DAMEEK v. State of Md.

DAMEEK YEARBY A/K/A DAMEEKYERBY

v.STATE OF MARYLAND

No. 119

Supreme Court & Appellate Court of Maryland

Filed: June 17, 2010

CRIMINAL LAW-ALLEGED VIOLATION OF Brady v. Maryland, 373 U.S. 83 (1963)-DEFENDANT'S KNOWLEDGE OF ALLEGEDLY WITHHELD EVIDENCE

The defendant-petitioner failed to satisfy his burden to prove that the State had withheld "evidence favorable to [the] accused," because he had sufficient knowledge of the allegedly suppressed evidence.

Opinion by Battaglia, J.

The Petitioner, Dameek Yearby, ¹ was convicted of robbery, second degree assault, and theft of goods with a value less than $500, in a jury trial in the Circuit Court for Baltimore City. After his motion for new trial was denied, and sentence imposed, he appealed to the Court of Special Appeals. In an unreported opinion, the intermediate appellate court affirmed the judgments in all respects. Yearby then filed a petition for certiorari in this Court. We granted his petition to consider the following question:

Did the State commit a Brady² violation by failing to disclose the facts that the police had developed other suspects with respect to a series of robberies that happened in the same area and during the same time frame as the robbery of which Petitioner was accused, and that at least one of those suspects resembled Petitioner?

Yearby v. State, 411 Md. 355, 983 A.2d 431 (2009). We shall answer "No" to the question, and consequently, shall affirm.

FACTS AND PROCEDURAL HISTORY

On the night of November 8, 2004, Camille Zongo, a student at Morgan State University in Baltimore, was robbed at gunpoint on campus. After surrendering money to the robber, she began walking toward her dormitory. The gunman ordered her to turn around and walk in the opposite direction. As she turned around toward him, Ms. Zongo could seeher assailant because the area was well-lit.³ She later described him as a black male, with a "low haircut" and a caramel complexion, about 5'7" to 5'8" tall, and wearing a white shirt.

In late 2004, there had been a series of other armed robberies in and around the Morgan State campus-at least fourteen had been reported to police. Detective James B. Harrison of the Morgan State University Police Department was assigned the duty to investigate; in the course of his investigation, Yearby, who also was a student at Morgan State, filed a complaint with campus police claiming he had been assaulted. Harrison's suspicions heightened when, shortly afterward, Yearby's roommate, Daryl Gates, was the victim of a more serious assault. There were rumors about campus that Yearby and Gates had been responsible for the robbery spree and that those suspicions had fueled the assaults against Yearby and Gates.

Detective Harrison came to suspect Yearby in the robbery against Ms. Zongo and decided to prepare a photo array that included Yearby's college photo ID. Ms. Zongo selected Yearby's photo from the array, telling Harrison she was "positive" he was the robber. After obtaining an arrest warrant, Detective Harrison, while interviewing Yearby, ostensibly concerning the assault against him, instead, arrested Yearby.

Yearby was charged with robbery with a dangerous weapon; robbery; first degree assault; second degree assault; theft of goods with value less than $500; wearing, carrying, or transporting a handgun; and use of a handgun during the commission of a felony or crimeof violence.⁴

Yearby filed a motion to suppress Ms. Zongo's pretrial identification. Detective Harrison testified at the hearing on that motion, setting forth the background surrounding the case, and the reasons his investigation focused on Yearby as the perpetrator of the armed robbery. Defense counsel questioned him about whether there were other suspects in the case:

[DEFENSE COUNSEL]: Now, these-when you put together this photo array, did you ever consult with Baltimore City Police Department for possible persons of interest?

[DETECTIVE HARRISON]: Yes.

[DEFENSE COUNSEL]: And did you come up with any

information from Baltimore City as to possible suspects?

[DETECTIVE HARRISON]: No.

[DEFENSE COUNSEL]: No? [DETECTIVE HARRISON]: No. Not at that time.

[DEFENSE COUNSEL]: And did you have other possible

suspects during the investigation before you did the photo array?

[DETECTIVE HARRISON]: Like I said, there was-there was-I believe they had within that time, during that time, they'vehad, like, fourteen armed robberies at that time, so it was just-

[DEFENSE COUNSEL]: My question is, did you have other suspects?

[DETECTIVE HARRISON]: Yes, I did.

[DEFENSE COUNSEL]: And did you put any of those other suspects in the photo array?

[DETECTIVE HARRISON]: Yes, I did.

