Southern v. State

⁴⁹⁹ ADKINS, J. In the morning hours of February 19, 2000, two 7-11 stores in Prince George’s County, one located on Auth Road and the second located on Old Branch Avenue, were the subject of separate robberies. George Wendell Southern, appellant, was convicted by a jury in the Circuit Court for Prince George’s County of two counts of robbery, and one count of second degree assault for his participation in these robberies. On appeal, appellant presents four questions for our review: I. Did the State fail to sustain its burden of proving at the motion to suppress hearing that the appellant’s detention was constitutional?

II

Did the court deny appellant’s trial counsel a reasonable opportunity to present argument on the motion to suppress?

III

Was it improper for the prosecutor to tell the jury in closing argument that certain counts would not have been included in the indictment unless they were valid?

IV

Did the State fail to prove beyond a reasonable doubt the prerequisites for imposition of the enhanced penalty for violent offenders set forth in Article 27, section 643B(d)? We hold that the suppression hearing court failed to rule on the propriety of appellant’s initial stop and arrest, and remand the case for the limited purpose of addressing this claim. This holding requires us to address a novel question not raised by the parties-whether on remand, the State may introduce evidence regarding the constitutionality of the initial stop that was not introduced at the first suppression hearing. We hold that the State may do so.

Because we remand the case for this purpose, we need not address appellant’s second contention. We find no merit in appellant’s third and fourth contentions. ⁵⁰⁰ FACTS AND LEGAL PROCEEDINGS At the hearing on appellant’s motion to suppress, appellant presented two issues to the hearing court. First, appellant challenged the procedures used to identify him. Second, he challenged “the stop and anything that flowed from it.” The Identification Officer Richard Pippin of the Prince George’s County Police Department testified that on February 19, 2000, he responded to a call concerning a robbery at a 7-11 store located on Old Branch Avenue.

When Pippin arrived at the store, he met with Carolyn Pryor, a customer at the scene who witnessed the robbery. Approximately fifteen minutes later, Pippin drove Pryor and another witness, Gail Alexander, to a nearby location where the police had a suspect, later identified as appellant, in custody. From inside the car, Pryor positively identified appellant as the robber. Alexander stated that she was “fairly certain” that appellant was the robber, but that she was not certain.

Alexander further remarked that appellant was not wearing the same clothing as the robber. Corporal Charles Burgess testified that he, along with a K 9 officer, arrested appellant and turned him over to Officer Monty Burkhalter. Burkhalter testified that appellant was in his custody during the “show up” procedure. He said that appellant was handcuffed at the time, and that four police officers and a police dog were “in the area” when the identification was made.

Pryor testified concerning the robbery and her identification of appellant. She explained that she was in the store on February 19 at approximately 7:30 a.m. when a robbery occurred. She remembered that she saw the robber for “about ten seconds or more.” From about twenty feet away she observed the robber come in the door, he had like a dark red, either a t-shirt or bandanna-type thing covering his nose down. As I walked back, I continued to observe.

He jumped the counter by the cash register and was kicking it and making a loud roar, ⁵⁰¹ and the bandanna or t-shirt kept falling down, and he kept pulling it up. Approximately thirty minutes after the robbery, the police informed Pryor that they “had a suspect.” Pryor was driven to a location a short distance away and identified appellant as the robber. The court upheld the identification. In so doing, it ruled: The court believes that there was no likelihood of a misidentification created by the manner in which the witness [Pryor] was taken to the suspect.

There was nothing by way of any suggestion that the suspect was indeed the person that had indeed committed the robbery. She was asked whether or not she could make an identification. She was able to make an identification. Her opportunity to see the perpetrator in the business establishment is clear, and she had a long period within which to view the person who committed this crime.

Ten seconds.... And there wasn’t that much time that elapsed between the time the witness saw the defendant committing the crime in the 7-Eleven and the time she saw him again on the street.... So I believe there is no impermissible suggestion with regard to the identification by the manner in which the show-up was conducted, and the motion to suppress is denied. The Stop Appellant sought to “suppress the stop and anything that flowed from that.” Specifically, he sought to suppress two statements he made to the police after he was in custody and items seized from a car used during the robbery.

