CANELA AND PEREZ v. State

JAMES P. SALMON, J. In May 2004, Lucero Espinoza (“Lucero”), age 8, and her older brother, Ricardo Espinoza, Jr. (“Ricardo Jr.”), age 9, lived with their parents in an apartment located on Park Heights Avenue in Northwest Baltimore. Also living in the same apartment were Lucero’s and Ricardo Jr.’s cousin, Alexis Espenjo Quezada (“Alexis”), age 10, and Alexis’s mother, Maria Andrea Espenjo Quezada (“Maria”). At that time, Lucero, Ricardo Jr. and Alexis were all students at Cross Country Elementary School in Baltimore City. On the afternoon of May 27, 2004, the three children returned to their apartment after school.

The children were alone in the apartment that afternoon when a person or persons invaded the apartment and brutally murdered all three of them. Ricardo Jr. and his cousin Alexis were hit in the head with a blunt object and strangled. Lucero was also bludgeoned. All three children had their throats slit.

Several hours after the murders, Adam Espinoza Canela (“Canela”) and his uncle Policarpio Espinoza Perez (“Perez”) were arrested for the murders. The two were tried before a ²⁶⁷ jury in July and August 2005 on three counts of first-degree murder and three counts of conspiracy to murder. The jury could not agree as to a verdict and a mistrial was declared. A second jury trial commenced on June 22, 2006.

The trial lasted over six weeks. More than twenty witnesses testified and over 300 exhibits were introduced. On August 8, 2006, after four days of deliberations, the jury found both Canela and Perez guilty of two counts of first-degree murder, one count of second-degree murder and three counts of conspiracy to commit murder. Canela and Perez received the same sentence, viz: two consecutive terms of life in prison without the possibility of parole for the first-degree murder convictions and a consecutive thirty-year sentence for second-degree murder; a life sentence was also imposed for all three counts of conspiracy to commit murder, but that sentence was to be served concurrently with the other sentences.

Canela and Perez each filed separate appeals. On April 29, 2008, we granted the State’s motion to consolidate these appeals. On August 15, 2008, we remanded the cases to the Circuit Court for Baltimore City, pursuant to Maryland Rule 8-413(a), with directions to the circuit court to conduct a hearing to resolve factual issues concerning whether certain notes from the jury had been shown to defense counsel by the trial judge, the Honorable David B. Mitchell. In late January 2009, the Honorable Dennis Sweeney commenced a three-day hearing to resolve the issue of which notes had been shown to counsel.

On April 16, 2009, Judge Sweeney filed an opinion in which he found that Judge Mitchell, in contravention of Maryland Rule 4 — 326(d), had failed to show counsel six notes that were sent to him from the jury. In this appeal, four questions are raised by Canela and Perez jointly; Canela raises one question not raised by Perez; and Perez raises three additional questions. These questions will be discussed, in detail, infra. ²⁶⁸ I. Background Facts At the time of the murders, Canela, age 17, and his uncle, Perez, age 22, were roommates. They lived in a house on Bedford Road in Baltimore.

Their house was located a few miles from where the murdered children lived. The parents of two of the murder victims (Lucero and Ricardo Jr.) were Ricardo Espinoza Perez, Sr. (“Ricardo Sr.”) and his wife Noemi Quezada Morales, who is known by her nickname, “Mimi.” Ricardo Sr. and Mimi owned and operated a lunch wagon that served construction sites in the Baltimore metropolitan area. Maria, the mother of Alexis, worked on another lunch wagon that was owned by Ricardo Sr.’s brother. Mimi, Ricardo Sr., and Maria, the parents of the murdered victims, were all immigrants from Mexico.

None were proficient in English. After finishing work on May 27, 2004, Ricardo Sr. and other family members stopped on the way home to buy meat and then went to a bank. After these errands were performed, Ricardo Sr., his wife Mimi, and Alexis’s mother, Maria, along with two other family members, returned to the Park Heights Avenue apartment where the three murder victims lived. The parents were driven to the apartment by Ricardo Sr.’s sister-in-law.

After unloading their purchases, Ricardo Sr. rang the doorbell of the apartment because he had forgotten his key. When there was no answer, Ricardo Sr. entered the ground-floor apartment through the kitchen window. Once inside, he discovered the corpses of the three children and ran out the front door. A neighbor called “911” at 5:21 p.m.

The police arrived promptly. They found that the kitchen window had been opened and the screen pushed in. A dining room window was also open. Blood stains were found in various places in the apartment.

An impression identified as having been made by a glove was found on the front of a drawer. A knife and aluminum bat, which were later proven to have been used in the killings, were found wedged between ²⁶⁹ a wall of the garage and a fence post separating the rear of the apartment complex from an adjacent school yard. Because of the horrific nature of the crime, a large number of people, including representatives of the media, quickly gathered near the scene of the murders. Soon after the police arrived, Dana Jones, a neighbor, told Baltimore City Detective Ervin Bradley that two days previously, at about 10:00 p.m., she saw two men coming out of the bushes near the rear of the victims’ apartment, and then saw them peeping in the windows and acting suspiciously. 1 As other family members began arriving at the murder scene, they were taken into a conference room in the rental office of the apartment complex.

Ultimately, about fifteen family members voluntarily went into the conference room, where they were interviewed by Detective Bradley, with Officer Juan Diaz serving as interpreter. The relatives were asked simple questions such as their names, the last time they had seen the murder victims alive, and where they were employed. At that point, the police did not ask for details. Among the family members that were interviewed were Perez (the uncle of Ricardo, Jr. and Lucero) and Canela (cousin of Ricardo Jr., and Lucero).

