In re D.M.

228 Md.App. 451

139 A.3d 1073

In re D.M.

No. 2712, Sept. Term, 2014.

Court of Special Appeals of Maryland.

June 29, 2016.

Brian M. Saccenti (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.

Mary Ann Ince (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: MEREDITH, ARTHUR, J. FREDERICK SHARER (Retired, Specially Assigned), JJ.

SHARER, J.

The Circuit Court for Baltimore City, sitting as a juvenile court, found D.M., appellant, “involved” in the delinquent act of theft of property valued at less than $1,000, thus affirming the findings of the juvenile master. Appellant was subsequently committed to the Department of Juvenile Services for placement.

In this appeal, appellant raises two questions for our consideration:

1. Did the juvenile court err in refusing to permit the removal of shackles from appellant during the court proceedings?

2. Did the juvenile court err in denying appellant's motion to suppress?

For the reasons expressed herein, we find neither reversible error nor abuse of discretion, and affirm the judgments of the circuit court.

BACKGROUND

At about 9:50 a.m. on August 5, 2014, Nicole DiHart was walking on Pratt Street in Baltimore City when her cell phone rang. As she retrieved the cell phone to answer the call, it was snatched from her hands by a young black man with short hair, whom she estimated to be between ten and 12 years of age, wearing blue jeans, blue underwear visible above the jeans, and no shirt, riding an older blue and red BMX-style bicycle. As he rode away, he looked back over his shoulder two times, allowing DiHart to see his face. When she got to work at the University of Maryland, DiHart reported the incident to the campus security officers in her building.

About two-and-a-half hours later, DiHart was contacted by the police who asked her if she would ride by in a police cruiser to view a potential suspect at a nearby McDonald's. At the McDonald's, DiHart first noticed an older blue and red BMX-style bicycle parked nearby. She then recognized appellant as the person who had snatched her cell phone earlier that morning. She noticed that he had changed his clothes and was now wearing a shirt or jumpsuit, but was, nonetheless, able to affirmatively identify him to the police. At the adjudicatory hearing, DiHart again identified appellant as the individual who had stolen her cell phone.

Following his arrest, appellant appeared with his attorney at several hearings before a juvenile court master.¹ On November 6, 2014, appellant was brought to court for an adjudicatory hearing before the master. He was transported in leg and wrist restraints by court security officers, and remained so shackled during the proceedings.

At the outset, appellant's attorney requested that the master authorize the removal of appellant's restraints, which the master declined to order. We shall discuss that matter in further detail in Part I of this opinion. Counsel also moved to suppress DiHart's out-of-court identification. After hearing testimony from DiHart and argument from counsel, the master denied the suppression motion and ruled that appellant was involved in the theft of DiHart's cell phone.² The formal adjudication followed.

Appellant filed exceptions challenging both the master's denial of his motion to suppress and her refusal to order removal of his shackles during the adjudication hearing. The exceptions were heard, on the record, in the circuit court on January 20, 2015. After hearing the arguments of counsel, the court determined that the identification procedure used by the police was not impermissibly suggestive and that DiHart's out-of-court identification was reliable. The court further concluded that requiring appellant to remain shackled during his adjudication hearing was not prejudicial. Accordingly, the court denied appellant's exceptions, and affirmed the delinquency adjudication.

ANALYSIS

I. Shackling During Adjudicatory Hearing

Prior to each of his hearings before the juvenile master, defense counsel requested that appellant's shackles be removed. In each instance, the master denied the request without making any findings of the need for him to remain shackled.

At the adjudicatory hearing on November 6, 2014, appellant's attorney again requested that appellant's restraints be removed during the proceedings. For understanding of the issue, we include the following exchange:

[Defense Counsel]: I would like the restraints removed before any witnesses come into the courtroom. This is—

THE COURT: They're not going to be removed. He can have them in front if the officer says it's okay.

[Defense Counsel]: Your Honor, this is a case that I've had (indiscernible).

Most cases are a witness identifying D as the person who—

THE COURT: That happens all the time.

[Defense Counsel]: But, Your Honor, having him in shackles is an indication to the witnesses that this is the young man who did it. This is a due process issue, Your Honor. It's not just I want them off because we're having a hearing. We don't allow—in the adult system we would never allow a jury—

THE COURT: This is not the adult system, sir.