After appellant was identified as the robber, Burkhalter took him to Southern Maryland Hospital to treat him for dog bite injuries that he sustained from the K-9 unit during his arrest. Sergeant Robert Arscott went to the hospital to check the wounds. Arscott testified that while in the hospital, he was speaking to another officer concerning a vehicle found in ⁵⁰² front of the 7-11 when appellant stated, “[t]hat was my girlfriend’s car and she gave me permission to use it.” Arscott explained that appellant was not asked about the car, but rather, volunteered the information. After appellant was released from the hospital, Burkhalter took him to the Criminal Investigation Division and turned him over to Officer Michael Cheeks.

Cheeks testified that he had visited the 7-11 store during the course of his investigation. When Cheeks returned to headquarters, Burkhalter turned appellant over to him at approximately 10:37 a.m. At approximately 1:45 p.m., Cheeks interviewed appellant. Cheeks asserted that after he advised appellant of his rights and appellant executed a waiver of rights form, the latter proceeded to give a written statement concerning the robbery.

Cheeks also described the search of a vehicle recovered from the 7-11. The vehicle was apparently registered to George Howsare, who gave the police permission to conduct the search. During the search, the police recovered a cash box from the 7-11, a red shirt, and a black baseball cap. After the evidence was received, appellant’s counsel argued that appellant’s statement to Cheeks, his remark at the hospital heard by Arscott, and the contents of the car should be suppressed. [W]ith regard to the stop, the defendant should really be the starting point for everything.

We really have no evidence. What we have is Officer Burkhalter, who did not participate in the stop of [appellant], who indicated the description that was given was a white male, and he really didn’t have anything further than that. I believe it was five-eight to five-ten. Other than that, the next thing we know is we have [appellant] stopped and witnesses driving by.

So I don’t think the State has established probable cause-I would therefore like you to suppress the identification based on that. With regard to the statement [heard by] ... Officer Arscott, obviously [appellant] was in custody. I believe that ⁵⁰³ the conversation that — or Sergeant Arscott did not recall who he was having the conversation with....

The only way that [the police would learn that] — his girlfriend would let him use the car ... would be in response to some sort of interrogation or something that would raise it to the level of interrogation. [With regard to the statement to Officer Cheeks], [appellant] indicated he smoked crack earlier in the morning. We know the incident occurred around 7:00 a.m. and the statement was not taken until 1 something in the afternoon and not completed until 5 something in the afternoon.... We know that [appellant] was obviously uncomfortable ... because he was just bitten in two separate places by the dog. And for that reason we said [appellant’s statement] was not voluntar[y]....

With regard to the search of the vehicle, I don’t believe the State satisfied under the rules who the owner is, or who searched it, or where it came from. And for that reason we would ask that ... the I.D. be suppressed because the stop was — . The hearing court rejected appellant’s arguments and denied the motion to suppress. In so doing, the court found that [appellant] was in fact identified by a witness as the person who perpetrated the robbery and was arrested as a result of that....

That a vehicle was recovered in close proximity to the second location of the robbery. That the vehicle belonged to someone other than [appellant], and that someone gave permission to the police to search it by written consent. That [appellant] was not detained unduly. That he was advised of his constitutional rights....

That he waived his constitutional rights____That he answered questions and fully cooperated with the police, and this was not after an undue delay.... And the statement was fully voluntary. At the subsequent trial, appellant’s statements and the evidence seized from the car were received as evidence. The jury found appellant guilty on two counts of robbery and one ⁵⁰⁴ count of assault.

Appellant received two consecutive ten-year sentences for his robbery convictions, ten years to be-served without parole. The remaining assault count was merged. This appeal followed. Additional facts will be added as necessary to the following discussion.

