Carroll v. State

Derrick L. Carroll v. State of Maryland, No. 510, September Term, 2017. Opinion by
Kenney, J.
CRIMINAL PROCEDURE – WARRANT REQUIREMENT – PROBABLE
CAUSE
An issuing judge’s probable cause determination is reviewed under the Illinois v.
Gates totality of the circumstances test, looking only to the information provided in the
warrant and its accompanying application documents. Probable cause may be based on
information obtained through a state investigation in collaboration with law enforcement
from other state or federal jurisdictions. A finding of probable cause cannot rest on
purely conclusory affidavits.
CRIMINAL PROCEDURE – WARRANT REQUIREMENT – PROBABLE
CAUSE – NEXUS
A probable cause determination requires that a sufficient nexus be shown between
the alleged criminal activity, the place to be searched, and the things to be seized. In this
case, the affidavit to the warrant application did not provide any information establishing
why appellant was named a suspect in the investigation. For that reason, it was a purely
conclusory determination.
CRIMINAL PROCEDURE – WARRANT REQUIREMENT – PROBABLE
CAUSE – SUBSTANTIAL BASIS
We review whether the issuing judge had a substantial basis to conclude that the
warrant was supported by probable cause, that is, whether there exists a fair probability
that contraband or evidence of a crime will be found in the place of the search. We
accord great deference to the issuing judge’s determination by reviewing affidavits in a
commonsense fashion and viewing the factual recitations in the warrant application in the
light most favorable to the state.
CRIMINAL PROCEDURE – WARRANT REQUIREMENT – GOOD FAITH
EXCEPTION – CONFLICT OF LAWS – MARYLAND OR NEW JERSEY LAW
Because the suppression court found that the officers executed the warrants in
good faith reliance, the good faith exception to the warrant requirement is properly before
us. Maryland has adopted the United States v. Leon good faith exception that allows
evidence obtained under a deficient warrant to be admissible if the executing officers
acted in objective good faith in relying on the warrant. The New Jersey Supreme Court
has expressly declined to adopt the Leon good faith exception on independent state
grounds. See State v. Novembrino, 519 A.2d 820 (N.J. 1987). It interprets the New
Jersey state constitution as affording New Jersey citizens greater protection against
unreasonable searches and seizures and rejects the good faith exception based on the
impact its adoption would have on the privacy rights of New Jersey citizens and on the
procedures employed by New Jersey’s criminal justice system.
CRIMINAL PROCEDURE – WARRANT REQUIREMENT – GOOD FAITH
EXCEPTION – CONFLICT OF LAWS
The criminal act is the murder and robbery in Maryland of two Maryland citizens
by another Maryland citizen. New Jersey was involved only because appellant had left
Maryland and went to New Jersey. The investigation, arrest, and searches were a joint
law enforcement effort involving officers from Maryland and New Jersey in addition to
the federal Marshals Service. Nothing in the record suggests that the Maryland police
were consciously trying to evade Maryland law. Application of the good faith exception
will not impact the privacy rights of New Jersey citizens or impair or negatively disrupt
the procedures employed in New Jersey’s criminal justice system. Whatever interest
New Jersey may have in the process by which the evidence was obtained, Maryland has
the greater interest in the case. Maryland law and the good faith exception apply because
the warrants are not so obviously deficient that they could not have been reasonably
relied upon by the officers in good faith.
CRIMINAL PROCEDURE – WARRANT REQUIREMENT – GOOD FAITH
EXCEPTION
The good faith exception applies as long as the warrant is not based on an affidavit
so lacking in indicia of probable cause as to render official belief in its existence entirely
unreasonable, or is not so facially deficient otherwise that the executing officers cannot
reasonably presume it to be valid. The applicability of the good faith exception is
reviewed de novo when the facts are not in dispute.
CLOSING ARGUMENT – PLAIN ERROR
The trial court’s allowing the prosecutor’s unobjected to statement during closing
argument that there were tensions based on race between appellant and the victim was not
a clear or obvious error such that plain error review is warranted.
Circuit Court for Cecil County
Case No. K-15-470
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 510
September Term, 2017
______________________________________
DERRICK L. CARROLL
v.
STATE OF MARYLAND
______________________________________
Fader, C.J.,
Berger,
Kenney, James A., III
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Kenney, J.
______________________________________
Filed: May 2, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-05-02
13:50-04:00
Suzanne C. Johnson, Clerk
Earl and Mary Ann Loomis were murdered during a home invasion in Port
Deposit, Maryland in February 2015. A jury in the Circuit Court for Cecil County
convicted appellant Derrick L. Carroll of two counts of first-degree murder in addition to
multiple conspiracy counts in regard to that event.
On appeal, appellant presents two questions for our review:
1. Did the trial court err in denying appellant’s motion to suppress
evidence?
2. Did the trial court plainly err in permitting the prosecutor to argue that
appellant’s motive was racial animosity?
For the reasons that follow, we affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to February 22, 2015
The Loomises were the grandparents of appellant’s ex-wife, Kimber Carroll, who
considered them her parents. It appears that appellant’s relationship with the Loomises
may have been initially cordial, but had deteriorated over time. According to Ms.
Carroll’s testimony, when she and appellant were dating in 2012 and she was living with
the Loomises, she would sometimes sneak appellant into their house where he stayed
without her grandparents’ knowing. She explained that he was not “allowed to stay
there” because of how the Loomises “felt about him,” and that he had expressed to her
that the Loomises disliked him. After Ms. Carroll and appellant married and moved into
an apartment, the Loomises changed the locks to their home, and their relationship with
her deteriorated as a result of her drug addiction. Appellant also used drugs and sold
them.
Ms. Carroll’s aunt testified that the week before the murder, Mrs. Loomis told her
that she didn’t like appellant and that she wanted her niece to “straighten out” and “stay
away” from him. Appellant testified that he had had a good relationship with Mrs.
Loomis, who was not opposed to him staying at the house, but he acknowledged that Mr.
Loomis had expressed concerns about Ms. Carroll and appellant being together.
Both Ms. Carroll and appellant testified about an incident that happened in 2013,
when, at the time, she and appellant had split up, and she was living with the Loomises.
According to Ms. Carroll, she was due in court that day, and appellant stopped by their
house to take her there. Mr. Loomis indicated that he would be the one to take her to
court. Appellant and Mr. Loomis argued, and appellant attempted to get into the house.
The confrontation ended in about ten minutes.
Appellant testified that the incident related to a custody hearing for their daughter,
who was in foster care at the time. Appellant and his then fiancée, Lauren Bucaro, would
be awarded custody, but only if Ms. Carroll consented. Appellant testified that, when he
went to the Loomises’ house to pick her up for the hearing, Mr. Loomis said that he
would take her to court. Appellant and Mr. Loomis argued, but appellant did not attempt
to enter the house and left after Mr. Loomis asked him to. He felt no ill will towards the
Loomises because they helped support his daughter and he was grateful for that.
Appellant’s mother, who had also helped care for appellant’s daughter, testified
that she maintained a good relationship with the Loomises. And, in a statement to police,
appellant’s girlfriend at the time, Kayla Way-Nunley, stated that appellant never spoke ill
about Ms. Carroll’s family.
