Myers v. State

Myers v. State, No. 2933 of the 2018 Term, Opinion by Moylan J. SECOND-DEGREE BURGLARY – TWO SECURITY CAMERAS ARE BETTER THAN ONE – THE CONTENTIONS – A CASE OF BAYING AT THE MOON – IDENTIFYING THE RIGHT CHURCH – SUPPRESSION HEARING LAW 101 – STANDARD OF APPELLATE REVIEW – WAS THERE A DISCOVERY VIOLATION? – SANCTIONS AND WINDFALLS – A PROCEDURAL CAVEAT – THE PERMISSIBILITY OF A LINE OF QUESTIONING – A NON- BLOCKBUSTER ERROR IN ANY EVENT Circuit Court for Baltimore City Case No. 118057003 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2933 September Term, 2018 ______________________________________ MURRAY MYERS v. STATE OF MARYLAND ______________________________________ Fader, C.J., Berger, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Moylan, J. ______________________________________ Filed: November 6, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-11-06 14:29-05:00 Suzanne C. Johnson, Clerk The appellant, Murray Myers, was convicted in the Circuit Court for Baltimore City by a jury, presided over by Judge Althea M. Handy, of burglary in the second degree, conspiracy to commit second-degree burglary, and theft of more than $100 but less than $1,500. Two Security Cameras Are Better Than One The evidence of the appellant’s complicity was straightforward. At approximately 3:44 a.m. on December 12, 2017, a burglary was committed at an animal clinic operated by the Society for the Prevention of Cruelty to Animals at 4007 Falls Road in Baltimore City. Not one, but two security surveillance cameras memorialized the crime.

One of the cameras was located on the SPCA Clinic property itself. The second was located on the Red Fish Liquor Store, on the same side of the street as the burglarized premises but one building away. The security camera on the SPCA Clinic building did a yeomanlike job of recording the corpus delicti but utterly failed to establish anyone’s criminal agency. Initially it showed two individuals walking south on Falls Road toward the SPCA Clinic.

As one of them, referred to as “Individual One,” closed in on the target, the other, referred to by the State simply as the “lookout,” was observed walking back and forth generally in front of the clinic. At 3:44 a.m., Individual One entered the building through a side window. A hoody, however, obscured his face. As the burglar alarm sounded, Individual One exited the clinic.

Almost immediately, however, he returned to the side window, grabbed a cash register that was sitting on a desk, and fled the scene with the cash register in hand. The cash register was later determined to have been empty, but its own value was established to have been $500. Because of the hoody covering his face, the identity of Individual One could not be established either by the SPCA Clinic manager, Amy Stormann, or by Detective William Nickles, both of whom viewed the security tape from the clinic’s camera. The identity of the other individual, the “lookout,” was never established.

The crime might well have become an unsolved cold case, but for a stroke of good fortune. Although the security camera on the burglarized premises itself had come up short, a Good Samaritan security camera on the neighboring Red Fish Liquor Store stepped in to save the day. It was a day later as part of his follow-up investigation that Detective Nickles visited Red Fish to see if it had any surveillance footage from the night of the burglary. It had.

From its more fortuitous coign of vantage, moreover, the burglar’s face was visible, unhidden by the hoody. Detective Nickles, who had known the appellant for years, immediately identified Individual One as the appellant. Detective Nickles actually knew the appellant by name and was thereby able to obtain his address from the Department of Motor Vehicles. The appellant was shortly thereafter arrested and indicted.

At trial, the clinic manager testified briefly. The only other State’s witness, and its key witness, was Detective Nickles. He testified that he was “[o]ne hundred percent positive that that is Mr. Murray Myers [(the appellant)] in that video.” He explained to the jury that he possessed that level of certainty because “I’ve known of Mr. Murray Myers for many years being associated from the same neighborhood.” Detective Nickles further explained that he and the appellant had numerous mutual friends. 2 My ex-sister-in-law, which is [the appellant’s] cousin, by the name of Brenda Brown. Numerous friends from the neighborhood.