DISCUSSION I. The Motion To Suppress We first address appellant’s challenge to the propriety of the initial stop. Because we conclude that the trial court erred in failing to rule on this issue, and remand for the purposes of such a ruling, we then address two issues relating to the remand. A. Propriety Of The Initial Stop Appellant’s first contention is that the trial court erred in denying his motion to suppress. Specifically, he argues that the State failed to prove that the initial stop was constitutional because “[n]o testimony was adduced by the State ... regarding the circumstances under which he originally came into police custody____[and] there was no basis from which the court would have concluded that the initial stop and subsequent arrest of the appellant was legal.” In its brief, the State admits that “virtually no evidence was presented at the suppression hearing regarding the circumstances of [appellant’s] initial stop.” The State argues, however, that appellant failed to properly challenge the propriety of the initial stop in his motion to suppress.

According to the State, although there was a passing reference to the stop at the conclusion of the identification portion of the hearing and a somewhat lengthier discussion of the stop after all the ⁵⁰⁵ evidence had been presented, when [appellant’s] counsel’s comments are considered in context, it is plain that counsel never fairly alerted either the State or the court that [appellant] was challenging the detention itself, rather than the identification, statements and seizure that followed. The State bears the ultimate burden of proving that evidence seized without a warrant should not be suppressed. See State v. Bell, 334 Md. 178, 191 , 638 A.2d 107 (1994). Nevertheless, it is “always the burden of the defense to raise the issue of unlawful search and seizure____” Kohr v. State, 40 Md.App. 92, 97 , 388 A.2d 1242 , cert. denied, 283 Md. 735 (1978).

The failure to raise a suppression issue before the hearing court amounts to a waiver to seek relief upon appellate review. See Nye v. State, 49 Md.App. 111, 116-17 , 430 A.2d 867 (1981). Moreover, the motion to suppress must be presented with particularity in order to preserve an objection. See, e.g., Jackson v. State, 52 Md.App. 327, 332 , 449 A.2d 438 , cert. denied, 294 Md. 652 (1982) (“If a hearing is granted but the defendant presents no grounds to support the motion, his failure ‘amounts’ to waiver”).

Indeed, “[a] party must bring his argument to the attention of the trial court with enough particularity that the court is aware first, that there is an issue before it, and secondly, what the parameters of the issue are. The trial court needs sufficient information to allow it to make a thoughtful judgment.” Harmony v. State, 88 Md.App. 306, 317 , 594 A.2d 1182 (1991). Based on our review of the record, we believe appellant met these standards and adequately articulated his challenge to the initial stop. In framing his second motion to suppress, appellant stated that he wished to “suppress the stop and anything that flowed from that.” After making this statement, appellant went on to argue particular reasons why his two statements to Cheeks and the items seized from the vehicle should be suppressed.

At that point, the State presented evidence concerning appellant’s two statements and the search of the automobile. The State did not adduce any testimony concern ⁵⁰⁶ ing the initial stop of appellant, or the State’s probable cause to hold appellant for the show-up procedure. 1 Appellant again argued regarding the initial stop after the State introduced all its evidence. At this point, appellant’s counsel challenged the lack of evidence relating to the initial stop with regard to the stop, the defendant should really be the starting point for everything. We really have no evidence.

What we have is Officer Burkhalter, who did not participate in the stop of [appellant], who indicated the description that was given was a white male, and he really didn’t have anything further than that. In presenting his argument to the hearing court, appellant’s counsel clearly and unambiguously stated that appellant was challenging “the stop and everything that flowed from it.” Moreover, he raised the issue again in arguing his motion to the hearing court. The State nevertheless insists that appellant may not challenge the propriety of the initial stop, because “[t]here was no evidence from which the court could have made any ruling on the propriety of the stop itself,” and that “when given an opportunity to clarify the basis of her argument, defense counsel did nothing to indicate that [appellant] was challenging the propriety of the initial detention per se.... ” We disagree. Defense counsel’s statement that she sought to “suppress the stop” should have put up a red flag for the State, and should have alerted the State that it was necessary to provide evidence concerning the initial stop.