2
February 22 and 23, 2015
At trial, witnesses gave conflicting accounts as to what took place on the night of
February 22, 2015 and the following day. There is no dispute, however, that on the night
of February 22, there was a gathering, referred to by witnesses as a “tattoo party,” at
Ellen Lough’s trailer in Port Deposit with at least seven individuals present. They
included appellant, Ellen Lough, London Anderson, Azu Azuewah, Ashley Browe, Kayla
Way-Nunley, and a person known as “Hummer.”1
Anderson2 testified that he was friends with Azuewah, that Lough was Azuewah’s
long-term girlfriend, and that he spent a lot of time in their trailer. During the party,
appellant got tattooed on his hands by Hummer. According to Anderson, on the morning
of February 23, appellant entered the trailer with “a couple of cases of guns,
ammunition,” and a blue or green Chevy S-10 truck was parked outside. Anderson
helped appellant bring the guns inside. When Anderson asked appellant where he
obtained the guns, appellant said that he had “robbed . . . his daughter’s grandparents,”3
and had “duct-taped their faces until they couldn’t breathe.”
1
We will refer to these individuals, except Hummer, who did not testify, by their last
name.
2
At the time of trial, Anderson and Ms. Carroll had been dating for about two years and
were living together. He and Ms. Carroll testified that they did not know each other in
February 2015, and that they started dating a month or two afterwards. According to
Anderson, they had not discussed their testimony.
3
As noted earlier, Ms. Carroll considered the Loomises her parents.
3
Anderson testified that appellant, Lough, Azuewah, and Hummer discussed
dumping the S-10 near White Marsh. They left the trailer to do so with appellant taking a
taxi and the others riding in the S-10 or Lough’s car. After returning to the trailer,
Anderson slept; when he woke up, the guns were gone. Anderson denied any
involvement in the burglary or murders, or that he had gone to the Loomises’ house. He
did not contact the police because he was scared.4
Browe testified that she was staying at Lough’s trailer in February 2015. On the
night of February 22, appellant was present at the tattoo party, along with Anderson and
Azuewah, and got hand tattoos. Between 5:00 and 7:00 a.m. on February 23, Browe
awoke to the sounds of appellant entering the trailer, bringing in “bags of guns” and
saying “[y]ou guys left me.”
Way-Nunley, who was, at the time, appellant’s girlfriend, testified that she and
appellant attended the tattoo party on the night of February 22, along with Anderson and
4
Anderson had been interviewed by the police on March 20, 2015, and a recording of the
interview was played for the jury. His narrative during the interview is similar to his trial
testimony, but some facts differed. In the police interview, Anderson stated that, on the
morning of February 23, appellant entered the trailer and argued with Azuewah.
Appellant pulled a gun, threatened Azuewah, saying “you left me up there.” Appellant
then started bringing in guns from a blue or green truck. Lough was “freaking out”
because appellant was bringing the guns into her trailer. According to Anderson,
appellant started a fire in the grill near the trailer, and burned clothing and paperwork.
Anderson joined appellant and burned drugs he found in the trailer because he did not
“want it to look like a big drug house.” Eventually, appellant, Way-Nunley, Lough, and
Azuewah left. They took Lough’s car and the S-10 and left the guns in the trailer.
Anderson denied that anyone said where the guns came from. He also specifically denied
that appellant mentioned a robbery. He did mention that appellant had confronted him
and expressed concern that he was “a snitch.” Detectives testified that Anderson told
them that appellant had admitted to committing a robbery, once the recorded portion of
Anderson’s statement was over.
4
Browe. When she woke up the next morning at 8:00 a.m., appellant was present and
Anderson was gone. She saw a blue truck outside the trailer, which she and appellant
drove to White Marsh. Lough and Azuewah followed in their car. According to Way-
Nunley, she did not see any guns, jewelry, or documents.5
Way-Nunley gave police two statements which were played for the jury. In the
first statement on February 26, 2015, she told police that she was with appellant
throughout the night of February 22, and that they never left the trailer. However,
Azuewah and Lough left and returned to the trailer repeatedly. Way-Nunley added that
she can be a heavy sleeper and that appellant may have left without her knowing. If he
“did anything” while she was asleep, “that’s on him.” She denied knowing anything
about a crime.
In the second statement on March 17, 2015, Way-Nunley stated that, when she fell
asleep on February 22, appellant was next to her watching television. She slept in a back
room of the trailer, and when she woke up the next morning, she did not see any guns.
But, she did overhear Lough arguing with Azuewah and asking, “why is this shit in
here[?]” Appellant and Azuewah locked themselves in a bathroom and talked. At some
point, Way-Nunley saw a greenish pickup truck parked outside, with Azeuwah in the
driver’s seat and appellant in the passenger seat. She was only “50 percent” sure about
5
When she testified, Way-Nunley was in jail for a probation violation and a drug charge.
She stated that she did not expect to receive any benefit in exchange for her testimony
and that she “just decided to come forward as a good citizen.”
5
who drove, but the two of them dropped the truck off in a parking lot near Baltimore.
She struggled to remember details because she was “pretty high that day.”
Rebecca Garland lived in the trailer adjacent to Lough’s. She testified that at
about 8:30 a.m. on February 23, she saw a man whom she didn’t know getting “black
garbage bags out of the back of a blue pickup truck” that was “consistent with” Mr.
Loomis’s S-10. He was “hollering back and forth” with a woman whom Garland did not
recognize. He and the woman took the bags into Lough’s trailer. About an hour later,
when Garland went outside to sit on her porch, the same man walked past her and they
said “hi” to each other. When police asked Garland to identify the man shortly after the
incident, she was unable to do so. But later, she was able to identify appellant based on
an internet search of the Loomis murders, where his name and photograph appeared in a
newspaper story. She did not, however, call the police to tell them. At trial, she
identified appellant as the man that she saw.
Appellant testified that he and Way-Nunley came to the tattoo party and that he
got his hands tattooed at approximately 9:00 p.m. Because his hands were sore and
tender, he used heroin and drank a large amount of alcohol to numb the pain. He fell
asleep in the trailer. When he awoke the next morning, Way-Nunley was with him.
Anderson and Browe were not there, but eventually they returned to the trailer. Lough
and Azuewah left that morning.
According to appellant, he did not leave the trailer on February 23. He repeatedly
tried to call Azuewah, but Azuewah did not pick up. On February 24, when Azuewah
and Lough had still not returned, he left in a cab. He did see and greet Garland, but on
6
the morning of February 24, not the 23rd. He never brought guns into Lough’s trailer or
unloaded anything from a truck, and he denied ever seeing guns or the S-10 truck.
The Investigation, Arrest, and Search
Neighbors and family members testified that they had last spoken with Mr. and
Mrs. Loomis on February 22, 2015. They were unable to reach them on February 23, and
Mr. Loomis’s blue S-10 truck was missing from the Loomises’ driveway. When Ms.