We have multiple mutual Facebook friends. From being from the neighborhood, I mean, it’s only obvious that we would have these mutual friends. I guess, numerous. (Emphasis supplied).

Detective Nickles also identified the appellant in court: Q. Okay. The person you see in the video with the cash register, do you see that person in court here today? A. I do, yes. Q. Can you please identify him by an article of clothing?

A. Sitting at the Defense table with a black shirt and a green and black tie with a cane in his hand. Q. How certain are you that that is that person? A. I’m a hundred percent certain. (Emphasis supplied).

The appellant, moreover, was established as living at 3735 Falls Road, just under three blocks away from the burglarized premises. In his cross-examination of Detective Nickles, the defense never really challenged the detective’s ability to recognize the appellant as someone he had known for a number of years. The appellant neither took the stand nor offered any witnesses or other evidence in his defense. The jury convicted him on all counts.

The Contentions On appeal, the appellant raises three contentions. 1. THE TRIAL COURT ERRED WHEN IT DENIED [THE APPELLANT’S] MOTION TO SUPPRESS DETECTIVE NICKLES’[S] PRE-TRIAL IDENTIFICATION. 2. THE TRIAL COURT VIOLATED [THE APPELLANT’S] SIXTH AMENDMENT RIGHT AND ARTICLE 21 OF THE MARYLAND 3 DECLARATION OF RIGHTS WHEN IT DENIED DEFENSE COUNSEL’S ABILITY TO PRESENT A FULL DEFENSE DURING CROSS-EXAMINATION OF THE STATE’S KEY WITNESS. 3. THE STATE COMMITTED PLAIN ERROR IN ITS CLOSING WHEN IT BOLSTERED DETECTIVE NICKLES’[S] TESTIMONY WITH FACTS NOT IN THE RECORD.

A Case Of Baying At The Moon In military jargon, one would not characterize the appellant’s contentions as arguments that turn square corners. He beguiles us with facts, but he never tells us where he is going with those facts. The most serious contention is that Judge Handy committed reversible error when she denied the appellant’s motion to suppress a pre-trial identification of him by Detective Nickles. A hearing was held on that motion on Tuesday, September 18, 2018.

The entire suppression hearing that day consumed a scant 24 pages of transcript. The oddity is that that brief hearing disposed of, sequentially, not one but two suppression motions. The first of the two denials is not now before us. It nonetheless behooves us to refer to it because it is indicative of the general slackness of the appellant’s analysis of the legal issues in the case, indicative of his disinclination to turn square corners.

For all that we are told in appellate briefs or in the testimony at the suppression hearing or testimony at the trial, there was not so much as a hint that the search warrant the appellant tells us the police were applying for was ever actually issued by a judge. Even assuming that it was, there is not a suggestion that a search, warranted or unwarranted, was ever executed. There was no fruit of a search and seizure ever offered in evidence. It was certainly not the case that the stolen cash register was recovered from the appellant’s 4 apartment or some reference would certainly have been made of so prominent a piece of evidence.

What, therefore, was this companion suppression motion all about and why was it in the case? Inexplicably, after a mere seven pages of essentially meaningless conversation between court and counsel with respect to it, the motion to suppress physical evidence because of an ostensible Fourth Amendment violation just withered on the vine. The appellant never suggested how a Fourth Amendment violation had even occurred. Judge Handy, with some exasperation, explained that if the motion were based on the fact that an application for a warrant did not establish probable cause, the motion to suppress evidence on such a basis was denied.

As attention immediately turned to the separate and pertinent issue of pre-trial identification, there was no allegation that a warrant application had ever actually been submitted to a judge, let alone that any judge had actually issued such a warrant, and let alone that a warranted search had ever been executed. The Fourth Amendment issue simply evanesced, as immediately and as completely as if it had been a magician’s puff of magic smoke. We are left with the quandary of why the appellant would clutter the record with a motion to suppress physical evidence when there was no physical evidence to be suppressed. What, moreover, does the appellant suggest the sanction should be for a possibly contemplated Fourth Amendment violation that never took place?

