In Re Matthew S.

GRAEFF, J. On April 16, 2009, the Circuit Court for Montgomery County, sitting as a juvenile court, found Matthew S., appellant, “involved” in the distribution of marijuana. On June 30, 2009, following a final disposition hearing, the court placed appellant on probation. On appeal, appellant presents three questions for our review, which we have rephrased slightly as follows: 1. Did the juvenile court err in denying appellant’s motion to suppress Officer Feldman’s pre-trial identification after he viewed appellant’s yearbook photograph? 2.

When the State’s principal witness was granted immunity on the day before the adjudicatory hearing, did the juvenile court abuse its discretion in denying appellant’s motion to exclude the witness’ testimony or postpone the case? 3. Did the juvenile court err in admitting hearsay evidence? For the reasons set forth below, we shall affirm the judgment of the circuit court. ⁴⁴² FACTUAL AND PROCEDURAL BACKGROUND On September 30, 2008, Officer Scott Feldman, a member of a Montgomery County Police Department “special assignment team,” observed appellant engage in what appeared to be a drug transaction. 1 On November 24, 2008, appellant was arrested. On April 16, 2009, the Circuit Court for Montgomery County, sitting as a juvenile court, held an adjudicatory hearing.

Kaan D., who had been granted use and transactional immunity, testified that, on September 30, 2008, he was driving with Carlos H., Mike M., and Mike R. in Mike M.’s blue Ford pickup truck. 2 Kaan telephoned appellant to arrange a purchase of marijuana. After driving to the Gaithersburg apartment complex where appellant lived, Kaan exited the vehicle, approached appellant, and gave him twenty dollars in exchange for a plastic bag containing marijuana. When Kaan returned to the truck, he gave the marijuana to Carlos to roll into “blunts.” The group then left the apartment complex and drove to the parking lot where Kaan had parked his red Ford Expedition. 3 Kaan and Mike R. got into Kaan’s car and drove away. They subsequently were pulled over by the Montgomery County Police, who questioned Kaan about the purchase of marijuana from appellant.

Kaan testified that he advised the police that the person who sold him marijuana was “Matt S.” ⁴⁴³ Three police members of the special assignment team, who were conducting surveillance in the Kentlands area on September 30, 2008, testified to their observations. Officer Geoffrey Rand testified that he was parked in the Kentlands shopping center looking for drug transactions. At approximately 3:20 p.m., he observed Mike M.’s blue Ford pickup truck pull into the shopping center parking lot. Two males were in the truck.

A few minutes later, a black Honda pulled into the parking lot and parked near the truck. The driver of the black Honda got into Mike M.’s truck, and the three occupants left the parking lot in the truck. Officer Rand followed the truck and observed the occupants pick up a fourth individual before driving to appellant’s apartment complex, where Officer Feldman picked up the surveillance. Officer Feldman testified that he received information from Officer Rand regarding some suspicious activity near the Kentlands shopping center.

Officer Feldman, Officer Rand, and Sergeant Edward Pallas subsequently followed Mike M.’s truck to appellant’s apartment complex. Officer Feldman parked his vehicle near Mike M.’s truck, “on the other side of the island from where [Mike M.] had parked.” At approximately 4:00 p.m., he witnessed a “hand-to-hand transaction” between appellant and Kaan through “high powered binoculars.” He gave an account of the encounter between appellant and Kaan that was consistent with Kaan’s testimony. Officer Feldman described his view of the drug transaction as “clear and unobstructed” and “outstanding.” He explained that the weather was “bright and sunny,” and he was able to obtain “a very good closeup view of [the seller’s] face and his facial features to where I was very confident that I could identify him later on.” Officer Feldman identified appellant in court as the individual he saw engage in a hand-to-hand transaction with Kaan. When Mike M. left the apartment complex in his truck, Officer Rand followed him.

