Hopkins v. State

CATHELL, Judge. Marquis Yaphet Hopkins, petitioner, was convicted at a bench trial in the Circuit Court for Baltimore County of robbery with a deadly and dangerous weapon, robbery, battery, two counts of assault, two counts of use of a handgun in the commission of a felony or crime of violence, and unlawfully carrying a handgun. He received sentences of ten years for the armed robbery conviction, three years consecutive for one of the assault convictions, and a concurrent five-year sentence without the possibility of parole for one of the handgun use convictions. His remaining convictions were merged for sentencing purposes.

Petitioner raised three issues on appeal to the Court of Special Appeals. That court affirmed his convictions, finding no merit in any of the questions presented. We granted the petition for certiorari on a single issue: ¹⁵⁰ Did the trial court err in compelling [petitioner] to give a voice exemplar at trial? We shall affirm.

I. FACTS The facts of this case were stated in the opinion of the Court of Special Appeals, Hopkins v. State, 118 Md.App. 715 [No. 612, 1997 Term, slip op. at 1-3, filed Dec. 24, 1997]: Laurene Theresa McQuay, and her husband, Franklin Andrew McQuay were robbed at gun point outside their townhouse in Timonium, Maryland, shortly after 9:15 p.m. on 27 April 1996. Their testimony at trial established the following. The McQuays were returning home from a restaurant. Mrs. McQuay had parked their car in the front of their townhouse.

As Mr. McQuay exited from the passenger door, a man, later identified as the appellant, approached Mr. McQuay from the back and said, ‘To, check it out.” As he spoke, the man placed a gun next to Mr. McQuay’s head. At this point in time, Mrs. McQuay was standing beside their car. The man ordered her to the front of the car. When she arrived, the man demanded that she hand over her money or her husband “would have his mother-fucking head blown off.” She handed him her purse, wedding ring, and car keys.

The man then said, “[g]ive me the necklace, bitch.” As she turned her necklace around to undo the clasp, the man stepped within two feet of her and yanked the necklace off her neck. The man then reached into Mr. McQuay’s pocket and removed, his wallet. After he did this, the man hit Mr. McQuay on the head with the butt of the gun, knocking him to the ground. The man then ran away.

Dizzy from the blow to his head, Mr. McQuay stayed on the ground a few seconds after the man fled. The McQuays then ran inside their house. Mr. McQuay called 911. When asked to described the robber, Mr. McQuay handed the telephone to Mrs. McQuay who told the police that the ¹⁵¹ robber was a black male, wearing a dark hooded sweatshirt, and “almost” six feet tall.

A little over a month later, on June 6th, Officer Mark G. Carter of the Baltimore County Police Department asked Mrs. McQuay to look at a photographic array to see if she could make an identification. She picked out appellant’s photograph as a picture of the man who had robbed them. She wrote on the back of the photograph, “The man in the photo looks very close to the actual guy. His profile is extremely close.

I need to see him in person to be sure, I need to hear him speak too.” She then signed her name to the back of the photograph. Her husband was unable to identify anyone from the photographic array. At trial, Mrs. McQuay testified that the robbery lasted only a few minutes, - and that during that time she was directly in front of the assailant and between two and ten feet from him at different times. She also testified that the area where the robbery occurred was reasonably well-lit by their front house light and a nearby street lamp.

II

DISCUSSION During the cross-examination of Mrs. McQuay, the following occurred: Q. [By Defense Counsel] You wanted a lineup. And were you ever afforded a lineup, Ma'am? A. No. Q. In fact you said, “I need to see him in person to be sure”? A. I also wanted to hear him speak.

Q. And you were never afforded that opportunity either, were you? A. No. Q. And that was eight, nine months ago, correct? ¹⁵² A. Correct. On redirect examination, the following exchange occurred: Q. [By the State’s Attorney] How certain are you that that’s the person who robbed you sitting next to [Defense Counsel]? [DEFENSE COUNSEL]: Objection, objection. THE COURT: I’ll sustain.

Q. Is there any question in your mind that that’s the person who robbed you? [DEFENSE COUNSEL]: Objection. THE COURT: Overruled. Q. Would you like to have him stand up and speak? A. Yes. [DEFENSE COUNSEL]: Wait a minute, wait a minute.

