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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1838 September Term, 2010

ANTWAN GRYMES A/K/A/ ANTOINE GRIMES v. STATE OF MARYLAND

Eyler, Deborah S., Matricciani, Wilner, Alan M. (Retired, Specially Assigned), JJ.

Opinion by Eyler, Deborah S., J.

Filed: October 28, 2011

In the Circuit Court for Montgomery County, Antwan Grymes, the appellant, was charged with robbery with a dangerous weapon, assault in the first degree and use of a handgun in the commission of a crime of violence. A jury acquitted him of all charges except the lesser included offenses of robbery and assault in the second degree. He was sentenced to a term of 15 years' incarceration for robbery and a concurrent term of 10 years for assault. In this Court, the appellant poses four questions for review, which we have reordered and slightly rephrased: I. Did the motion court err in denying his motion to suppress evidence of a gun found during a warrantless search of the common laundry room of the multiunit apartment building in which he was living? Did the motion court err in denying his motion to suppress evidence of a cell phone that was the fruit of a custodial interrogation carried out prior to his being advised of his Miranda rights?1 Did the trial court err in permitting the jury to consider evidence of the gun? Did the trial court err in declining to give a requested jury instruction on missing evidence?

II.

III. IV.

For the following reasons, we shall affirm the judgments.

FACTS AND PROCEEDINGS
In the early evening of November 30, 2009, a group of friends gathered to watch a football game on television at Carroll Walker's apartment, at 8118 Roanoke Avenue, in Takoma Park. In addition to Walker, his girlfriend, Michelle Foster; Walker's cousin, Mabel Williams; Williams's boyfriend, Robert Pumphrey; and two other people were present. During the gathering, Delores Amankwah, a friend of Williams, came by to see Williams and Pumphrey. Williams, Pumphrey, and Amankwah had been planning to move

1

Miranda v. Arizona , 384 U.S. 436 (1966).

into an apartment together beginning January 1, 2010. The apartment also was in the 8118 Roanoke Avenue building and the three already had completed a rental application. That evening Pumphrey told Amankwah she could not move in with him and Williams unless she contributed one-third of the security deposit. Amankwah, who was unemployed, could not afford to do so and became very upset. At the time, Amankwah was living temporarily in a nearby apartment, at 657 Houston Avenue, leased by one Sharon Harkum. Harkum lived on the third floor of that multi-unit apartment building. The appellant, a long-time friend of Harkum, also was staying at her apartment. After the exchange with Pumphrey, Amankwah left Walker's apartment in tears and walked to Harkum's apartment, where the appellant was present. Amankwah told Harkum and the appellant about her dispute with Pumphrey. Shortly thereafter, the appellant left, saying he was going to "go out and talk to [Pumphrey]." The appellant went to Walker's apartment and knocked on the door. Walker let him in. The appellant shook hands with everyone and asked each person's name. When

Pumphrey identified himself, the appellant asked if they could speak outside. The two men spoke briefly at the door to the apartment before Walker suggested they go into the bedroom to talk. The appellant and Pumphrey entered the bedroom, which was at the back of the apartment. According to Pumphrey, once the two men were inside the bedroom, the appellant pulled out a handgun, aimed it at him, and demanded that he hand over his coat and wallet. 2

He did so. Pumphrey's cell phone was inside his coat. His wallet contained $150 and a debit card. Walker overheard the appellant and Pumphrey arguing and asked them to leave the bedroom, which they did. The appellant, still carrying Pumphrey's coat and wallet, exited the apartment. Shortly thereafter, Pumphrey also left, accompanied by Williams. About five minutes later, a man showed up at the apartment and gave Pumphrey's coat to Walker and Foster. The man, who is not identified in the record, but who it appears also was staying with Harkum, said, "Man, I don't know why he did that." Pumphrey's wallet was in the coat pocket, but his cash, debit card, and cell phone all were missing. In the meantime, Pumphrey and Williams walked to a nearby pizza shop where Pumphrey called 911 and reported that he had just been robbed at gunpoint.2 A little after 8:00 p.m., Corporal Jerome Irwin of the Takoma Park Police Department ("TPPD") responded to the scene. After learning that the robbery occurred inside the 8118 Roanoke Avenue apartment building, Corporal Irwin drove Pumphrey and Williams back to that location. Corporal Thomas Black and Detective Charles Hoezel arrived shortly thereafter. The police interviewed Pumphrey, Williams, and Walker, who came outside and returned Pumphrey's coat and wallet to him. All three identified Pumphrey's assailant as "D" or "Dogg" and said they thought he was staying at 657 Houston Avenue. Pumphrey