Carroll and her aunt went to the house to check on them on February 25, they found Mr.
and Mrs. Loomis’s bodies in an upstairs room with their hands and faces wrapped in duct
tape. Both had died of asphyxia from being wrapped in tape. There were bleach stains
on and around their bodies, which had sustained chemical burns. It was unclear whether
the burns were sustained before or after they had died.
Although the S-10 was missing, Mr. Loomis’s Ford Escape and Mrs. Loomis’s
Honda CRV were still in the driveway. The Escape had been “rummaged” through, and
papers were spread throughout the vehicle. Ms. Carroll’s aunt believed that there was a
“good possibility” that Mr. Loomis kept important papers in the Escape.
The house had also been ransacked. Fire extinguisher fluid, bleach, and cleaning
products had been sprayed throughout the house, which prevented the police from
collecting forensic evidence. Mr. Loomis was a gun collector, and Mrs. Loomis collected
jewelry; both the gun safe and jewelry boxes had been emptied. Mrs. Loomis’s home
office had not been “disturbed,” but papers were strewn about Mr. Loomis’s home office,
and an “extreme amount” of fire extinguisher fluid had been sprayed throughout the
room. Mr. Loomis’s will was found in his home office.
7
Ms. Carroll was not a beneficiary under the will. She testified that the Loomises
told her they were leaving their money to her aunt, who would “take care of” her.6 While
Ms. Carroll denied ever saying that she expected to inherit from the Loomises, appellant
testified that Ms. Carroll had told him that she expected to inherit a large sum of money
from them. Lauren Bucaro testified that Ms. Carroll had told her that “her grandparents
weren’t giving her money anymore,” but “if anything would ever happen to them that she
would be very well off.”
Appellant’s mother, who had maintained a relationship with Ms. Carroll, testified
that Ms. Carroll called her on February 25 and said that she was going to check on the
Loomises. She called again shortly thereafter and said they were dead. According to
appellant’s mother, Ms. Carroll expressed “[n]o feelings, no crying, nothing.” Shortly
after the funeral, Ms. Carroll called her again and asked how she could find out if Mr. and
Mrs. Loomis had another will. Ms. Carroll denied having spoken to appellant’s mother.
Mr. Loomis’s S-10 was found in a parking lot in Perryville on February 26.
Detectives traced the Loomises’ bank records and obtained video of Lough using their
bank card after they had been killed. Documents that belonged to Mr. Loomis and a ski
mask were later found inside Lough and Azuewah’s car.7
6
Her aunt testified that she disapproved of Ms. Carroll’s lifestyle, “did not associate with
[her] if I did not have to,” and avoided being at the Loomises’ house when Ms. Carroll
was present.
7
When called to testify, Lough invoked her Fifth Amendment privilege.
8
Having developed appellant as a suspect in the robbery and homicide of the
Loomises, law enforcement, on February 26, 2015, learned that he had gone to Trenton,
New Jersey and was in the area of 27-29 Bryn Mawr Avenue. And, because there was an
outstanding arrest warrant for appellant for an earlier robbery in Elkton on February 9,
members of the U.S. Marshal’s Office Fugitive Task Force (“U.S. Marshals”) began
surveillance of the Bryn Mawr Avenue residence. They observed appellant exit this
residence, carrying a white trash bag, and walk down the sidewalk and out of view
between 57 and 59 Bryn Mawr Avenue. When he reemerged without the white bag, the
U.S. Marshals took him into custody. They then proceeded to the side of 59 Bryn Mawr
Avenue, where they observed three black garbage bags, one of which was open with a
white bag on top.
That same day, a police officer from the Mercer County Homicide Taskforce, after
conversing with Cecil County police officers, prepared an affidavit in support of a search
warrant to search the residence at 27 Bryn Mawr Avenue where appellant had been
staying and the black garbage bag with the white bag on top.
The affiant, Sergeant Paul Toth of the Mercer County Homicide Taskforce, stated,
in pertinent part:
I have probable cause to believe and do believe that evidence relating to the
death of Earl Loomis and Mary Ann Loomis may be present within a
certain residence and a black garbage bag.
***
The facts tending to establish the grounds for the application and probable
cause for my belief that such grounds exist are as follows:
a. An investigation involving the Cecil County Sheriff’s Office and the
Mercer County Homicide Task Force is being conducted into the death of
9
Earl Loomis and Mary Ann Loomis that occurred in Elkton, Maryland on
February 25, 2015. On Wednesday, February 25 2015, the Cecil County
Sheriff’s Office in Maryland responded to the address of 106 West
Parkway in Elkton, Maryland after receiving a call for service in reference
to suspicious circumstances.
b. Cecil County Sheriff’s Office arrived at 106 West Parkway and located
the bodies of two deceased persons in an upstairs bathroom area. The two
bodies appeared to have been bound by duct tape at the hands and feet with
tape also wrapped around the faces of each person. The two bodies were
identified at [sic] Earl Loomis and Mary Ann Loomis.
c. Derrick Carroll, date of birth June 18, 1989 had an arrest warrant issued
for Robbery (Home Invasion) that occurred in Elkton, Maryland on
February 9, 2015. Derrick Carroll was identified as a suspect in the
Robbery Home Invasion that occurred in Elkton, Maryland on February 9,
2015. Derrick Carroll is also a suspect in the homicide of Earl Loomis and
Mary Ann Loomis.
d. On Thursday, February 26, 2015, members of the United States
Marshal’s Office Fugitive Taskforce received information that Derrick
Carroll may be at a residence in the area of 27-29 Bryn Mawr Avenue,
Trenton, New Jersey. [U.S. Marshals] began surveillance of the Bryn
Mawr Avenue homes. [U.S. Marshals] observed Derrick Carroll exit the
residence at 27 Bryn Mawr Avenue, Trenton, New Jersey. They further
observed Derrick Carroll was carrying a white trash bag. They observed
Carroll walk down the sidewalk on Bryn Mawr Avenue towards Volk
Street, Trenton, New Jersey.
e. Investigator Dean Wylie from the [U.S. Marshals’] Taskforce observed
Derrick Carroll walk between 57 and 59 Bryn Mawr Avenue while carrying
the white trash bag. Approximately fifteen seconds later, Derrick Carroll
was observed exiting back out from between 57 and 59 Bryn Mawr Avenue
without the white trash bag in hand. [U.S. Marshals] then took Derrick
Carroll into custody.
f. Once Derrick Carroll was in custody, Investigator Dean Wylie proceeded
to the side of 59 Bryn Mawr Avenue where he observed 3 black colored
garbage bags on the side of 59 Bryn Mawr. Investigator Wylie noticed one
black garbage bag open with a white bag on the top.
I therefore have probable cause to believe that evidence relating to the
death of Earl Loomis and Mary Ann Loomis may be present within the
10
above residence, same being: 27 Bryn Mawr Avenue, Trenton. New Jersey
and also a black colored trash bag which also contains a white trash bag and
is located along side of 57 and 59 Bryn Mawr Avenue, Trenton, New
Jersey.
