Brown v. State

Nazarian, J. While breaking into a house in Silver Spring, Ibrahim Brown injured his hand and left a smudge of blood on the inside of a basement window. The police investigating the case sent a sample of the blood for comparison against the FBI’s DNA database. Mr. Brown’s blood sample matched two records of Mr. Brown’s DNA from samples collected in Washington, D.C. The D.C. samples were collected legally under District law, but their collection would not have complied with the Maryland DNA Collection Act (the “Act”) if collected here. Mr. Brown was tried in a bench trial in the Circuit Court for Montgomery County and convicted of first-degree burglary and theft.

He argues on appeal that DNA samples that would be illegal if collected in Maryland should be excluded under the Act, even if they were collected legally in another jurisdiction. He contends as well that the evidence was insufficient to support his convictions. We disagree with both sets of arguments and affirm. I. BACKGROUND Chris Holleyman returned to his home in Silver Spring on August 16, 2014 to discover that his home had been burgled.

He noticed that his basement window had been opened and that there was a smudge of blood on the inside of the window. He testified at trial that approximately $12,000 of belongings had been stolen, including a bicycle he kept in the basement. He testified as well that the deadbolt on the exterior door of the basement, which he always left in the locked position, was unlocked when he returned home that evening. Two police officers came to the house in response to Mr. Holleyman’s 911 call.

They took a sample of the blood smudged on the inside of the opened basement window. They cross-checked the sample against the FBI’s DNA database, known as “CODIS” (the Combined DNA Index System). CO-DIS came back with two matches, both of which pointed to Mr. Brown. Both of the CODIS samples the window smudge matched had been collected in the District of Columbia: one for a prior conviction for misdemeanor sexual assault, the other from a separate investigation of first-degree sexual assault for which no charges were filed.

Based on the match between the window smudge and the CODIS hits, the State obtained a warrant to take a buccal swab from Mr. Brown. The DNA from the swab matched the blood smudged on the window. On October 22, 2015, the State indicted Mr. Brown on charges of first-degree burglary and theft between $1,000 and $10,000. On April 20, 2016, Mr. Brown filed a motion in limine to exclude all DNA evidence at trial.

On May 13, 2016, the circuit court heard Mr. Brown’s motion. He argued that because neither of the biologic samples underlying the CODIS DNA matches would have been eligible for collection and use under the Act had the alleged crimes occurred in Maryland, they could not form probable cause to take the buccal swab. The circuit court denied Mr. Brown’s motion on May 19, 2016. The circuit court conducted a bench trial on May 31 and June 1, 2016.

Mr. Brown testified on his own behalf that he went to the Silver Spring house with an acquaintance after agreeing to “check [the house] out” in exchange for marijuana. He testified that he opened the basement window, got his fingers caught between the inside and outside windows (which caused him to bleed onto the window), but managed to pry his hand free and close the window. He denied entering the house or stealing property. He claimed to have implored his partner to leave with him instead of entering the house, and then left.

The circuit court announced its findings and verdict from the bench on June 9, 2016. The court found the prosecution’s witnesses (the two officers who responded to Holleyman’s initial call, one of whom had specialized forensic training) a police fingerprint examiner, the detective assigned to the case, and two analysts from the DNA lab that analyzed Mr. Brown’s DNA swabs) to be “very credible” and Mr. Brown to be “substantially less credible.” The court stated that it did not believe Mr. Brown’s testimony that he did not enter the home and was only there to “check out” the home. The court also found that Mr. Brown had entered the house with an intent to steal: [T]he defendant was inside the home in part at least for the upper part of his body to the point where he could have grabbed the ... wall inside. I am persuaded beyond a reasonable doubt that by having made the arrangement that he did with [his accomplice], by having looked inside the home, by having seen a bicycle and because of all of the evidence generally that h[is] inten[t], was in fact to ste[a]l.

The trial court’s findings included two comments about Mr. Brown seeing a bicycle in the house from outside of the breached window, and one comment about Mr. Brown testifying about seeing the bicycle from outside of the house. But although Mr. Brown did say at one point that he “took a couple of looks [into the window] to see if anybody was in there and it was real dark,” at no point during the trial did he actually testify to having seen a bicycle. Before announcing the verdict, the court expressed doubt that Mr. Brown was the person who actually removed the stolen items from the house. But the court explained that even if he didn’t physically remove the items from the house, he still was liable as an accomplice: [T]he defense claimed that the defendant closed the window. ...

We went back and listened very carefully to the testimony. That was not the case from what I could tell. My understanding is what happened outside on the street is what I’ve already said. That [Mr. Brown] told [his accomplice] that the window was open. ...

I don’t think the defendant did enough to eliminate himself from the criminal venture to have avoided accomplice liability. ... And so, for that reason that will be, that will be my finding. The circuit court found Mr. Brown guilty of first-degree burglary and theft. Mr. Brown filed a timely appeal.

We include additional details in the discussion as necessary.

