Jones v. State
Annotate this Case
Download PDF
In the Circu it Court for M ontgom ery County Case No. 100597 IN THE COURT OF APPEALS OF MARYLAND No. 120 September Term, 2005 Kevin Cornell Jones v. State of Maryland Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Filed: October 18, 2006 This case concerns a motion to suppress a photogra phic array displayed by the police to a witness in a criminal case a nd the proper proce dure to be employed in the circuit court in conducting a motions hearing. The issue presented is whether the Circuit Court for Montgom ery County erred in refusing to allow defense counsel at the motions hearing to call the detective who presented the photo array in order to establish that the photo array procedure was u nduly sug gestive and sh ould be suppre ssed. We shall hold that the court erred in not permitting defense counsel to call the witness. Appellant raises also the sufficiency of the evidence with respect to the second degree burglary conv iction. We s hall hold that the evidence was insufficient to establish that a breaking occurred, a necessary element of the offense, and accordingly, we shall reverse. I. Appellant was indicted by the Grand Jury for Montgomery County in a five count indictment charging burglary in the first degree, theft, burglary in the second d egree, burglary in the first degre e, and burg lary in the fourth degree.1 All charges related to a se ries of thefts at the Academy of the Holy Cross in Kensington, Maryland. He proceeded to trial before a 1 Appellant filed a motion to sever counts in the indictment. The court severed the theft charge and appellant proceeded to trial on the remaining charges. The court granted a motion for judgment of acquittal on Count IV, fourth degree burglary. The jury returned a not guilty verdict on Count I, first degree burglary, guilty on Count II, second degree burg lary, and no verdict on Count III, firs t degree bu rglary. Appella nt then ente red a guilty plea to Count III, as amended, to theft. The State entered a nolle prosequi to the severed theft charge. jury and was convicted of second degree burglary, Md. Code (2002, 2004 Cum. Supp.), ยง 6203 of the Criminal Law Article.2 The follo wing fac ts were elicited at trial. Several nuns employe d at the Academy of the Holy Cross reported that money had been stolen from their rooms at the convent on different dates. Appellan t was cha rged with several offenses related to these reports and proceeded to trial. One of the offenses for which appellant was charged related to events which occurred on June 30, 2004. On that date, two employees of the Academy of the Holy Cross, Marcia Fuoss and Erin Fristoe, saw appellant inside school premises. Ms. Fristoe initially witnessed appellant leaving Ms. Fuoss office. After Ms. Fuoss learned that appellant had been in her office, she confronted appellant in the hallw ay. She asked appellant if she could he lp him, and who he was looking for. M s. Fuoss testified that appellant responded as follows: He said someone ca me in a back do or here and I said w ho are you looking for and he repeated again that someone came in a door back there, so I said I need to know who you re looking for, so he headed toward the area where he was saying someone had entered the building and I said how did you come into the building and he indicated that he had come in the door at the back, one of the back doors at the theater lobby entrance. *** I asked him how he came in and I said that that door is locked and asked him who let him into the building because that door is locked and is not, it s not a door where people can come in 2 Unless o therwise note d, all subs equent statut ory references herein shall be to Md. Code (2002 , 2004 Cum. Supp.) of the Criminal Law Article. The statute has not been amende d since 20 04 and the current vers ion is identica l. -2- unless someone lets them in. And he said that, and I m not sure at this point if he was saying he w as there to see the Hispa nic man who was on the maintenance crew or if he said that the Hispanic man on the maintenance crew had let him in that door. *** And then he said, he said you know, he said the Hispanic man, he said the guy who speaks Spanish, he said you know I saw him here about a month ago. And so I explained to him that any guests needed to come in through the front door and be checked in at the r eceptio n booth . Ms. Fuoss offered to escort appellant to the reception desk for him to register as a guest. Appellant refused and apparently left Holy Cross. When Ms. Fuoss returned to her office, she discovered that eithe r $11.0 0 or $1 3.00 w as missi ng fro m her w allet. Ms. Fuoss contacted David Flores, head of maintenance at Holy Cross, and asked him whether he had seen anyone matching appellant s description in the building. Mr. Flores stated that he had not. He subs equently walked around the hallways looking for such an individual, but never found anyone matching appellant s description. Mr. Flores further testified that he neither let an yone into the b uilding, n or sp oke to an yone about a jo b tha t day. Walter Glaude, head of security at Holy Cross, testified that whenever guests enter the