At trial, Pumphrey testified that he used Williams's cell phone to make the call. Williams testified that Pumphrey called from a payphone inside a store near the pizza shop because she did not have any minutes on her phone. 3

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further described the weapon used as "black with a brown handle," and having a long barrel. He thought it possibly was a .38 caliber. While speaking with police, Pumphrey noticed Amankwah on the street. He told the police that she knew his assailant and might have been involved in the robbery. The police stopped Amankwah, who gave them a false name because there was an outstanding warrant for her arrest. She provided the police with the appellant's first name and confirmed that he currently was staying in the 657 Houston Avenue apartment building. Around 9:00 p.m., Detective Hoezel and Corporals Erwin and Black went to the 657 Houston Avenue apartment building to look for the appellant. The front door of the building was unlocked. The police entered and went to Harkum's apartment on the third floor. They knocked, and Harkum opened the door. She consented to a search of her apartment.3 The appellant was not there. Pumphrey, Williams, and Walker were transported to the TPPD station, where each gave a statement. Detective Hoezel conducted an internal database computer search for people going by the street name "D" or "Dogg" and identified the appellant as a suspect. The police showed Williams and Walker a photograph of the appellant and each positively identified him. Pumphrey was shown a photographic array that contained the appellant's photograph. He quickly selected the photograph as depicting the man who had robbed him.

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Harkum signed a consent form. 4

Six hours later, around 3:00 a.m. on December 1, Detective Hoezel and Corporals Black and Erwin returned to the 657 Houston Avenue apartment building with a warrant for the appellant's arrest. They entered the unlocked front door, went to Harkum's apartment, and found the appellant asleep on the floor in the bedroom. They placed him under arrest. As we shall explain in greater detail, certain items of clothing belonging to the appellant were searched and revealed Pumphrey's cell phone and $112 in cash. Amankwah also was present in Harkum's apartment. She gave her true name to the police this time and was arrested on the outstanding warrant. The appellant and Amankwah were transported to the police station. The appellant declined to give a statement. Amankwah told the police that, after the appellant left Harkum's apartment to "talk to [Pumphrey]," he returned and told her (Amankwah) that he had robbed Pumphrey. She also told the police that, earlier in the evening, she had seen the appellant with a gun. She suggested that the gun might be in the laundry room of the 657 Houston Avenue apartment building. At 5:30 a.m., Detective Hoezel and Corporal Black returned to the Houston Avenue apartment building for a third time. They did not have a warrant. They entered the laundry room, which was on the first floor and was unlocked, and in a search that we shall discuss in greater detail, infra , recovered a loaded .38 caliber revolver from behind a row of washing machines. As noted, the appellant was charged with robbery with a dangerous weapon, assault in the first degree, and use of a handgun in the commission of a crime of violence. Before 5

trial, he moved to suppress from evidence the gun and the cell phone.4 suppression hearing was held and his motions were denied.

A two-day

The case was tried to a jury for three days. The State called Pumphrey, Williams, Foster, and Amankwah. Each testified, with slight variations, to the facts as we have recounted them. Detective Hoezel, Corporals Black and Erwin, and a firearms expert also testified for the State. The appellant did not testify. He called Harkum as his only witness. We shall include additional facts in our discussion of the issues.

DISCUSSION
I. Search of the Laundry Room The appellant contends the circuit court erred by denying his motion to suppress evidence about the gun the police found in the common laundry room of the 657 Houston Avenue apartment building, including the gun itself. He asserts that the warrantless search of the laundry room violated his Fourth Amendment rights. The State responds that the appellant did not have a legitimate expectation of privacy in the common laundry room of the multi-unit apartment building, and therefore his Fourth Amendment rights could not have been violated.