***
Wherefore, I respectfully request permission to search the aforementioned
residence and trash in order to find and seize any evidence relating to the
death of Earl Loomis and Mary Ann Loomis including but not limited to
any clothing, weapons, projectiles, fingerprints, blood or other bodily fluid,
fibers, hairs, photographs, video tapes, digital media storage devices,
cellular telephones, computers, pagers, diaries, journals, mail, personal
paperwork, personal identification, controlled dangerous substances and
any other evidence that may lead to the discovery of [] any additional
witnesses or suspects.
A New Jersey Superior Court judge issued two search warrants: one for the residence and
one for the garbage bag described in the affidavit.
Inside 27 Bryn Mawr Avenue, the police recovered a cell phone, a stained
sweatshirt, a box of ammunition, a holster, and three ski masks, one of which contained
the DNA of Azuewah and another the DNA of Lough. The cell phone contained texts to
Lough that read “yo, like WTF is going on. Are yall serious. Yall are fucking everything
up”; “call me and let me know yall safe”; “only we can get us in some B.S. Just know
that I love yall, and I had fun at the tattoo party”; and “tell Zo...to call me, please.”
From inside the garbage bag, police recovered a black handbag, a key to the
Loomises’ house, a key for Mrs. Loomis’s Honda, a Ruger weapon magazine end cap,
and a Ruger key.8 DNA evidence offered at trial indicated that Mr. and Mrs. Loomis
could not be excluded as contributors to DNA found in the handbag, and that Mrs.
Loomis was the sole contributor of DNA found on one of the keys.
8
The key is a safety feature that locks and unlocks the firearm.
11
DISCUSSION
I.
Suppression of Evidence
Before trial, appellant filed a motion to suppress the evidence obtained from the
searches of 27 Bryn Mawr Avenue and the garbage bag. He contended that the search
warrants were defective and that no reasonably well-trained officer should have relied on
them. The trial court denied the motion, finding that there was sufficient probable cause
shown within the four corners of the warrants and application for the judge to have issued
them. And, even if there was not, the officers executing the warrants had relied on them
in good faith. As to the garbage bag, the court also “guess[ed] someone could make the
argument that it was abandoned.”
At trial, the State introduced into evidence items obtained from the two searches.
From the apartment, the cell phone text messages and ski masks containing codefendants’
DNA were introduced; from the garbage bag, the key to the Loomises’ house, the key for
Mrs. Loomis’s Honda, the Ruger key, and the handbag were introduced.
Standard of Review
The Fourth Amendment to the U.S. Constitution and Article 26 of the Maryland
Declaration of Rights protect persons, their houses, and effects from unreasonable
searches. As a general proposition, searches require a warrant to be based on probable
cause and that the place to be searched and what is to be seized be identified.9
9
The Fourth Amendment provides:
12
The Court of Appeals has explained the standard of appellate review of a search
warrant:
We determine first whether the issuing judge had a substantial basis to
conclude that the warrant was supported by probable cause. We do so not
by applying a de novo standard of review, but rather a deferential one. The
task of the issuing judge is to reach a practical and common-sense decision,
given all of the circumstances set forth in the affidavit, as to whether there
exists a fair probability that contraband or evidence of a crime will be found
in a particular search. Illinois v. Gates, 462 U.S. 213, 238-39 (1983).
Greenstreet v. State, 392 Md. 652, 667-68 (2006) (cleaned up).
Probable cause is a “fluid concept—turning on the assessment of probabilities in
particular factual contexts—not readily, or even usefully, reduced to a neat set of legal
rules.” Maryland v. Pringle, 540 U.S. 366, 370-71 (2003) (quoting Gates, 462 U.S. at
231-32). Because “[a] grudging or negative attitude by reviewing courts toward warrants
is inconsistent with the Fourth Amendment’s strong preference for searches conducted
pursuant to a warrant,” we do not “invalidate . . . warrant[s] by interpreting affidavit[s] in
(…continued)
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
Article 26 provides:
That all warrants, without oath or affirmation, to search suspected places, or
to seize any person or property, are grievous and oppressive; and all general
warrants to search suspected places, or to apprehend suspected persons,
without naming or describing the place, or the person in special, are illegal,
and ought not to be granted.
13
a hypertechnical, rather than a commonsense, manner.” Gates, 462 U.S. at 236 (cleaned
up). Instead, we review warrant affidavits “in a commonsense and realistic fashion,
keeping in mind that they are normally drafted by nonlawyers in the midst and haste of a
criminal investigation.” State v. Faulkner, 190 Md. App. 37, 47 (2010) (citations
omitted). In other words, we “view the factual recitations in the warrant application in
the light most favorable to the State,” and accept the issuing judge’s implicit fact-finding,
unless clearly erroneous. Ellis v. State, 185 Md. App. 522, 535 (2009). And, we resolve
“[d]oubtful or marginal cases . . . in favor of the judge’s decision to issue the warrant.”
Lindsey v. State, 226 Md. App. 253, 262 (2015).
That said, the “great deference” we accord the issuing judge’s determination,
Ferguson v. State, 157 Md. App. 580, 593 (2004), is not boundless. The issuing judge
must “not serve merely as a rubber stamp for the police,” and “the affidavit supporting
the warrant application [must] not be based on reckless falsity.” Greenstreet, 392 Md. at
668-69 (quoting United States v. Leon, 468 U.S. 897, 914 (1984)). In short, a finding of
probable cause cannot rest on “affidavits which are purely conclusory.” Scott v. State, 4
Md. App. 482, 489 (1968).
Contentions
Appellant contends that the affidavit supporting the warrant did not establish a
“substantial basis for the issuing judge to conclude that there was probable cause” to
believe appellant was involved in the Loomises’ robbery and homicide, and that a “nexus
between [that] crime and the places to be searched” existed. And, in response to the
suppression court’s determination that, even if there was not probable cause for the
14
warrants, the officers executing them relied on them in good faith, he asserts that the
warrants were so “obviously deficient” that “no trained officer could reasonably have
concluded otherwise.”
More particularly, he contends that “the law of the state where a search was
conducted controls” motions to suppress evidence, in this case New Jersey, and that the
New Jersey Supreme Court, interpreting the New Jersey constitution, (1) has expressly
refused to adopt a good faith exception to the warrant requirement, and (2) has held that
the search of discarded garbage bags must be conducted pursuant to a valid warrant.10
Appellant further asserts that the admission of evidence obtained from the
searches was not harmless beyond a reasonable doubt. And, to the extent that trial
counsel may have waived a challenge to the search of the garbage bag, doing so was
ineffective assistance of counsel.
The State responds that the issuing judge had a substantial basis to find a nexus
between the criminal activity and the places to be searched, and therefore the warrants
were sufficient. But, even if they were deficient, the evidence obtained in the searches
10
In State v. Hempele, 576 A.2d 793, 810 (N.J. 1990), the New Jersey Supreme Court
concluded that a “person has as much right to privacy in items concealed in a garbage bag
as in items concealed in other opaque containers,” and that the “[d]efendants had a
reasonable expectation of privacy in the contents of their trash bags and can claim the
protection of article I, paragraph 7 [of the New Jersey Constitution].” The Hempele
Court held that “the State must secure a warrant based on probable cause in order to
search garbage bags left on the curb for collection.” Id. at 813. In that case, the
defendants challenged warrantless searches by police officers of “white plastic trash bags
from a plastic trash can” “sitting in front of” a rowhouse and “gray plastic garbage bags
placed near the street” in front of a house. Id. at 796-97.