To the question, “What difference does it make?” the possible answer may be that, if nothing else, it sets the tone for much of the argument that follows. If an argument is raised, we would like to know where it is going. 5 Identifying The Right Church There is yet another aspect to the strategic value, to the persuasive cogency, of turning square corners. It is always prudent not to get too deeply involved in the detailed minutiae of any issue before identifying the larger category to which the issue itself belongs. Don’t worry about which pew you are in until you are sure that you are in the right church.

Don’t worry about winning the battle until you are sure you are in the right war. A fact is not a self-contained entity. In forensic argument, the fact is used to point to a legal conclusion. An advocate should not simply give us a fact.

He should identify the precise legal conclusion toward which he is pointing that fact. The appellant’s first actual contention, ultimately unencumbered by any irrelevant Fourth Amendment spin-off, is that Judge Handy erroneously denied his motion to suppress Detective Nickles’s pretrial identification of him. At first blush, that sounds like a problem involving identification law. The enveloping category on this appeal, however, is not identification law.

It is discovery law. Identification law, after all, is obsessed with the issue of the ultimate reliability of the identification. The dramatic change of direction of Simmons v. United States, 390 U.S. 377 , 88 S. Ct. 967 , 19 L. Ed. 2d 1247 , in 1968 from impermissible suggestiveness to ultimate reliability and the five-factored reliability tests of Neil v. Biggers, 409 U.S. 188 , 93 S. Ct. 375 , 34 L. Ed. 2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98 , 97 S. Ct. 2243 , 53 L. Ed. 2d 140 (1977), are all consumed by reliability as the ultimate dispositive criterion. They have nothing to do, however, with the challenged identification in this case.

The appellant’s facts in this case are not pointed in that direction. 6 Even after the distinction made by this Court in State v. Greene, 240 Md. App. 119 , 130–34, 201 A.3d 43 , cert. granted, 463 Md. 525 , 206 A.3d 315 (2019), following the lead of People v. Rodriguez, 79 N.Y.2d 445 , 583 N.Y.S.2d 814 , 593 N.E.2d 268 (1992), and recognizing the analytic distinction between selective identification issues and confirmatory identification issues, the controlling criterion remained the reliability of the confirmatory identification. In discovery law, by dramatic contrast, an appropriate sanction for a discovery violation might well be the suppression of an identification, notwithstanding its impeccable reliability. The purpose of the exclusionary sanction is to punish the discovery violation, not to ensure reliability. Identification law and discovery law serve very different, and sometimes contradictory, masters.

The same facts may point in a very different direction. Albeit dealing, to be sure, with the possible suppression of an identification, our overarching legal consideration (our “church,” our “war”) in this case is discovery law, not identification law. That is our controlling body of law in this case. The appellant’s argument, however, never makes its larger legal context, the direction of its forensic attack, unmistakably clear.

He wanders back and forth across a doctrinal boundary line. This random lack of direction is the very opposite of turning square corners. Suppression Hearing Law 101 As we narrow our focus to the hearing on the motion to suppress the identification of the appellant by Detective Nickles, no precept of appellate review is more fundamental than that articulated by the Court of Appeals in In re Tariq A–R–Y, 347 Md. 484, 488 , 701 A.2d 691 (1997): 7 In reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing and do not consider the evidence admitted at trial. Gamble v. State, 318 Md. 120, 125 , 567 A.2d 95, 98 (1989); Herod v. State, 311 Md. 288, 290 , 534 A.2d 362, 363 (1987); Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749, 755 (1987).

