Thompson v. State

EYLER, DEBORAH S., J. John Paul Thompson, the appellant, was convicted by a jury in the Circuit Court for Montgomery County of attempted robbery with a dangerous weapon, use of a handgun in a crime of violence, and three counts of first-degree assault. He was sentenced to a total of six years’ imprisonment and five years of probation. 1 The appellant presents three questions for review, which we have combined and rephrased: I. Did the trial court err in granting the State’s motion to exclude DNA evidence?

II

Did the trial court err in granting the State’s motion to exclude his expert witness on eyewitness identification? 2 ⁵¹⁶ For the following reasons, we shall reverse the judgments of the circuit court and remand the case to that court for a new trial. FACTS AND PROCEEDINGS On March 18, 2004, the appellant was indicted on the five above-mentioned charges. The charges stemmed from an attempted robbery of the Gourmet Grog store (“the Grog”) in Gaithersburg on October 18, 2003, at approximately 9:30 p.m. The appellant was tried by a jury for six days, from September 7 to 14, 2004.

The State called as witnesses in its case-in-chief Minesh and Rekha Patel; James L. Brown, Jr.; Karl Doepel; Officer John Panetti; Sergeant Tomas Rodea; Officer Paul Bandholz; Sergeant Paul Liquorie; Detective Frank Colbert; Detective Darren Francke; Tom Burse; and Detective Debra Haba. The detectives and officers were from the Montgomery County Police Department (“MCPD”). The State’s evidence showed the following. The Grog is a beer, wine, and deli shop.

At the time of the attempted robbery, it was owned by the Patels. The Patels were present and working at the Grog when the attempted robbery took place. They were the only people in the Grog when the robber entered the store. The robber was wearing black pants and a black shirt.

He had a black T-shirt tied around his face and head as a mask, with only his eyes and the bridge of his nose exposed. He was wearing a black bandana around his head. He was not wearing gloves. Mr. Patel testified that he immediately recognized the robber as a regular customer of the Grog.

When the robber entered the Grog, Mr. Patel said, “What’s going on, buddy?” The robber pointed a 25-caliber semiautomatic handgun at Mr. Patel and “click[ed] it” twice. He then approached Mr. ⁵¹⁷ Patel, grabbed him by the neck, and said, “Give me the money.” Mr. Patel responded that he did not have the money. The robber then walked over to the cash register, where Mrs. Patel was sitting. She stood up and he aimed the gun at her.

At that point, the robber’s mask fell part-way down, exposing the side of his face. He retied the mask to cover his face. Mrs. Patel opened the cash register but never handed the robber any money. Mrs. Patel testified that she, too, immediately recognized the robber as a regular customer of the Grog.

Both of the Patels identified the appellant in court as the robber. They testified that, before the attempted robbery, Mrs. Patel had nicknamed him “Boo,” and that he had been at the Grog two days before the day of the crime. The State’s evidence further showed that, as the attempted robbery was unfolding, a woman walked by the Grog and noticed what was happening. She ran into Ernie’s Pub, a bar next door to the Grog, and yelled for someone to call the police.

The bartender did so. Brown, who was inside Ernie’s and also was a regular customer of the Grog, ran over to the Grog and went inside. The robber pointed the gun at Brown, then placed it to his temple and told him to get on the ground. Brown told the robber he was leaving, and the robber hit him in the temple with the gun.

When he did that, Brown grabbed the robber’s arm and a struggle ensued, during which Brown managed to grab the gun from the robber. The robber fled the Grog on foot. Doepel, a friend of Brown, also was inside Ernie’s Pub at the time. He heard the woman yell, and then heard from someone in the bar that Brown had run over to the Grog.

Doepel ran toward the Grog. As he did so, he saw a man he believed to be the robber running down the street. He ran after the man to see whether he was going to get inside a car. When the man ran down a path, Doepel stopped following him for fear of being “ambushed.” ⁵¹⁸ Several police officers from the MCPD responded to the Grog.

Sergeant Rodea was the first to arrive. As he approached the Grog, he saw a black male subject, fitting the broadcast description of the robber, coming from the direction of the Grog. He stopped the subject, who then was released after Brown looked at him and said he was not the robber. Officer Panetti arrived on the scene and, after speaking with Sergeant Rodea, entered the Grog.

Brown told him what had happened and handed him the gun he had taken from the robber, which he had put in his pants pocket. Officer Panetti handed the gun to Sergeant Rodea, who was off duty at the time, who gave the gun to Officer Bandholz. Officer Bandholz “made the gun safe” and gave it back to Sergeant Rodea, who put it in a plastic bag and gave it to Officer Liquorie. None of the officers who handled the gun were wearing gloves.

Sergeant Rodea, Officer Banhloz, and Sergeant Liquorie viewed footage of the attempted robbery taken by a television surveillance camera inside the Grog. They testified that the footage showed the robber enter the Grog and strike someone behind the counter with a gun. Another man entered the store and began fighting with the robber on the ground. The robber crawled toward the door.

