Davis v. State

52 A.3d 148, 207 Md. App. 298, 2012 WL 3822017, 2012 Md. App. LEXIS 109
CourtCourt of Special Appeals of Maryland
DecidedSeptember 4, 2012
DocketNo. 953
StatusPublished
Cited by3 cases

This text of 52 A.3d 148 (Davis v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. State, 52 A.3d 148, 207 Md. App. 298, 2012 WL 3822017, 2012 Md. App. LEXIS 109 (Md. Ct. App. 2012).

Opinion

WOODWARD, J.

On February 4, 2011, Travon David Davis, appellant, was indicted on one count of first degree burglary and one count of conspiracy to commit first degree burglary. On April 27, 2011, appellant sought a continuance in the Circuit Court for Montgomery County so that appellant’s alleged juvenile co-perpetrator, Jerquan H., could testify at trial. The circuit court denied appellant’s motion for a continuance, and, following a two-day jury trial, appellant was found guilty of first degree burglary and was acquitted of conspiracy to commit first degree burglary.

On May 9, 2011, appellant moved for a new trial on three grounds: (1) the verdict was “irreconcilably inconsistent”; (2) the denial of appellant’s motion for a continuance violated his Sixth Amendment rights; and (3) the evidence was insufficient to sustain the first degree burglary conviction. The circuit court denied appellant’s motion for a new trial in an order dated May 31, 2011. On June 15, 2011, appellant was sentenced to eight years’ imprisonment, with all but 18 months suspended, and five years probation upon release.

On appeal, appellant presents three questions for our review,1 which we have rephrased:

[303]*303I. Did the circuit court abuse its discretion in denying appellant’s motion for a continuance?
II. Did the trial court violate appellant’s Sixth Amendment Confrontation Clause rights when it admitted an audiotape of Jerquan’s interrogation?
III. Was the evidence legally insufficient to sustain appellant’s conviction for first degree burglary?

For the reasons set forth herein, we answer all of the above questions in the negative and therefore affirm the judgment of the circuit court.

BACKGROUND

The Incident

Because appellant is challenging the sufficiency of the evidence to sustain his conviction for first degree burglary, we review and recite the facts in the light most favorable to the prosecution. Moye v. State, 369 Md. 2, 12, 796 A.2d 821 (2002).

On December 29, 2010, Mildred Detwiler called 911 to report that two men were breaking into her house. Detwiler testified at trial that “two young black men” rang her doorbell at approximately 11:30 a.m., and when she did not answer, she observed the two men walk around to the back of her house. As Detwiler walked to the back of her house, she saw one of the men attempt to push up on the dining room window in the back of the house, and then saw both of them walk around to the back porch and look through the lattice underneath the porch. Both men then walked onto the deck and looked at two other windows. While one man stayed on the deck, the other walked up the steps to her back porch screen door and pushed his hand through the screen on the bottom of the door. According to Detwiler, after pushing his hand through the screen, the man was “feeling up the side of the [ ] door to see ... what was holding the door” and “found the latch on the door.” While this was occurring, the other man was “just standing” on the deck. Detwiler called 911 and went across [304]*304the street to her neighbor’s home. Once Detwiler arrived at her neighbor’s home, the police arrived “almost immediately,” and she observed a police officer jump out of his car and start running.

Officer Michael Kane responded to Detwiler’s 911 call and, upon arrival, observed two “black male subjects standing on the side yard.” Officer Kane made eye contact with the two men, who were walking toward him, and told them to stop. At this point, the two men turned and ran in the opposite direction and Officer Kane pursued them. Officer Mauricio Veiga was off-duty in the area and observed two men running and “looking back at the cruiser” driven by Officer Kane. Officer Veiga pursued the two men and saw them run into the backyard of a townhouse, bang on the sliding glass door, look back, and then gain entry into the house. After verifying the address of the townhouse, Officer Veiga called for assistance and, eventually, the two men came out of the townhouse in different clothing. The two men, appellant and Jerquan, who was then 17 years old, were arrested.

Following their arrest, appellant and Jerquan provided separate recorded statements to Detective Thomas Dufek. In his statement, Jerquan initially denied any •wrongdoing, but later stated that “we did crawl through the screen,” but “I didn’t try to break in” and “I wasn’t never going to go in the house.” Jerquan also stated that “I just crawled through the door” and that appellant was “not really in this.” In recounting the events of that day, Jerquan used both “we” and “I.” In his statement, appellant said that their “intentions [weren’t] to hurt [any]body,” that they did not think anybody was home, and that they “messed up” and “[were] leaving.”

Motion for a Continuance

Appellant’s trial was scheduled for April 27, 2011, while Jerquan’s juvenile proceedings were scheduled for June 28, 2011. On the first day of appellant’s trial, defense counsel moved for a continuance before the Administrative Judge, because Jerquan, who “still ha[d] a 5th Amendment privilege,” refused to testify until after his adjudication. According to [305]*305defense counsel, Jerquan would testify that appellant “had no involvement in this incident.” The State opposed the continuance and offered to stipulate to the contents of Jerquan’s statement, which the State characterized as both exculpatory and incriminating. The State also cited to Maryland Rule 2-508(c), a rule of civil procedure regarding continuances and absent witnesses, for the proposition that, if “the parties are willing to stipulate what the actual witness would testify to, the Court may deny the motion.” Defense counsel and the State were unable to reach an agreement on the contents of the stipulation and on a new trial date.

The Administrative Judge denied the motion for a continuance. In doing so, the court found that Jerquan was not “absent” under Rule 2-508(c) and that the State was “willing to stipulate to substantially everything that [defense counsel] wanted [Jerquan] to have said if he didn’t assert the 5th [Amendment].”

The Trial and Verdict

At the end of the first day of trial, the State indicated that it planned to introduce an audiotape of Jerquan’s interrogation. In response, defense counsel stated: “I’m accepting the statement being played, but I’m not giving up any rights that I had as a result of the continuance, when I wanted the live body here.” The State then indicated that it planned to play the interrogation as part of its case-in-chief, and the trial judge stated that it would come in “since both sides want it.” Jerquan was then called to testify and invoked his Fifth Amendment right to silence, and the court found him to be unavailable.

The next day, the State introduced into evidence the audiotape of Jerquan’s interrogation during its direct examination of Detective Dufek. The State also played a portion of the audiotape of appellant’s interrogation. When each of these audiotapes were offered into evidence, defense counsel stated that he had “[n]o objection.”

[306]*306At the close of the State’s case-in-chief and at the close of all evidence, defense counsel moved for a judgment of acquittal; both motions were denied.

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Bluebook (online)
52 A.3d 148, 207 Md. App. 298, 2012 WL 3822017, 2012 Md. App. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-mdctspecapp-2012.