Sweetney v. State

MURPHY, J. In the Circuit Court for Charles County, a jury convicted James William Sweetney, Petitioner, of robbery and related offenses, including use of a handgun in the commission of a crime of violence. The State’s evidence was sufficient to establish that he committed those offenses on July 14, 2006, when he and an accomplice participated in a “home invasion” during which they robbed the victim of several items, including a necklace that was (in the words of Petitioner’s brief) “snatched from [the victim’s] neck.” After the Court of Special Appeals affirmed Petitioner’s convictions in an unreported opinion, he requested that this Court issue a writ of certiorari to decide: 1) Whether the Court of Special Appeals erred when it decided that [Petitioner’s] constitutional right of confrontation was not violated where the trial court curtailed [Petitioner’s] cross-examination of the State’s detective regarding the contents of a search warrant return that directly contradicted the detective’s direct testimony about recovering a key piece of evidence? 2) [Whether] the Court of Special Appeals err[ed] in failing to reverse [Petitioner’s] conviction due to prosecutorial misconduct under a plain error analysis where the Court of Appeals had previously held that the precise type of prose ⁶¹² cutorial misconduct at issue was highly prejudicial and jeopardized the fundamental fairness of the trial, or in the alternative, should this Court recognize plain error and correct the denial of [Petitioner’s] right to a fair trial due to the prosecutorial misconduct? We granted the petition. 417 Md. 125 , 9 A.3d 1 (2010). For the reasons that follow, we hold that the trial court did not abuse its discretion in “curtailing the cross-examination of the State’s detective regarding the contents of a search warrant return” that was prepared by another law enforcement officer who did not testify at trial, and we decline to review any of Petitioner’s “plain error” arguments.

We shall therefore affirm the judgment of the Court of Special Appeals. Background Petitioner’s “confrontation” argument is based upon the theory that, to bolster its case against him, the State presented perjured testimony about what tangible evidence was — and what was not — recovered from (1) the victim’s apartment, and (2) the apartment of Petitioner’s girlfriend. According to Petitioner, although the victim made an in-court identification of Petitioner as one of the robbers, the fact that the victim had initially stated that he did not know who had robbed him is what motivated the State to present the perjured testimony. The robbery occurred on the afternoon of Friday, July 14, 2006, when two men forced their way into the victim’s apartment.

One of the intruders was unmasked, and the other was wearing a ski-mask. Both intruders used handguns to strike the victim’s face and head. After the victim had been forced into the bedroom, he lost consciousness. After the victim regained consciousness, one of the intruders grabbed the silver chain that the victim was wearing around his neck, and ripped the chain off the victim’s neck.

After stealing several items of the victim’s personal property, the intruders threw him into a closet, where he remained until five to ten minutes after the intruders left the apartment. ⁶¹³ The victim did not initiate the investigation of the robbery, which was first reported by an employee of the Southern Maryland Hospital Center, after the victim had been transported there by a friend. At the hospital, while being interviewed by Detective Chris Shankster of the Charles County Sheriffs Department, the victim initially stated that he did not know who robbed him. Detective Shankster testified that “it was within — probably within the hour of speaking with him. You know, he changed his story.” At this point, the victim stated that Petitioner was the masked intruder.

On July 26, 2006, Detective Shankster and other members of the Charles County Sheriffs Department accompanied Washington, D.C. Metropolitan Police Officers who executed a search warrant at 114 Galveston Street, S.E., Apartment 301, Washington, D.C., where Petitioner had been residing with his girlfriend and her children. Petitioner was present at the apartment when the warrant was executed. Shelley Progovitz, a Charles County evidence technician, who had responded to the victim’s residence on July 14, 2006, also accompanied the D.C. officers. In the words of Petitioner’s brief: Ms. Progovitz collected and bagged a black tee-shirt, a pair of black Nike boots, and two pairs of brown Timberland boots.

She also processed a small box collected from the sill in the bedroom that contained items of jewelry. Ms. Progovitz photographed the box at the scene, but its contents were “all like jumb[led] up ... or on top of each other in the box.” Nonetheless, Ms. Progovitz claimed that there was no clasp in the box seized during the search warrant. Detective Shankster explained on cross-examination that he was present for the collection of the necklace and pendant during the execution of the search warrant, and that “[w]e left a search warrant return which documents the items we seize from the residence. We leave a copy of the search warrant and search warrant return with the occupants ...” The Return described the box and its contents that were seized as follows: “Box w/chain w/broken clasp ⁶¹⁴ w/Jesus & Cross”.