While other family members looked as if they had just come from work, Canela and Perez both arrived with wet hair and, according to later testimony by police officers, looked as if they had recently showered. Perez told the detectives when interviewed at the apartment complex that he was working that day and that when he got off from work “he went down to Broadway and Central.” On the other hand Canela claimed that he “was with his uncle Poli [i.e., Perez] and they stayed home (on the days of the murders) and watched TV all day.” ²⁷⁰ Later in the evening, Dana Jones, who lived near the victims’ apartment, told Detective Bradley that she had seen Canela and Perez arrive at the apartment complex after the police arrived and recognized them as the men that she had seen two days earlier coming out of the bushes near the rear of the victims’ apartment. After the interviews at the scene were completed, family members were told that the police needed to interview them at the homicide unit’s headquarters and that police officers would provide transportation. Some relatives drove themselves to the police station; others, including appellants, were transported in police vehicles.

All family members, even those who drove themselves to the police station, were escorted into the homicide unit by uniformed police personnel. Perez and Canela were placed in adjacent holding cells to await their interviews. The doors to the holding cells were not locked or even closed, and neither appellant was handcuffed or restrained in any way. As other family members arrived, they were placed in various cubicles or offices throughout the homicide unit.

Detective Sergeant Darryl Massey interviewed Perez and Canela separately with Detective Juan Diaz translating. Prior to questioning, both Canela and Perez were fully advised of their Miranda rights 2 and each executed a written Miranda waiver. The detective questioned Canela first, then Perez. Canela denied any involvement in the crimes and denied that he had been at the children’s apartment on the day of the murders.

Perez, however, told the detectives that he and Canela drove to the apartment complex where the children lived on the afternoon of the murders. They arrived at approximately 4:20 p.m. The two went to the apartment because Canela said that he had something to discuss with his uncle, Ricardo Sr. Perez stayed in his car, which was parked in the back of the apartment complex, while Canela went ²⁷¹ inside. According to Perez’s statement given to the detectives, Perez saw Canela come out of a rear window of the apartment about twenty minutes after he had entered the apartment; Canela, who at that time was not wearing a shirt, told Perez to drive around and pick him up at the adjacent high school; Canela then climbed over the fence that separated the apartment complex and the school yard.

Perez further related in his statement that Canela told him that he left the apartment through the back window because he had been playing with the children and that he threw his shirt away because it was dirty. Perez also told the detectives that, after he picked Canela up in the school yard, the two drove to Fells Point, where Canela purchased a shirt; the two then walked around until they received a phone call informing them that something bad had happened at the apartment where Ricardo, Sr. lived; they then immediately drove back to the Ricardo Sr.’s apartment. After Perez and Canela were arrested, Baltimore City Police Officers obtained a warrant authorizing the police to search the Bedford Road house where both appellants lived. During the execution of the warrant, the police seized from the room in which Perez and Canela slept a pair of blue jeans, referred to in the testimony as “Route 66” jeans.

Those jeans were observed to have apparent blood stains with a knife impression. From Perez’s car, the police recovered two gloves and a pair of blue jeans known as “No Boundary,” or “Snow Boarder” jeans, which were also stained with blood. DNA from the blood stains on one of the gloves was found to be consistent with a mix of the DNA of the murder victims and Perez. Micro-vacuum samples extracted from interior surfaces of the gloves yielded DNA that was consistent with a mixture of DNA from the victims and Perez.

Micro-vacuum samples taken from interior surfaces of the “No Boundary” jeans yielded DNA that was consistent with a mixture of DNA of the victims and Canela. In addition, DNA from the bloodstain on the “No Boundary” jeans were found to be consistent with Lucero’s DNA. Micro-vacuum samples taken from interi- or surfaces of the “No Boundary” jeans also yielded DNA that ²⁷² was consistent with DNA from Perez. A 1/32-inch speck of blood contained DNA that was consistent with Lucero’s DNA.

That blood speck was found on one of the shoes seized from Perez after he gave his statement to the police. As already mentioned, some of the DNA evidence in this case was obtained from samples collected from interior surfaces of gloves and blue jeans. These samples were recovered by using a small vacuum collecting device invented by Salvatore Bianca, an expert in the field of trace analysis, forensic serology, blood spatter and impressions. The reliability of the vacuum collecting device was the subject of a Frye/Reed hearing before the first trial.

The result of the Frye/Reed hearing was adverse to appellants. At the second trial, appellants elected not to renew their motion to exclude evidence collected by that device. At the second trial, Mr. Bianca described the device in detail and named other laboratories that used it. Earlier in the second trial, a serologist named Terry Levy, testified that she regularly used the device because it was the best method for recovering any trace evidence that might be present.

According to Levy, the vacuum method was generally scientifically accepted. Additionally, David Exline, a forensic scientist for the RJL Lee Group, who was accepted by the court as an expert in trace evidence analysis, testified, without objection, that, to a reasonable degree of scientific certainty use of the apparatus to recover trace evidence was a valid technique. According to the State’s evidence, the vacuum device, when used on interior surfaces of the gloves and blue jeans, was capable of drawing blood cells deposited on the outside of an item through the fabric, and simultaneously collecting skin cells left on the inside of the item by the person or persons who had worn the item. The validity of this scientific proposition was contested by the appellants at trial.

Additional facts will be set forth in order to resolve the numerous contentions raised by appellants in this appeal. ²⁷³ II. First Joint Issue — The Jury Notes Md. Rule 4-326(d) provides: Communications with jury. The court shall notify the defendant and the State’s Attorney of the receipt of any communication from the jury pertaining to the action as promptly as practicable and in any event before responding to the communication. All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action.