[DEFENSE COUNSEL]: Okay. And can you identify which of these photos were the other suspects?

[DETECTIVE HARRISON]: Not at that time, there wasn't.

[DEFENSE COUNSEL]: I'm sorry?

[DETECTIVE HARRISON]: I didn't put any of them in that photo array.

[DEFENSE COUNSEL]: Well, what photo array did you put them in?

[DETECTIVE HARRISON]: Another photo array [that I did not show to Ms. Zongo].

* * *

[DETECTIVE HARRISON]: Okay. What happened was, there were fourteen armed robberies in the area at that time. So quite naturally I have a number of different suspects, but what I did is, they were subsequently identified by other students and I did put a photo array involving Mr. Yearby's picture. The one that I showed her, since it did state that he was a light-skinned male, I showed her his picture and that [was] the only photo array that I showed her.

The court denied Yearby's motion to suppress, and Ms. Zongo's pretrial identificationsubsequently was admitted at trial.

Voir dire and jury selection took place the following day, and trial began on May 9, 2007. Ms. Zongo testified that Yearby was her assailant, and later authenticated her extrajudicial identification in front of the jury. Detective Harrison also testified, corroborating Ms. Zongo's testimony.

During re-cross examination of Harrison, the defense pressed him about "the other suspects that [he] developed not matching... Yearby's description." Counsel then asked whether Harrison had provided any of his reports concerning the other robberies that had been under investigation at the same time he was investigating this case. Harrison answered "No," and when defense counsel persisted in this line of questioning, the prosecutor objected. A bench conference then ensued:

[PROSECUTOR]: [The defense] does have some of that information. (Inaudible) second case, has the information. Defense has it.

[DEFENSE COUNSEL]: (Inaudible) fourteen armed robberies. THE COURT: I didn't hear you.

[DEFENSE COUNSEL]: There's fourteen armed robberies. He hasn't said how many other people there are. I have no idea.

[PROSECUTOR]: And [defense counsel] did her own investigation and put another suspect, who was also one of those suspects, and showed it-

[DEFENSE COUNSEL]: And looks just like my guy. If she wants to go down that road, we can do it.

* * *

THE COURT: Let's just end it here...

(Emphasis added.)

The jury convicted Yearby of robbery, second degree assault, and theft of goods with value less than $500, and acquitted him of the remaining charges.

Yearby filed a timely motion for new trial, asserting that the State had violated Brady by failing to disclose that Detective Harrison "had developed additional suspects at the time he administered the photographic line-up to Ms. Zongo," that the prosecutor's closing argument had been "loaded with improper remarks," that the trial court erroneously had denied a defense motion for mistrial and further had refused to give a curative instruction to correct repeated attempts by the prosecutor to introduce hearsay, and that the evidence was insufficient. After a hearing, the court denied Yearby's motion. Yearby was sentenced to six years' imprisonment, suspended to time already served, with three years' probation.

Yearby appealed to the Court of Special Appeals, claiming that the trial court had erred in denying his motion for new trial because the State had violated Brady. He also contended in the intermediate appellate court that the trial judge had committed plain error by failing to take any curative action in response to the prosecutor's "multiple improper comments" during closing argument.

The intermediate appellate court affirmed the judgments of the trial court in an unreported opinion. Yearby filed a petition for certiorari, limited to the Brady issue, which we granted.

INTRODUCTION

The Supreme Court held in Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963), that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." The Court subsequently has refined and elaborated on this holding, extending the categories of evidence that must be disclosed, Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 108 (1972) (impeachment evidence), and, when evidence is "highly probative of innocence," relieving the accused of the burden of making a request. United States v. Agurs, 427 U.S. 97, 110, 96 S. Ct. 2392, 2400, 49 L. Ed. 2d 342, 353 (1976); Wilson v. State, 363 Md. 333, 346, 768 A.2d 675, 682 (2001); see also Diallo v. State, __ Md. _, __ A.2d No. 91, September Term, 2009, slip op. at 28-29 (filed May 10, 2010) (discussing a prosecutor's duty to discover and disclose exculpatory evidence known to other state actors).

There are, however, limits to the prosecutor's automatic duty of disclosure. See United States v. Bagley, 473 U.S. 667, 675 n.7, 105 S. Ct. 3375, 3380 n.7, 87 L. Ed. 2d 481, 489 n.7 (1985) ("An interpretation of Brady to create a broad, constitutionally required right of discovery 'would entirely alter the character and balance of our present systems of criminal justice.'") (quoting Giles v. Maryland, ...