He observed Mike M. exceed the speed limit, and he called for backup, in anticipation of making a traffic stop. Before he could stop the truck, however, it ⁴⁴⁴ came to a stop and parked behind a red Ford Expedition. Two of the occupants of Mike M.’s truck exited the truck, got into the Expedition, and drove away. Officer Rand continued to observe the truck as he waited for a uniformed police officer to arrive to assist.

He observed Carlos get out of the passenger door and reach “down underneath” a storm drain adjacent to the passenger side of the truck. After a uniformed officer arrived, Officer Rand approached the vehicle, looked into the drain, and ultimately recovered “a plastic baggie with a green leafy substance inside.” The substance was subsequently tested and determined to be 0.74 grams of marijuana. Carlos was placed under arrest. Officer Rand spoke with Mike M., who said that “he had met with some friends and they decided to go buy a baggie of marijuana” from someone, and he met them in the parking lot of the Quince Orchard Boulevard apartments.

Mike M. stated that Kaan purchased the marijuana and then handed it to Carlos once inside his vehicle. While Officer Rand stopped Mike M.’s truck, a third member of the special assignment team, Sergeant Pallas, stopped Kaan’s Expedition. 4 A search of that vehicle yielded a “Philly Blunt cigar in the center console” and a “couple little flakes of marijuana from the floorboard area.” Officer Feldman arrived during Sergeant Pallas’ stop of Kaan, and Officer Feldman advised Kaan of his rights. Kaan stated that he had purchased a bag of marijuana from a person he knew as Matt S. He stated that they both attended Quince Orchard High School, and he provided Officer Feld-man with the phone number he used to call Matt S. Kaan stated that he gave the bag of marijuana to one of the individuals in the truck. At some point after the traffic stop, Officer Feldman was asked to assist in further identifying Matt S. He obtained a 2008 Quince Orchard High School yearbook, looked at a ⁴⁴⁵ photograph of “Matt S.” in the yearbook, and identified Matt S. “possibly as being the same individual” that he saw engage in a hand-to-hand transaction with Kaan on September 30, 2008.

At the conclusion of the adjudicatory hearing, the juvenile court found appellant “involved” in the distribution of marijuana. On June 30, 2009, following a final disposition hearing, the court found appellant to be a delinquent child and in need of services, and it placed appellant on probation. This timely appeal followed. DISCUSSION I. Motion to Suppress Extrajudicial Yearbook Identification Appellant’s first contention involves Officer Feldman’s testimony that, during the course of the police investigation, he was asked to “assist in identifying Matthew S.” Officer Feld-man explained that, after Kaan told him that the seller was a student at Quince Orchard High School named Matt S., he went to the school: We didn’t have the 2008 yearbook at our station.

We do have a number of yearbooks there, but I did have to go to Quince Orchard High School. [A school police officer] gave me the 2008 yearbook and I looked through Matt S., saw his picture, and identified him possibly as being the same individual that I saw on ... the 30th, make the transaction with [Kaan]. Counsel for appellant moved to suppress this out-of-court identification, and the following occurred: [COUNSEL FOR APPELLANT]: Your Honor, I would move to suppress that identification as unduly suggestive based on his explanation and knowledge of Mr. S.’s name and then looking at the picture of Mr. S. It’s certainly not a fair way of determining an identification which typically you ⁴⁴⁶ would have perhaps an array of pictures or an array of people. Or the officer went through the yearbook— THE COURT: Wait, you’re questioning.... THE COURT: The police officer’s identification of [Matt S.]? [COUNSEL FOR APPELLANT]: Yes, from a yearbook, as unduly suggestive. [PROSECUTOR]: Your Honor, it’s not unduly suggestive as the police officer had an independent opportunity to observe the individual on September 30th, that he gathered information, believed it was the name of the person, and then when he went to double-check to make sure, it was in fact the person he saw.

