from the Lululemon store
and listened at the wall for approximately nine minutes. In light of the overwhelming
evidence of premeditation presented at trial, any alleged error regarding Officer O’Brien’s
testimony was harmless beyond a reasonable doubt.
For the foregoing reasons, we hold that the trial court did not err in denying
Norwood’s motion to suppress the statements she made to the police on March 16 and 18,
15
We are unpersuaded by Norwood’s contention that the State, in closing argument,
highlighted Officer O’Brien’s testimony as evidence in premeditation. Our review of the
record indicates that the State referenced Officer O’Brien’s testimony only to support the
argument that Norwood was wielding a knife and had killed Murray, and that Norwood’s
injury was self-inflicted.
29
2011. We further hold that the trial court did not abuse its discretion by permitting a witness
to testify about a laceration he observed on Norwood’s hand and about knife wounds he had
seen in the past. Accordingly, we affirm.
JUDGMENT OF THE CIRCUIT COURT FOR
M O N T G O M E R Y C O U N T Y A F F IR M E D .
APPELLANT TO PAY COSTS.
30