Appellant is ⁵⁰⁷ not required to present evidence concerning the propriety of the initial stop. Once a defendant properly challenges the propriety of the stop, the burden is on the State to present evidence justifying its actions. See, e.g., DiPasquale v. State, 48 Md.App. 574, 578 , 406 A.2d 665 (1979) (“Warrantless Fourth Amendment intrusions are presumptively unreasonable ... and the burden is allocated to the State of showing adequate justification for the exceptional departure from the Fourth Amendment norm”)- We hold that appellant did not waive his Fourth Amendment challenge by failing to present evidence concerning the initial stop. The hearing court never ruled upon the propriety of the initial stop.

Instead, the court’s ruling focused on events that occurred during and after the show-up procedure. Therefore, we remand this case so that the court may rule on the propriety of the initial stop. B. Remaining Issues On Remand Two issues remain concerning the remand. First, we must determine the scope of the remand.

The State contends that the jury verdict should stand and that the case should be remanded for the limited purpose of conducting a new suppression hearing concerning the initial stop. Appellant counters that his conviction must be reversed. Second, although not addressed by the parties, we must determine, for the guidance of the trial court, the novel question of whether the State, on remand, is allowed to offer additional evidence at the suppression hearing beyond that presented at the initial suppression hearing. 1. Scope.

Of The Remand Maryland Rule 8-604(d)(1) authorizes a limited remand. It provides: ⁵⁰⁸ If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court. In the order remanding a case, the appellate court shall state the purpose for the remand. The order of remand and the opinion upon which the order is based are conclusive as to the points decided.

Upon remand, the lower court shall conduct any further proceedings necessary to determine the action in accordance with the opinion and order of the appellate court. The Court of Appeals and this Court have explained when a remand for a limited purpose, rather than for a new trial, may be authorized. In Gill v. State, 265 Md. 350 , 289 A.2d 575 (1972), Gill was convicted of robbery with a deadly weapon and kidnaping. His conviction was primarily based on a confession he gave to two police detectives.

This Court reversed Gill’s conviction because one of the detectives did not testify and specifically rebut Gill’s accusation that the detective coerced Gill into making the incriminating statement. We did not, however, grant Gill a new trial. Rather, we remanded the case “for a redetermination of the question of voluntariness.” Gill v. State, 11 Md.App. 378, 384 , 274 A.2d 667 (1971), rev’d, 265 Md. 350 , 289 A.2d 575 (1972). The Court of Appeals, while agreeing that the State failed to meet its burden of showing the confession was voluntary, disagreed with our determination that a limited remand was adequate, and remanded the case for a new trial.

The Court explained that the issue of the voluntary nature of a confession “involves a mixed question of law and fact” which is first heard by the judge, but “is then submitted to the jury for its ultimate consideration.” Gill, 265 Md. at 357-58 , 289 A.2d 575 . Because the jury ultimately decides the issue of voluntariness, a limited remand was not appropriate. The Court reasoned that it becomes quite apparent that a remand solely for a redetermination of the confession’s voluntariness can never be permitted in a jury trial since even if the trial judge ⁵⁰⁹ again concludes the statement was voluntary, that only establishes, prima facie, it was uncoerced. The jury still must have the opportunity to consider the evidence pertaining to its voluntariness before deciding whether the accused is guilty or innocent.

This inviolable jury function would be eliminated unless the judgment was reversed and a new trial awarded. Id. at 858-59, 289 A.2d 575 . The Court clarified and distinguished its Gill decision in Wiener v. State, 290 Md. 425 , 430 A.2d 588 (1981). In Wiener , the defendant was convicted of numerous crimes while being represented by the Public Defender’s Office.

Unbeknownst to the defendant or the Public Defender, the Attorney General’s office had placed an informant in the Public Defender’s Office to investigate an unrelated matter. During his undercover work, the informant was shown a statement made by defendant and discussed with an investigator “things which would probably be done in defense of the case and procedures which would probably be followed.” Id. at 430 , 430 A.2d 588 . Upon appeal after the defendant’s conviction, the Court held that the case must be remanded to determine whether the informant’s actions violated the defendant’s right to counsel. Nevertheless, the Court refused to grant the defendant a new trial and held that a limited remand was appropriate to decide this issue.

In so doing, the Court distinguished Gill and held that a limited remand was appropriate because the issue concerning appellant’s right to counsel was ancillary to the