school, they must check in at the receptionist station, sign in, and log in their car. After doing so, the receptionist issues an ID badge which must be visible while the guest remains in the schoo l. Ms. Fristoe testified that appellant was not wearing a security badge on the day she saw appellant in Ms. Fuoss office. Ms. Fuo ss also said that appellant had not registered as a guest at Holy Cross on that date. -3- During the investigation, Detective Sarit Scott showed Mr. Flores a photo array which included a photogr aph of ap pellant. In respons e to the array, Mr. Flores identified appellant as an individual that he had spoken to about a job at Holy Cross in April 200 4. Prior to trial, appellant filed an omnibus motion3 which inc luded a m otion to sup press the ph oto identification made by M r. Flores. The court held a pre-trial hearing on the m otion to suppress. At the beginning o f the hearing, defense c ounsel moved into evidence State s Exhibit No. 1, s ix photographs of black males and State s Exhibit No. 2, a document captioned Photographic A rray Info rmation Sheet, F orm M CP 61 9, Rev . 7/99. 4 Both defense counsel and the State requested the opportunity to call Detective Scott as a witness, but the motions court den ied the requests. The follow ing exchange o ccurred during the hearing: 3 Some d efense co unsel file what has become kn own as an o mnibus motion . In Southern v. State, 371 Md. 93, 807 A.2d 13 (2002), we defined an omnibus motion as the term given to a m otion that en compas ses the ma ndatory motio ns that must be filed in the circuit court pursuant to Maryland Rule 4-252(a). Id. at 96 n.2, 807 A.2d at 15 n.2. Such a motion is often filed early in the case, with little or no articulated legal or factual underpinnings. We have noted that [a]lthough that practice is not what the Rule anticipates and is not to be encouraged, we have not disturbed the discretion of the trial cou rts to permit defenda nts to supplement unsupported allegations in the motion at or before the hearing, at least where the State is no t unduly prejud iced by being called upo n to respond im mediately to allegations o f which it h ad no prio r notice. Denic olis v. Sta te, 378 Md. 646, 660, 837 A.2d 944, 953 (2003). 4 The form ap pears to be a standard Montgomery County Police form, providing for the name, address and personal information of the viewer of the photographs, printed instructions to the viewer with respect to the array, identification numbers of the persons used in the p hoto grap hic a rray, the date and time the array w as show n, the view ers comm ents to the array, and a place for the viewers initials. -4- DEFENSE COUNSEL : Well, specifically if you note the second page of, page 110,[5] has Mr. Flores s statement oh, wait, that s him. And this kind of causes two issues. First of all, oh, wait, that s him, implies that perhaps Mr. Flores had viewed that photo graphic array once before and m ore importantly Mr. Flores, the only prior identification Mr. Flores gave was in an interview that he offered to Detective Scott on July 7th, and in that interview Mr. Flores specifically said that two months earlier, Your Honor, he had seen somebody who appeared to be in their mid-30s, who was about five foot seven who he believed was the defendant, the suspect at issue. During that time frame he claims, Mr. Flores said in the interview that he was walking and talking to the defendant, or to the person who he believes is the defendant, and so not only was this identification prior to the ph oto array made two months earlier, but he identified the person as being in their mid-30s. The defendant is in his mid to late 40s. He identified the defendant as being five-seven, the defendant s five-nine. And moreover, he was in the middle of a conversation, he was walking and talking so there s some question as to whether or not his earlier identification was even one where he would have had an opportunity to take note of the person that he s now claiming subseque nt to arrest to be the person he identified two months earlier. And so for these reasons w e call into que stion the valid ity and relevance, if you will, of that particular identification that was made on, I believe, July 20th. *** THE COU RT: Th e only thing that s before me are these two sheets of p aper with the comment, oh, w ait, this is the guy. I have a hard time seeing how that constitutes an improper identification procedure or an und uly sugge stive. I mean the, I 5 At the mo tions he aring, d efense couns el referr ed to pg s. 109 a nd 110 . There is nothing in this record corresponding to those pages. -5- just, is there any further evidence that you w ish me to consider, [Defense C ounsel]? DEFENSE COUNSEL: Well, Your Honor, we believe that the photo array, there are reasons to question the set up of the pho to array. If you look at th e evidenc e in front o f you, you ll note that Number 3, there s a cross through, if you turn to the first page, 109, you ll note that there is a marked out Number 3. So there s some question as to how th is photo array was conducted. There s some question as to the procedure, and there s also some question as to why there w as a gap