The clerk or the court shall note on a written communication the date and time it was received from the jury. This rule is mandatory and must be strictly followed. Taylor v. State, 352 Md. 338, 345 , 722 A.2d 65 (1998). A violation of Rule 4-326 is a violation of the defendant’s right to be present at every stage of the trial.

Id. A conviction cannot be upheld if the record discloses a violation of this right, Stewart v. State, 334 Md. 213, 225 , 638 A.2d 754 (1994), unless the State can show that the error was harmless beyond a reasonable doubt. Denicolis v. State, 378 Md. 646, 658-59 , 837 A.2d 944 (2003). For the State to meet this burden, the record must affirmatively show that the communication was not prejudicial.

Noble v. State, 293 Md. 549, 563 , 446 A.2d 844 (1982). Judge Sweeney issued a twenty-two page opinion in which he concluded that “[t]he contents of juror notes 6, 7, 14, 21, 23 and 26 were not disclosed to counsel by the court.” The State does not contend that Judge Sweeney erred in reaching that conclusion. Appellants argue that by failing to disclose the six jury notes to defense counsel, Judge Mitchell committed reversible error because the State cannot show that the error was harmless beyond a reasonable doubt. Citing Denicolis, supra, the State agrees that Judge Mitchell erred in not showing the notes to counsel, but nevertheless contends that the error was harmless beyond a reasonable doubt. ²⁷⁴ “[N]ot every error committed during a trial is reversible error.” Moore v. State, 412 Md. 635, 666 , 989 A.2d 1150 (2010).

In Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976), the Court of Appeals set forth the applicable guidelines to be used in making a harmless error analysis, viz: We conclude that when an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict. (Footnote omitted.) See also Parker v. State, 408 Md. 428, 446 , 970 A.2d 320 (2009). “To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed by the record.” Bellamy v. State, 403 Md. 308, 332 , 941 A.2d 1107 (2008) (quoting United States v. O’Keefe, 128 F.3d 885, 894 (5th Cir.1997)). With the aforementioned standard in mind, we shall consider each of the six notes at issue to determine whether the State met its burden of showing that the error committed by Judge Mitchell was, beyond a reasonable doubt, harmless.

A. Notes Six and Seven Both of these notes were received by the trial judge while Ricardo Sr. was testifying. Note 6 was received on July 7 at 10 a.m.; note 7 was received on the same date at -11:11 a.m. Immediately prior to the receipt of note 6, Ricardo Sr. testified that, on the date of the murders, around “4:00 or 4:20,” he, his wife and Maria, along with two other family members, were returning home from work. He testified that on the way home they stopped at a bank, and after arriving at ²⁷⁵ the apartment they unloaded several items that they had purchased.

At about this point, a juror wrote note 6, which read, “when were these things purchased? When everybody got out of the car to carry stuff to the house[?]” Upon receipt of note 6 the following exchange took place: The Court: You purchased some items before coming to the apartment. What did you purchase and where did you purchase them? The Interpreter: With the Court’s permission?

Your Hon- or, the interpreter would like to say the word that he’s trying to pronounce we’re not understanding precisely comes out something like Rogers Precision. It may be a name but we’re not sure. The statement made by the witness was we bought several things for the house at Rogers Precision, jewels — they sell jewelry, pants, phones, kitchen items, things like that. The Court: Continue. [Prosecutor]: Did you do that on your way home that day? [Ricardo Sr.]: I just am not— The Interpreter: The first part — the interpreter would like to say that the first part of the response again is I can’t understand what’s being said, Your Honor, and then he says I don’t know what you mean.

Did you mean did we buy them on the way or I don’t know what you mean. [Prosecutor]: I’ll move on, Your Honor. Later, but still during Ricardo Sr.’s testimony, a juror wrote note 7, which read: Please I need to know when these things were purchased. If they only made two stops: 1. Bank 2.

The babysitters house 3. Home. The following colloquy then occurred: The Court: One moment, please. Mr. Espinoza, the Court returns to the items — to the area of inquiry regarding the items that you purchased that day or purchased.

These are the items that you and your family put on the curb before you attempted to enter your apartment. Sir, my question is ²⁷⁶ did you purchase those items that day or did you purchase those items on another day? [Ricardo Sr.]: Well, it was outside the door, was some meat and I think we had a pork shoulder or something and I think there was some bread. I don’t remember exactly what it was we had that day. The Court: My question is did he purchase those items from a store or acquire those items from some place on that day or did he acquire them on a previous day, if he remembers? [Ricardo Sr.]: If it was meat we would have bought it that day.

The Court: Do you specifically recall when you purchased it? [Ricardo Sr.]: Well, if it was meat and we were coming home from work and we were going to prepare something for the next day, but if we’re talking about casseroles or the pops that I mentioned before that would have been a month ago, a month before that or twenty days before. The Court: Do you have a direct recall of making these purchases or are you making an assumption of when you may have done this? [Ricardo Sr.]: That’s what I mean, if it was the meat, it was that day. The meat was that day. The Court: Do you know if — does the witness recall whether he purchased that meat, if he did purchase meat, before he went to the bank or did he purchase it after he went to the bank? [Ricardo Sr.]: No, it was before we went to the bank.

The Court: Thank you. Are there questions from the government based on the Court’s questions? The Prosecutor and defense counsel then said that they had no questions based on the judge’s questions. The State argues: Notes 6 and 7 asked for clarification of the testimony of Ricardo [Sr] ... father of two of the victims, regarding ²⁷⁷ purchases that he said he and other family members had made on their way home from work on the afternoon of the murders.