(Emphasis supplied). In Coley v. State, 215 Md. App. 570, 582 , 81 A.3d 650 (2013), Judge Rodowsky wrote for this Court to the same effect. As we have explained, “[i]n reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing and do not consider the evidence admitted at trial.” See, e.g., In re Tariq A–R–Y, 347 Md. 484, 488 , 701 A.2d 691, 693 (1997), cert. denied, 522 U.S. 1140 , 118 S. Ct. 1105 , 140 L. Ed. 2d 158 (1998). See also Stokeling v. State, 189 Md. App. 653, 661 , 985 A.2d 175, 180 (2009), cert. denied, 414 Md. 332 , 995 A.2d 297 (2010) (“In reviewing the denial of a motion to suppress evidence, we look exclusively to the record of the suppression hearing.”).

(Emphasis supplied). In Wallace v. State, 219 Md. App. 234, 243 , 100 A.3d 1173 (2014), Judge Nazarian wrote for this Court, in re-affirming that fundamental tenet of appellate review. In reviewing the circuit court’s disposition of Mr. Wallace’s motion to suppress, “‘we look only to the record of the suppression hearing and do not consider the evidence admitted at trial.’” James v. State, 191 Md. App. 233, 251 , 991 A.2d 122 (2010) (quoting Massey v. State, 173 Md. App. 94, 100 , 917 A.2d 1175 (2007)). (Emphasis supplied).

This is Suppression Hearing Procedure 101. In reviewing the appellant’s argument on this contention, however, we are immediately confronted with a massive and flagrant violation of that fundamental precept as to what not to consider. The appellant does not sneak across the line separating the trial from the suppression hearing. He crosses it with a 8 tractor trailer.

The appellant’s argument on suppression runs for five pages in his brief. Three of those five pages, however, are a self-contained subdivision of his larger argument entitled, “B. Detective Nickles’[s] Trial Testimony Confirms the State’s Violation of Rule 4–263.” (Emphasis supplied). The appellant does not simply commit a procedural transgression. He holds up a sign, with his subhead, pointing out exactly where the transgression is going to be.

That subdivision of the appellant’s argument then details at significant length the trial testimony of Detective Nickles. Precisely such a violation was before this Court in Coley v. State, supra. Our unequivocal holding was that such post- suppression hearing evidence could not and would not be considered in reviewing the suppression hearing. Any record that developed in the circuit court after a binding suppression ruling was made is simply immaterial to our review.

The suppression judge was not able to consider a possible inconsistency that would not exist until three weeks after he ruled on the motion and that would not be raised by either party until the State filed its appellate brief. We shall not consider it now. 215 Md. App. at 582–83 (emphasis supplied). See also In re Tariq A–R–Y, 347 Md. at 489 (“Notably, the only witness who testified at the suppression hearing was Officer Marker and, as a result, we are limited to a review of that testimony alone in performance of our review.” (Emphasis supplied).). Accordingly, we do not consider any of Detective Nickles’s trial testimony as having any bearing on the correctness of Judge Handy’s ruling at the suppression hearing not to suppress the identification of the appellant by Detective Nickles.

Judge Handy’s decision on Tuesday cannot have been wrong on the basis of evidence that did not exist 9 until Wednesday. She clearly cannot be held to have been in error for not having been prescient. The appellant’s reasoning strays outside the clearly demarcated box. He does not turn square corners.

Standard Of Appellate Review Although three of the appellant’s five pages of argument on the suppression issue cannot (and will not) be considered by us because they are grounded in evidence from the trial proper rather than in evidence from the suppression hearing, the two remaining pages of argument at least are properly before us. As we consider them, it is appropriate to set out the standard guiding our review. As the proponent of the motion to suppress Detective Nickles’s confirmatory identification of the appellant, it was the appellant, of course, who bore the initial burdens of both production and persuasion. Epps v. State, 193 Md. App. 687 , 701–02, 1 A.3d 488 (2010).

It was the appellant’s obligation to persuade Judge Handy that the identification should have been suppressed. It was not the State’s obligation to persuade Judge Handy that the identification should not have been suppressed. If Judge Handy had not been persuaded in either direction, of course, the identification would have remained unsuppressed. It is the party to whom is allocated the burden of proof who loses the tie.