II

DISCUSSION Mr. Brown raises two groups of arguments on appeal. 1 First, he claims that the circuit court erred by denying his motion to exclude DNA evidence. He reprises the argument he made in the circuit court, ie., that because the D.C. DNA samples on CODIS would not have been collectible under the Act, they could not form the basis of probable cause for the warrant compelling his matching sample in this case. Second, Mr. Brown argues that the circuit court erred by grounding his conviction on the erroneous findings that he saw a bicycle in the house and that he did not close the basement window. Without those findings, he contends, the evidence against him was insufficient to support his convictions.

The circuit court denied Mr. Brown’s motion in limine to exclude the DNA evidence based on its interpretation of the Act. Where “both parties have presented legal arguments based on their interpretation of statutory and case law[,] [w]e consider those arguments de novo; in other words, we review the questions as a matter of law.” Dickerson v. Longoria, 414 Md. 419, 433 , 995 A.2d 721 (2010) (citation omitted). When reviewing a non-jury trial for the sufficiency of the evidence, the judgment of the [cjircuit [cjourt will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses. ... [T]he findings of fact of the trial judge must be accepted unless there was no legally sufficient evidence or proper inferences therefrom, from which the court could find the accused guilty beyond a reasonable doubt. Dixon v. State, 302 Md. 447, 450-51 , 488 A.2d 962 (1985) (internal citations omitted).

When reviewing bench trials, we review findings of fact under the “clearly erroneous” standard, meaning that “[a] finding of a trial court is not clearly erroneous if there is competent or material evidence in the record to support the court’s conclusion.” Lemley v. Lemley, 109 Md.App. 620, 628 , 675 A.2d 596 (1996). A. The Maryland DNA Collection Act Did Not Preclude Legally Collected DNA Samples From Serving As Probable Cause. Mr. Brown argues first that the circuit court erred by failing to suppress the DNA evidence that ultimately was admitted at trial. He contends that the Act prohibits admission of DNA evidence when the samples giving rise to probable cause for the matching sample could not have been collected legally in Maryland, even if they were collected legally under the laws of that jurisdiction.

This is a question of first impression. We disagree with Mr. Brown that the statute operates as he contends. Mr. Brown is right that neither of the samples giving rise to the CODIS hits linking him to the window smudge could have been collected and submitted to CODIS had the crime or alleged activities been committed in Maryland. 2 Section 2-504(a)(2) of the Public Safety Article (“PS”) of the Maryland Code (2003, 2011 Repl. VoL, 2016 Supp.) authorizes law enforcement to collect DNA samples from people convicted of felonies, burglary in the fourth degree, and breaking and entering a motor vehicle.

Section 2-504(a)(3)(i) permits collection from people charged with certain crimes, including burglary and attempted burglary: In accordance with regulations adopted under this subtitle, a DNA sample shall be collected from an individual who is charged with: 1. a crime of violence[ 3 ] or an attempt to commit a crime of violence; or 2. burglary or an attempt to commit burglary. Mr. Brown’s D.C. misdemeanor sexual assault conviction does not fall into either of these categories. Nor does the sample underlying the other CODIS hit, which was taken in connection with a separate investigation for first-degree sexual assault that never led to charges. Everyone agrees, though, that both samples were collected and submitted to CODIS in compliance with District of Columbia law, and Mr. Brown does not challenge the constitutionality of the D.C. DNA law.

Mr. Brown argues, in essence, that DNA profiles on CODIS must be collected in a manner consistent with the Act to qualify as probable cause to compel a new sample in Maryland. If not, he says, the match should be excluded, even if the samples were collected legally elsewhere and submitted properly to CODIS. Neither the text nor the legislative history of the Act compels this result. 1. The plain language and statutory scheme of the Act do not preclude reliance on CODIS hits from legal out-of-state samples.

The Act is silent on the treatment of out-of-state samples, so Mr. Brown analogizes to the Maryland Electronic Surveillance Act (“MESA”), Md. Code (1974, 2018 Repl. Vol.) §§ 10-401 to 10-414 of the Courts & Judicial Proceedings Article (“CJ”), which precludes Maryland courts from admitting most wiretapped communications that violate the Maryland statute, even if they were obtained legally elsewhere. In Mustafa v. State, the case on which Mr, Brown relies most heavily, the tape recording at issue was obtained lawfully under District of Columbia law, but “would not have been lawful had it been made [under MESA].” 323 Md. 65, 71-72 , 591 A.2d 481 (1991). Ultimately, the Court of Appeals held that the statute’s exclusionary provision barred admission of the tape recordings in Maryland courts because they did not satisfy the two-party consent rule contained in MESA and that governs recordings in Maryland.

Id. at 75-76 , 591 A.2d 481 . The Court reasoned that “the provisions of [MESA] constitute a declaration of the public policy of this State,” and that although “Maryland may not ordinarily proscribe conduct occurring outside its boundaries,” it “[q]uite plainly ... may regulate the admissibility of evidence in its courts.” Id. at 74-75 , 591 A.2d 481 . This analogy doesn’t hold here, though, for two reasons. First, the language and structure of MESA and the Act reveal differences in legislative intent.

Unlike the Act, MESA specifically ties the admissibility of recordings to compliance with Maryland law: Any investigative or law enforcement officer ... who has lawfully received any information concerning a wire, oral or electronic communication or evidence lawfully derived therefrom, which would have been lawful for a law enforcement officer of this State ... to receive, may disclose