Jones v. State

RAKER, Judge. This case concerns a motion to suppress a photographic array displayed by the police to a witness in a criminal case and the proper procedure to be employed in the circuit court in conducting a motions hearing. The issue presented is whether the Circuit Court for Montgomery County erred in refusing to allow defense counsel at the motions hearing to call the detective who presented the photo array in order to ¹⁰¹ establish that the photo array procedure was unduly suggestive and should be suppressed. We shall hold that the court erred in not permitting defense counsel to call the witness.

Appellant raises also the sufficiency of the evidence with respect to the second degree burglary conviction. We shall hold that the evidence was insufficient to establish that a breaking occurred, a necessary element of the offense, and accordingly, we shall reverse. I. Appellant was indicted by the Grand Jury for Montgomery County in a five count indictment charging burglary in the first degree, theft, burglary in the second degree, burglary in the first degree, and burglary in the fourth degree. 1 All charges related to a series of thefts at the Academy of the Holy Cross in Kensington, Maryland. He proceeded to trial before a jury and was convicted of second degree burglary, Md.Code (2002, 2004 Cum.Supp.), § 6-203 of the Criminal Law Article. 2 The following facts were elicited at trial.

Several nuns employed at the Academy of the Holy Cross reported that money had been stolen from their rooms at the convent on different dates. Appellant was charged with several offenses related to these reports and proceeded to trial. One of the offenses for which appellant was charged related to events which occurred on June 30, 2004. On that date, two employees of the Academy of the Holy Cross, Marcia Fuoss and Erin Fristoe, saw appellant inside school premises.

Ms. ¹⁰² Fristoe initially witnessed appellant leaving Ms. Fuoss’ office. After Ms. Fuoss learned that appellant had been in her office, she confronted appellant in the hallway. She asked appellant if she could “help him, and who he was looking for.” Ms. Fuoss testified that appellant responded as follows: “He said someone came in a back door here and I said who are you looking for and he repeated again that someone came in a door back there, so I said I need to know who you’re looking for, so he headed toward the area where he was saying someone had entered the building and I said how did you come into the building and he indicated that he had come in the door at the back, one of the back doors at the theater lobby entrance. I asked him how he came in and I said that that door is locked and asked him who let him into the building because that door is locked and is not, it’s not a door where people can come in unless someone lets them in.

And he said that, and I’m not sure at this point if he was saying he was there to see the Hispanic man who was on the maintenance crew or if he said that the Hispanic man on the maintenance crew had let him in that door. And then he said, he said you know, he said the Hispanic man, he said the guy who speaks Spanish, he said you know I saw him here about a month ago. And so I explained to him that any guests needed to come in through the front door and be cheeked in at the reception booth.” Ms. Fuoss offered to escort appellant to the reception desk for him to register as a guest. Appellant refused and apparently left Holy Cross.

When Ms. Fuoss returned to her office, she discovered that either $11.00 or $13.00 was missing from her wallet. Ms. Fuoss contacted David Flores, head of maintenance at Holy Cross, and asked him whether he had seen anyone matching appellant’s description in the building. Mr. Flores stated that he had not. He subsequently walked around the hallways looking for such an individual, but never ¹⁰³ found anyone matching appellant’s description.

Mr. Flores further testified that he neither let anyone into the building, nor spoke to anyone about a job that day. Walter Glaude, head of security at Holy Cross, testified that whenever guests enter the school, they must check in at the receptionist station, sign in, and log in their car. After doing so, the receptionist issues an ID badge which must be visible while the guest remains in the school. Ms. Fristoe testified that appellant was not wearing a security badge on the day she saw appellant in Ms. Fuoss’ office.

Ms. Fuoss also said that appellant had not registered as a guest at Holy Cross on that date. During the investigation, Detective Sarit Scott showed Mr. Flores a photo array which included a photograph of appellant. In response to the array, Mr. Flores identified appellant as an individual that he had spoken to about a job at Holy Cross in April 2004. Prior to trial, appellant filed an “omnibus” motion 3 which included a motion to suppress the photo identification made by Mr. Flores.