As this Court explained the significance of the allocation of the burden in Herbert v. State, 136 Md. App. 458, 484 , 766 A.2d 190 (2001): It is the defendant who must make a case for the suppression of evidence. The State is not required to make a case for the non-suppression of evidence. If a judge should convene a suppression hearing and if both parties should rest without saying a word, the State would win that nothing-to-nothing tie. More precisely stated, the defendant would lose the nothing-to-nothing tie. 10 (Emphasis supplied; citation omitted).

See also Duncan and Smith v. State, 27 Md. App. 302, 317 , 340 A.2d 722 (1975), vacated on other grounds, 276 Md. 715 , 351 A.2d 114 (1976). In Herbert v. State, 136 Md. App. at 482 , this Court fully explained the rationale justifying such a decided tilt against the moving party. In a criminal trial, the status quo—the norm—is that evidence of a defendant’s guilt that is relevant, material, and competent will be admitted. It is the defendant who seeks to alter that status quo—who seeks a departure from that norm-when he seeks to exclude relevant, material, and competent evidence of guilt in order to serve some extrinsic purpose, such as deterring the police from future unreasonable searches and seizures.

Mapp v. Ohio, 367 U.S. 643 , 81 S. Ct. 1684 , 6 L. Ed. 2d 1081 (1961). To the moving party is allocated the burden of making the case for such an alteration of the status quo-for such a departure from the norm. (Emphasis supplied). By that standard, how did the appellant fare?

Was There A Discovery Violation? We will operate on the assumption that this contention is based on discovery law. Maryland Rule 4–263 sets out the pre-trial discovery rules for criminal trials in Maryland. Rule 4–263(d)(7)(B) specifically provides: (d) Disclosure by the State’s Attorney.

Without the necessity of a request, the State’s Attorney shall provide to the defense: .... (7) Searches, Seizures, Surveillance, and Pretrial Identification. All relevant material or information regarding: .... (B) pretrial identification of the defendant by a State’s witness[.] (Emphasis supplied). 11 At the suppression hearing, the only evidence bearing on the pre-trial identification came from Detective Nickles himself.

He was the lead investigator on the case. When he viewed the initial security tape from the building of the SPCA Clinic itself, he could not identify the person on the tape because the face was hidden by a hoody. When he viewed the second security tape, by contrast, that made by the camera on the neighboring Red Fish Liquor Store, the face of the burglar was visible and Detective Nickles identified the burglar as the appellant, Murray Myers. This was the pre-trial identification now in issue.

As per the distinction this Court pointed out in State v. Greene, 240 Md. App. 119 , 201 A.3d 43 (2019), this was a confirmatory identification rather than a selective identification. On the basis of his prior acquaintanceship with the appellant, Detective Nickles was simply confirming that the person pictured on the tape was the appellant. The testimony with respect to the State’s compliance with its discovery obligations, however, is exasperatingly vague. This poses no ultimate problem, however, because no point has been made with respect to it.

An obvious problem, albeit not a fatal one, was that the State, pursuant to its discovery obligation, communicated information to defense counsel by oral communication rather than in writing. This did, however, cause Judge Handy to complain, a complaint in which we join. THE COURT: All right, Counsel, I wish you would learn to put any discovery, any additional discovery in writing and file it with the Court. Don’t rely on oral conversations. [THE STATE]: Will do, Your Honor.

(Emphasis supplied). 12 Further muddying the waters was the fact that the oral communication about discovery had been made in July, two months before trial, to defense counsel who subsequently withdrew from the case. To what extent earlier defense counsel communicated his knowledge to later defense counsel was not so much as alluded to in the record. Again, however, this poses no problem because none of this has remotely been presented as an issue before us. The thrust of the appellant’s contention, rather, is that the State violated its discovery obligation when it furnished false and inadequate information to the defense as to the basis on which Detective Nickles had been able to confirm that the burglar depicted on the security tape from the Red Fish Liquor Store was, indeed, the appellant.

