Morales v. State

RAKER, J. Luis Morales, appellant, was convicted in the Circuit Court for Prince George’s County of robbery with a deadly weapon and related charges. Before this Court he presents the following questions for our review, which we have rephrased slightly: 1. Did the trial court admit prejudicial hearsay improperly? 2. Did the motions court err in denying appellant’s motion to suppress pre-trial photographic identifications?

We shall answer both questions in the negative and affirm. I. Appellant was indicted by the Grand Jury for Prince George’s County with the offenses of robbery with a deadly weapon, robbery, attempted robbery with a deadly weapon, attempted robbery, two counts of first degree assault, two counts of second degree assault, theft under $1,000, use of a handgun in the commission of a crime of violence, possession of a regulated firearm after a disqualifying crime and carrying a handgun. The jury convicted appellant of all the charges and the court sentenced him to the following terms of incarceration: twenty years, with all but ten years suspended for robbery with a deadly weapon; twenty years, to run consecutively, with all but five years suspended for use of a handgun ⁵ in the commission of a crime of violence; and five years, to run concurrently, for possession of a regulated firearm. 1 On February 22, 2013, Sahid Kaleem and his son, Taha Kaleem, arranged to meet appellant at 14701 Bowie Road in Laurel to purchase two cellular phones for $550. Appellant had advertised the phones for sale on the Internet website, Craigslist, which the Kaleems used to set up the transaction.

Javeria Kaleem, Sahid’s daughter and Taha’s sister, accompanied her father and brother. When they arrived at the location, Sahid and Taha exited their vehicle to meet appellant, and Javeria stayed in the car. Appellant walked with the Kaleems over to their vehicle, pulled out a handgun and informed them that they were being robbed. Appellant first demanded money from Taha and shot him when Taha failed to comply.

Appellant pointed the handgun at Sahid and made the same demand. Sahid complied, and appellant ran away. Taha called 911. In the course of the investigation of the crime, the Kaleems made photographic identifications of appellant as the assailant.

Appellant moved pre-trial to suppress the identifications. He argued that the police employed impermissibly suggestive procedures in obtaining the identifications and that the reliability of the identifications did not outweigh the corrupting effect of the suggestive procedures. The following facts were adduced at the suppression hearing. Prince George’s County Police Detective Andrew Batavick was the lead investigator of the robbery.

On the night of the incident, the Kaleems went to the police station and met with Detective Batavick to make a statement and to look through a photo book that contained pictures of potential suspects. The detective put Taha and Javeria in one room, and he placed Sahid in a different room. Detective Batavick gave the photo book to Javeria and instructed her and Taha to look through the photos individually, not to communicate with one another ⁶ and to just go through the pictures to see if anyone looked similar to the person who robbed them. Detective Batavick sat outside of the room while Taha and Javeria reviewed independently the pictures in the photo book.

The detective left the door ajar. He monitored the children and stated that he did not see or hear the children communicating. Once they were finished, Taha and Javeria had selected two photographs, one of which was appellant, and they indicated that the two people in the photographs had similar features to the assailant. Neither Taha nor Javeria asserted that either of the two individuals was the robber.

Sahid reviewed the pictures and indicated that, although some pictures looked similar, he could not identify the robber. The following day, Detective Batavick and two other detectives went to the Kaleem’s home to show them a photo array. Taha and Javeria were home, but Sahid was at work. Detective Batavick showed Taha and Javeria a photo array containing the pictures of six individuals, including appellant. 2 The photo of appellant was a more recent photo of him than the one in the photo book that the Kaleems saw on the previous night.

The photo array did not include a photo of the other individual that Taha and Javeria had selected from the photo book. After reviewing independently the photo array, Taha and Javeria each identified appellant as the assailant. 3 On February 28, 2013, the detectives met with Sahid to show him the same photo array that was presented to the children. Sahid identified appellant as the person who robbed him and stated, “that’s him.” ⁷ The Kaleems testified at the suppression hearing about their identifications. Javeria claimed that she communicated openly with her brother while reviewing the photo book at the police station on the night of the incident.