The court held a pre-trial hearing on the motion to suppress. At the beginning of the hearing, defense counsel moved into evidence State’s Exhibit No. 1, six photographs of black males and State’s Exhibit No. 2, a document captioned “Photographic Array Information Sheet, Form MCP 619, Rev. 7/99.” 4 Both defense counsel ¹⁰⁴ and the State requested the opportunity to call Detective Scott as a witness, but the motions court denied the requests. The following exchange occurred during the hearing: “DEFENSE COUNSEL: Well, specifically if you note the second page of, page 110,[ 5 ] has Mr. Flores’s statement ‘oh, wait, that’s him.’ And this kind of causes two issues. First of all, ‘oh, wait, that’s him,’ implies that perhaps Mr. Flores had viewed that photographic array once before and more importantly Mr. Flores, the only prior identification Mr. Flores gave was in an interview that he offered to Detective Scott on July 7th, and in that interview Mr. Flores specifically said that two months earlier, Your Honor, he had seen somebody who appeared to be in their mid-30s, who was about five foot seven who he believed was the defendant, the suspect at issue.

During that time frame he claims, Mr. Flores said in the interview that he was walking and talking to the defendant, or to the person who he believes is the defendant, and so not only was this identification prior to the photo array made two months earlier, but he identified the person as being in their mid-30s. The defendant is in his mid to late 40s. He identified the defendant as being five-seven, the defendant’s five-nine. And moreover, he was in the middle of a conversation, he was walking and talking so there’s some question as to whether or not his earlier identification was even one where he would have had an opportunity to take note of the person that he’s now claiming subsequent to arrest to be the person he identified two months earlier.

And so for these reasons we call into question the validity and relevance, if you will, of that particular identification that was made on, I believe, July 20th. ¹⁰⁵ * * * THE COURT: The only thing that’s before me are these two sheets of paper with the comment, ‘oh, wait, this is the guy.’ I have a hard time seeing how that constitutes an improper identification procedure or an unduly suggestive. I mean the, I just, is there any further evidence that you wish me to consider, [Defense Counsel]? DEFENSE COUNSEL: Well, Your Honor, we believe that the photo array, there are reasons to question the set up of the photo array. If you look at the evidence in front of you, you’ll note that Number 3, there’s a cross through, if you turn to the first page, 109, you’ll note that there is a marked out Number 3.

So there’s some question as to how this photo array was conducted. There’s some question as to the procedure, and there’s also some question as to why there was a gap between the arrest, about a two week gap, between the arrest and the showing of the photo array. Moreover, it’s not clear how these individuals whose pictures you see were selected, and it’s also not clear why Mr. Flores ... [was] selected when, as [the assistant state’s attorney] said earlier, there were a host of, alleged host of witnesses who claim that they saw defendant on and around the property on the dates in question. And so the questions are as follows: What is the validity of the photo array, why is number 3 crossed out?

Why was there a two week gap, and why are there only two witnesses who saw the photo array and whose evidence has been entered in this case? And so we would like to question further, I believe it’s Detective Scott who was responsible for the photo array. THE COURT: If this is the only evidence that’s being offered in support of the motion to suppress it, the fact that there may be some questions or, that isn’t enough for me to make a determination that there was an unduly suggestive procedure. ¹⁰⁶ THE COURT: Well, the issue on a motion to suppress the identification as to whether or not the viewing procedure, which was conducted was illegal. The burden is on the defendant to establish, to raise something about the procedure that could be viewed as illegal.

It’s a prima facie burden. There’s some question raised with respect to age, height of an individual identified by Mr. Flores. But that doesn’t, there’s nothing before me that would allow me to find on a prima facie basis that the viewing procedure was illegally conducted. That would then shift the burden to the State.

So I’m going to deny the motion to suppress the identification.” No witnesses testified at the motions hearing, and as indicated above, the court denied the motion to suppress. The jury returned a guilty verdict and appellant was sentenced to a term of incarceration. Appellant noted a timely appeal to the Court of Special Appeals. We granted certiorari on our own initiative to address the identification issue and the sufficiency of the evidence.

Jones v. State, 390 Md. 500 , 889 A.2d 418 (2006).