With respect to the claim that the State had furnished false information, that charge was quickly disposed of. The heart of Detective Nickles’s claim that he knew the appellant by sight was that the two of them had grown up in the same neighborhood and that the detective had been acquainted with the appellant for the better part of 40 years. Somehow, in the course of pre-trial discussion between the detective and the Assistant State’s Attorney prosecuting the case, however, the prosecutor came to the erroneous assumption that the detective and the appellant had gone to high school together. That erroneous assumption was somehow communicated to defense counsel.

It was only at a scheduling conference before Judge Melissa M. Phinn on the day before the suppression hearing and involving the prosecutor and an Assistant Public Defender sitting in for defense counsel that it became clear that such a mistaken notion was afoot. The State disclaimed any intention of relying on such a claim. On direct examination at the 13 suppression hearing, Detective Nickles made it clear that he and the appellant had not attended high school together. Judge Handy’s questioning of the State was brief.

THE COURT: Did Detective Nickles tell you he didn’t go to high school -- [THE STATE]: And then yesterday he told me that he did not go to high school with him, and I let the defense counsel know that he did not go to high school with him. THE COURT: All right, so he did not go to high school with him, he knows him from the neighborhood. (Emphasis supplied). That ended the matter and we see therein no abuse of discretion.

As Judge Battaglia pointed out for the Court of Appeals in Williams v. State, 364 Md. 160, 172 , 771 A.2d 1082 (2001): Inherent benefits of discovery include providing adequate information to both parties to facilitate informed pleas, ensuring thorough and effective cross-examination, and expediting the trial process by diminishing the need for continuances to deal with unfamiliar information presented at trial. Specific to the mandatory disclosure provisions of Rule 4–263(a), the major objectives are to assist defendants in preparing their defense and to protect them from unfair surprise. (Emphasis supplied). The appellant was obviously not taken by “unfair surprise.” It was he who first informed defense counsel that the erroneous assumption could not be true because he had never gone to high school at all, with the detective or with anyone else.

From this trivial misstep or minor misunderstanding, the defense suffered no conceivable prejudice. The appellant also argues that he was not given adequate information in support of Detective Nickles’s claim that he recognized the tape of the appellant because of his prior 14 acquaintanceship with him from the neighborhood. Both in his appellate brief and at the suppression hearing, the appellant relies on the single case of Williams v. State, 364 Md. 160 , 771 A.2d 1082 (2001). That opinion, however, is not remotely apposite.

In Williams, it was inaccurately represented in pre-trial discovery that a surveilling officer “could not specifically identify the defendant[.]” 364 Md. at 164 . Notwithstanding that misrepresentation, “at trial the officer positively identified the defendant.” Id. By failing to reveal that an actual identification had been made, the State violated the discovery rule. The difference in Williams was a flat-out binary difference between identification and non-identification.

The pre-trial assertion that Trooper Williams could not state, beyond a reasonable doubt, that the man he saw was Williams, and the in-trial positive identification are not mere variations of degree, but rather are contradictory. 364 Md. at 175 (emphasis supplied). In this case, there is no such difference. There has never been any doubt that it was Detective Nickles who identified the person on the Red Fish security tape as the appellant. The appellant, however, would read Williams to hold that when an individual makes a confirmatory identification based on a prior acquaintanceship in the neighborhood, the State is required to detail by chapter and verse all of the incidents that go into the history of that prior neighborhood relationship.

Williams does not remotely deal with such a situation. The clash there was between identification and non-identification. The appellant cites no case that does, and we know of none. 15 In the case of a prior relationship, moreover, the appellant would be as fully knowledgeable about the details of the acquaintanceship as would be Detective Nickles. The appellant never asked for a continuance so that he could investigate the relationship further.

In examining the detective at the suppression hearing and at