They put these purchases down on the curb before attempting to enter their apartment. Questioned by the court, the witness answered the question, explaining that meat was purchased that day, before they went to the bank. As Judge Sweeney found, “[c]ounsel were given full opportunity to pose any questions on this subject before the witness left the stand.” If defense counsel thought the matter had some additional significance they were free to pursue the matter further. They did not do so.

In short, the evidence about the time of the purchases was placed before the jury, and counsel were free to respond to it as they wished. Knowledge that the jury requested clarification on this minor point, rather than trial court, would not have triggered some readjustment of the defense trial strategy. The record affirmatively establishes that the error in failing to disclose these notes about the timing of the purchases would have had no effect whatever on the jury’s verdicts. (Reference to record omitted.) Appellants, in regard to notes 6 and 7 (as well as other notes), assert that “knowing that jurors had particular concerns as reflected in these notes would have been important information for counsel.” Appellants go on to argue that these two notes “reflected precise and important substantive concerns the jury had with the evidence in the trial.” According to appellants, if they had known that the questions emanated from the jury they would have been able to “adjust their trial strategy or ... request that the trial judge allow them, rather than the trial judge himself, to undertake the required follow-up questioning of the witness.” The issues that the jurors wanted clarified were these: 1) when were purchases made; 2) how many stops Ricardo, Sr. and his family members made after they got off from work on the day of the murders; 3) the order in which they made those ²⁷⁸ stops; 4) whether meat was purchased before or after they went to the bank.

All of these questions involved very minor issues that had nothing to do with the guilt or innocence of appellants. If defense counsel had received the notes prior to the judge asking his questions, it is impossible for us to see how defense counsel might have conceivably changed their trial strategy, nor is it conceivable that the jury verdicts might have been different if defense counsel rather than Judge Mitchell cleared up these minor details. We therefore hold that the error in failing to show notes 6 and 7 to counsel was harmless beyond a reasonable doubt. B. Jury Note 14 On July 13 at 9:40 a.m., which was prior to the start of testimony that day, Judge Mitchell received jury note 14, which read: We the juror[s] feel that juror # 6 should be removed, because of lack of concentration and constantly nodding during this trial.

Two men[’s] lives are at stake and we believe they deserve a fair trial. Two minutes after jury note 14 was received, the trial proceedings went on the record, but Judge Mitchell did not advise counsel of the note. Instead, Judge Mitchell and counsel discussed what should be done because juror # 6, the inattentive juror, had not arrived even though it was past the time the court had set for trial to recommence. Without knowledge of the note, defense counsel argued that juror # 6 should not be dismissed and that more time should be allowed for the juror to get to court.

Judge Mitchell initially decided to wait. But when juror # 6 had not arrived after a little more than an hour had passed, Judge Mitchell dismissed juror # 6, who was replaced with an alternate. Appellants do not argue that the court erred in dismissing juror # 6. Appellants argue: [Undisclosed note 14 reflected information that would have made a crucial difference in counsel’s trial strategy at ²⁷⁹ a particular juncture in the case.

The transcript of the morning of July 13 shows that defense counsel fought long and hard to keep Juror # 6 on the jury by imploring the court to wait longer and longer for him to arrive. This resulted in the jury being held in the jury room for an inordinate amount of time before the start of trial proceedings that day, very likely to their substantial annoyance. Defense counsel would never have risked thus aggravating the jury had they known that jurors who were willing to express their concern for a fair trial for defendants had requested that juror # 6 be removed. It is true, as appellants claim, that failure to disclose note 14 to counsel, in all likelihood, delayed the trial by over an hour.

Nevertheless, because there was nothing that could have possibly suggested to the jurors that the delay was caused by the appellants or their trial counsel, it is impossible to believe that the jurors would have blamed either the defendants or defense counsel for the delay. Moreover, even if news somehow “leaked” to the jury that defense counsel caused the delay, we agree with the State that “[i]t borders on the absurd to suggest ... [that any juror] would have convicted [appellants of the heinous crimes charged because of a belief that defense counsel caused a delay of a little over an hour.” We therefore hold that failure to disclose jury note 14 to counsel was harmless beyond a reasonable doubt. C. Jury Note 21 Before discussing the contents of note 21, some additional background information is necessary. At the time of the murders, Perez’s cell phone number was 443-220-5630.

In support of the State’s theory that Perez was present at the apartment at about the time the murders occurred, the State called Bruce Levine, a regional performance and optimization engineer for Sprint Corporation. Mr. Levine was qualified as an expert and was allowed to explain to the jurors where Perez’s cell phone, and the cell phones of other family members, were located when various calls were ²⁸⁰ made or received. During Levine’s testimony, Judge Mitchell was given jury note 21, which read: “when you say call ‘received’ does that mean the call went through and was answered at other end?” After he was given note 21, Judge Mitchell said: “we’re going to take our lunch and recess at this hour but before we do, ... I have one question [of Mr. Levine].

You frequently ... use the word receive. Would you define what you mean when you say received?” The following exchange then occurred: Mr. Levine: That is where the signal — excuse me — that is where the signal from the phone is — without using the word received— The Court: Does it mean that it’s accepted — let’s use the word accepted. Mr. Levine: It means it’s accepted by the system on a particular set of antennas and equipment that is associated with those (indiscernible). So it is accepted on a particular piece of that tower (indiscernible).

I mean coming into and accepted at a particular slice of the pie wedge. The Court: That’s — does that — the time that you refer as is the time when the call was received, or placed, means that’s when it was accepted or at — at that — at your facilities? Mr. Levine: That’s the record that is in our billing file, so that is what our system considers to be the start of that phone call. The Court: And what does a duration mean?