15
was admissible under the good faith exception because appellant did not preserve his
claim that we are bound by New Jersey law, and the admissibility of evidence is
governed by the law of Maryland as the “forum state.”
As to the ineffective assistance of counsel claim, the State contends that the record
in this case is inadequate to assess on direct appeal why appellant’s trial counsel waived
argument as to the garbage bag search and did not argue that New Jersey law applied. In
addition, the State argues that appellant was not prejudiced because, under either New
Jersey or Maryland law, the garbage bag would be considered abandoned.11 Moreover, it
argues that, at trial, the State relied on the testimony of eyewitnesses, who implicated
appellant for the crimes, and not on the search evidence. Therefore, any errors in the
admission of evidence recovered with searches would be harmless.
Analysis
To determine whether an issuing judge had a substantial basis to find probable
cause, we “ordinarily” look only “to the information provided in the warrant and its
11
More specifically, the State argues that, even under New Jersey law, appellant cannot
find relief because he had abandoned the garbage bag in an alleyway well beyond his
“curtilage” or “curb.” In Maryland, “if a person voluntarily discards or otherwise
relinquishes his interest in property so that he no longer retains a reasonable expectation
of privacy with regard to it, he has removed himself from the protection of the fourth
amendment.” Morton v. State, 284 Md. 526 (1979). In New Jersey, according to the
State, “if the State can show that property was abandoned, a defendant will have no right
to challenge the search or seizure of that property.” It cites State v. Johnson, 940 A.2d
1185, 1196 (N.J. 2008) (holding that the defendant had standing to challenge search of a
duffel bag that he had picked up with his hands within a home, but which he disclaimed
owning when asked by police), and State v. Carvajal, 996 A.2d 1029 (N.J. 2010)
(holding that an unclaimed duffel bag left on a bus was abandoned where defendant
denied having any possessory or ownership interest in it, and every other bus passenger
denied owning it).
16
accompanying application documents.” Greenstreet v. State, 392 Md. 652, 669 (2006).
In Potts v. State, 300 Md. 567 (1984), the Court of Appeals determined that the totality of
the circumstances analysis set forth in Illinois v. Gates, 462 U.S. 213 (1983), and
Massachusetts v. Upton, 466 U.S. 727 (1984), was, under both the Fourth Amendment
and Article 26, the appropriate standard of review of a probable cause determination.
Probable cause may be established by either, or both, the direct observation of the affiant,
or hearsay information furnished to the affiant. See Donaldson v. State, 46 Md. App.
521, 523 (1980).12 And, where an affidavit “taken as a whole creates a fair inference that
a particular unsubstantiated assertion is probably correct, probable cause may be found to
exist.” Potts, 300 Md. at 575.
As to nexus, appellant argues that the trial court erred in denying the motion to
suppress the evidence recovered from the searches because there was no “sufficient nexus
between the (1) criminal activity, and (2) the things to be seized, and (3) the place to be
searched.” He cites Agurs v. State, 415 Md. 62, 84 (2010) (“Our interpretation of the
nexus requirement is sufficiently well-established that the police must be aware of it.”),
and State v. Ward, 350 Md. 372, 400 (1998) (Bell, C.J., dissenting) (“[I]t is still necessary
12
In Gates, the Supreme Court abandoned the two-prong Aguilar [v. Texas, 378 U.S. 108(1964)] and Spinelli [v. United States, 393 U.S. 410 (1969)] test, which required the
issuing magistrate be informed of some of the underlying circumstances from which it
was concluded that incriminating evidence would be found where it was claimed to be
and that an informant was credible and the information was reliable. See Potts, 300 Md.
at 570-71.
17
that there be a sufficient nexus between (1) criminal activity, and (2) the things to be
seized, and (3) the place to be searched.”).13
In this case, Sergeant Toth, the affiant, described the following criminal activity:
On Wednesday, February 25, 2015, the Cecil County Sheriff’s Office in
Maryland responded to the address of 106 West Parkway in Elkton,
Maryland after receiving a call for service in reference to suspicious
circumstances.
Cecil County Sheriff’s Office arrived at 106 West Parkway and located the
bodies of two deceased persons in an upstairs bathroom area. The two
bodies appeared to have been bound by duct tape at the hands and feet with
tape also wrapped around the faces of each person. The two bodies were
identified at [sic] Earl Loomis and Mary Ann Loomis.
As to appellant, the affidavit states that he was “identified as a suspect” in the
February 9 robbery home invasion, for which an arrest warrant had been issued, and that
he was “also a suspect” in the discussed criminal activity discovered on February 25. As
to the place to be searched, the affiant states that on Thursday, February 26, 2015, U.S.
Marshals, having “received information that Derrick Carroll may be at a residence in the
area of 27-29 Bryn Mawr Avenue, Trenton, New Jersey,” began surveillance of that area
that same day and confirmed that information. They observed appellant “exit[ing] the
residence at 27 Bryn Mawr Avenue,” and “carrying a white trash bag.” He walked down
the sidewalk and into an alley at the side of 59 Bryn Mawr Avenue; he came out of the
alley without the white trash bag. After apprehending appellant under the outstanding
arrest warrant, Investigator Wylie proceeded to the side of 59 Bryn Mawr Avenue where
13
In this argument, appellant does not cite New Jersey law, but, like Maryland, New
Jersey has adopted the Gates totality of the circumstances test. See State v. Novembrino,
519 A.2d 820, 836 (N.J. 1987).
18
he observed three black colored garbage bags, one of which was open with a white bag
on the top.
Appellant contends that the allegation that he was a “suspect” in the homicide is a
conclusory statement unsupported by any facts contained in the affidavit. Citing Braxton
v. State, 123 Md. App. 599, 623 (1998), he argues that the affidavit did not provide “any
factual foundation for the officer’s conclusory assertion” that appellant was a “suspect” in
the homicide. And, even assuming he was a “suspect,” appellant asserts that “the mere
observation, documentation, or suspicion of [his] participation in criminal activity will
not necessarily suffice, by itself, to establish probable cause that inculpatory evidence
will be found” at or in the vicinity of 27 Bryn Mawr Avenue. Holmes v. State, 368 Md.
506, 523 (2002) (emphasis added).
The State responds that the U.S. Marshals had “received information” that Derrick
Carroll was at a residence around 27 Bryn Mawr Avenue, and that the reliability of that
information was corroborated, as in Gates, when officers observed appellant leaving that
precise location.
To be sure, probable cause for a warrant may be based on information obtained
through an investigation in collaboration with law enforcement from other federal or state
jurisdictions. For example, in Winters v. State, 301 Md. 214 (1984), Maryland State
Police, the FBI, and the DEA were investigating narcotics trafficking in a “cooperative
law enforcement venture,” and a federal search warrant was being executed. Id. at 230.