betwee n the arrest, about a two week gap, between the arrest and the showing of the photo array. Moreover, it s not clear how these individuals whose pictures you see were selected, and it s also not clear why Mr. Flores . . . [was] selected when , as [the assistant state s attor ney] said earlier, there were a host of, alleged host of witnesses who claim that they saw defendant on and around the property on the dates in question. And so the questions are as follow s: What is the validity of the photo array, why is number 3 crossed out? Why was there a two week gap, and why are there only two witnesses who saw the photo array and whose e vidence h as been en tered in this case? And so we w ould like to q uestion fur ther, I believe it s Detectiv e Scott w ho w as re spon sible for the photo array. THE COU RT: If this is th e only eviden ce that s being offered in support of the motion to s uppress it, the fact that there may be some questions or, that isn t enough for me to make a determination that there was an unduly suggestive procedure. *** THE COURT : Well, the issue on a motion to suppress the identification as to whether or not the viewing procedure, which was conducte d was illega l. The burd en is on the d efendan t to -6- establish, to raise something about the procedure that could be viewed as illegal. It s a prima facie burden. There s some question raised with respect to age, height of an individual identified by Mr. Flores. But that doesn t, there s nothing before me that w ould allow me to find on a prima facie basis that the viewing procedure was illegally co nducte d. That wo uld then shift the burden to the State. So I m going to deny the motion to suppress the identific ation. No witnes ses testif ied at the motion s hearin g, and a s indica ted abo ve, the court denied the motion to suppress. The jury returned a guilty verdict and appellant was se ntenced to a term of incarceration. Appellant noted a timely appeal to the Court of Special Appeals. W e granted certiorari on our own initiative to address the identification issue and the sufficiency of the eviden ce. Jones v. Sta te, 390 Md. 500 , 889 A.2d 418 (2006). II. Appellant argues that the motions co urt erred by failin g to permit d efense co unsel to call as a witness the detective who conducted the photo array. He maintains that without the ability to call that witness, he was precluded from putting on evidence to establish that the photo array procedure was conducted in an unduly suggestive manner. He relies upon the Compulsory Process C lause of the Sixth Amendment to the United States Constitution and the corresponding clause in Article 21 of the Maryland Declaration of Rights, claiming that -7- these provisions entitled him to call w itnesses at a m otions hear ing made pursuant to Maryland R ule 4-252 , Manda tory Motion s in Circuit C ourt. In addition to his constitutional argumen ts, appellant m akes seve ral other argu ments based on the Maryland Rules of Criminal Procedure. First, he argues that Rule 4-265 provides a defendant the right to subpoena witnesses at motions h earings. N ext, appellant asserts that under Rule 4-252, he was entitled to a meaningful hearing o n his motio n to suppress, and not merely one to present arguments on the averments. Appellant argues that because there was a factual dispute central to the resolution of the motion, he was entitled to a hearing which a ddressed the evidentiary issue raised in his motion. He asserts that the right to a hearing is not conditioned, as the State argues, upon his making specific allegations or a p relim inary show ing o f sug gestivity. It is the State s p osition that the motions co urt exercised its discretion pro perly in refusing to permit the defense to call Detectiv e Scott bec ause app ellant failed to m eet his initial burden of establishing by prima facie evidence that the photo identification procedure was impermissibly suggestive. He failed, the State continues, by offering no argument in support of his allegation of suggestiveness and by failing to establish the relevance of the detective s testimony. The State argues that in order to call witnesses at a motions hearing -8- to suppress a photo identification, a defendant must make a specific factual averment which would show impermissible suggestiveness. 6 III. The use of photogra phic displays b y the police to ide ntify suspects is u sed wide ly in the United S tates , and whe n conducted prop erly, has been held to be admissible in evidence. See Simm ons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The Supreme Court has noted that [d]espite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing e yewitnesses to exonerate them through scrutiny of photographs. Id. at 384, 88 S.Ct. at 971, 19 L.Ed.2d 1247. Nonetheless, the defendant is protected by due process against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures. Moore v. Illinois, 434 U.S. 220, 227, 98 S.Ct. 458, 464, 54 L.Ed.2d 424 (1977), quoted in Webster v . State, 299 Md. 581, 599-600, 47 4 A.2d 1305 , 1314-15 (1984 ). 