II

Appellant argues that the motions court erred by failing to permit defense counsel to call as a witness the detective who conducted the photo array. He maintains that without the ability to call that witness, he was precluded from putting on evidence to establish that the photo array procedure was conducted in an unduly suggestive manner. He relies upon the Compulsory Process Clause of the Sixth Amendment to the United States Constitution and the corresponding clause in Article 21 of the Maryland Declaration of Rights, claiming that these provisions entitled him to call witnesses at a motions hearing made pursuant to Maryland Rule 4-252, Mandatory Motions in Circuit Court. In addition to his constitutional arguments, appellant makes several other arguments based on the Maryland Rules of ¹⁰⁷ Criminal Procedure.

First, he argues that Rule 4-265 provides a defendant the right to subpoena witnesses at motions hearings. Next, appellant asserts that under Rule 4-252, he was entitled to a meaningful hearing on his motion to suppress, and not merely one to present arguments on the averments. Appellant argues that because there was a factual dispute central to the resolution of the motion, he was entitled to a hearing which addressed the evidentiary issue raised in his motion. He asserts that the right to a hearing is not conditioned, as the State argues, upon his making specific allegations or a preliminary showing of suggestivity.

It is the State’s position that the motions court exercised its discretion properly in refusing to permit the defense to call Detective Scott because appellant failed to meet his initial burden of establishing by prima facie evidence that the photo identification procedure was impermissibly suggestive. He failed, the State continues, by offering no argument in support of his allegation of suggestiveness and by failing to establish the relevance of the detective’s testimony. The State argues that in order to call witnesses at a motions hearing to suppress a photo identification, a defendant must make a specific factual averment which would show impermissible suggestiveness. 6 III. The use of photographic displays by the police to identify suspects is used widely in the United States, and when conducted properly, has been held to be admissible in evidence.

See Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968). The Supreme Court has noted that “[djespite the hazards of initial identification by ¹⁰⁸ photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs.” Id. at 384 , 390 U.S. 377 , 88 S.Ct. at 971 , 19 L.Ed.2d 1247 . Nonetheless, the defendant is protected by due process “against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.” Moore v. Illinois, 434 U.S. 220, 227 , 98 S.Ct. 458, 464 , 54 L.Ed.2d 424 (1977), quoted in Webster v. State, 299 Md. 581, 599-600 , 474 A.2d 1305, 1314-15 (1984). In Simmons , the Supreme Court recognized that improper use of photographs by police may sometimes cause witnesses to make misidentifications.

Simmons v. United States, 390 U.S. at 383-84 , 88 S.Ct. at 971 , 19 L.Ed.2d 1247 . The Court noted: “A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.

The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime. Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.” ¹⁰⁹ Id. The Simmons Court declined to prohibit categorically the use of photographs, either as a matter of constitutional law or in the exercise of its supervisory power, holding as follows: “[E]ach case must be considered on its own facts, and ... convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Id. at 384 , 390 U.S. 377 , 88 S.Ct. at 971 , 19 L.Ed.2d 1247 . In Jones v. State, 310 Md. 569 , 530 A.2d 743 (1987) (overruled on different grounds), we addressed an issue related to a motion to suppress an extra-judicial identification and the due process protections against admissibility of evidence derived from out-of-court, suggestive identification procedures. 7 Relying on Webster v. State, 299 Md. 581 , 474 A.2d 1305 , we pointed out that the inquiry for due process challenges to extra-judicial identifications is a two step inquiry.

Jones, 310 Md. at 577 , 530 A.2d at 747 . The first is whether the identification procedure was impermissibly suggestive. Id. If the answer is “no,” the inquiry ends and both the extrajudicial identification and the in-court identification are admissible at trial.

Id. If, on the other hand, the procedure was impermissibly suggestive, the second step is triggered, and the court must determine whether, under the totality of the circumstances, the identification was reliable. 8 Id. We pointed ¹¹⁰ out in Jones that in the context of a pre-trial photo identification, unless and until the defendant establishes that the identification procedure was in some way suggestive, the reliability of a witness’ identification is not relevant for due process purposes. Id. at 578, 530 A.2d at 747 .

