Alexander v. State

DAMON ALEXANDER v. STATE OF MARYLAND

No. 2576

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

August 30, 2019

Circuit Court for Baltimore City

Case No. 117004005-011

UNREPORTED

Berger, Leahy, Harrell, Glenn, T., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Berger, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Damon Alexander, appellant, was charged by multiple indictments in the Circuit Court for Baltimore City with multiple counts of first and second-degree murder, attempted first and second-degree murder, and related handgun charges. After a jury trial, he was convicted of first-degree murder of Davon Dozier; first-degree murder of Troy Smothers; attempted first-degree murder of Tennod McGlotten; attempted first-degree murder of Antwan Nelson; attempted second-degree murder of Eric Russell; attempted second-degree murder of Bernadette Boyd; six counts of use of a handgun in the commission of a felony or crime of violence; wearing, carrying, and transporting a handgun; and, possession of a regulated firearm after having been convicted of a disqualifying crime. After he was sentenced, appellant noted this timely appeal.¹

QUESTIONS PRESENTED

Appellant presents the following four questions for our consideration:

I. Did the trial court err in denying the motion to suppress the extrajudicial photo identification?

II. Did the trial court err in admitting the AT&T cell phone records and jail calls in the absence of the requisite proper certificate of authenticity or other foundational requirements?

III. Did the trial court err in admitting inadmissible hearsay?

IV. Did the trial court err in admitting overly prejudicial crime scene photographs?

For the reasons set forth below, we shall affirm.

FACTUAL BACKGROUND

This case arises out of a shooting that occurred on the evening of November 30, 2016, in front of the Stop 1 convenience store in the Liberty Heights area of Baltimore City. Prior to the shooting, Tennod McGlotten was standing outside the convenience store with his friends, Davon Dozier and Troy Smothers, and a man he knew only as "Sosa." He saw a man whom he did not know approach the store. Mr. McGlotten heard gunshots and turned toward the man for a matter of seconds. The man was wearing a hood that did not cover his face. Mr. McGlotten was shot five times in the stomach and sustained a graze wound to his wrist. He ran to a nearby grassy area and called his girlfriend and then 911. Eventually, he was taken to the University of Maryland's Shock Trauma Center ("Shock Trauma"), where he remained for a couple of weeks.

Davon Dozier died at the scene of the shooting. A medical examiner testified that he had sustained 11 gunshot wounds, all from the back to the front of his body, that the cause of his death was multiple gunshot wounds, and that the manner of death was homicide. Troy Smothers was taken to Shock Trauma, where he died. A medical examiner concluded that the cause of his death was a single gunshot wound to the back and that the manner of death was homicide. Three other individuals were injured as a result of the shooting. Eric Russell sustained graze wounds to his lower back, Antwan Nelson sustained"multiple injuries to his back," and Bernadette Boyd sustained a graze wound to her shoulder.

After viewing surveillance video from the convenience store, police developed appellant as a suspect. During the course of their investigation, police learned that appellant's cousin had been killed on November 29, 2016 during a home invasion-type robbery on Duvall Street, not far from the Stop 1 convenience store. Baltimore City Police Detective Julian Min and Detective Sergeant Richard Purtell attempted to show a photo array to Antwan Nelson, but he was not cooperative.

On December 6, 2016, Detectives Min and Purtell visited Mr. McGlotten at Shock Trauma, but he had had surgery, was lethargic, and could not recognize the detectives. The detectives returned the following day and found Mr. McGlotten to be "a little bit more alert and talkative." The detectives spoke with him about what happened on the night of the shooting and found the information he provided to be coherent. Mr. McGlotten's uncle and step-father were with him in his hospital room. His uncle was on one side of the bed holding his hand and his step-father was standing by a window. Detective Min stood on the opposite side of the hospital bed from Mr. McGlotten's uncle. The detectives asked Mr. McGlotten to view a photo array and that process was audio recorded using one of the detectives' cell phones. Mr. McGlotten wavered between two photographs but eventually identified a photograph of appellant as the person who shot him.