6 The State argues that if there was error, it was harmless. Inasmuch as we hold that the evidence was insufficient to support the second degree bu rglary convictio n, the only conviction before us, we do not address the harmless error issue. Appellant s theft conviction was base d upon h is plea of gu ilty and is not bef ore the Co urt in this appe al. See Sutton v. State, 289 Md. 359, 364, 424 A.2d 755, 758 (1981) (stating that a defendant who pleads guilty waives any and all defe nses ). -9- In Simmons, the Supreme Court recognized that improper use of photographs by police may sometimes cause witnes ses to m ake m isidentif ications . Simmons v. United States, 390 U.S. at 383-84, 88 S.Ct. at 971, 19 L.Ed.2d 1247. The Court noted: A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photograph ic identification procedures and show him the pictures of a number of individuals without in dicating w hom they su spect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such indiv idual recurs o r is in some w ay emphasiz ed. The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the pers on actually seen, reducing the trustworthiness of subseq uent line up or co urtroom identific ation. Id. The Simmons Court declined to prohibit categ orically the use of photographs, either as a matter of constitutional law or in the exercise of its supervisory power, holding as follows: [E]ach case m ust be c onside red on i ts own facts, an d . . . convictions based on eyewitness identification at trial following a pretrial identific ation by photograph will be set aside on that ground only if the photographic identification p rocedure was so impermiss ibly suggestive as to give rise to a ve ry substantial likeliho od of ir reparab le misid entifica tion. Id. at 384, 88 S.Ct. at 971, 19 L.Ed.2d 1247. -10- In Jones v. State, 310 Md. 569 , 530 A.2d 743 (1987) (overruled on different grounds), we addressed an issue related to a motion to suppress an extra-judicial identification and the due process protections against admissibility of evidence derived fro m out-of- court, suggestive identification procedures.7 Relying on Webster v . State, 299 Md. 581, 474 A.2d 1305, we pointed out that the inquiry for due process challenges to extra-judicial identifications is a two step inq uiry. Jones, 310 Md. at 577, 530 A.2d at 747. The first is whether the iden tification proced ure wa s imper missibly su ggestiv e. Id. If the answer is no, the inquiry ends and both the extra-judicial identification and the in-court identification are admiss ible at tria l. Id. If, on the other hand, the procedure was impermissibly suggestive, the second step is triggered, and the court must determine whether, under the totality of the circumstances, the identification was reliable.8 Id. We pointed out in Jones that in the 7 Judge O rth, writing fo r a panel in th e Court o f Special Appeals, noted that an extra-judicial identification is usually made either by a personal confrontation between the witness and the accused or by a viewing of photographs by the witness. . . . Smith and Samuels v. State, 6 Md. Ap p. 59, 64, 250 A.2d 285, 288 (1969 ). 8 In Webster v. State, 299 Md. 581, 474 A.2d 1305 (1984), we noted that the Supreme Court has fashioned a sliding scale of taint with respect to extra-judicial identifications and due process challenges. With respect to suggestivity, we noted that the procedure may be as follows: (1) Suggestive, but permissibly so. See Stovall [v. Denno], 388 U.S. 293[, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967)]. (2) Impermissibly (unnecessarily) suggestive. See [Neil v.] Biggers, 409 U.S. 188[, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)]. (3) So impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. Id. at 198[, 93 S.Ct. at 381, 34 L.Ed.2d 401]. (4) So impermissibly suggestive as to give rise to a very (contin ued...) -11- context of a pre-trial photo identification, unless and until the defendant establishes that the identification procedure was in some way suggestive, the reliability of a witness identific ation is n ot releva nt for d ue proc ess pur poses. Id. at 578, 530 A.2d at 747. In Smith an d Samu els v. State, 6 Md . App. 5 9, 250 A .2d 285 (1969 ), Judge Orth discussed the relative burdens on each party to a motion to suppress identification evidence. 8 (...continued) substantial likelihood of irreparable misidentification. See Stovall, 388 U.S. at 301-302, 87 S.Ct. at 1972, 18 L.Ed.2d 1199. Simmons [v. United States], 390 U.S. [377,] 384, 88 S. Ct. [967,] 971, [1 9 L. Ed . 2d 124 7 (196 8)]. Biggers, 409 U.S. at 198, 93 S.Ct. at 381 [3 4 L.Ed.2d 401 ]. Webster, 299 Md. at 600, 474 A.2d at 1315. The degree of taint of the confrontation is the lynchpin of the exclusionary rule, determined by fairness as required by the Due Process Clause of the Fourteenth Amendment. Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 140 (1977). In Neil v. B iggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, the Supreme C ourt was concerned with the reliability of a pre-trial identification when the defendant claims that the pre-trial identification was made under impermissibly suggestive circumstances. The Court identified several factors to be considered in evaluating the likelihood of misidentification. They include th e opportu nity of the witness to view the criminal at the time of the crime, the witness degree of attention, the accuracy of the witness prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Id. at 199200, 93 S.Ct. at 382, 3 4 L.Ed .2d 401 . Biggers is based on due proces s consid erations . See State v. McMorris, 570 N.W.2d 384, 393 (Wisc. 1997). The Biggers test is derived from due process considerations and is primarily based upon the need to avoid the very substantial likelihood of irreparable misidentification. Id. at 395 (Croo ks, J., dissenting) (quoting Biggers, 409 U.S. at 197 (quoting Simmons, 390 U.S. at 384, 88 S. Ct. at 971, 19 L. Ed. 2d 1247 (internal citation s omitted). If th e extra-judic ial identification is impermis sively suggestive, the State must show by clear and convincing evidence that evidence of the witnesses in court identification of the defendant had an independent origin, i.e., that the source of the in-court identification was the eyewitnesses observation of the perpetrator of the crime and was independent of the tainted pre-trial identification procedure. -12- He pointed out that the initial burden of going forward, and of persuasion, rests upon the defendant. He wrote as follows: At the hearing on the issue raised by the challenge the burden is on the def endant to show, prima fac ie, that the pre-trial confrontation or viewing of photographs was illegal, and if he so show s, the burd en sh ifts to the State to show by clear and convincing evidence that it was legal. If the court finds that the State has met its bu rden and that the pre-trial confrontation or viewing was legal, an in-court identification by the witness present at the pre-trial con frontation o r viewing is admissible as substantive evidence. And if such witness made a pre-trial identification, his testimony to that effec t is so admissible. And, the testimony of a third party present when the pre-trial identification was made is so admissible provided the out-of-court declarant is at the trial and sub ject to cross-examination; whether or not he makes an in-co urt identification. If the court finds that the pre-trial confrontation or viewing was illegal, any and all evidence of the pre-trial identification is per se inadmissible. The burden is then on the State to establish that the in-court identification offered had a source independent of the illegal pre-trial confrontation or viewing. It must do this by clear and convincing evidence that the in-court identification is based upon observations of the suspect by the witness other than the confrontation or photog raphic id entifica tions. Id. at 68, 250 A.2d at 291. IV. We turn now to the motio ns court s ref usal to allow appellant to call Detective S cott as a witness at the suppression hearing. The State points out that this Court has never addressed directly the specific issue of what a defendant needs to allege in order to present -13- evidence, and mor e specifically in th is case, call a w itness, in order to establish if an identification procedure is impermissibly suggestive. The State urges that we require that before a trial court conducts an evidentiary hearing on the defendant s motion to suppress an extra-judicial identification , the defend ant offer grounds o r make a f actual argu ment in support of an alleg ation of im permissible suggestiveness, and that an unsupported allegation that the proc edure w as imperm issibly suggestive is insufficien t. At the outset, we reject appellant s argument that either the United States or the Maryland Constitution require the trial court to h old an evid entiary hearing whereb y he could call witnesses in order to prevail upon his motion. Th e story does not end here, how ever. Although neither the United States Constitution nor the Maryland Declaration of Rights requires a per se rule compelling a judicial determination outside the presence of the jury of the admissibility of identification evidence, Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (1 981), 9 many courts have recognized that such a proce dure is a dvisab le. See id. at 349, 101 S.Ct. at 659, 66 L.Ed.2d 549 (stating that a judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable ); People v. Mendoza, 624 N.E.2d 1017, 1021 (N.Y. 1993) ( defendants sho uld have f air pretrial procedures to address a lleged con stitutional violatio ns ); In re F.G., 576 A.2d 724, 9 As an exception to the general rule that a hearing is n ot ordinarily con stitutionally required, the Supreme Court stated in Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (198 1) that [i]n some circumstances, not presented here, such a determination may be constitutionally necessary. 449 U.S. at 349, 101 S.Ct. at 659, 66 L.Ed.2d 549. -14- 725 (D.C. 1990) (en banc) ( every defendant is entitled to an evidentiary hearing on a motion to suppress a showu p identificatio n ); State v. Freeman, 330 S.E.2d 465, 470 (N.C. 1985) ( [w]hen a motion to suppress id entification tes timony is made, the trial judge must conduct a voir dire and make findings of fact to support his conclusion of law and ruling as to the admissibility of eviden ce ); People v. Robinson, 263 N .E.2d 5 7, 58-59 (Ill. 1970) (when dealing with a motion to suppress an identification, there is no question that a defendant has a right to a fair and impartial hearing ). Moreover, under the Maryland Rules of Procedure, Rule 4-252 embodies this Court s desire that evidentiary rulings on the suppression of evidence be made before trial. Long v. S tate, 343 Md. 662 , 668, 684 A.2d 4 45, 448 (1996). Rule 4-252 governs the filing of motions to suppress evidence in criminal cases in circuit court. 