He just was confirming what he already believed to be the truth. [COUNSEL FOR APPELLANT]: And that’s my point as well.' THE COURT: The objection is overruled. Appellant asserts that the court erred in denying the motion to suppress Officer Feldman’s testimony regarding his pretrial identification of appellant based on his yearbook photograph. He argues that, where Officer Feldman was given the name “Matt S.” by Kaan, and he then looked in the yearbook until he found a photograph with that name, the identification procedure was impermissibly suggestive. The State disagrees.

It asserts that the identification was not suggestive, but rather, it “was an instance of productive investigative footwork,” which “merely confirmed the officer’s otherwise highly reliable personal observation of [appellant] during the delinquent act.” The State further argues that, even if the identification procedure was suggestive, it was nonetheless reliable, and therefore, it was properly admitted. Finally, the State argues that, even if the pretrial identification was improperly admitted, any error was harmless beyond a reasonable doubt because Officer Feldman made an in-court identification of appellant as the seller, without objection. ⁴⁴⁷ The scope of appellate review of a trial court’s denial of a motion to suppress an out-of-court identification is well-settled. This Court has explained: We view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion, and will uphold the motions court’s findings unless they are clearly erroneous. We must make an independent constitutional evaluation, however, by reviewing the relevant law and applying it to the unique facts and circumstances of the case.

Gatewood v. State, 158 Md.App. 458, 475-76 , 857 A.2d 590 (2004) (quotations and citations omitted), affd on other grounds, 388 Md. 526 , 880 A.2d 322 (2005). Identification of a suspect from a photograph has been “used widely in the United States, and when conducted properly, has been held to be admissible in evidence.” Jones v. State, 395 Md. 97, 107 , 909 A.2d 650 (2006). Accord Simmons v. United States, 390 U.S. 377, 384 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968). Principles of due process, however, protect those accused of criminal acts “ ‘against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.’ ” James v. State, 191 Md.App. 233, 251-52 , 991 A.2d 122 (quoting Webster v. State, 299 Md. 581, 599-600 , 474 A.2d 1305 (1984)), cert. denied, 415 Md. 338 , 1 A.3d 468 (2010). 5 Courts engage in a two-step inquiry in evaluating due process challenges to identification procedures alleged to be unduly suggestive.

Id. at 252, 991 A.2d 122 . In the first step, “ ‘[t]he accused, in his challenge to such evidence, bears the initial burden of showing that the procedure employed to obtain the identification was unduly suggestive.’ ” Id. (quoting Gatewood, 158 Md.App. at 475 , 857 A.2d 590 ). “[I]f the ⁴⁴⁸ identification procedure is not unduly suggestive, then our inquiry is at an end.” Id. If the accused meets his burden of showing an impermissi-bly suggestive identification procedure, however, we proceed to the second step.

At this stage, the court must determine “whether, based on the totality of the circumstances, the identification was reliable despite the suggestiveness of the confrontation procedure.” Id. The State has the burden to show, “by clear and convincing evidence, that the independent reliability in the identification ‘outweighs the corrupting effect of the suggestive procedure.’ ” Gatewood, 158 Md.App. at 475 , 857 A.2d 590 (quoting Thomas v. State, 139 Md.App. 188, 208 , 775 A.2d 406 (2001)). A. Impermissibly Suggestive As indicated, the first issue we must address is whether the procedure used to secure the identification was impermissibly suggestive. Impermissible suggestiveness exists where the police, in effect, repeatedly say to the witness: “ ‘This is the man.’ ” McDuffie v. State, 115 Md.App. 359, 366-67 , 693 A.2d 360 (1997) (quoting Jones v. State, 310 Md. 569, 577 , 530 A.2d 743 (1987)). “To do something impermissibly suggestive is ... to feed the witness clues as to which identification to make.