On December 12, 2016, appellant was arrested at a home located at 2825 Westwood Avenue. Detective Min obtained a search warrant for that home. When he arrived to conduct the search, there were three people in the home: Carla Skinner, David Edwards,and Ashley Sparrow. Detective Min obtained the cell phone number from Ms. Skinner, and then proceeded to call that number. He then heard a cell phone in the home ring and, subsequently, seized it. No data was recovered from that cell phone. Detective Purtell obtained the call records for the cell phone from AT&T.

Federal Bureau of Investigation Special Agent Matthew Wilde testified as an expert in historical call detail analysis. He examined cell phone records for a specific cell phone number, and concluded that the location of the phone tracked the time and general location of the shooting in front of the Stop 1 convenience store on November 30, 2016.

After appellant was arrested, detectives obtained recordings of jail phone calls made by appellant to family members and other individuals, some of which were played for the jury. Appellant's jail cell was also searched and various letters were seized. Redacted versions of those letters were admitted in evidence.

We shall include additional facts as necessary in our discussion of the issues presented.

DISCUSSION

I.

Prior to trial, appellant moved to suppress the extrajudicial photographic identification of him by Mr. McGlotten. The court denied that motion to suppress, and, over objection, evidence of the photo array and Mr. McGlotten's identification of appellant was admitted at trial. Appellant contends that the photo array procedure used by the detectives was inherently and impermissibly suggestive "given the fact that [Mr.] McGlotten was hospitalized" and because the detectives did not conform to the BaltimoreCity Police Department's policy preference for the 'double-blind' method. Appellant maintains that the detectives used a disfavored method of photographic identification, the folder shuffle method, and failed to conform to the requirements for that method. We are not persuaded.

A. Standard of Review

In considering a trial court's denial of a motion to suppress evidence, we consider only the record developed at the suppression hearing. Sinclair v. State, 444 Md. 16, 27 (2015); Raynor v. State, 440 Md. 71, 81 (2014) (citing Briscoe v. State, 422 Md. 384, 396 (2011)). We view the evidence in the light most favorable to the prevailing party, and accept the circuit court's findings of fact unless they are clearly erroneous. Sizer v. State, 456 Md. 350, 362 (2017); Sinclair, 444 Md. at 27. We review the suppression court's legal conclusions without deference and make "our own independent constitutional evaluation as to whether the officer's encounter with the defendant was lawful." Sizer, 456 Md. at 362.

The right to due process of law is guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article 24 of the Maryland Declaration of Rights.² "[D]ue process protects the accused against the introduction of evidence of, ortainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures." Moore v. Illinois, 434 U.S. 220, 227 (1977); accord Neil v. Biggers, 409 U.S. 188, 196-99 (1972); Jones v. State, 310 Md. 569, 577 (1987), judgment vacated on other grounds, 486 U.S. 1050 (1988). When an accused challenges the admissibility of an extrajudicial identification procedure on due process grounds, Maryland courts apply a two-step test that, in essence, seeks to determine whether the challenged identification was unreliable:

The first [step] is whether the identification procedure was impermissibly suggestive. If the answer is "no," the inquiry ends and both the extra-judicial identification and the in-court identification are admissible at trial. If, on the other hand, the procedure was impermissibly suggestive, the second step is triggered, and the court must determine whether, under the totality of the circumstances, the identification was reliable.

Jones v. State, 395 Md. 97, 109 (2006) (internal citations and footnote omitted).

The defense bears the burden of showing unnecessary suggestiveness in procedures used by the police. Smiley v. State, 442 Md. 168, 180 (2015); Bean v. State, 240 Md. App. 342, 355 (2019). Suggestiveness exists, and a photo array is impermissibly suggestive, when the manner of presenting the array to the witness or the makeup of the array "indicates which photograph the witness should identify." Smiley, 442 Md. at 180. Stated otherwise,"[s]uggestiveness exists where the police, in effect, say to the witness: 'This is the man.'" Thomas v. State, 213 Md. App. 388, 417 (2013) (citing Jones, 310 Md. at 577).

"[M]ere suggestiveness," however, "does not call for exclusion." Turner v. State, 184 Md. App. 175, 180 (2009). If the defense shows that the identification procedure was impermissibly suggestive, then the burden shifts to the State to show, under a totality of the circumstances, by clear and convincing evidence, that the identification...