In Re D.M.

SHARER, J. The Circuit Court for Baltimore City, sitting as a juvenile court, found D.M., appellant, “involved” in the delinquent act of theft of property valued at less than $1,000, thus affirming the findings of the juvenile master. Appellant was subse ⁴⁵⁷ quently committed to the Department of Juvenile Services for placement. In this appeal, appellant raises two questions for our consideration: 1. Did the juvenile court err in refusing to permit the removal of shackles from appellant during the court proceedings? 2.

Did the juvenile court err in denying appellant’s motion to suppress? For the reasons expressed herein, we find neither reversible error nor abuse of discretion, and affirm the judgments of the circuit court. BACKGROUND At about 9:50 a.m. on August 5, 2014, Nicole DiHart was walking on Pratt Street in Baltimore City when her cell phone rang. As she retrieved the cell phone to answer the call, it was snatched from her hands by a young black man with short hair, whom she estimated to be between ten and 12 years of age, wearing blue jeans, blue underwear visible above the jeans, and no shirt, riding an older blue and red BMX-style bicycle.

As he rode away, he looked back over his shoulder two times, allowing DiHart to see his face. When she got to work at the University of Maryland, DiHart reported the incident to the campus security officers in her building. About two-and-a-half hours later, DiHart was contacted by the police who asked her if she would ride by in a police cruiser to view a potential suspect at a nearby McDonald’s. At the McDonald’s, DiHart first noticed an older blue and red BMX-style bicycle parked nearby.

She then recognized appellant as the person who had snatched her cell phone earlier that morning. She noticed that he had changed his clothes and was now wearing a shirt or jumpsuit, but was, nonetheless, able to affirmatively identify him to the police. At the adjudicatory hearing, DiHart again identified appellant as the individual who had stolen her cell phone. ⁴⁵⁸ Following his arrest, appellant appeared with his attorney at several hearings before a juvenile court master. 1 On November 6, 2014, appellant was brought to court for an adjudicatory hearing before the master. He was transported in leg and wrist restraints by court security officers, and remained so shackled during the proceedings.

At the outset, appellant’s attorney requested that the master authorize the removal of appellant’s restraints, which the master declined to order. We shall discuss that matter in further detail in Part I of this opinion. Counsel also moved to suppress DiHart’s out-of-court identification. After hearing testimony from DiHart and argument from counsel, the master denied the suppression motion and ruled that appellant was involved in the theft of DiHart’s cell phone. 2 The formal adjudication followed.

Appellant filed exceptions challenging both the master’s denial of his motion to suppress and her refusal to order removal of his shackles during the adjudication hearing. The exceptions were heard, on the record, in the circuit court on January 20, 2015. After hearing the arguments of counsel, the court determined that the identification procedure used by the police was not impermissibly suggestive and that DiHart’s out-of-court identification was reliable. The court further concluded that requiring appellant to remain shackled during his adjudication hearing was not prejudicial.

Accordingly, the court denied appellant’s exceptions, and affirmed the delinquency adjudication. ANALYSIS I. Shackling During Adjudicatory Hearing Prior to each of his hearings before the juvenile master, defense counsel requested that appellant’s shackles be ⁴⁵⁹ removed. In each instance, the master denied the request without making any findings of the need for him to remain shackled. At the adjudicatory hearing on November 6, 2014, appellant’s attorney again requested that appellant’s restraints be removed during the proceedings.

For understanding of the issue, we include the following exchange: [Defense Counsel]: I would like the restraints removed before any -witnesses come into the courtroom. This is— THE COURT: They’re not going to be removed. He can have them in front if the officer says it’s okay. [Defense Counsel]: Your Honor, this is a case that I’ve had (indiscernible). Most cases are a witness identifying D as the person who— THE COURT: That happens all the time. [Defense Counsel]: But, Your Honor, having him in shackles is an indication to the witnesses that this is the young man who did it.

This is a due process issue, Your Honor. It’s not just I want them off because we’re having a hearing. We don’t allow — in the adult system we would never allow a jury— THE COURT: This is not the adult system, sir. [Defense Counsel]: Okay. But the implication is the same.