Don’t be so accommodating. [STATE’S ATTORNEY]: Your Honor, I’d ask the Court’s permission to require the Defendant to stand up and make a statement. [DEFENSE COUNSEL]: Your Honor, I’m going to object to that. The opportunity to do that is long since past. [STATE’S ATTORNEY]: Your Honor, I think it’s certainly within the Court’s discretion. This case comes down to the identification. For the man to stand up—it’s her identification that makes the case, quite frankly. [DEFENSE COUNSEL]: I don’t disagree with that.

I don’t disagree with that. THE COURT: What do you wish the Defendant to say? First of all, the question is you would like him to stand. Do you object to that? [DEFENSE COUNSEL]: No. THE COURT: Would you stand, sir? [STATE’S ATTORNEY]: The statement which I would request the Court to order the Defendant to say is, ‘To, check it out.” ¹⁵³ THE COURT: Pardon?

You’d like him to say what? [STATE’S ATTORNEY]: “Yo, check it out.” That is what the witness indicated— THE COURT: “Yo, check it out.” All right. Do you object to that? [DEFENSE COUNSEL]: I do, your Honor. This occurred nine months ago. THE COURT: All right.

That would go to the weight, not admissibility. You can tell him to say that. Objection noted for the record. Please state that, sir.

THE DEFENDANT: Yo, check it out. THE COURT: You may be seated, sir. Q. [By the State’s Attorney] My question is: How certain are you that the Defendant seated next to [Defense Counsel] is the person who robbed you and your husband? [DEFENSE COUNSEL]: Objection. THE COURT: Sustained.

Before [the State’s Attorney’s] question was—“Do you have any question in your mind?” is what he said to you. A. Absolutely not. [Emphasis added.] On recross-examination by defense counsel, Mrs. McQuay testified: Q. [By Defense Counsel] Ma‘am, what is that distinguished by his voice that distinguishes him from other African Americans? [STATE’S ATTORNEY]: Objection. THE COURT: Overruled. A. He’s articulate.

Defense counsel’s only grounds for objecting to the voice exemplar being elicited in the court trial were: “The opportunity for that is long since past” and “[t]his occurred nine months ago.” The trial court, responding to the express grounds proffered for the objection, stated that the nine-month period between the offense and the in-court voice ¹⁵⁴ exemplar “would go to the weight, not admissibility.” On recross-examination, after petitioner gave the voice exemplar, defense counsel elicited from Mrs. McQuay that what distinguished petitioner’s voice was that he was “articulate.” Petitioner made no further objection nor did he move to strike the testimony based upon Mrs. McQuay’s reason for recognizing the voice exemplar. The objections we noted above were the only objections ever made to the voice exemplar, namely, that the opportunity to object “is long since past” and the voice exemplar was being given nine months after the incident. At no time was a Fifth Amendment or any other ground for the objection presented to the trial court. Petitioner completely failed to proffer to the trial court the ground for objection that he now presents to this Court.

A serious question of whether the issue was preserved for appellate review exists. Although the State has raised the preservation issue as to certain arguments made by petitioner, it proffers that the issue of the articulateness of the defendant’s exemplar is preserved. We fail to discern from the record where any objection or motion to strike was made by petitioner during recross-examination when the “articulate” testimony first appeared. We also question whether the issue of articulateness was preserved for appellate review.

Nonetheless, the Court of Special Appeals exercised its discretion to address these issues on their merits. The same issues were presented to this Court in the petition for writ of certiorari, and the issue of the admissibility of the voice exemplar was contained within the writ granted. We shall address the issues presented. A. THE FIFTH AMENDMENT The United States Supreme Court said in Schmerber v. California, 384 U.S. 757, 764 , 86 S.Ct. 1826, 1832 , 16 L.Ed.2d 908 (1966), that the Fifth Amendment “offers no protection against compulsion ... to write or speak for identification ____” In United States v. Wade, 388 U.S. 218, 222-23 , 87 S.Ct. 1926, 1930 , 18 L.Ed.2d 1149 (1967), the Court held that when used as an identifying physical characteristic and not as ¹⁵⁵ a testimonial admission, voice exemplars compelled during a lineup do not violate the Fifth Amendment.