THE SIN IS TO CONTAMINATE THE TEST BY SLIPPING THE ANSWER TO THE TES-TEE. All other improprieties are beside the point.” Conyers v. State, 115 Md.App. 114, 121 , 691 A.2d 802 , cert. denied, 346 Md. 371 , 697 A.2d 111 (1997). In this case, appellant contends that Officer Feldman’s identification of him from a Quince Orchard High School yearbook, which contained a photo of [appellant] with his name, was suggestive when Officer Feldman previously had been advised by Kaan that “Matt S.,” who attended Quince Orchard High School, was the seller of the drugs. He argues that this identification procedure was “a blatant example of slipping the testee the answer.” ⁴⁴⁹ There is support for the argument that a pre-trial identification procedure, which involves showing a witness a yearbook photograph including the defendant’s name as a caption, is impermissibly suggestive if the witness previously has been advised of the suspect’s name.

For example, in State v. Smith, 134 N.C.App. 123 , 516 S.E.2d 902, 904 (1999), an undercover officer who purchased cocaine was advised of the appellant’s name by a confidential informant in the course of the investigation. The officer subsequently was shown a page from appellant’s high school yearbook, with his name printed below his photo. Id. at 906. The court cited these facts in support of its holding that the identification procedure was unnecessarily suggestive.

Id. 6 Other courts similarly have noted the potential significance of a witness knowing a suspect’s name prior to a yearbook identification procedure. In at least two cases, in determining that an identification procedure using a high school yearbook was not unnecessarily suggestive, courts have specifically noted that the witness did not know the defendant’s name before selecting his photograph. See Little v. State, 475 N.E.2d 677, 681 (Ind.1985) (identification not suggestive where victim had not heard the defendant’s name before selecting his photograph as the man who raped her); State v. Lucky, 453 So.2d 1234, 1238 (La.Ct.App.) (use of a yearbook is an unorthodox identification method, but it was not unduly suggestive where victim did not know the defendant’s name before she identified him), cert. denied, 459 So.2d 529 (La.1984). Thus, a yearbook identification procedure, where the victim or witness has been advised of a suspect’s name and the yearbook contains that name as a caption to the picture, may be found to be suggestive in the ordinary case.

In this case, however, the identification was made, not by a lay witness, but by a trained police officer who was conducting ⁴⁵⁰ his own investigation in the case. Other jurisdictions have recognized that identification procedures that generally could be found to be suggestive may not be impermissibly suggestive when made in the context of a police officer who is both the investigator and the witness. In State v. Manna, 130 N.H. 306 , 539 A.2d 284, 287-88 (1988), the Supreme Court of New Hampshire held that an arresting officer’s out-of-court identification of a defendant after viewing a single photograph of the defendant was not unduly suggestive. In that case, the officer issued a summons for operating without a license to the driver of a vehicle, who identified himself as Michael Manna.

Id. at 285. A month later, the officer received a telephone call from a man who identified himself as Michael Manna, and who advised that he believed that his brother, Richard Manna, was the person to whom the officer had given the summons. Id. The officer obtained a photograph of Richard from police files, and he recognized Richard as the individual to whom he had issued the summons.

Id. Richard was then charged with, among other things, giving an officer a false name and address. Id. at 285-86. At his trial, the court admitted, over objection, the officer’s out-of-court and in-court identifications of Richard.

Id. at 286. On appeal, the Supreme Court of New Hampshire upheld the trial court’s admission of both identifications. Although acknowledging that the use of a single photograph is suggestive when the police are working with “a victim or potential untrained lay witness,” the court held that the use of such an identification procedure is not suggestive when the officer is both the investigator and the witness to the offense. Id. at 287.

It explained: Given the circumstances, it is unreasonable to hold that [the officer] should have requested that another police officer prepare a photo array to see if [he] could pick out Richard Manna so as to increase the reliability of his photo identification. [The officer], having been given information about Richard’s past actions and being the arresting officer, acted as a reasonable officer would under the circumstances and ⁴⁵¹ simply obtained a photo of Richard which was at hand in order to verify Michael’s story and complete his investigation. Id. The court further noted that the purpose of excluding suggestive identifications made by non-police witnesses is to deter police misconduct, explaining that such misconduct is not at issue where the police make an identification as part of their investigation. Id.