THE COURT: If his hands are handcuffed in front of him then they could be down in his lap and no one can see. [Defense Counsel]: You know, Your Honor, when you walk in the courtroom you’ll see the leg shackles. They -will see— THE COURT: Oh, I’m not having anybody’s leg shackles taken off. [Defense Counsel]: Your Honor— THE COURT: It’s not going to happen, sir. [Defense Counsel]: Then this is not going to be a fair trial because you’ll be sending the signal— ⁴⁶⁰ THE COURT: Okay, [Defense Counsel], let’s do this. We’ll just go ahead and then you’ll take your exception. Now, Officer [WJ— OFFICER [WJ: Yes.

THE COURT: —the young man has a trial. Is he handcuffed in front or in back right now? Okay. Now, are you going to be staying with him the whole time?

OFFICER [WJ: If I have to, probably will. THE COURT: Okay. Are you comfortable putting his handcuffs in front? OFFICER [WJ: No. I’m going to leave them on the back.

He has a problem with his fingers so I have him— THE COURT: Say that again. OFFICER [WJ: He has a problem with his fingers. THE COURT: What do you mean with his fingers? OFFICER [WJ: He— THE COURT: You mean he gives people the finger?

OFFICER [WJ: Yeah, he (indiscernible). [Defense Counsel]: Your Honor, he’s never done that in a courtroom. THE COURT: Okay. Hold on. Well, here’s the thing.

It’s going to be awhile and I don’t think he can sit comfortably handcuffed behind. [DJ,— [D.MJ: Yes. THE COURT: —you know we don’t allow that here. You don’t give people the finger here in court. Do you understand that? [D.MJ: Yes.

THE COURT: So I’m going to ask Officer [WJ to put your handcuffs in front and I’m going to trust you to respect the rules of court and not give anybody the finger, okay? [D.MJ: Yes, Your Honor. THE COURT: Okay. Now— ⁴⁶¹ [Defense Counsel]: You’re not giving me an exception. You’re giving me a plea.

This is an issue where— THE COURT: [Defense Counsel], you do your thing, my friend. I’m just trying to run my courtroom the way I’ve been doing it for about 20 years now. Okay. Now, do you want to borrow a jacket or something to put over his handcuffs since the officer doesn’t feel comfortable? [Defense Counsel]: I don’t see how that makes it any better, Your Honor, not really.

THE COURT: Well, other than that, he’d just have to keep them down in his lap. [Defense Counsel]: Well, I mean, if he— THE COURT: Your attorney, [D.], is concerned about someone seeing your handcuffs. So when you’re sitting down, can you keep your hands in your lap? [Defense Counsel]: Well, Your Honor, that’s a problem too because I need him to communicate with me. THE COURT: Well, he can talk to you in your ear. [Defense Counsel]: I need him to write things down so I can— THE COURT: He’s not going to write anything down. [Defense Counsel]: Are you kidding me? The last two adjudications we had all he did was write things down and he has an absolute right to communicate with— THE COURT: Well, then he can put the pad in his lap. [Defense Counsel]: Your Honor, you’re restricting his right to effectively assist his own counsel.

THE COURT: Well, I appreciate your argument. I do not agree with your argument. I’m going to try to put him in a situation where he can participate fully. Now, actually, I don’t think that people are going to be able to see all the way over there to his table.

If he wants to write on the table with a pad and pen, that’s fine. If he wants to write down in his lap, keep the pad and pen down in his lap, that’s fine, too. You two may decide that. ⁴⁶² I’m happy to lend you something to put over his handcuffs physically so they won’t be obvious or he can just— [Defense Counsel]: Your Honor, I’m not— THE COURT: —keep them in his lap. [Defense Counsel]: —conceding anything. He shouldn’t have handcuffs on his hands— THE COURT: Okay. [Defense Counsel]: —during trial.

THE COURT: Okay. Thank you, [Defense Counsel]. [Defense Counsel]: So when the— THE COURT: He should have handcuffs on. If— [Defense Counsel]: —witness sees him -with handcuffs on— THE COURT: —the Court makes a decision that he should wear handcuffs, he should wear handcuffs and I have already— [Defense Counsel]: But there’s— THE COURT: —spoken to— [Defense Counsel]: —no danger, Your Honor. There’s no risk of violence, Your Honor.

THE COURT: [Defense Counsel], I am responsible. Now, this is my training. I am responsible for the welfare of everybody who comes into my courtroom. I speak to the officers about security and I respect what they tell me because I am the one who will answer if someone gets hurt in here, including [D.].

