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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0118 September Term, 2009

SCOTT ALLEN PRYOR v. STATE OF MARYLAND

Eyler, Deborah S., Kehoe, Alpert, Paul E. (Retired, Specially Assigned), JJ.

Opinion by Alpert, J.

Filed: October 1, 2010

Scott Allen Pryor, appellant, was convicted at a bench trial in the Circuit Court for Howard County of first-degree arson, first-degree assault, two counts of second-degree assault, first-degree burglary, and two counts of reckless endangerment.1 The court subsequently sentenced appellant to a total of 63 years of imprisonment: 25 years for arson; a consecutive 25 years for first-degree assault; a concurrent ten years for burglary; a consecutive eight years for second-degree assault; and a consecutive five years for reckless endangerment. His remaining convictions were merged for sentencing purposes. Appellant presents three questions for our review: I. II. Did the trial court err when it denied appellant's motion to suppress? Did the trial court err in not granting appellant's motion for judgment of acquittal for each of his convictions? Did the trial court err when it refused, for sentencing purposes, to merge appellant's conviction for first-degree assault into his conviction for first-degree arson?

III.

We answer each of the above questions in the negative and shall affirm the judgments. SUPPRESSION HEARING FACTS Prior to trial, appellant moved to suppress two statements he made to the police and tangible evidence the police seized after his first statement. Appellant made the first statement to the police at his house on the evening of the arson. He made the second statement a few days later at a police station following his arrest. At the suppression hearing,

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The court found appellant not guilty of attempted first-degree murder.

three detectives from the Howard County Police Department testified for the State: Corporal Aaron Dombrowsky, the lead investigator; Clay Davis, who assisted Detective Dombrowsky during appellant's first statement; and Edward Upton, who assisted Detective Dombrowsky during appellant's second statement. The facts elicited at the suppression hearing, which appellant did not dispute, showed the following. Around 7:00 a.m. on November 19, 2007, a fire consumed an end-unit townhouse at 5769 Flagflower Place in Columbia, Maryland. The townhouse belonged to Sheryl Alman, appellant's ex-girlfriend. Ms. Alman's daughter, Breanna, and the daughter's boyfriend, Andrew Lee, were injured in the fire; Breanna was critically injured. It was determined that an accelerant, a flammable liquid used to ignite or accelerate a fire, was used, and appellant was a potential suspect. After the fire was extinguished, Detective Dombrowsky spoke with the firefighters and officers involved in extinguishing the fire and several arson investigators. Around 8:30 p.m. on the day of the fire, Detectives Dombrowsky and Davis went to appellant's home in Essex to interview him in connection with the arson. Detectives Dombrowsky and Davis, dressed in plain clothes but wearing their service revolvers, knocked on the front door of appellant's home. When appellant opened the door, the detectives identified themselves as police officers and asked if they could come inside and talk to him. Appellant invited the detectives inside and the three sat around a dining room table. Detective Davis recorded the ensuing conversation on a handheld digital audio recorder that was in his pocket. Both detectives consented to the recording of their voices; appellant did not know that the conversation was being recorded.
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The detectives testified that during their conversation with appellant they did not threaten him, make any promises, or yell at him. They testified that they had no physical contact with appellant and never displayed their weapons to him. During the conversation, appellant expressed little emotion and said nothing when informed of the fire or that Breanna, Ms. Alman's twenty-one year old daughter, had been injured in the blaze. After the conversation, appellant consented to a search of his car. Detective Dombrowsky smelled gasoline coming from the trunk of the car but decided not to arrest appellant at that time. The detectives then left appellant's home. The detectives returned to the police station, conferred with several arson investigators, and obtained a search warrant for appellant and his home. Around 1:00 a.m. the next day, November 20, the detectives returned to appellant's home with an accelerant trained dog. The detectives knocked on the door, but no one answered. The detectives took the dog to appellant's parked car where the dog alerted for the presence of an accelerant. The detectives seized the car. Around 5:00 a.m. the following day, November 21, appellant was arrested and taken to a police station. Around 6:00 a.m., he was placed in an interview room that measured approximately eight feet by five feet and contained a table and three chairs. The room was wired for video and sound. Appellant was not handcuffed. After appellant waived his Miranda2 rights, Detective Dombrowsky and Detective Upton questioned appellant. The detectives testified that they did not wear their service revolvers, and did not threaten
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Miranda v. Arizona, 384 U.S. 436 (1996).
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appellant, make any promises, or have any physical contact with him during the interview. Detective Dombrowsky testified that they spoke with appellant for about 30-40 minutes, during which appellant admitted to setting the fire. Detective Dombrowsky then stepped outside the interview room to check the video equipment. Detective Upton, who remained in the room with appellant, asked appellant if he wanted to write an apology letter. Appellant indicated that he did, and he was given a pen and paper. During the break in the interview, which Detective Dombrowsky estimated lasted about ten minutes and Detective Upton estimated lasted a few minutes, it was learned that the audio portion of the video system had failed to record. Detective Dombrowsky re-entered the interview room with a handheld digital recorder and asked appellant to repeat what he had said. Appellant reiterated that he had set the fire. That interview lasted ten minutes. During the break, appellant never asked for an attorney nor ever stated that he did not want to talk anymore. The tape and a transcription of the conversation appellant had with the police at his home was entered into evidence at the suppression hearing. The tape and a transcription of appellant's second statement to the police at the police station, as well as his letter of apology, were likewise introduced into evidence at the suppression hearing. At the conclusion of the testimony, defense counsel argued that appellant's first statement to the police on November 19, 2007, should be suppressed because it was taken in violation of: 1) Maryland's wiretap law, and 2) Miranda because appellant was in custody while questioned in his home. Defense counsel also argued that the seizure of appellant's
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car and the evidence contained in it, and appellant's second statement to the police on November 21, 2007, should be suppressed because they were the fruits of the illegal first statement. Additionally, defense counsel argued that appellant's second statement to the police on November 21, 2007, should be suppressed because it was taken in contravention of Miranda because there was a break in custody and appellant was not re-advised of his rights to remain silent and to have counsel present. The trial court denied the motion.

DISCUSSION I. Appellant argues that the suppression court erred in denying his motion to suppress and raises the same arguments that he raised below. We find no error by the suppression court. We shall address each argument in turn. A. November 19th Statement

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