Mr. Levine: The duration is the time that phone call lasts. The Court: Can you tell from — in any way from a duration whether a telephone call was — was answered? Mr. Levine: No there is — well, on an outbound phone call, you know that somebody had to hit send so they made that phone call. On an inbound phone call, there is nothing in ²⁸¹ the record that indicates whether or not somebody actually answered the phone....

(Emphasis added.) On cross-examination, Perez’s counsel further developed these points, which established that some of the many phone calls about which Levine testified might not have resulted in actual conversations. Canela’s counsel did not cross-examine Levine. In regard to note 21 the State argues: This record demonstrates that the court did just what it intended to do, clarifying the meaning of the term “received” for the jury, and that defense counsel followed up on the matter as they sought [sic] fit. Again this was a minor matter, particularly in view of the clarification provided.

Knowledge that the jury, rather than the court, posed a question asking for the meaning of “received” phone calls did not generate a need to “adjust” [appellants’ trial Strategy- Appellants do not make a specific argument directed at jury note 21. They do, however, argue, generally, that “knowing that jurors had particular concerns as reflected in these notes would have been important information for counsel.” Later in their brief, they argue that this note, like others, “reflected precise and important substantive concerns the jury had with the evidence in the trial.” Once again they argue that they could have used this information “to adjust their trial strategy” or, alternatively, ask the trial judge to allow them to ask the follow-up questioning of the witness. We fail to see how appellants were prejudiced by the way that the trial judge handled jury note 21. The jury simply wanted to know what the word “received” meant when Mr. Levine used that term.

In answer to the question, Mr. Levine defined the term as “the start of that phone call.” Appellants do not suggest that the definition given was incorrect or that cross-examination might have developed a different answer. Under the circumstances, the failure to advise counsel as to ²⁸² the contents of jury note 21 was harmless beyond a reasonable doubt. D. Jury Note 23 Jury note 23 was received during the testimony of Mr. Bianca, the inventor of the vacuum that was used to extract DNA from the blue jeans and gloves found in Perez’s car. The jury note read: “is it possible to vaccum [sic] those types of gloves?

If possible[,] did you vaccum [sic] them one and two?” During the hearing before Judge Sweeney, it was established that neither Judge Mitchell nor the other witnesses could recall receiving this note. And Judge Mitchell, himself, did not ask a question arising from note 23. The question, however, was answered by Mr. Bianca during the following exchange: [Prosecutor]: Alright. What are we looking in the next picture, States 145? [Mr. Bianca]: That’s both gloves side-by-side, looking at the palms.

Glove number 1, and glove number 2. See the large area right here of brown stains, thats [sic] human blood on number 2. Theres [sic] human blood on number 1 at the base of the thumb, and over here at the base of the palm. [Prosecutor]: Alright. And, Im going to get to that in a moment.

But, what, if any, other evidence did you collect from these gloves? [Mr. Bianca]: Okay. One other thing I did ... Well, we wanted to know who was wearing these gloves. Thats [sic] an important concept.

Inside, I didn’t see any blood on the inside. So I used the vacuum collector to go inside and collect inside the gloves. Hopefully, to get something. Either skin cells, or dirt or debris or something that would have come off of the wearer of these gloves.

And I did both gloves. [Prosecutor]: And did you use the same vacuum method you already described? ²⁸³ [Mr. Bianca]: Yes, I did. (Emphasis added.) Additionally, as mentioned earlier, micro-vacuum samples taken from the interior surfaces of the two gloves yielded DNA that was consistent with a mixture of DNA from the victims and Perez. In regard to jury note 23, the State argues: This was one small bit of testimony regarding the extensive DNA evidence presented by the State. The jury’s question was answered.

Again, the record affirmatively disputes any suggestion that the knowledge that this question came from the jury would have generated some change in the defense strategy or in anyway effected [sic] the jury’s verdict. In their briefs, appellants make the same argument as to jury note 23 as they made in regard to all other notes except note 14. They claim that “knowing that jurors have particular concerns as reflected in those notes would have been important information for counsel.” They also argue, in regard to all notes except note 14, that the notes “reflected precise and important substantive concerns the jury had with the evidence in the trial.” Lastly, with regard to note 23 only, they point out that this note, unlike all other notes except note 14, did not result in a corresponding question from Judge Mitchell. We fail to see how appellants were prejudiced by the failure to reveal the contents of note 23.

After all, one of the important purposes of putting Mr. Bianca on the stand was to prove that the vacuum collection unit invented by him could be used to extract DNA from the two gloves found in Perez’s car. Through the prosecutor’s questioning of Mr. Bianca, the question posed in jury note 23 was answered. It is impossible to see how defense counsel could have revised their trial strategy or have otherwise done anything different in cross-examining Mr. Bianca, had they known that the same question asked by the prosecutor had also been asked by one of the jurors. We hold that under these circumstances it can be said, beyond a reasonable doubt, that the outcome of this case would have ²⁸⁴ been no different had defense counsel been advised of the contents of jury note 23.

E. Jury Note 26 This jury note was sent to Judge Mitchell while Francis Chiafari, the State’s DNA expert, was testifying. The note received by Judge Mitchell read as follows: “is it possible for another DNA expert to look at the same reports and have a different opinion?” After Mr. Chiafari had been crossed-examined, the following occurred: The Court: Is it possible for another DNA expert to look at the reports that you generated and reach a different conclusion than what you have reached? [Mr. Chiafari]: I don’t believe that if another DNA expert is provided the data ... Meaning the peak heights and the charts and everything that they would reach a different conclusion in regard to consistent or inconsistent with presence on a particular sample. There may be some conversation about statistics.