Indeed, the court reasoned, the officer “could not be found through the photo identification process to have impermissibly suggested to himself the person whom he arrested.” Id. Similarly, in Miles v. State, 764 N.E.2d 237, 241 (Ind.Ct.App.2002), the Court of Appeals of Indiana applied this same reasoning. The court stated: After his second “hand-to-hand” transaction with Miles on July 15, 1999, Detective Gieselman went to the Evansville Police Department records room and requested to see a photograph of Raphael Miles. Gieselman testified at the suppression hearing that he requested the photograph to verity Miles’ identity and to obtain his social security number and date of birth.

Given these circumstances, Giesel-man acted as a reasonable police officer would to complete his investigation. We hold that Detective Gieselman did not impermissibly suggest to himself that Miles was the individual with whom Gieselman had made the drug transactions. Id. at 240-41 (footnote omitted). This same analysis applies here. 7 As in the above cases, Officer Feldman did not impermissibly suggest to him ⁴⁵² self that appellant was the one he observed sell marijuana.

Rather, as the State asserts, Officer Feldman’s yearbook identification was “an instance of productive investigative footwork.” It merely sought to confirm the information he had gathered through his investigation. Accordingly, there was no impermissible suggestiveness in the extrajudicial identification from the yearbook. B. Reliability In any event, even if the procedure used to make the yearbook identification was unduly suggestive, the identification is admissible if, under “the totality of the circumstances,” the identification was nonetheless reliable. Turner v. State, 184 Md.App. 175, 181 , 964 A.2d 695 (2009) (quoting Neil v. Biggers, 409 U.S. 188, 199 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972)). “[Reliability of the evidence is the hnchpin in determining admissibility.” Id. at 184, 964 A.2d 695 .

In evaluating the reliability of an identification, courts consider the following: (i) the opportunity of the witness to view the criminal at the time of the crime; (ii) the witness’ degree of attention; (iii) the accuracy of the witness’ prior description of the criminal; (iv) the level of certainty demonstrated by the witness at the confrontation; [and] (v) the length of time between the crime and the confrontation. ⁴⁵³ Webster v. State, 299 Md. at 607 , 474 A.2d 1305 . This Court has emphasized: “It is only where there is ‘a very substantial likelihood of irreparable misidentification,’ to wit, a situation where the identification could not be found to be reliable, that exclusion would be warranted. Short of that point, the ‘evidence is for the jury to weigh.’ ” Turner, 184 Md.App. at 184 , 964 A.2d 695 (quoting Manson v. Brathwaite, 432 U.S. 98, 116 , 97 S.Ct. 2243 , 53 L.Ed.2d 140 (1977)). Here, analysis of the totality of the circumstances leads to the conclusion that Officer Feldman’s identification was reliable.

With respect to his opportunity to view appellant, Officer Feldman testified that he carefully observed appellant under “outstanding” conditions. The weather was “bright and sunny,” Officer Feldman was using high powered binoculars, and he was able to see appellant’s face and hair very clearly. With respect to the degree of attention, Officer Feldman is a trained police officer, who was conducting surveillance, and seemingly understood that he would be called upon to identify appellant. Accordingly, it may reasonably be assumed that his degree of attention was very high.

See Manson, 432 U.S. at 115 , 97 S.Ct. 2243 (a police officer “could be expected to pay scrupulous attention to detail” while observing a suspect). Accord Thomas, 139 Md.App. at 210-11 , 775 A.2d 406 (in finding that identification by undercover detective was reliable, Court noted that the detective “was not a lay witness describing a criminal to the police; he was a police officer making a mental note of what he had seen during the commission of a crime”); State v. Findlay, 171 Vt. 594 , 765 A.2d 483, 488 (2000) (assuming that trained police officer, who knew that he would be identifying the suspect, paid a high degree of attention). With respect to the third factor, the accuracy of the witness’ prior description, Officer Feldman testified that, while observing appellant, he radioed that appellant was “a black male, approximately 5'6" thin build, with twists in his hair, dark skinned.” Appellant has not challenged, at trial or on appeal, the accuracy of this description. Because the record is silent ⁴⁵⁴ regarding the accuracy of the prior description, however, we will not weigh it either as establishing reliability or as tending to show unreliability.