The trial court would not, however, allow the Defense to cross-examine Detective Shankster (or any State’s witness) about the contents of the Return. Detective Shankster testified that after execution of the warrant, he returned with [the victim] on July 27, 2006, to [the victim’s] apartment to collect the clasp because he “assumed that the [crime scene technician] would have collected it, but she didn’t.” [The victim] testified that when he returned to the apartment, “the detective [Shankster] was actually right there standing by my side the whole time,” however, [the victim] did not see the detective collect any evidence when they returned together to his apartment. [The victim] also testified that he could not remember the detective pointing out anything that the detective located in the apartment. Detective Shankster claimed that he took a picture of the bloodstained area in the bedroom that showed a “clasp” but testified he did not collect it or request that it be collected. He then left to go to the hospital to speak with [the victim].

After Detective Shankster left [the victim’s] apartment, the crime scene technician, Ms. Progovitz, arrived. Her specific duties were to photograph the scene, search for evidence, collect evidence, and process any evidence ... Ms. Progovitz photographed [the victim’s] apartment and collected items of evidence from it, including a dust particle mask from the bedroom floor near the dresser in the area where Detective Shankster testified the clasp was present. Neither Ms. Progovitz, nor Corporals McCue or Strafella— who had each been through every room in the apartment— observed any broken items of jewelry or a clasp on the bedroom floor.

At trial, Detective Shankster was unable to identify the clasp in the pictures of the bedroom taken on the night of the incident by the crime scene technician, Ms. Progovitz. It was the theory of Petitioner’s case that he was in possession of the victim’s necklace because the victim had ⁶¹⁵ given it to him as a gift, and that the clasp had not been removed from the necklace when it was found in Petitioner’s apartment. The State, of course, emphasized the evidence that (1) the clasp, which broke off of the victim’s necklace when the necklace was ripped off his neck, was recovered from the victim’s apartment, and (2) the rest of the victim’s necklace was recovered from Petitioner’s residence. The State’s closing argument included the following assertions: The victim identified the chain — yeah that is the chain that was ripped off me — that is the pendant that was on the chain when it was ripped off me, and again it is his blood that is found on that chain.

That chain that is found in the Defendant’s bedroom during the search warrant — what explanation is there ladies and gentlemen as far as how that chain got there? There is only one. It was ripped off the victim by the Defendant on the night of the attack and we have got further evidence to show that because you can see the clasp right there— picture taken by Detective Shankster — July 14, 2006 the night of the attack. You see the two sections in the bedroom where the victim was attacked.

You see the clasp right there. Now at the time this picture was taken no one had talked to [the victim] yet — no officers that were on that scene had talked to [the victim] yet. They didn’t know if that clasp was significant or not. Ms. Progovitz didn’t know if that clasp was significant was not.

When Detective Shankster was with the execution of the search warrant in the District of Columbia — what did he see — he saw that picture — he saw that chain — what is missing on that chain — the clasp. The testimony was from the Detective as well as Ms. Progovitz that they opened that box there was no clasp connected to that chain. Why is that? Well we know why that’s the case — because it was laying in a pile of — puddle of blood on the victim’s floor after the chain was ripped off his neck and he got the clasp.

What did [Detective Shankster] do — said, when I see that chain and I notice there is no clasp on that chain, I think to ⁶¹⁶ myself, wait a minute I know where the clasp is. I have seen that clasp before. He goes back to the victim’s apartment and he collects State’s Exhibit 45 — that clasp. This was shown to the victim and he said, yeah, that is my clasp.

How does he know that? Because he has been wearing this chain for years. He wears it almost everyday. It is his prized possession.

He knows this clasp. So we know when that chain is ripped off the victim’s neck. The clasp tells the story, again, showing that the testimony you heard from [the victim] is completely accurate. During the State’s case-in-chief, Petitioner’s trial counsel made two attempts to place before the jury what had been marked as Defense Exhibit number 5 for identification, the search warrant “return” prepared by Detective Brett Smith of the D.C. Police Department.

The first attempt occurred during Ms. Progovitz’s testimony. The record shows that the following transpired during her cross-examination: Q: I’d like to show you again number 5. A: Okay. Q: Okay.

