Holland v. State

839 A.2d 806

154 Md. App. 351

Samuel Marcel HOLLAND v. STATE of Maryland.

No. 2045, Sept. Term, 2002.

Court of Special Appeals of Maryland.

December 23, 2003.

Christina DeLeon, Margaret L. Lanier (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Rachel Marblestone Kamins, Michelle W. Cole (J. Joseph Curran, Jr., on the brief), Baltimore, for appellee.

Panel: HOLLANDER, ADKINS, and JOHN, J. BISHOP JR. (Retired, specially assigned), JJ. HOLLANDER, Judge.

Following a bench trial in the Circuit Court for Caroline County, Samuel Marcel Holland, appellant, was convicted of first degree burglary, attempted robbery, and attempted theft under five hundred dollars.¹ Holland, who was seventeen years old at the time of the incident, was sentenced to a term of ten years, with all but five years suspended, for the first degree burglary offense, and a concurrent term of ten years, with all but five years suspended, for attempted robbery. The court merged the theft conviction for sentencing purposes.

Appellant raises the following issues on appeal:

I. Is the evidence sufficient to support a conviction for first degree burglary, when there was no evidence of a breaking?

II. Did the trial court err in denying relief for a discovery violation?

III. Did the court err in denying appellant's motion to suppress evidence recovered in the course of a search pursuant to a warrant, when, with reckless disregard for the truth, the affiant omitted crucial information as to the identification of the suspect?

For the reasons set forth below, we shall reverse the burglary conviction but affirm the remaining convictions.

FACTUAL SUMMARY

Just after dark on March 3, 2002, eighty-one year old James William Carter, also known as "Ham," left his home at 105 North Fifth Street in Denton to purchase chewing tobacco at a nearby convenience store. On route to the store, Carter passed appellant at the intersection of North Fifth and Gay Streets, approximately thirty feet from Carter's home. Appellant, who was dressed in a heavy black coat and baggy black pants, was still at the intersection when Carter returned from the store.

Upon returning to his house, Carter closed the screen door but did not lock it. Moreover, he left the wooden door to his home ajar some twelve to fourteen inches. When Carter sat down to watch television, he heard a knock at the door. Thinking that it was one of the neighborhood boys, Carter responded, "come in." At that point, someone opened the screen door and stood in the area between the screen door and the wooden door.

After a brief silence, the individual demanded that Mr. Carter give him his money. When Carter did not respond, the suspect again demanded money while he "hit for his [coat] pocket." Although Mr. Carter did not know whether the suspect had a gun, he thought he had "something." Carter refused to give the assailant any money. Instead, he called out for his roommate, Edward Taylor. Just as Mr. Taylor responded, the suspect fled.

Carter testified that he was only able to see the assailant's eyes, nose, and mouth, because the suspect's face was partially covered by the hood of his parka. Mr. Carter further stated that the suspect "wasn't no grown person." Moreover, he was convinced that the assailant was the same person he had seen on the corner when he (Carter) went to and from the store.

Although the police came to Carter's residence with some photographs, Mr. Carter was unable to identify the assailant. He stated: "No, I didn't see it in there." Yet, in court, Carter identified appellant as his assailant. Carter acknowledged, however, that he "couldn't see [the assailant's] eyes real good because he had it [i.e., the parka hood] pulled close."

The trial court then questioned Mr. Carter at length about how he knew that appellant was the assailant if he could not see the suspect's face. Carter insisted that appellant was the assailant. The following exchange is noteworthy:

[THE COURT]: Now I understand when the person came in, you couldn't tell who was under that hood?

[MR. CARTER]: No, ma'am, no ma'am.

[THE COURT]: When you were walking to the Farm Store and you noticed the person on the corner wearing the parka, could you see that person's face?

[MR. CARTER]: No.

[THE COURT]: Okay when you came back from the Farm Store and you saw that same person on the corner ... ?

[MR. CARTER]: That's right.

[THE COURT]: Could you see that person's face?

[MR. CARTER]: No, ma'am, I couldn't see him until he come and knocked on my door.

[THE COURT]: All right and then you just saw his eyes, his nose and his mouth?

[MR. CARTER]: That's right, that's all I could see.

[THE COURT]: Now a little earlier you told Mr. Walker that it was the boy standing on the corner, the person on the corner was the Defendant?

[MR. CARTER]: It wasn't him.

[THE COURT]: That it was him, you pointed to Mr. Holland, that that was the boy standing on the corner with the parka?

[MR. CARTER]: Yeah, yeah.