What would be an appropriate calculation to perform. Whether we should expect that someone from the Baltimore area would substitute as, you know, a defendant, or I should say, as an alternative to the defendants, or whether there should be some other calculation performed. But that doesn’t change the conclusion that the profiles are consistent with the individuals listed. * * * The Court: Does [defense counsel] have a question in light of the question from the Court? [Perez’s Counsel]: I do, Your Honor. [Perez’s Counsel]: And, somebody else could interpret a similar data differently, could they not? [Mr. Chiafari]: It’s possible. Not very likely. [Perez’s Counsel]: Is that because, you believe your interpretations are correct? ²⁸⁵ [Mr. Chiafari]: Yes. [Perez’s Counsel]: But, someone could disagree with you about that? [Mr. Chiafari]: I don’t think another expert would reach another conclusion. [Perez’s Counsel]: But, if someone were to review the analysis, they could? [Mr. Chiafari]: It’s possible. [Perez’s Counsel]: I have nothing further.

Canela’s counsel then cross-examined the witness as follows: [Canela’s Counsel]: So, when you say that you don’t believe another expert would come to another conclusion than you, that conclusion would be based on them using the same testing methods as you? [Mr. Chiafari]: Well, I was speaking of the same data. I mean, if we sit down and we re-test a portion of the mixture, as we discussed the other day, it is possible that one portion of the mixture may test slightly differently than another portion of the mixture. So, it’s important to distinguish terms. [Canela’s Counsel]: So, in reviewing your data, under the PENTA-E and PENTA-D system, you don’t believe another expert would come to another conclusion? [Mr. Chiafari]: Correct. The State, in arguing that the failure to disclose jury note 26 to defense counsel was harmless beyond a reasonable doubt, asserts: Appellants do not now assert that, had their trial counsel realized this question came from the jury, rather than the Court, they would have been likely to call a defense DNA expert.

Instead, they merely state baldly as to all five ²⁸⁶ evidentiary questions that their trial strategy might have been “adjusted.” Appellants leave us to speculate as to how their trial strategy may have been “adjusted” if they had known that a juror or jurors had wanted to know whether it was possible for another DNA expert to look at the same reports and have a different opinion. As the State points out, appellants do not claim in their briefs that they would have called their own DNA expert to rebut Mr. Chiafari’s testimony. Moreover, it is significant that both defense counsel focused their cross-examination on the same question as asked in note 27. Under such circumstances, it is once again impossible for us to envision how defense counsel’s trial strategy may have differed if they had known the source of the question was a note from the jury.

For the above reasons, we hold that, although Judge Mitchell erred in failing to reveal the contents of the six jury notes to counsel, the error did not affect the jury’s guilty verdict.

III

Second Joint Issue As mentioned earlier, one of the State’s main witnesses was Francis Chiafari, who was the Director of Molecular Technology for a company that provides genetic testing services. The court qualified Mr. Chiafari as an expert in the forensic analysis of DNA as well as an expert in the relationship analysis of DNA. Perez argues that Judge Mitchell committed reversible error by allowing Mr. Chiafari “to express an opinion endorsing the State’s theory of the ability of ... Bianca’s forensic vacuum device to draw biologic[al] material through the fabric of gloves and blue jeans.” Canela makes an almost identical argument, asserting that the trial judge erred by allowing Mr. Chiafari to provide an expert opinion as to “the scientific validity of a forensic material collection device used by another witness in the case.” Both appellants argue that Mr. Chiaf ²⁸⁷ ari’s opinion as to the Bianca forensic vacuum should have been excluded because that opinion had not been disclosed by the Prosecutor in pre-trial discovery and, in any event, Mr. Chiafari had not been qualified as an expert in that area.

On direct examination, Mr. Chiafari and the Prosecutor had the following un-objected to exchange: Q ... Mr. Chiafari, do you know Salvatore J. Bianca? A I do. Q How long have you known him?

A Since 1993. So thirteen years. Q Have you ever worked with him? A I have.

Q Have you ever observed his work? A I have. Q Have you — how frequently have you worked with him? A Well, we worked on a number of projects at the Baltimore Police Department when I was technical leader of the DNA lab there.

And, I’ve also worked on a few cases at BRT [the place where Mr. Chiafari was employed] with him acting as a consultant. Q And, did any of the work that you ever observed or work with him on involve his use of a small vacuum collector device that involved a glass test tube with a cotton swab inserted in it as the collection device? A Well, it was actually a glass Pasteur pipette. Q I’m sorry.

I stand corrected. A Yes. But I have worked with that device, such as it is with him and also independently. Q How many times with him?

A Well certainly I’ve tested a lot of samples that he generated. I guess I’ve worked directly with him maybe five or six times, directly. Q And you said you’ve also used it yourself. What do you mean? ²⁸⁸ A Well, we’ve had a case or two where we have used it for the same purpose.

That is to collect a portion of cells or biological material on the surface of an item and concentrate it for DNA testing. Q Would you use any apparatus if you considered it not scientifically valid? A No, I would not. The prosecutor then asked Mr. Chiafari “what, if any, opinion do you have of the collection device ... [we are] discussing?” Both counsel objected and a bench conference ensued.

Counsel for Perez objected to the question because Mr. Chiafari had not used the Bianca device, nor had he even seen it until after the device was used in the subject case. Perez’s counsel framed his argument as follows: The only tests that we’ve really questioned about the vacuum had to do with Salvator Bianca’s use of the machine back in 2004. If this witness is testifying to his knowledge of the machine and used it at the time that Mr. Bianca used it to test, fine. But, if this witness is testifying as to his learning of the machine and the use of the machine after the middle of 2004, it’s irrelevant to this case.