Which indicates a search warrant return. This indicates box with chain ... [Prosecutor] Your Honor, I am going to object at this point. This is not in evidence. [Bench conference was held] [The Court] It’s not her document. It’s not her document.

She didn’t sign it did she? [Prosecutor] No. No one that’s going to be in this trial ... [Defense Attorney] But ... [The Court] So, you can’t ... you can’t impeach her with it. [Defense Attorney] But, she was ... the reason I think it ... ask it is that she identified it as the return for this property and I can ask her to say she did. [The Court] It looked like it, but she ... its’s not her statement it’s not her written statement. ⁶¹⁷ [Defense Counsel] Alright. Alright. But, I think that I can ask her whether that changes the recollection of what she saw or what’s there ... [The Court] Well, you can use it to refresh her recollection. [Defense Counsel] Okay. [The Court] But you can’t ... [Prosecutor] I would even object to that. To refresh her [The Court] No, no no, you can use a bowling ball to refresh recollection.

It doesn’t have to be statement by the same witness. [Prosecutor] Okay. Well, then I guess I would object ... [The Court] You can show it to her ... [Prosecutor] Okay. [The Court] ... but you can’t read it. [Prosecutor] I would object to her having to read it or any counsel read it. [The Court] But, she can read it to herself. [Prosecutor] Certainly. Okay. [Defense Attorney] Um, hum. [The Court] But, not orally. [Defense Attorney] Okay. Okay. [Re-Cross Resumed] [Defense Attorney] Showing you exhibit 5 here.

My question is you could read that, my question is whether that refreshes your recollection about the condition of the necklace in this case. [The Court] Well, wait a second. Do you have any difficulty remembering what it looked like? [Witness] No. [The Court] There’s nothing to refresh. [Defense Attorney] Okay. Alright. Thank you.

Alright. I have no further questions. ⁶¹⁸ Anticipating that Petitioner’s trial counsel would attempt to place the contents of the return before the jury during Detective Shankster’s testimony, the State moved in limine to “prevent [Petitioner’s trial counsel] from question[ing] or attempting] to offer [into evidence the search warrant return] through any witness that [was] not the author of the document.” The record shows that the following transpired during the in limine hearing: [Prosecutor] Your Honor, I would ask that with regards to the search warrant return sheet, I would ... I’d essentially ask, I mean, it’s in a way, I guess, it’s a motion in limine, that [defense] counsel not be allowed to question or attempt to offer that I believe is Defendant’s 5 through any witness that is not the author of the document. I would argue that if we’re attempting to show that to the jury I think that’s attempting to send a signal to the jury with evidence which is not at least at this point admissible evidence. [Defense Counsel] That was ... the return of search warrant is obtained through the discovery process.

It is part of ... in other words, this was something that was ... the search warrant request to be done by Detective Shankster. [The Court] Um, hum. [Defense Counsel] He was the one present at the scene. And, would receive that document at the time that it was executed. So, I think that that’s something that he ... he could be questioned about. [The Court] Well he didn’t fill it out did he? [Defense Counsel] No. No. He didn’t fill it out. It would be ... it could be ... he could be questioned about it.

And, this, anyway, it says ... it refers to a broken clasp. [Prosecutor] Well, it refers to a bracelet with a broken clasp. But, it does not separately refer to a broken clasp. If you read it, it does ... it is very careful to distinguish separate items. The clasp is not separated.

It is described as a box with a bracelet with a broken clasp and a pendant. So, it ... ⁶¹⁹ [The Court] Well, actually, it says box with chain with broken clasp with Jesus Cross. [Prosecutor] My first argument is, of course, there could be no possible foundation laid without the author of that document. And, obviously, if we’re going to ... if a piece of evidence like that would be admitted, that line would have to be explained as to exactly what that person meant by what he wrote. That person is not here. [The Court] Well, how are you going to get it into evidence if you’re trying to[?] [Defense Counsel] Through ... it would be through Detective Shankster.

He was ... [The Court] Well, he’s not the author right? [Defense Counsel] He’s not the author, but he’s ... he’s ... of them team, he’s the leader of the team that does ... does that. I mean, you know, I mean certainly the State can ... [The Court] No, he’s not. [Defense Counsel] And, he certainly he can be ... come back. He can be shown the chain and say well, to the best of my knowledge that’s what it looks like. I just think it should be ... it should be something he can be cross-examined on. [The Court] No. It’s not his document.

How can he answer a question well why does it