[THE COURT]: How do you know that if you didn't see his face?

[MR. CARTER]: I could see it but he's the only, he's the only one out on the street.

[THE COURT]: Okay but if you didn't see his face, how do you know it was Mr. Holland?

[MR. CARTER]: Oh, it was him.

[THE COURT]: Okay, can you tell, it's very important, how do you know it was him if you couldn't see his face?

[MR. CARTER]: I couldn't see his face until he come in the house but if he hadn't had that hood pulled up on his head, I could have told that, I could have saw his face but I couldn't see. He had it all pulled up like it was freezing out there.

[THE COURT]: I understand that but at what point did you decide that that person in the hood was Mr. Holland?

[MR. CARTER]: That's the only one I saw standing there.

[THE COURT]: Okay, let's go back, okay, when you passed the person on the corner, you couldn't see their face?

[MR. CARTER]: No ma'am.

[THE COURT]: When did you decide in you own mind that that person who's face you couldn't see was Mr. Holland?

[MR. CARTER]: Well, I couldn't say but one thing about it but when I come back and I kind of looked over there, now I say in mind, something ain't right. He's standing there, why he [sic] standing there and nobody else because any other time all them street, street be full but he was the only one on that corner.

[THE COURT]: Okay, this is real, real important Mr. Carter and you've done a great job testifying and you've been, I've understood everything you've said but you have to understand that I need to know why you think it's that young man over there that was in that parka?

[MR. CARTER]: Well, I'm going to tell you, that's the only one I saw on that corner.

[THE COURT]: Okay but you just told me you didn't, you couldn't see their face?

[MR. CARTER]: I could see, you're right ...

[THE COURT]: Okay ...

[MR. CARTER]: ... I couldn't see a face but still, I still say he was the one on that corner.

[THE COURT]: Okay you need to tell me why you think that, why, I mean how, I mean it could have been somebody else in that parka?

[MR. CARTER]: No ma'am, no ma'am, no ma'am.

[THE COURT]: Then you need to tell me why ...

[MR. CARTER]: No ma'am, no ma'am, nuh-uh.

[THE COURT]: Okay ...

[MR. CARTER]: That was him.

[THE COURT]: Okay, so what ...

[MR. CARTER]: Now I might, I might (inaudible) but one thing about it, no ma'am, he was the one on that corner because if a person standing on the corner and he's standing when you go by and you come back, they got to be moved.

[THE COURT]: Okay but you need, okay Mr. Carter you need to tell me why you think it was him?

[MR. CARTER]: I know it was him.

[THE COURT]: Tell me how you know it was him if you couldn't see ... ?

[MR. CARTER]: I couldn't see his face good but he was the one.

Mr. Taylor testified that he responded to Mr. Carter's call and saw "a person going out of the door from the side view and then I saw the back view of this person going outside the door...." He noticed the individual's walk, which he described: "[T]he type of walk that they used, like a lazy person walk or a slur walk."

Mr. Taylor described the suspect as a dark complected male, about 120 to 130 pounds, approximately 5'2" tall. He wore a dark colored, hooded jacket with fur around the outside edge of the hood and dark, baggy, "bulky" clothes. Nevertheless, when Taylor was asked if he saw the face of the person who entered his residence, Mr. Taylor answered, "No, I did not."

Taylor recalled that Carter said the suspect had tried to rob him (Carter). Accordingly, Taylor called the police. Taylor testified: "I gave them a description of the person that I saw leaving out of the doorway...." Then, Taylor went outside to look for the assailant. As he "went around the street," Taylor "noticed the police had a person standing outside on the passenger side talking to him...." Taylor claimed that person matched the description of the assailant. He also thought this person lived in that area. However, he noticed that the person was not wearing any bulky clothes. Rather, he wore a white tee shirt and jeans. Nevertheless, Taylor recognized the individual because of his "lazy" walk.

A few days after the incident, Taylor called the police again to report that, across the street from their home, he saw "that same type of person with that type of clothes on...." Because of the person's walk and clothing, he concluded that the person across the street was the assailant. The following testimony is pertinent:

[PROSECUTOR]: Can you describe what you saw?

[MR. TAYLOR]: The person had that same type of slow walk with a little dip in his walk and I told Ham [Mr. Carter], I said that's that person and Ham looked over there, he said it sure is, just like that and that's when I had called the police.

[PROSECUTOR]: And did you provide information to the police?

[MR. TAYLOR]: Yes I did.

After the incident, Taylor was shown a photo array, but he was unable to make an identification....