At the bench conference, Canela’s counsel stated his objection in these words: I would like to add on behalf of Mr. Canela, that now, again, another time that this expert, not a lay person (inaudible), is being asked to give an opinion as to the — I don’t know — the workability, if you will, of another’s expert machine. It’s an expert being asked to give an opinion. And from a Jury standpoint, he [was] giving his expert opinion as to whether the machine that was designed by Salvator Bianca works properly, functions properly, and then given the Jury the impression that — well, an expert said that the machine that Mr. Bianca built (inaudible). (Inaudible) either bring in Mr. Bianca in to testify about his device; or Terry Labbie, who can testify about this device; or Mr. Exline who had an opportunity to (inaudible). ²⁸⁹ (Inaudible) can just testify to whatever (inaudible) it wants (inaudible).

The trial judge overruled the objections and, immediately thereafter, the prosecutor and Mr. Chiafari engaged in the following colloquy, to which defense counsel did not object: Q Mr. Chiafari, the question is, do you have an opinion to a reasonable degree of scientific certainty whether the collection device made by Mr. Bianca, not you, of a Pasteur pipette, with a sterile swab in it, is a scientifically valid collection device? Yes or no. A Yes. Q Why?

A Because it was first described about fifty years ago in the literature, and has been used at various times, in various iterations by other groups. And, although he has used some different components than what was originally described, certainly its consistent with all of those applications. And the general concept is a valid one. That is to collect biological material in a small space, that can be easily extracted and ultimately tested for DNA.

Maryland Rule 4-323(a) provides: “An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.” The part of Rule 4-323(a) that we have just quoted is known as the “contemporaneous objection rule.” Appellants’ counsel did not object when the prosecutor asked Mr. Chiafari if he had an opinion to a reasonable degree of scientific certainty whether Mr. Bianca’s device was scientifically valid, nor was an objection made when the witness was asked to explain his answer. Thus, technically, defense counsel did not comply with the contemporaneous objection rule. But, counsel did object immediately before the question was asked and therefore, insofar as the grounds for the objection mentioned immediately before the question was asked are concerned, appellants did not waive their objection because a ²⁹⁰ reiteration of those grounds would have been futile.

See Dyce v. State, 85 Md.App. 193, 198, 582 A.2d 582 (1990). The difficulty for appellants, however, is that neither counsel said at the bench conference, immediately before the offending questions were asked, that Mr. Chiafari’s testimony should be excluded because of a discovery violation. If a party volunteers grounds for an objection, that party ordinarily will be deemed to have waived any ground not stated. Washington v. State, 191 Md.App. 48, 91 , 990 A.2d 549 (2010) (citing Leuschner v. State, 41 Md.App. 423, 436 , 397 A.2d 622 (1979)).

Because defense counsel did not allege a discovery violation immediately prior to the question and answer to which appellants now take exception, that issue has been waived. In his brief, Perez claims that the challenged opinion was improper because it was “outside the scope of [Mr. Chiafari’s] expertise” inasmuch as he was qualified as an expert in “forensic and relationship DNA analysis” but not qualified or accepted as an expert in the field of “forensic sample ... collection____” Canela’s argument is similar. He asserts that Mr. Chiafari’s expert testimony concerning the validity of a forensic material collection device “was outside Chiafari’s area of expertise.” Neither argument by counsel for appellants was made at the bench conference immediately preceding the testimony about which appellants now complain. Thus, the issue of whether Mr. Chiafari was qualified in the area of forensic collection was not preserved.

See Harmony v. State, 88 Md.App. 306, 317 , 594 A.2d 1182 (1991) (“A party must bring his arguments to the attention of the trial court with enough particularity that the court is aware first, that there is an issue before it, and secondly, what the parameters of the issues are.”).

IV

Third Joint Issue — The Court’s Failure to Suppress Appellants’ Incriminating Statements Both appellants claim that the statements they gave to the police after they were transported to the homicide unit ²⁹¹ should have been suppressed. According to the appellants, the police arrested them, without probable cause, prior to the point that they made their statements. Appellants maintain that, because they were illegally arrested, the statements, as the fruits of an illegal arrest, should not have been admitted. The State asserts, and the suppression court agreed, that when the appellants gave their statements to the police they were not under arrest.

In a case such as this, where we are asked to review the denial of a motion to suppress evidence, we look only to the evidence that was presented at the suppression hearing. Belote v. State, 411 Md. 104, 120 , 981 A.2d 1247 (2009). Moreover, we review “the evidence in the light most favorable to the prevailing party and defer[ ] to the motions court with respect to its first level factual findings.” Id. (citations omitted). “The ultimate determination of whether there was a constitutional violation, however, is an independent determination that is made by the appellate court alone, applying the law to the facts found in each particular case.” Id.