10 The plain language of the Rule requ ires, with an e xception n ot here relev ant, that suppression motions filed pursu ant to the Rule sh all be determ ined befo re trial and, to 10 Rule 4-252 states, in pertinent part, as follows: (a) Mandatory m otions. In the circuit co urt, the following matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise: *** (3) An unlawful search, seizure, interception of wire or oral communication, or pretrial identification; *** (b) Time for filing mandatory m otions. A motio n under se ction (a) of th is Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 4213(c), except w hen disco very discloses the basis for a motion, the motion may be f iled with in five d ays after th e disco very is fur nished . -15- the extent practicable, before the day of trial. . . . Rule 4-252(g). Since our adoption of Rule 4-25 2, whethe r a motion to suppress m ust be con sidered pre -trial is rarely, if ever, an issue in a criminal c ase; the issue p resented in th is case, as to the procedure a mo tions court should fo llow, has n ever been addressed by this Court. We begin with the plain language of Rule 4-252.11 Section (a) of the Rule identifies those motions th at are consid ered man datory in nature, and if not ra ised in conf ormance with the Rule are waived unless the court, for good cause, finds otherwise. A challenge to a pretrial identification is a mandatory motion that must be raised under section (a). Section (e) of the Rule addresses the content of a motion, stating as follows: Content. A motion filed pursuant to this Rule sha ll . . . state the grounds u pon wh ich it is made, an d shall set forth the relief sought. A motion alleging an illegal source of information as the basis for probable cause must be supported by precise and specific factual averments. Every motion shall contain or be accompanied by a statement of points and citation of author ities. Section (g)(1) addresses the court s determination of the motion, and states as follows: Ge nera lly. Motion s filed pursu ant to this Rule shall be determined before trial and, to the extent practicable, before the day of trial, except that the court may defer until after trial its determination of a motion to dismiss for failure to obtain a speedy trial. If factual issu es are involv ed in determin ing the motion , the cou rt shall sta te its find ings on the reco rd. 11 The sam e principles u sed to con strue statutes ap ply to the interpretation of proced ural rule s. State v. Williams, 392 Md. 194 , 206, 896 A.2d 9 73, 980 (2006). -16- The State relies on to Rule 4-252(e) to support its a rgumen t that a defen dant shou ld be required to proffer a full factual averment in support of a motion to suppress evidence. We do not agr ee that th is Rule provid es the S tate the s olace it s eeks. Althoug h the Rule is clear that a motion alleging an illegal source of inform ation as the basis for probable cause must be supported by precise and specific factual averments, it is silent as to the issue of identification and more specifically, it does not address whether a defendant has an obligation to satisfy some threshold burden to present definite, specific or detailed allegations of su ggestivity. There is a difference between a motion to suppress evidence based on an illegal source of information as the basis for probable cause and a motion to suppress an identification. First, the Rule does not require a criminal defendant to make a factual proffer of the nature of the a llege d sug gestivity b efor e he i s entitled to an evid entia ry hearing on a motio n to suppress an extra-judicial identification. Se cond, mo tions to supp ress based o n fourth amendment violations dif fer from m otions to sup press pho tographic array identifications (or showups) because the amount of information available to a defendant diff ers significa ntly. See e.g., In re F.G., 576 A.2d at 726 (noting that as opposed to showu p identificatio ns, in most typical fourth amendment contexts a defendant is privy to the facts which m ight form the basis of a challenge, and can allege them with some specifi city in his m otion p apers. . . . An accused is present when an illegal arrest is made, when he or his environs are searched illegally, when a Miranda violation occurs, or when he is compelled to give a confession -17- involuntarily ); Mendoza, 624 N.E.2d at 1023 (finding that based on state statute, a defendant making a motion to suppress evidence must plead precise facts demonstrating an expectation of privacy, while a defend ant need n ot do so w hen challen ging a pretria l identification because in many instances [a] defendant simply does not know the facts surrou nding certa in pretrial identification procedures, such as photo