A state police officer was authorized to assist in the search and, while legally on the
premises, he observed evidence of a Maryland crime. The state police officer relied on
19
that observation in an application for a state search warrant, attaching the federal warrant,
but not the affidavit supporting the federal warrant. Id. at 221-22, 231. The Court of
Appeals held that “there was no primary illegality in the federal search,” and that it was
“proper to use the evidence [] discovered during the [federal] search to form the basis for
the existence of probable cause in the state warrant.” Id. at 231. In addition, this Court
has stated, when a police officer relies on information communicated to him or her from
another police officer and recites that information in the affidavit, “that the affiant’s
sources of information were reliable is too plain to require discussion.” Grimm v. State, 6
Md. App. 321, 328 (1969); see also Commonwealth v. Banville, 931 N.E.2d 457 (Mass.
2010).14
In this case, there was a clear nexus between appellant and the places to be
searched, i.e., the garbage bag and the residence. U.S. Marshals verified the information
provided to them and they observed appellant exiting the residence and leaving the
garbage bag in the alley. It would be a reasonable inference in this joint investigation
that appellant, who apparently left Maryland shortly after the February 22-23 incident,
would still have evidence of the robbery and homicide in close proximity to him until he
could use it for his benefit or discard it so it could not be found.
The affidavit provides meaningful information about the murder of the Loomises,
but there is no information in the affidavit establishing why appellant was “also a
14
The Supreme Judicial Court of Massachusetts addressed an investigation of a rape and
murder in Massachusetts and whether evidence seized under a Maryland issued search
warrant was admissible. It held that the issuing Maryland judge properly relied on an
affidavit of a Massachusetts police officer.
20
suspect” in the Loomises investigation. Certainly, the collective knowledge of the
Maryland police, the New Jersey police, and the U.S. Marshals could have provided a
substantial basis for finding probable cause, but none was recited in the four corners of
the warrant application. In short, that appellant was “also a suspect” in the Loomises
investigation was a “purely conclusory” statement. See Scott, 4 Md. App. at 489. After
granting great deference to the issuing judge and viewing the factual recitations in the
warrant application in the light most favorable to the State, we are not persuaded that the
issuing judge had a substantial basis for finding probable cause for the warrants. For that
reason, we turn our attention to the trial court’s good faith finding.
On appeal, appellant argues that the searches of the residence and the garbage bag
were governed by New Jersey law, and that New Jersey has expressly refused to adopt
the good faith exception to the warrant requirement. The State responds that appellant
argued at the suppression hearing only that no reasonably well-trained officer would have
relied on the warrants and did not preserve his claim that New Jersey law applies to the
good faith exception. We agree, but because the suppression court found that the officers
executed the warrants in good faith reliance, the good faith exception is properly before
us on appeal. See Greenstreet, 392 Md. at 667 (“[B]y [the trial court’s] finding that the
good faith exception did not apply . . . the good faith exception properly is before us.).
And, in considering it and appellant’s ineffective assistance of counsel claim, we will
address whether New Jersey law or Maryland law applies.
The United States Supreme Court and the Maryland Court of Appeals have
adopted a good faith exception to the warrant requirement, under which “evidence seized
21
under a warrant subsequently determined to be invalid may be admissible if the executing
officers acted in objective good faith with reasonable reliance on the warrant.”
McDonald v. State, 347 Md. 452, 467 (1997); see United States v. Leon, 468 U.S. 897,
919-22 (1984). The exception applies as long as the warrant is not “based on an affidavit
so lacking in indicia of probable cause as to render official belief in its existence entirely
unreasonable,” or is not “so facially deficient [otherwise] that the executing officers
cannot reasonably presume [the warrant] to be valid.” McDonald, 347 Md. at 468-69(quoting Leon, 468 U.S. at 923). As the Court of Appeals has observed, quoting the Leon
Court, “searches pursuant to a warrant will rarely require any deep inquiry into
reasonableness, for a warrant issued by a magistrate normally suffices to establish that a
law enforcement officer has acted in good faith in conducting the search.” Patterson v.
State, 401 Md. 76, 104 (2007) (quoting Leon, 468 U.S. at 922). We review “a [trial]
court’s determination as to the applicability of the Leon good faith exception to the
exclusionary rule . . . de novo when the facts are not in dispute.” Id. at 104-05.
The New Jersey Supreme Court has interpreted its state constitution to “afford [its]
citizens greater protection against unreasonable searches and seizures than does the
[F]ourth [A]mendment,” and has expressly declined to adopt the Leon good faith
exception to the exclusionary rule. See State v. Novembrino, 519 A.2d 820, 850 (N.J.
1987).15
15
The Novembrino Court explained:
22
Appellant contends, citing Moore v. State, 71 Md. App. 317 (1987), and Myers v.
State, 395 Md. 261 (2006), that even if a trained police officer could reasonably believe
“that the warrant was adequate,” the admission of the evidence should be governed by
New Jersey law as the state in which the searches were conducted. The State, on the
other hand, views the admission of evidence obtained in connection with a deficient
search warrant as a procedural concern, and citing Mason v. Lynch, 388 Md. 37, 39 n.1
(2005) (“the admission into evidence of the photographs . . . is an issue governed by the
law of the forum and not by the law of the place where the accident occurred”), it argues
that the admission of evidence is “governed by the law of the forum.”
(…continued)
Our conclusion as to [whether to adopt the good faith exception] is strongly
influenced by what we perceive to be the likely impact of our decision on
the privacy rights of our citizens and the enforcement of our criminal laws,
matters of ‘particular state interest’ that afford an appropriate basis for
resolving this issue on independent state grounds.
***
The exclusionary rule, by virtue of its consistent application over the past
twenty-five years, has become an integral element of our state-
constitutional guarantee that search warrants will not issue without
probable cause. Its function is not merely to deter police misconduct. The
rule also serves as the indispensable mechanism for vindicating the
constitutional right to be free from unreasonable searches. Because we
believe that the good-faith exception to the exclusionary rule adopted in
Leon would tend to undermine the constitutionally-guaranteed standard of
probable cause, and in the process disrupt the highly effective procedures
employed by our criminal justice system to accommodate that
constitutional guarantee without impairing law enforcement, we decline to
recognize a good-faith exception to the exclusionary rule.
519 A.2d at 850, 856-57.
23
In Moore, we considered “the application of the arrest jurisdiction’s law to the
question of probable cause”:
Since the arrest occurred in the District of Columbia, under the ruling in
Berigan v. State, 2 Md. App. 666, 668 (1968), we apply that jurisdiction’s
“law” in testing the validity of the arrest. While the Berigan Court did not
delineate what it meant when referring to the “law” of the arrest
jurisdiction, the word “law” must refer to the particular statutes and
constitutional provisions of that jurisdiction. Where those statutory and
constitutional provisions are not in contravention of the United States
Constitution, and to the extent that they expand an arrestee’s rights, clearly
those provisions control any decision concerning the validity of an arrest. If
the word “law” in Berigan meant case law interpreting federal
constitutional law, under the principles of federalism, a sister state’s
constitutional interpretation would not necessarily be binding in this State.