In Smith and Samuels v. State, 6 Md.App. 59 , 250 A.2d 285 (1969), Judge Orth discussed the relative burdens on each party to a motion to suppress identification evidence. He ¹¹¹ pointed out that the initial burden of going forward, and of persuasion, rests upon the defendant. He wrote as follows: “At the hearing on the issue raised by the challenge the burden is on the defendant to show, prima facie, that the pre-trial confrontation or viewing of photographs was illegal, and if he so shows, the burden shifts to the State to show by clear and convincing evidence that it was legal. If the court finds that the State has met its burden and that the pretrial confrontation or viewing was legal, an in-court identification by the witness present at the pre-trial confrontation or viewing is admissible as substantive evidence.

And if such witness made a pre-trial identification, his testimony to that effect is so admissible. And, the testimony of a third party present when the pre-trial identification was made is so admissible provided the out-of-court declarant is at the trial and subject to cross-examination; whether or not he makes an in-court identification. If the court finds that the pre-trial confrontation or viewing was illegal, any and all evidence of the pre-trial identification is per se inadmissible. The burden is then on the State to establish that the in-court identification offered had a source independent of the illegal pre-trial confrontation or viewing.

It must do this ‘by clear and convincing evidence’ that the in-court identification is based ‘upon observations of the suspect’ by the witness other than the confrontation or photographic identifications.” Id. at 68 , 250 A.2d at 291 .

IV

We turn now to the motions court’s refusal to allow appellant to call Detective Scott as a witness at the suppression hearing. The State points out that this Court has never addressed directly the specific issue of “what a defendant needs to allege in order to present evidence, and more specifically in this case, call a witness, in order to establish if an identification procedure is impermissibly suggestive.” The State urges that we require that before a trial court conducts an evidentiary hearing on the defendant’s motion to suppress ¹¹² an extra-judicial identification, the defendant offer grounds or make a factual argument in support of an allegation of impermissible suggestiveness, and that an unsupported allegation that the procedure was impermissibly suggestive is insufficient. At the outset, we reject appellant’s argument that either the United States or the Maryland Constitution require the trial court to hold an evidentiary hearing whereby he could call witnesses in order to prevail upon his motion. The story does not end here, however.

Although neither the United States Constitution nor the Maryland Declaration of Rights requires a per se rule compelling a judicial determination outside the presence of the jury of the admissibility of identification evidence, Watkins v. Sowders, 449 U.S. 341 , 101 S.Ct. 654 , 66 L.Ed.2d 549 (1981), 9 many courts have recognized that such a procedure is advisable. See id. at 349 , 449 U.S. 341 , 101 S.Ct. at 659 , 66 L.Ed.2d 549 (stating that a “judicial determination outside the presence of the jury of the admissibility of identification evidence may often be advisable”); People v. Mendoza, 82 N.Y.2d 415 , 604 N.Y.S.2d 922 , 624 N.E.2d 1017, 1021 (1993) (“defendants should have fair pretrial procedures to address alleged constitutional violations”); In re F.G., 576 A.2d 724, 725 (D.C.1990) (en banc) (“every defendant is entitled to an evidentiary hearing on a motion to suppress a showup identification”); State v. Freeman, 313 N.C. 539 , 330 S.E.2d 465, 470 (1985) (“[w]hen a motion to suppress identification testimony is made, the trial judge must conduct a voir dire and make findings of fact to support his conclusion of law and ruling as to the admissibility of evidence”); People v. Robinson, 46 Ill.2d 229 , 263 N.E.2d 57, 58-59 (1970) (when dealing with a motion to suppress an identification, “there is no question that a defendant has a right to a fair and impartial ¹¹³ hearing”). Moreover, under the Maryland Rules of Procedure, Rule 4-252 embodies “this Court’s desire that evidentiary rulings on the suppression of evidence be made before trial.” Long v. State, 343 Md. 662, 668 , 684 A.2d 445, 448 (1996). Rule 4-252 governs the filing of motions to suppress evidence in criminal cases in circuit court. 10 The plain language of the Rule requires, with an exception not here relevant, that suppression motions “filed pursuant to the Rule shall be determined before trial and, to the extent practicable, before the day of trial____” Rule 4-252(g).

Since our adoption of Rule 4-252, whether a motion to suppress must be considered pre-trial is rarely, if ever, an issue in a criminal case; the