So that’s what — that’s the perspective that I’m coming from, just so you understand. Now— [Defense Counsel]: And the first allegation that’s been raised (indiscernible)— THE COURT: Okay. That’s enough. Don’t answer me back another time. [Defense Counsel]: —dangerous, Your Honor.

THE COURT: Do not answer me back another time because there’s a point in time where you need to stop ⁴⁶³ and say thank you Your Honor and have a seat. Call your case. Appellant suggests that the presumption against shackling that is recognized in adult criminal courts should likewise be applied in juvenile proceedings. We agree and explain.

The U.S. Supreme Court has held that, in criminal proceedings against adult defendants, the Due Process Clause “prohibit[s] the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.” Deck v. Missouri, 544 U.S. 622, 629 , 125 S.Ct. 2007 , 161 L.Ed.2d 953 (2005). The prohibition applies to both the guilt and penalty phases of trial, id. at 633 , 125 S.Ct. 2007 , and is based on “three fundamental legal principles”: (1) the presumption of innocence; (2) the right to consult with counsel; and (3) the “courtroom’s formal dignity, which includes the respectful treatment of defendants....” Id. at 630-31 , 125 S.Ct. 2007 . Maryland has adopted the law enunciated in Deck: “The prejudice posed by security measures, and whether a compelling state interest outweighs that prejudice, must be measured on a case by case basis.” Lovell v. State, 347 Md. 623, 640 , 702 A.2d 261 (1997) (quoting Hunt v. State, 321 Md. 387, 410 , 583 A.2d 218 (1990)). Nonetheless, there are practical limits to this constitutional right.

Where a defendant is “disruptive, contumacious, stubbornly defiant” in a manner that interferes with the dignity, order, and decorum of a courtroom, the trial court has the discretion to order “constitutionally permissible” accommodations made, after warning the defendant of those potential consequences, up to and including expelling the defendant from the courtroom. Illinois v. Allen, 397 U.S. 337, 343-44 , 90 S.Ct. 1057 , 25 L.Ed.2d 353 (1970) (offering shackling, citation for contempt, and outright removal from the courtroom as among acceptable means of maintaining order during criminal proceedings). The right does not expire upon the court’s use of such consequences; once lost, it “can, of course, be reclaimed as soon as the defendant is willing to conduct ⁴⁶⁴ himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.” Id. at 343 , 90 S.Ct. 1057 . These measures are to be tailored to the specifics of each case, though, and are not meant for use in a blanket application to all defendants.

Id. Shackling and other such accommodations are only appropriate when there is a compelling state interest. Wagner v. State, 213 Md.App. 419, 477 , 74 A.3d 765 (2013). Such essential state interests that may justify the physical restraint of a defendant include preventing the defendant’s escape, protecting those in the courtroom, and maintaining order in the courtroom.

Hunt v. State, 321 Md. at 410 , 583 A.2d 218 . But, “[u]nless one or more of these factors outweigh any prejudice to the defendant, physical restraint is inappropriate.” Id. A particularized finding of such must be made on the record. See id.

In Holbrook v. Flynn, 475 U.S. 560 , 106 S.Ct. 1340 , 89 L.Ed.2d 525 (1986), the Supreme Court limited the scope of the right of adults to appear without overtly suggestive security measures to the effects of its possible violation. Id. at 567 , 106 S.Ct. 1340 (“This does not mean, however, that every practice tending to single out the accused from everyone else in the courtroom must be struck down.”). Judicial review of such a complaint is limited to determining whether “what [jurors] saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.” Id. at 572 , 106 S.Ct. 1340 . The constitutional rights afforded adult defendants are not automatically applied to juveniles, because the juvenile system is not in the nature of criminal proceedings.