He had trouble opening the door, and touched it several times before fleeing the store. 3 Sergeant Liquorie interviewed the Patels, Brown, and Doe-pel at the scene. They described the robber as a black male, in his early twenties, six feet tall, with a thin build. Mrs. Patel did not tell the sergeant at that time that the robber was a regular customer. Mr. Patel said that the robber had an American or possibly African accent.

He also did not say that the robber was a regular customer. Sergeant Liquorie requested testing for DNA and latent fingerprints on the gun. He also requested elimination buccal swabs from Mrs. Patel and Brown, but not from any of the officers. ⁵¹⁹ Detective Colbert dusted the door for fingerprints. He was able to lift 11 prints from the interior and exterior of the door.

The police never found a clip, bullets, or shell casings. The appellant went to the Grog on three occasions following the attempted robbery: October 24, 29, and 30, 2003. The Patels recorded by television surveillance his activity inside the store. They did not call the police on any of those occasions.

They gave the surveillance footage to the investigating police officers. Sometime during the first week in November 2003, Detective Haba received that footage. She met with Mr. Patel and viewed it with him. He pointed to the appellant on the film and said he was the person who had tried to rob the Grog.

On November 17, 2003, Detective Haba conducted a search of the appellant’s house, with the consent of his girlfriend. She found some dark-colored clothing in a laundry basket in his bedroom. On December 11, 2003, Detective Haba showed Mrs. Patel a photographic array. Mrs. Patel chose the appellant’s picture from the array.

Detective Haba also showed the array to Brown and Doepel. Brown could not identify anyone as the robber. Neither could Doeple, but he mentioned that a person in the array, who was not the appellant, had the same shaped face as the robber. Detective Haba testified that she did not ask any of the officers who handled the gun to submit elimination DNA samples because of the time and expense that would have been involved.

The appellant submitted a DNA swab. Tom Burse, a certified latent print examiner for the MCPD, examined the fingerprint evidence in this case. A fingerprint lifted from the interior of the Grog door matched that of the appellant. Only two of the prints had “something of value.” The other print was not the appellant’s and could not be identified. ⁵²⁰ The defense called Tanya Thompson, the appellant’s mother; Walter Arango, a friend of the appellant; and Gwendolyn Ward, the appellant’s girlfriend, who testified that she was with him at home at the time of the attempted robbery.

The State then called Detective Patrick Word as a rebuttal witness. On September 14, 2004, the appellant was found guilty of all charges. On September 22, 2004, the appellant filed a motion to set aside the verdict and for a new trial. He argued that the trial court had erred by granting motions by the State to preclude him from calling a witness to testify about the DNA evidence and to preclude him from calling an expert witness on eyewitness identification.

The appellant asserted that the State’s motion to exclude the DNA evidence was untimely. He also argued that, by granting the State’s motion to exclude his expert witness on eyewitness identification, the court deprived him of his right to effective assistance of counsel and to a fair trial. The State responded that the issues were not appropriate for a motion for a new trial. On October 27, 2004, the court denied the appellant’s motion for new trial.

After sentencing, the appellant noted a timely appeal. DISCUSSION I. Carrie Tentarsky, a forensic chemist with the MCPD, performed a DNA analysis on the gun and wrote a DNA analysis report of her findings. The DNA analysis excluded the appellant’s DNA from being on the gun. Several other DNA samples were found on the gun, but were not identified.

According to the testimony of Detective Haba, the DNA analysis report was complete and in the custody of the MCPD on February 10, 2004. ⁵²¹ On the fifth day of trial, after calling his last witness but before resting the State’s case, the prosecutor moved in Imáne to preclude the defense from calling Tentarsky as a witness and from introducing her DNA analysis report into evidence. He argued that the defense did not comply with Md.Code (1973, 2002 Repl.Vol.), section 10-915 of the Courts & Judicial Proceedings Article (“CJP”), which he interpreted to require a party to give written notice to the other party at least 45 days before trial of the party’s intent to introduce DNA evidence. The prosecutor represented to the trial court that the State’s Attorney’s Office did not receive the DNA report from the MCPD until July 31, 2004, and that defense counsel was furnished the report on August 2, 2004. The prosecutor further represented that he received a letter, dated August 19, 2004, from defense counsel, stating that the defense intended to introduce the DNA evidence at trial.

The prosecutor did not respond to that letter. The prosecutor argued that, because defense counsel did not give 45-days written notice, prior to trial, of her intention to use the DNA evidence, or ask for a continuance, the DNA evidence, including Tentarsky’s testimony, should be excluded. The prosecutor further argued that the State’s case would be prejudiced if the DNA evidence were admitted because he did not have time to take DNA samples from the police officers who handled the gun, to determine if their DNA matched the unidentified DNA samples found on the gun. Defense counsel responded that she could not give 45-days notice of her intention to use the DNA evidence at trial because the prosecutor did not give the DNA analysis report to her more than 45 days before trial.

She argued that she gave the prosecutor written notice as soon as she could, by means of her August 19 letter, and that the prosecutor should have known when he received the DNA analysis report that the defense was going to introduce the evidence at trial. Defense counsel further argued that she would have asked for a continuance if the prosecutor had told her, before the start ⁵²² of the trial, that he was moving in limine to exclude the