Where, however, that sister state’s interpretation is persuasive, as was the
case in Berigan, a Maryland court may adopt that jurisdiction’s analysis.
71 Md. App. at 322-23 (emphasis supplied). And, in Myers, the Court of Appeals
concluded that “[w]e have long recognized that the legality of [an] arrest and, therefore,
the reasonableness of the search and seizure incident to the arrest, turns on the law of the
State in which the arrest was made, absent a controlling federal statute.” 395 Md. at 275(citations omitted).
States have diverged on the approach to take when evidence obtained in a search,
if judged by the law in the jurisdiction where the search occurred, would be inadmissible
in that jurisdiction based on a local statute, court rule, or state constitutional provision.
See generally LaFave, 1 Search & Seizure § 1.5(c) (5th ed.). LaFave explained:
The issue . . . is best viewed simply as one of whether, as a matter of
policy, it would be sound to exclude the fruits of a violation of local law
occurring in a jurisdiction other than that in which the prosecution is
pending. Stated differently, one might ask whether, given the tendency of
jurisdictions to enforce many of their own local search and seizure
24
requirements by exclusion [], the same respect should be afforded local
requirements elsewhere. That is a question of some difficulty[.]
Id. (emphasis added).
In general terms, states have adopted one of four different approaches: “(1) a
mechanical approach determined by the law of the forum State;16 (2) a significant
relationship approach that looks to which State has the greater interest in the process by
which the evidence was obtained;17 (3) a governmental interest approach that weighs the
interests of the forum State against those of the State where the evidence was obtained;18
and (4) an exclusionary rule approach based on the underlying policies of the respective
exclusionary rules of the States involved.”19 Commonwealth v. Banville, 931 N.E.2d 457,
464 n.1 (Mass. 2010) (providing a general overview of the four approaches). The first
approach is mechanical; the other three ask the court to weigh the interests and policies of
the involved states. The question of what approach we should adopt is one of first
impression.
16
E.g., State v. Lynch, 969 P.2d 920 (Mont. 1998); State v. Davis, 834 P.2d 1008 (Or.
1992); People v. Price, 431 N.E.2d 267 (N.Y. 1981); Burge v. State, 443 S.W.2d 720(Tex. Crim. App. 1969).
17
E.g., People v. Saiken, 275 N.E.2d 381, 385 (Ill. 1971).
18
E.g., State v. Briggs, 756 A.2d 731, 739-40 (R.I. 2000); People v. Orlosky, 115 Cal.
Rptr. 598, 601 (Cal. Ct. App. 1974).
19
E.g., State v. Torres, 262 P.3d 1006, 1021 (Haw. 2011); State v. Mollica, 554 A.2d
1315 (N.J. 1989); Echols v. State, 484 So.2d 568, 571-72 (Fla. 1985); State v. Lucas, 372
N.W.2d 731 (Minn. 1985).
25
The Banville Court noted that although “the trend is towards the exclusionary rule
approach, based on the validity of the warrant in the State where it was issued,” this area
of the law is “by no means clear or settled.” Id. For example, some states, holding that
the law of the sister state applies, “provide an exception for searches conducted as a
cooperative effort between police of the two States: the law of the forum State may
control depending on the nature of the agency relationship and the motives of the police
of the forum State.” Id. (citing State v. Bridges, 925 P.2d 357 (Haw. 1996) (“if forum
state police set out consciously to evade forum state law . . . [s]itus law should not be
used to reward such schemes”); State v. Mollica, 554 A.2d 1315 (N.J. 1989) (motives of
police relevant); State v. Cauley, 863 S.W.2d 411 (Tenn. 1993)).
Appellant and the State both urge a bright line rule: appellant argues for the law of
the state where the search occurred, i.e., the situs state;20 the State argues for the law of
the forum state. The adoption of a per se (or mechanical) situs or forum rule is appealing
because of its simplicity. But, we are not persuaded that a per se application of the situs
law would always be appropriate. Appellant was not arrested under the warrants at issue
in this case, but under a warrant related to a February 9 incident, and the items seized
were not the product of a search incident to arrest. In short, we are not persuaded to
extend Moore and Myers, which concerned arrest and searches incident to arrest, to a
20
“[N]o court appears to have adopted a per se rule in favor of situs law.” See generally
Megan McGlynn, Note, Competing Exclusionary Rules in Multistate Investigations:
Resolving Conflicts of State Search-and-Seizure Law, 127 Yale L.J. 406, 434 (2017).
26
Leon good faith exception analysis. Nor are we persuaded that a per se application of the
“law of the forum” would always be appropriate.
Whatever analytical merit there may be in trying to fit Maryland into one of the
general approaches adopted by our sister states, we are not certain that a one-size fits all
approach will satisfy every factual context that may arise. For that reason, we will focus
only on the application of the exclusionary rule in the context of this case. And, in doing
so, we will borrow analytical considerations from some of the various approaches taken
in other states.
The criminal act in this case is the murder and robbery in Maryland of two
Maryland citizens by another Maryland citizen. The investigation, arrest, and searches
were a joint law enforcement effort involving officers from Maryland and New Jersey in
addition to the federal Marshals Service. Nothing in the record suggests that the
Maryland police were consciously trying to evade Maryland law; New Jersey was
involved only because appellant had left Maryland and went to New Jersey. In our view,
whatever interest New Jersey may have in the process by which the evidence was
obtained, Maryland has a greater governmental interest in the case.
As to the underlying policies of the two states regarding the exclusionary rule, the
New Jersey Supreme Court rejected the good faith exception “on independent state
grounds” based on the impact that its adoption would have on “the privacy rights of [its]
citizens” and the “enforcement of [New Jersey] criminal laws.” See Novembrino, 519
27
A.2d at 850.21 It views the purpose of the exclusionary rule as “not merely to deter police
misconduct.” It is also an “indispensable mechanism” to protect the right to be free from
unreasonable searches, and the adoption of the good faith exception would “disrupt the
highly effective procedures employed by [New Jersey’s] criminal justice system to
accommodate that constitutional guarantee without impairing law enforcement.” Id. at
856-57. Clearly, the application of the good faith exception in this case will, in no way,
impact the privacy rights of New Jersey citizens or impair or negatively disrupt the
procedures employed in New Jersey’s criminal justice system.
The Court of Appeals “has not recognized an exclusionary rule for evidence seized
in violation of Article 26 of the Maryland Declaration of Rights,” Agurs v. State, 415 Md.
62, 102 (2010) (Barbera, J., dissenting), and has followed Leon, permitting “evidence
seized under a warrant subsequently determined to be invalid [to] be admissible if the
executing officers acted in objective good faith with reasonable reliance on the warrant.”
McDonald v. State, 347 Md. 452, 467 (1997); and see Fitzgerald v. State, 384 Md. 484,
520 (2004) (Greene, J., dissenting) (stating that the Court, regarding a canine sniff,
should take an “opportunity” to “interpret Article 26 . . . so as to afford [Maryland]
citizens greater protections than those as interpreted under the Fourth Amendment”).