arrays . . . [whereas it is a] defendant alone who actually knows his or her con nection with the searche d area (internal citations omitted)). The State places too high a bar for a defendant to meet. As we have indicated, the burden is upon the defenda nt to make a prima facie showing of suggestivity at a suppression hearing. Because of the lim ited nature of discover y in crimin al cases in this Sta te, a defendant in many instances will simpl y not know the facts surrounding the extra-judicial photographic identification procedure.12 Unlike a corporeal lineup, where a defendant has the right to the presen ce of c ounse l under most cir cumsta nces, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), a defendant has no right to have counsel present whe n law enfo rcem ent o ffic ers d ispla y photogr aphs p retrial to w itnesses . Moore, 434 U.S. at 227 n.3, 98 S.Ct. at 464 n.3, 54 L.Ed.2d 424 (stating that the Sixth Amendment does not require that defense counsel be present when a witness views police or prosecution 12 In Maryland, discovery as a ma tter o f right, as opposed to in form al dis covery often provided as a matter of grace by the State s Attorney, is very limited. Aside from the discovery rights enjoyed by a defendant which flow from the federal and Maryland Constitutions, see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), a defendant is entitled to discovery pursuant to Rule 4-263. -18- photographic arrays); United States v. Ash, 413 U.S. 300, 321, 93 S. Ct. 2568, 2579, 37 L.Ed.2d 619 (1973) (holding that the Sixth Amendment does not grant the right to counsel at pho tographic dis plays conducted by the Government for the purpose of allowing a witness to attempt an identification of the o ffender ). It is not reasonable to require specific factual allegations of suggestivity before a defendant may call a witness in a suppression motion. Second, because the question of any suggestiveness in a photographic identification procedure must be ex amined in each individual case under the totality of the circumstances, Simmons, 390 U.S . at 383, 88 S .Ct. at 970, 19 L.Ed.2d 1247, a defendant should be entitled to explore the circumstan ces and the individual p rocedures employed b y law enforc ement in order to establish any unfairness in the procedure. To determine the validity of a photogra phic array, a court must look to the totality of the circumstances on a case-by-case basis. A defendant should be entitled to present the facts and circumstances surrounding the procedures used by state ag ents and to enable the motions judge to fulfill his or her obligation to set out findings of facts on the record when ruling on the motion. Although we do not require a specific, factual argument in support of an allegation of impermissible suggestiven ess as urged by the State, a defendant must state sufficient information to put the co urt and the State on n otice of the e vidence h e or she w ishes to suppress and the basis therefore. Neither the trial court nor the prosecutor should be surprised at the hearing. We have made clear that the purpose underlying the requirement of Rule 4-252(e) that a motion to suppress state the grounds upon which it is made and -19- contain or be accompanied by a statement of points an d authorities is to alert both the court and the prosecu tor to the prec ise nature of the comp laint, in order that the prosecutor have a fair opportunity to defend against it and that the court understand the issue before it. Denicolis v. State, 378 Md. 646, 660, 837 A.2d 944, 952 (2003). M ore is not req uired to entitle a def endant to call a witn ess a t a mo tions hea ring to su ppre ss a p hoto grap hic a rray. 13 In the present case, appellant stated in his motion that any in-court identification of the Defend ant by prosecu tion witness es will be tain ted as the resu lt of imperm issibly suggestive identification procedures undertaken by police authorities as to give rise to a substantial likelihood of irreparable misidentification. Th e court and the State w ere well aware of the point of appellant s challeng e. The cou rt erred in not p ermitting ap pellant to call Detective Scott as a witness to set out the facts and circumstances surrounding the identification procedure. A similar issue arose in the District of Columbia Court of Appeals in the case of In re F.G., 576 A.2d 724. There the court held tha t, based primarily upon the defen dant s limited access to the facts surrounding pretrial photographic displays, the only proper course is to guarantee a pretrial evidentiary hearing for a defendant s challenge to a showup 13 Our holding today should no t be read as c reating an a bsolute righ t of defen dants to call any or all witnesses at a suppression hearing. Specifically, as the issue is not before us, we do not address whether a defe ndant m ay call the id entifying witnes s at the h earing. See People v. Chipp, 552 N.E.2d 608 (N.Y. 1990) (holding that under the circumstances presented therein, defendant could not call the complaining witness at a pretrial suppression motion) (C.J. Kaye, dissenting). -20- identification at which government witnesses are made available. Id. at 727. The