The appellant also moved to suppress Pumphrey's pretrial identification of him, arguing that the photographic array was unduly suggestive. He did not prevail and has not raised that issue on appeal. 6

4

In reviewing the circuit court's ruling on the motion to suppress, "[w]e extend great deference to the fact finding of the suppression court and accept the facts as found by that court unless clearly erroneous." Nathan v. State , 370 Md. 648, 659 (2002) (quoting Wilkes v. State , 364 Md. 554, 569 (2001)). We consider the evidence introduced at the suppression hearing and the reasonable inferences therefrom that are most favorable to the party prevailing on the motion. State v. Ofori, 170 Md. App. 211, 218 (2006). Nevertheless, we review the ultimate question of constitutionality de novo and must "make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case." Bailey v. State , 412 Md. 349, 362 (2010) (quotations omitted). The evidence adduced at the suppression hearing about the police visits to the 657 Houston Avenue apartment building and their ultimate arrest of the appellant and seizure of the handgun found in the common laundry room is as we have recounted above, with the following additions. According to Harkum, at the relevant time, the appellant had been living in her apartment for about two months. He kept clothing and food there. Although he did not pay rent, he helped purchase groceries and assisted with cooking and cleaning. The front door to the 657 Houston Avenue apartment building and the door to the laundry room on the first floor of that building were kept unlocked at all times. Tenants were issued keys only to their own apartments. The front door of the building was posted with a sign that read, "NO TRESPASSING. NO LOITERING OR SITTING IN THE HALLWAY STAIRS, BY ADULTS, CHILDREN OR, GUESTS. VIOLATORS WILL BE ASKED TO 7

MOVE WITHOUT NOTICE." The laundry room door bore a sign stating that it was "OPEN 8 A.M. TO 8 P.M." Harkum consented to a search of her apartment when the police made their first visit. According to Detective Hoezel, on the second visit, when the police had an arrest warrant for the appellant, Harkum also consented to a search of the apartment. Harkum disagreed. In any event, as noted above, on that second visit the appellant and Amankwah were arrested and transported to the police station. When Detective Hoezel interviewed Amankwah at the police station, at a little after 4:00 a.m., she told him that, earlier in the day, she had seen the appellant with a gun. The gun was just "sitting on the floor [in Harkum's apartment], black long nozzle with [a] brown handle." She also told Detective Hoezel that the gun had "gotta be outside somewhere" and later suggested that it "might be in the laundry room" of the apartment building. It was this information that prompted Detective Hoezel and Corporals Black and Erwin to return to that building for a third time, around 5:00 a.m. Just as they had the two previous times, they entered the building through the unlocked front door. This time they headed straight to the laundry room on the first floor, which was unlocked, and searched it. When Corporal Black found a gun stashed behind a row of washing machines, he exclaimed, "there's the gun." Before the motion court, defense counsel argued that, as a long-term guest of Harkum, the appellant had a legitimate expectation of privacy not only in Harkum's apartment but also in the laundry room of the 657 Houston Avenue apartment building. The State responded that it was objectively unreasonable for the appellant to have any expectation of privacy in 8

a common laundry room in a multi-unit apartment building in which he was staying as a guest of a tenant. The motion court found as a fact that Harkum had consented to the initial searches of her apartment and that Amankwah had told the police that she had seen the appellant with a gun and that the gun might be in the laundry room of the 657 Houston Avenue apartment building. With respect to the laundry room, the court opined: Now, as indicated in the exhibits, Exhibit No. 2 and I believe Exhibit No. 14, Exhibit No. 14 is a sign on the laundry room door that says "Laundry room open 8 a.m. to 8 p.m." But the laundry wasn't locked. There is no evidence that the laundry room was locked. It was just a sign saying the times that the laundry room was open. Presumably in an apartment complex, for the convenience of the tenants, people don't want to hear the noise of laundry machines late at night, and so the hours are 8 a.m. to 8 p.m. With respect to whether the appellant had a reasonable expectation of privacy in the contents of the laundry room, the court ruled: I don't find that the defendant in this case had any reasonable expectation of privacy under these circumstances, particularly he

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