What is more, in Wade the Supreme Court stated that “even to utter words purportedly uttered by the [person who committed the crime]” was not testimonial in nature because he was required only to “use his voice as an identifying physical characteristic,” not to disclose his knowledge of any particular fact. Id. The Supreme Court extended the holding of Wade to recorded voice exemplars compelled by a grand jury subpoena in United States v. Dionisio, 410 U.S. 1, 5-7 , 93 S.Ct. 764, 767-68 , 35 L.Ed.2d 67 (1973) and later in Pennsylvania v. Muniz, 496 U.S. 582, 592 , 110 S.Ct. 2638, 2645 , 110 L.Ed.2d 528 (1990), where it held that a videotape portraying the defendant’s slurred speech after being arrested for drunk driving was admissible. The Court reasoned that “[Requiring a suspect to reveal the physical manner in which he articulates words, like requiring him to reveal the physical properties of the sound produced by his voice, see Dionisio, supra, does not, without more, compel him to provide a ‘testimonial’ response for purposes of the privilege.” Muniz, 496 U.S. at 592 , 110 S.Ct. at 2645 , 110 L.Ed.2d 528 .

This Court recognized the earlier cases in Andrews v. State, 291 Md. 622, 627-30, 639-40 , 436 A.2d 1315, 1317-18, 1323-24 (1981), where we held that a defendant could be compelled to refrain from shaving his head and facial hair during trial to prevent him from altering his appearance from what it was during the time of the incident. Quoting from Schmerber, 384 U.S. at 764 , 86 S.Ct. at 1832 , 16 L.Ed.2d 908 , we stated: [B]oth federal and state courts have usually held that [the Fifth Amendment privilege] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling “communications” or “testimony,” but that compulsion which makes a suspect or ¹⁵⁶ accused the source of “real or physical evidence” does not violate [the Fifth Amendment]. Andrews, 291 Md. at 628 , 436 A.2d at 1318 (emphasis added).

We also quoted from Wade, 388 U.S. at 222-23 , 87 S.Ct. at 1930 , 18 L.Ed.2d 1149 : “Similarly, compelling Wade to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a “testimonial” nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt.” Andrews, 291 Md. at 629 , 436 A.2d at 1318 . The Court of Special Appeals also has followed Wade and Dionisio in holding that an accused can be compelled to read from a transcript at trial. Vandegrift v. State, 82 Md.App. 617, 639 , 573 A.2d 56, 66 , cert. denied, 320 Md. 801 , 580 A.2d 219 (1990). This essentially is what occurred in the case sub judice.

Petitioner was not required to testify as to his guilt or innocence. The exemplar was required expressly for purposes of identification. Mrs. McQuay stated that she could identify petitioner positively by the exemplar because of his “articulateness,” that is, a physical characteristic of his voice. This simply is not the type of compelled testimony protected by the Fifth Amendment privilege.

Moreover, we discern little difference in a Fifth Amendment analysis of whether the voice exemplar was testimonial in nature because of the context in which it was given, here during the trial. Although the court may have compelled petitioner to repeat the phrase “yo, check it out,” that petitioner was required to give an exemplar in court as opposed to pre-trial is of no consequence; his statement was not testimonial because it was used for identification purposes only, not “to relate a factual assertion or disclose information,” Doe v. United States, 487 U.S. 201, 210 , 108 S.Ct. 2341, 2347 , 101 L.Ed.2d 184 (1988), or “to speak his guilt.” Wade, 388 U.S. at 223 , 87 S.Ct. at 1930 , 18 L.Ed.2d 1149 . The exemplar was non-testimonial and, therefore, not protected by the Fifth ¹⁵⁷ Amendment’s prohibition against compelled incrimination. See Dyson v. State, 238 Md. 398, 404 , 209 A.2d 609, 612 (1965) (“This Court, as have many others, consistently has held that requiring a suspect ... to present his physical attributes as an aid or guide to identification, does not amount to requiring the suspect to incriminate himself .... ”), reh’g denied, 238 Md. 546, 547 , 210 A.2d 730, 731 (1965), vacated on other grounds by 383 U.S. 106 , 86 S.Ct. 717 , 15 L.Ed.2d 617 (1966).