We hold that the good faith exception to the exclusionary rule applies here; that
the warrants are not so obviously deficient that they could not have been reasonably
relied upon by the officers in good faith; and that the evidence recovered from both the
21
See supra note 15.
28
residence and the garbage bag was admissible at trial. Therefore, we need not address
appellant’s ineffective assistance of counsel claim22 and the State’s argument that the
garage bag in this case was abandoned under both Maryland and New Jersey law.
II.
Closing Argument
Appellant contends that, at closing, the prosecutor, who had “attempted to elicit
testimony showing that appellant clashed with Mr. Loomis over race,” argued that
appellant, who was black, killed Mr. and Mrs. Loomis, who were white, because of racial
22
Were we to address appellant’s ineffective assistance of counsel claim, we would
be guided by “the general rule that a claim of ineffective assistance of counsel is raised
most appropriately in a post-conviction proceeding” because “ordinarily, the trial record
does not illuminate the basis for the challenged acts or omissions of counsel.” In re
Parris W., 363 Md. 717, 726 (2001). As this Court has stated, only “where the critical
facts are not in dispute and the record is sufficiently developed to permit a fair evaluation
of the claim, there is no need for a collateral fact-finding proceeding, and review on
direct appeal may be appropriate and desirable.” Testerman v. State, 170 Md. App. 324,
335 (2006).
We note that the transcript of the suppression hearing indicates that appellant’s
counsel at the beginning of the hearing requested a postponement because he had had
only two weeks to look at the files and needed more time to become familiar with the
case, but that appellant objected and chose to proceed against counsel’s advice. The
following colloquy between the court and appellant ensued:
The Court: [I]f you stand by . . . proceeding today against your attorney’s
advice, if in fact you were found guilty of one or more of
these charges, that may have a bearing on any post-conviction
rights you may have later on down the road, where it might be
difficult for you to say that you didn’t have effective
assistance of counsel when your counsel is recommending
that the matter be postponed . . . . Do you understand that
you may be waiving your ability to claim [] ineffective
counsel?
Appellant: Yes.
29
animosity. He argues that allowing such arguments before an all-white jury was so
prejudicial that he was deprived of his right to a fair trial. Appellant concedes that his
counsel did not object to the prosecutor’s statements at trial and urges plain error review.
The prosecutor’s relevant closing statements were:
So you have a person in Mr. Carroll who knows the victims. You have a
person in Mr. Carroll who knows the house. You have a person in Mr.
Carroll who I dare say to you had motive. He had knowledge of these
people. And he can call Mrs. Loomis “mom” all he want, but you don’t
have to read too far between the lines to know what kind of relationship he
had with Mr. Loomis. How many times did he refer to Mr. Loomis as being
a traditional person? What was quite notable in his statement about his
child of mixed race was that he said something to the effect of,
notwithstanding being a traditional person, he still loved my child and did
things for my child. You know what that means, don’t you? Don’t check
common sense at the door. We all know what racial tensions there are. We
all know what he’s talking about when he’s talking about Mr. Loomis being
traditional.
Mr. Carroll – and I’m not suggesting to you that Mr. Carroll is right or
wrong about this. I certainly don’t know. I don’t think any of you could
possibly know whether or not Mr. Loomis really did have issue with race or
not. But I suggest to you that it’s, if not obvious, certainly implied that you
can read between the lines of what Mr. Carroll is saying, that he believed
that Mr. Loomis did not approve of his granddaughter being involved with
him because he’s black. Is that the be-all end-all when it comes to motive?
No. I’m not going to suggest to you that’s the be-all end-all. But could it be
part of the motive? Sure.
(Emphasis added).
The State responds that the arguments about racial tension between appellant and
Mr. Loomis were one of several arguments advanced about the motive for the crime and
was rooted in evidence presented at trial, particularly appellant’s testimony on direct
examination. The prosecutor argued that appellant “felt slighted by” Mr. Loomis, which
in turn, may have motivated him to target Mr. and Mrs. Loomis in a particularly brutal
30
murder. In response to the prosecutor’s question whether he “believed that Mr. Loomis
didn’t like [him] or didn’t approve of [him] because [he] [is] black,” appellant answered:
Not exactly true. Just from Kimber telling me that, you know what I mean,
he would rather her be with somebody – that’s what he believed. I got that -
- I didn’t get that information directly from him. He never told that to me
directly. But Kimber hinted to me that her grandfather didn’t like the fact
that she had liked an African American man.
Plain error review is a “‘rare, rare phenomenon,’ undertaken only when the un-
objected-to error is extraordinary.” Perry v. State, 229 Md. App. 687, 710 (2016)
(quoting Pickett v. State, 222 Md. App. 322, 342 (2015)). A four prong test guides the
exercise of plain error review:
First, there must be an error or defect[—]some sort of deviation from a
legal rule[—]that has not been intentionally relinquished or abandoned . . .
by the [defendant]. Second, the legal error must be clear or obvious, rather
than subject to reasonable dispute. Third, the error must have affected the
[defendant]’s substantial rights, which . . . means [that the defendant] must
demonstrate that [the error] affected the outcome of the [trial] court
proceedings. Fourth and finally, if the above three prongs are satisfied, the
[appellate court] has the discretion to remedy the error[—]discretion [that]
ought to be exercised only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings. Meeting all four
prongs is difficult, as it should be.
Givens v. State, 449 Md. 433, 469 (2016) (quoting State v. Rich, 415 Md. 567, 578
(2010)).
Trial courts give attorneys “great leeway in presenting closing arguments to the
jury.” State v. Newton, 230 Md. App. 241, 254 (2016) (quoting Degren v. State, 352 Md.
400, 429 (1999)).
“Generally, counsel has the right to make any comment or argument that is
warranted by the evidence proved or inferences therefrom” and, in doing
so, to “indulge in oratorical conceit or flourish.” Wilhelm v. State, 272 Md.
31404, 412-13 (1974). As long as “counsel does not make any statement of
fact not fairly deducible from the evidence his argument is not improper.”
Id. at 412. “What exceeds the limits of permissible comment or argument
by counsel depends on the facts of each case.” Smith and Mack v. State,
388 Md. 468, 488 (2005). Thus, the propriety of prosecutorial argument
must be decided “contextually, on a case-by-case basis.” Mitchell v. State,
408 Md. 368, 381 (2009). Because “a trial court is in the best position to
evaluate the propriety of a closing argument as it relates to the evidence
adduced in a case,” the exercise of its broad discretion to regulate closing
argument will not be overturned “unless there is a clear abuse of discretion
that likely injured a party.” Ingram v. State, 427 Md. 717, 726 (2012).
Anderson v. State, 227 Md. App. 584, 589-90 (2016) (cleaned up).
Based on our view of the record, we are not persuaded that the prosecutor’s
argument was not fair comment on the evidence. And, at the very least, any alleged error
was not clear and obvious. In short, we are not persuaded that plain error review is
warranted in this case.
JUDGMENT OF THE CIRCUIT COURT
FOR CECIL COUNTY AFFIRMED;
COSTS TO BE PAID BY APPELLANT.
32