juvenile in that case had simply argued that the showup identification was unduly suggestive and unreliable, without alleging any unusual facts about his particular identification. He argued at the trial level that he was entitled to an evidentiary hearing where he could discover additional facts which might support his motion to suppress. Id. The motions court denied his motion without a hearing. On appeal, the government argued that an identification suppression motion sh ould be required to allege the same specificity as a fourth amendment suppression motion. Id. The District of Columb ia Court of Appeals rejected that view, reasoning that unlike a lineup where the defendant has counsel and is privy to the facts, or the typical fourth amendment search and seizure situation wh ere the defendant is usually present, a defendant has no right to counsel at a showup. The court stated as follows: In challenging a showup identification, however, a defendant has little access to the evidence necessary to make factual allegations warranting relief, in contrast with the typical lineup identific ation an d four th ame ndme nt seizu re situatio ns. Id. at 726. The court was not satisfied that inf ormal disco very would provide d efendan ts with enough relevant information for proper evaluation of a possible motion to suppress a showup identification. The concerns expressed by the District of Columbia Court of Appeals regarding showups apply equally as w ell to photographic identifications. We hold that the court erred -21- in not permitting appellant to call Detective Scott as a witness to set out the facts and circumstances surrounding the identification procedure. V. Appellant argues that the evidence was insufficient to support a finding of guilt on second degree b urglary. He maintains that there was no evidence of a breaking, a required element under the statute. We agree. Section 6-203(a) provides as follows: (a) Prohibited Breaking and entering with intent to commit theft, violence, or arson. A person may not break and enter the storehouse of another with the intent to commit theft, a crime of violenc e, or arso n in the s econd degree . The breaking element of statutory burglary is given the same meaning it had in common law burg lary. Brooks v . State, 277 Md. 155 , 159, 353 A.2d 2 17, 220 (1976). A breaking oc curs where there has been either an actual breaking or a constructive breakin g. Winder v . State, 362 Md. 275, 326, 765 A.2d 97, 124 (200 1); Oken v. S tate, 327 Md. 628, 662, 612 A.2d 258, 274 (1992); Brooks, 277 Md. at 159, 353 A.2d at 220. We have defined an actual breaking as: unloosing, removing or displacing any covering or fastening of the premises. It m ay consist of liftin g a latch, draw ing a bolt, raising an unfastened window, turning a key or knob, pushing open a door k ept clos ed me rely by its ow n weig ht. -22- Dorsey v. State, 231 Md. 278, 280, 189 A.2d 623, 624 (1963) (internal citations omitted). See also Rollin M. Perkins & Rona ld N. B oyce, C RIMINAL LAW 246-47 (3rd ed.1989) (stating that for an actu al breaking to occur, a b urglar mu st make an opening of the building by trespass. To enter through an open door or window is not a breaking ). Constructive breaking involves entry gained by artifice , fraud, c onspira cy or threa t. Winder, 362 Md. at 326, 765 A.2d at 124. The State failed to present sufficient evidence of a breaking, either actual or constructive. The State offered no proof that appellant opened any window or door in order to enter Holy Cross. Although the State presen ted some e vidence th at the point o f entry into the building was a kitchen window, an d that there were fingerprints on the refrigerator, there was no evidence presented that the window had been secured previously, or that the fingerprints found on the refrigera tor belonge d to appella nt. The Sta te presented no evidence connecting appellant to the window, or that there was even an actual breaking. There was in suffici ent evid ence to establish a const ructive b reaking . The State argues that because there was testimony presented that appellant s claim that an employee let him in the building without g iving him th e required s ecurity badge or without h is checking in at the security desk, the evidence strongly suggests that he gained entry by fraud or by virtue of a conspiracy with someone within the Academy. While it is accurate that a conviction may rest on circumstantial evidence alone, we explained in Oken v. S tate, 327 Md. at 663, 612 A.2d at 275 (quoting Wilson v. State, 319 Md. 530, 536-37, 573 A .2d 831, 834 (199 0)), -23- that a conviction upon circumstantial evidence alone is not to be sustained unless the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence. As we have noted, if the point of entry into the building was through the kitchen window, there was no evidence that the window had been secured or that anyone had to open the window in order to enter. That appellant entered the building through fraud or artifice is pure speculation. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REV ERS ED. COSTS TO BE PAID BY M O N TGOMER Y COUNTY. -24-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