Petitioner argues that because Mrs. McQuay already had identified him based on his physical appearance, the voice exemplar was unnecessary and its real purpose was not to identify him as the assailant but to prove that he was capable of threatening Mrs. McQuay. In other words, petitioner alleges the purpose of the voice exemplar was testimonial in nature and in violation of Wade and Dionisio . As the Supreme Court has noted, however, for compelled statements “to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a ‘witness’ against himself.” Doe, 487 U.S. at 210 , 108 S.Ct. at 2347 , 101 L.Ed.2d 184 (footnote omitted).

Further, the Court in Dionisio, 410 U.S. at 7 , 93 S.Ct. at 768 , 35 L.Ed.2d 67 , commented that voice recordings are not testimonial when “used solely to measure the physical properties of the [defendants’] voices, not for the testimonial or communicative content of what was to be said.” Taken in context, Mrs. McQuay’s in-court visual identification had been subjected to question on cross-examination. A purpose on redirect examination for eliciting the voice sample was to bolster the testimony of Mrs. McQuay with respect to her prior visual identification of petitioner. It appears from the record that the statement “yo, check it out,” was, among the statements made by the assailant during the crime, the statement least likely to relate to substantive evidence. The need to rehabilitate Mrs. McQuay’s identification testimony supported the relevancy of the voice exemplar.

For all of these reasons, we hold that petitioner’s Fifth Amendment ¹⁵⁸ right against testimonial compulsion was not violated. 1 B. ADMISSIBILITY: RELEVANCE AND RELIABILITY .The decision of whether to admit a voice exemplar “is a matter left to the sound discretion of the trial judge.” Vandegrift, 82 Md.App. at 639 , 573 A.2d at 66 . Trial judges are afforded “broad discretion in the conduct of trials in such areas as the reception of evidence.” Void v. State, 325 Md. 386, 393 , 601 A.2d 124, 127 (1992) (quoting McCray v. State, 305 Md. 126, 133 , 501 A.2d 856, 860 (1985)). Accordingly, in our appellate review, we extend the trial court great deference in determining the admissibility of evidence and will reverse only if the court abused its discretion. Robinson v. State, 348 Md. 104, 121 , 702 A.2d 741, 749 (1997) (“The determination of whether specific evidence is relevant in a given case rests with the trial court, and that determination will not be disturbed on appeal absent a clear abuse of discretion.”); Merzbacher v. State, 346 Md. 391, 404-05 , 697 A.2d 432, 439 (1997) (explaining that appellate courts generally will not reverse a trial court on issues of the admissibility of relevant evidence unless a clear abuse of discretion can be shown); Williams v. State, 342 Md. 724, 737 , 679 A.2d 1106, 1113 (1996) (“A trial judge’s determination on relevance will not be reversed absent an abuse of discretion.”); Ricks v. State, 312 Md. 11, 31-32 , 537 A.2d 612, 622 , cert. denied, 488 U.S. 832 , 109 S.Ct. 90 , 102 L.Ed.2d 66 (1988) (refusing to reverse trial court for allowing videotape identification); Straughn v. State, 297 Md. 329, 334 , 465 A.2d 1166, 1169 (1983) (noting that admissibility of police identification photographs “is a discretionary matter for the trial court.”); Schear v. Motel Management Corp., 61 Md.App. 670, 682 , 487 A.2d 1240, 1245-46 (1985) (“[A] determination as to relevance is left to the discretion of the trial judge.”).

This Court has not had occasion to determine when trial courts may admit in-court voice identification evidence. A ¹⁵⁹ number of other jurisdictions, however, have. The Supreme Court of Nebraska has noted, for example, that “the nontestimonial nature of a voice exemplar does not automatically require its admission into evidence. The [party seeking admission] must still show that the voice exemplar is relevant and reliable.” State v. Newman, 250 Neb. 226, 244 , 548 N.W.2d 739, 752 (1996).

The New York Court of Appeals also has held that “[t]he test of whether voice exemplar evidence should be admitted ... [is]