Rather, it is a system designed with the goal of treatment and rehabilitation of children, rather than punishment. Md.Code Ann., Cts. & Jud. Proc. § 3-8A-02(a)(l); see also In re Keith W., 310 Md. 99, 106 , 527 A.2d 35 (1987). ⁴⁶⁵ The distinctions between the juvenile and criminal systems have engendered considerable discussion. “Juvenile proceedings are of a special species that has been designed by the General Assembly in response to a particular need and to meet a peculiar problem.” In re Appeal Misc. No. 32, 29 Md.App. 701, 704 , 351 A.2d 164 (1976). “[A] distinction exists between delinquency proceedings involving juvenile offenders and criminal proceedings involving adults in the criminal justice arena, even though the conduct underlying a delinquent act and a crime may be the same.” Lopez-Sanchez v. State, 155 Md.App. 580, 598 , 843 A.2d 915 (2004). “The dispositions of the juvenile court are not to be considered as punishment for a crime nor are adjudications of delinquency ‘convictions’, as that word is generally applied with respect to criminal proceedings.” Appeal Misc.

No. 32, 29 Md.App. at 704 , 351 A.2d 164 . Juvenile proceedings aspire to “the idealistic prospect of an intimate, informal protective proceeding,” McKeiver v. Pennsylvania, 403 U.S. 528, 545 , 91 S.Ct. 1976 , 29 L.Ed.2d 647 (1971), and “retain their special and informal nature,” In re Victor B., 336 Md. 85, 92 , 646 A.2d 1012 (1994) (quotation marks omitted). The purpose of juvenile delinquency proceedings is not primarily to punish the child; rather, “in disposition, the court will fashion a plan of supervision, treatment, and rehabilitation appropriate to the juvenile and serving the rehabilitative goals of the [Juvenile Causes] Act.” Lopez-Sanchez, 155 Md.App. at 598 , 843 A.2d 915 ; see also Cts. & Jud. Proc. § 3-8A-19(d)(1)-(2).

Given the special characteristics of the juvenile system, the procedural rights accorded to juveniles have always deviated substantially from those guaranteed to adult defendants— differences that have been insisted upon in order to meet the treatment goals of the juvenile system. See In re Gault, 387 U.S. 1, 14 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967). To combat the dangers of an entirely civil system, though, where a child theoretically cannot be deprived of his constitutional rights because he has none, the Supreme Court has held that children in the juvenile system are entitled to due process. Id. at 30-31 , 87 S.Ct. 1428 . ⁴⁶⁶ However, the Court has refrained from “taking the easy way with a flat holding that all rights constitutionally assured for the adult accused are to be imposed upon the state juvenile proceeding.” McKeiver v. Pennsylvania, 403 U.S. at 545 , 91 S.Ct. 1976 . 3 There is a careful consideration required of each right prior to extending it to juveniles, which arises from a deep respect for the juvenile system’s purpose.

For instance, the Supreme Court has ruled that coerced confessions may not be used against juveniles, Haley v. Ohio, 332 U.S. 596, 601 , 68 S.Ct. 302 , 92 L.Ed. 224 (1948), but it has also been held “that the juvenile is not entitled to bail, to indictment by grand jury, to a public trial or to a trial by jury,” Gault, 387 U.S. at 14 , 87 S.Ct. 1428 , as those rights would skew the focus from treatment of the child to something reflective of the criminal system. We have noted several other rights that Maryland courts have reviewed and found applicable to juveniles, including the right to a speedy trial, double jeopardy protections, and the right to counsel. See Lopez-Sanchez, 155 Md.App. at 599 , 843 A.2d 915 (surveying Maryland case law as it pertains to rights of accused juvenile offenders). The analysis of whether a particular procedural right is guaranteed to juveniles under the Due Process Clause centers on whether granting that right would help achieve or serve to hinder the goals of the juvenile system.

We see no reason why extending to children the right guaranteed adult criminal defendants to appear in court free of shackles, absent a particularized finding of need, would impede the objectives of the juvenile system. Indeed, a presumption against shackling would more closely serve those objectives, while indiscriminate shackling threatens them. The Court of Appeals summarized: “the overriding goal of Maryland’s juvenile statutory scheme is to rehabilitate and treat delinquent juveniles so that they become useful and ⁴⁶⁷ productive members of society.” Keith W., 310 Md. at 106 , 527 A.2d 35 . The General Assembly included the creation of competency, character development, protection and treatment of the child, and wholesome mental and physical development among the purposes of the Juvenile Causes Act.

Cts. & Jud. Proc. § 3-8A-02(a). These are less likely to be achieved in parallel to the risks of psychological harm, of an exacerbated sense of shame, and of distrust in the court system that may arise from the unnecessary shackling of