She indicated that because she did not get a good look at the assailant’s face, she relied on her brother’s input. In doing so, however, Javeria claimed that Taha did not tell her which picture to select. Javeria also testified that she told her father which picture she thought looked like the assailant. On cross-examination, Jave-ria stated that the police did not tell her which picture to select nor did they influence her in any way.

Taha denied communicating with his sister. He testified that Javeria did not confide in him to make her identification and that the police gave them instructions to not communicate with one another. After hearing testimony, the court ruled as follows: “[I]t is apparent to the Court that, of course, their testimonies are not, of the two children, are not consistent, but that is more fodder for trial than motions. What we’re looking at here is the conduct of the State agents, the police.

And in this case, both children were very clear on the fact that the police didn’t tell them which picture to pick, they didn’t suggest to pick any particular picture, and the Court found their testimony as to that, which is really the issue in this case, the conduct by the police, credible. And, so, the Court finds that the Defense has not met its burden in this case to get to the second prong in that the Court does not find that there was any — the Court does not find, based upon the evidence, that there was any suggestivity on the part of the police in any of the witnesses’ identifications to cause this Court to suppress those pretrial identifications. So, I’m going to deny the Defense Motion to Suppress.” The court denied appellant’s motion to suppress the photo identifications and the case proceeded to trial. At trial, Detective Batavick testified about the details of the investigation that led to appellant’s arrest.

At one point, the ⁸ State sought to elicit testimony from the detective explaining how he arrived at appellant’s home. The colloquy occurred as follows: “[PROSECUTOR]: So let’s take a step back. You went to the Kaleem house — residence the 23rd of February, correct? DET.

BATAVICK: Yes. [PROSECUTOR]: What, if anything, else — did you do further investigation at that time? DET. BATAVICK: Once I was finished there we contacted Craigslist. [DEFENSE COUNSEL]: Objection. THE COURT: He can testify he contacted Craigslist.

Overruled. [PROSECUTOR]: And based on the, don’t tell us what you received, but based on what information you got, what, if anything, did you do? DET. BATAVICK: Rephrase the question. [PROSECUTOR]: What did you do with the information you received — did you get information from Craigslist? DET.

BATAVICK: Yes. [PROSECUTOR]: What did you do with the information you received from Craigslist, what investigative action did you take? [DEFENSE COUNSEL]: I object. THE COURT: And that’s overruled. DET. BATAVICK: With the information received from Craigslist, I contacted the cell phone carrier.

They provided a number that carried a list. [DEFENSE COUNSEL]: Objection. THE COURT: You can say you contacted the cell phone carrier. Next question. Yes, he can. [PROSECUTOR]: Did there come a time when you went to 13503 Briarwood Drive?

DET. BATAVICK: Yes. ⁹ [PROSECUTOR]: And why did you go to that particular address? DET. BATAVICK: The carrier provided us with a name and address to that number. [DEFENSE COUNSEL]: Objection.

THE COURT: Based on the information received from the carrier? DET. BATAVICK: Yes. THE COURT: That’s stricken as the way he put it, so sustained.

What I’m trying to say to you is, it’s called hearsay what some other entity said or did — you cannot do that, only what you said or did, okay. [PROSECUTOR]: Did you go that address? DET. BATAVICK: Yes.” Defense counsel did not move for a mistrial and the examination continued. At the close of all the evidence, the court instructed the jury, in relevant part, as follows: “The following things are not evidence and you should not give them any weight or consideration: Any testimony that I struck or did not admit into evidence and the questions that the witnesses were not permitted to answer and objections of the lawyers....

When I did not permit the witness to answer a question, you must not speculate as to the possible answer. If, after an answer was given, I order that the answer be stricken, you must disregard both the question and the answer.” As indicated above, appellant was convicted of all the charges and sentenced. This timely appeal followed.

II

Appellant argues first that the court erred by admitting prejudicial hearsay testimony. He contends that Detective Batavick should not have been permitted to testify that he contacted Craigslist and received a phone number, which in turn led him to contact a cell phone carrier that provided ¹⁰ appellant’s contact information. He argues that the detective could have explained that he went to appellant’s address “upon information received” instead of relaying specific information that connected him to the robbery. Next, appellant argues that the court erred in denying his motion to suppress because the police employed impermissibly suggestive procedures to obtain the Kaleem’s photographic identifications.