We will treat it as a neutral factor. With respect to the fourth factor, the witness’ level of certainty at the confrontation, Officer Feldman testified that, after he looked at a photograph of “Matt S.” in the yearbook, he identified appellant “possibly as being the same individual that” he observed engage in a hand-to-hand transaction with Kaan. He was not asked any further questions about his level of certainty. He did explain, however, that at the time of his observation of appellant, due to the good conditions under which he observed appellant, he “was very confident that [he] could identify him later on.” Finally, with respect to the length of time between the event and the identification, the record does not indicate when Officer Feldman obtained the yearbook.

The evidence suggests, however, that it occurred between September 30, 2008, the date of the drug transaction, and November 24, 2008, the date appellant was arrested, a time span of less than two months. In any event, the identification had to occur within fewer than seven months because it had occurred at the time of the adjudication hearing on April 16, 2009. Given the strength of the other factors, the length of time between the drug transaction and the yearbook identification, does not weigh against a finding of reliability. See James, 191 Md.App. at 253-55 , 991 A.2d 122 (where 14 month period between event and identification, other factors supported finding of reliability).

Because the yearbook identification was rehable, exclusion was not warranted. There was no error in the admission of Officer Feldman’s out-of-court identification of appellant from his yearbook photograph.

II

Disclosure of Immunity Agreement Appellant’s second assignment of error stems from the State’s disclosure on the morning of trial that it had reached ⁴⁵⁵ an agreement with Kaan to give him “use and transactional immunity in this case for his ... truthful testimony.” He argues that, in light of the last minute disclosure of immunity, the trial court erred in denying his “motion to preclude the witness’s testimony and two postponement requests.” He asserts that an offer of immunity to a witness is exculpatory and subject to discovery under Brady, 8 and therefore, it was error to deny defense counsel’s motions. The State argues that the court properly exercised its discretion in denying appellant’s motion to exclude Kaan’s testimony “or otherwise continue the case, because the State promptly disclosed the matter and defense counsel proffered no need for additional investigation that could justify a continuance.” It notes that Brady violations can be found only when exculpatory information is suppressed by the State, not where there has been a late breaking development in a case and the information has been disclosed to defense counsel. The State argues that it acted promptly after the immunity agreement was reached, and counsel for appellant had sufficient time to make use of the disclosure of Kaan’s immunity agreement. It notes that the issue of immunity was “a focal point of [counsel’s] relatively short cross-examination,” and counsel has “never articulated, either at trial or on appeal, what more he needed to cross-examine [Kaan] more effectively.” A. Proceedings Below On the morning of trial, the State advised the court that, the previous day, it had reached an agreement with Kaan whereby Kaan was granted immunity in exchange for his testimony.

The colloquy that occurred in this regard was as follows: ⁴⁵⁶ [PROSECUTOR]: ... We have [a] witness here today [in this] ... distribution of marijuana case, and the witness is the buyer. The buyer was not charged by the police officers .... But ... the buyer would obviously have a Fifth Amendment privilege [against] self-incrimination....

The State’s agreement was for use and transactional immunity in this case for his ... truthful testimony. [COUNSEL FOR APPELLANT]: Your Honor, I would move to exclude this witness. I have only been provided with this documentation today. Yesterday in passing I was told that the witness would receive immunity---- So I would move to exclude this witness, one, based on lack of notice; and two, based on lack of information under Brady about what the agreement is.... [I]t sounds like there ... were