(citations omitted). At the three-day suppression hearing held in these consolidated cases, the appellants elected not to testify. The motions judge made the following factual findings, based on the testimony of several police officers: ♦ The decision made by the police department to take family members away from the “chaotic environment of the [crime] scene ... and continue the investigation in the relative quiet and security” of the police station was an “appropriate” decision made “for the safety of the public, ... the officers and the ... witnesses.” ♦ The appellants were the first to arrive at police headquarters and their entry, like that of the other witnesses, was permitted only after passing through security. ♦ The appellants were not restricted physically in any way after being placed in holding cells; no handcuffs or ²⁹² other physical restraints were placed upon them, nor were their movements restricted by leg irons. ♦ Although the appellants could not go to the bathroom or “roam the facilities without an escort,” that restriction was reasonable given that the homicide division of the police department “is a controlled and restricted” area in which no one can doubt that “dangers lurk” because those in the facility are “investigating the crime of murder” at a homicide office where there is a mix of “suspects, witnesses, police and emotion.” ♦ Members of the family of the deceased were placed “in different locations within the homicide division offices once they arrived at those facilities” with the intent of the police officers to interview them, as well as appellants. ♦ The interviews of the appellants and other family members were delayed because the assistance of an interpreter was needed inasmuch as most of the investigating officers only spoke English while family members needed the assistance of an interpreter. Miranda warnings were given to the appellants in the Spanish language, which was their native tongue. ♦ While appellants were interviewed, the police officers were unarmed. ♦ While at homicide headquarters, appellants were not subjected to any threats nor were inappropriate statements made by the police officers who came in contact with them.

Moreover, no promises or inducements were made to them by the officers. ♦ The police used no “trickery, subterfuge or other inappropriate” tactics in order to obtain the statements from the appellants. ♦ The decision by the appellants to speak to the police officers was made voluntarily. ♦ During the period that appellants were at police headquarters “there was no[ ] restraint of liberty or conduct tantamount to an arrest” until after appellants made their statements. ²⁹³ ♦ Taking into account the “totality of the circumstances,” the appellants were not arrested prior to the time that they gave their statements to the police. In this appeal, Perez contends that the “motions court did not apply the correct legal standard” in deciding whether he was under arrest. According to Perez, the issue to be decided should have been “whether a reasonable person in [Perez’s] position would have felt free to leave.” The test Perez espouses is incorrect. He confuses the test to be used when determining whether a “seizure” has occurred within the meaning of the Fourth Amendment to the United States Constitution (“i.e., whether a reasonable person in [the defendants’] position would have felt free to leave”) with a very different test that is to be applied when the issue is whether an arrest has been made.

Compare Swift v. State, 393 Md. 139, 150 , 899 A.2d 867 (2006), which deals with the test as to whether a “seizure has occurred,” with Belote v. State, 411 Md. at 116 , 981 A.2d 1247 , setting forth the test to be utilized when determining whether a person has been arrested. 3 In Belote, supra, the Court of Appeals quoted Bouldin v. State, 276 Md. 511, 516 , 350 A.2d 130 (1976), as follows: [W]e explained [in Bouldin ] that an arrest in Maryland ordinarily requires four elements to coalesce: “(1) an intent to arrest; (2) under a real or pretended authority; (3) accompanied by a seizure or detention of the person; and (4) which is understood by the person arrested.” See also Longshore v. State, 399 Md. 486, 502 , 924 A.2d 1129 (2007). 4 ²⁹⁴ With the appropriate test in mind, we turn to the facts concerning what happened to the appellants and other members of the victims’ family at the police station. All told, fifteen family members either drove themselves or were transported to homicide headquarters on the afternoon of the murders. According to the police officers who testified at the suppression hearing, only one of the family members was initially treated as a homicide suspect. That person was Maurici Maurieta.

Maurieta was handcuffed and shackled and forcibly taken to police headquarters. In contrast, the appellants were not handcuffed, nor were they shackled until after Perez gave his statement to the police. While appellants were held in a holding cell, the doors to the holding cell were not locked — or even closed. Canela was transported to police headquarters in a squad car.

Detective Casteneda sat beside Canela while another officer drove. The front passenger seat was empty. The car door to the police cruiser could be opened from the inside backseat and during the trip to police headquarters Canela was not handcuffed or otherwise restrained. Perez was driven to the police station by Kenneth Jackson, a Baltimore police officer.

Jackson drove a marked police cruiser, but one that did not have a “cage.” Officer Jackson was accompanied by another police officer. According to Officer Jackson, although he might have touched Perez when he was entering the car, no force whatsoever was used and he was not patted down for weapons prior to being transported. Officer Jackson testified that Perez entered the vehicle voluntarily and, once inside, was not restrained in any way; Perez was “very cooperative.” All family members, including the appellants, were escorted into the homicide office by uniformed personnel. The homicide office in which the family members were brought has work areas for some forty-eight detectives; it contained holding areas and interview rooms.

When Perez was initially interviewed by Detective Bradley at the apartment complex, Bradley informed Perez about ²⁹⁵ inconsistencies between his statement and that of Canela. 5 But, according to Detective Bradley, nothing was done “to label ... [either appellant] as being persons or people responsible for this incident.” Other family members were placed in various cubicles or offices throughout the homicide office. According to Detective Massey, this was standard protocol when multiple witnesses were to be interviewed. The various officers who transported family members to police headquarters remained at headquarters because they were needed to escort the large number of persons present to the restroom and snack areas as needed. Detective Massey, who interviewed both appellants, testified that he did not consider either Perez or Canela to be in custody and that he advised them of their Miranda rights only because he wanted “to err on the side of caution.” According to the uncontradicted testimony of the detectives who interviewed the appellants, the appellants were considered to be under arrest only after Perez gave his statement in which he said, inter alia, that he and Canela went to the apartment at about 4:20 p.m. and that Canela, after staying inside the apartment for about twenty minutes, then exited through a window, without his shirt.

Our decision in Sydnor v. State, 39 Md.App. 459 , 387 A.2d 297 (1978), is instructive. In Sydnor , two Prince George’s County Police Officers, after collecting evidence indicating that Sydnor had been at the scene of a murder, drove to