He argues that because the police allowed Taha and Javeria to sit in the same room and discuss the descriptions with one another, it tainted the identification procedure. Moreover, appellant asserts that it was impermissibly suggestive that the police included his photograph in both the photo book and the photo array without including the picture of another suspect identified by Taha and Javeria. He concludes that the State failed to establish by clear and convincing evidence that the identifications were reliable nonetheless. The State counters first that the court did not admit prejudicial hearsay testimony because it responded properly to the objection and struck the objectionable testimony.

The State notes that appellant did not move for a mistrial and hence, the court afforded him all the remedy for which he sought. Next, the State maintains that the identification procedures employed by law enforcement were not impermissibly suggestive. The State argues that Detective Batavick instructed the witnesses to not communicate with each other and that he did not see or hear the children violate that instruction. In addition, the State notes that there is nothing to suggest that the witnesses noticed that appellant’s photo was included in both the photo book and the photo array and that the photo of the other individual they selected previously was absent.

The State concludes that the inquiry into the reliability of the identifications ended when the court found properly that the procedures employed were not impermissibly suggestive.

III

We address first appellant’s argument that the court erred by admitting inadmissible hearsay evidence when it permitted Detective Batavick to explain how he arrived at ¹¹ appellant’s residence by testifying to specific information that a cell phone carrier provided him. We disagree with appellant. Hearsay constitutes “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-801(c). In the absence of an exception to the general rule, hearsay is inadmissible at trial.

Rule 5-802. Whether evidence is hearsay is reviewed de novo. Parker v. State, 408 Md. 428, 436 , 970 A.2d 320, 325 (2009). Generally, an out-of-court statement is admissible as non-hearsay if it is offered for the purpose of showing that a person relied and acted upon the statement, rather than for the purpose of showing that the facts elicited in the statement are true.

Purvis v. State, 27 Md.App. 713, 716 , 343 A.2d 898, 900 (1975). In the context of an officer explaining why he or she arrived at a particular location, the officer “should not be put in a false position of seeming to have just happened upon the scene; he should be allowed some explanation of his presence and conduct.” McCray v. State, 84 Md.App. 513, 518 , 581 A.2d 45, 47 (1990). The officer’s explanation, however, must not include “contemporaneous and specific information about the defendant’s clothing, location, and activity, [as] it can be highly persuasive as to the defendant’s actual guilt of the crime charged, even without a name.” Parker v. State, 408 Md. at 443 , 970 A.2d at 329 . Doing so would contaminate the out-of-court statement explaining the officer’s presence at the location and render the statement inadmissible.

See Purvis, 27 Md.App. at 718-19 , 343 A.2d at 901-02 (finding that an explanation by a testifying officer that relates specific information identifying the accused as the assailant “is so likely to be misused by the jury as evidence of the fact asserted that it should be excluded as hearsay”). The record in the instant matter indicates that the detective’s testimony referenced improperly specific out-of-court information that connected appellant to the underlying robbery. Detective Batavick testified that the cell phone carrier ¹² provided him with a “name and address” for a phone number that he obtained from Craigslist. He explained that the contact information he received from the cell phone carrier led him to appellant’s residence.

The detective’s testimony allowed the jury to connect appellant to the Craigslist advertisement, which was the ruse that appellant devised to rob the Kaleems. That appellant used Craigslist to lure the victims to his home and rob them is the very object that the State undertook to establish at trial. The detective’s testimony is highly persuasive and likely to be misused by the jury because it speaks directly to appellant’s guilt as to the charges against him. Accordingly, we find that Detective Batavick’s testimony contained inadmissible hearsay.

We shift our inquiry to the trial court’s response to the objectionable testimony and hold that the court acted properly. The detective stated first that he contacted the cell phone carrier and they “provided a number that carried a list.” Defense counsel objected. The court limited