[Defense Counsel]: Okay. But the implication is the same.

THE COURT: If his hands are handcuffed in front of him then they could be down in his lap and no one can see.

[Defense Counsel]: You know, Your Honor, when you walk in the courtroom you'll see the leg shackles. They will see—

THE COURT: Oh, I'm not having anybody's leg shackles taken off.

[Defense Counsel]: Your Honor—

THE COURT: It's not going to happen, sir.

[Defense Counsel]: Then this is not going to be a fair trial because you'll be sending the signal— THE COURT: Okay, [Defense Counsel], let's do this. We'll just go ahead and then you'll take your exception.

Now, Officer [W.]—

OFFICER [W.]: Yes.

THE COURT: —the young man has a trial. Is he handcuffed in front or in back right now? Okay. Now, are you going to be staying with him the whole time?

OFFICER [W.]: If I have to, probably will.

THE COURT: Okay. Are you comfortable putting his handcuffs in front?

OFFICER [W.]: No. I'm going to leave them on the back. He has a problem with his fingers so I have him—

THE COURT: Say that again.

OFFICER [W.]: He has a problem with his fingers.

THE COURT: What do you mean with his fingers?

OFFICER [W.]: He—

THE COURT: You mean he gives people the finger?

OFFICER [W.]: Yeah, he (indiscernible).

[Defense Counsel]: Your Honor, he's never done that in a courtroom.

THE COURT: Okay. Hold on. Well, here's the thing. It's going to be awhile and I don't think he can sit comfortably handcuffed behind.

[D.],—

[D.M.]: Yes.

THE COURT: —you know we don't allow that here. You don't give people the finger here in court. Do you understand that?

[D.M.]: Yes.

THE COURT: So I'm going to ask Officer [W.] to put your handcuffs in front and I'm going to trust you to respect the rules of court and not give anybody the finger, okay?

[D.M.]: Yes, Your Honor.

THE COURT: Okay. Now— [Defense Counsel]: You're not giving me an exception. You're giving me a plea. This is an issue where—

THE COURT: [Defense Counsel], you do your thing, my friend. I'm just trying to run my courtroom the way I've been doing it for about 20 years now. Okay. Now, do you want to borrow a jacket or something to put over his handcuffs since the officer doesn't feel comfortable?

[Defense Counsel]: I don't see how that makes it any better, Your Honor, not really.

THE COURT: Well, other than that, he'd just have to keep them down in his lap.

[Defense Counsel]: Well, I mean, if he—

THE COURT: Your attorney, [D.], is concerned about someone seeing your handcuffs. So when you're sitting down, can you keep your hands in your lap?

[Defense Counsel]: Well, Your Honor, that's a problem too because I need him to communicate with me.

THE COURT: Well, he can talk to you in your ear.

[Defense Counsel]: I need him to write things down so I can—

THE COURT: He's not going to write anything down.

[Defense Counsel]: Are you kidding me? The last two adjudications we had all he did was write things down and he has an absolute right to communicate with—

THE COURT: Well, then he can put the pad in his lap.

[Defense Counsel]: Your Honor, you're restricting his right to effectively assist his own counsel.

THE COURT: Well, I appreciate your argument. I do not agree with your argument. I'm going to try to put him in a situation where he can participate fully. Now, actually, I don't think that people are going to be able to see all the way over there to his table. If he wants to write on the table with a pad and pen, that's fine. If he wants to write down in his lap, keep the pad and pen down in his lap, that's fine, too. You two may decide that.

I'm happy to lend you something to put over his handcuffs physically so they won't be obvious or he can just—

[Defense Counsel]: Your Honor, I'm not—

THE COURT: —keep them in his lap.

[Defense Counsel]: —conceding anything. He shouldn't have handcuffs on his hands—

THE COURT: Okay.

[Defense Counsel]: —during trial.

THE COURT: Okay. Thank you, [Defense Counsel].

[Defense Counsel]: So when the—

THE COURT: He should have handcuffs on. If—

[Defense Counsel]: —witness sees him with handcuffs on—

THE COURT: —the Court makes a decision that he should wear handcuffs, he should wear handcuffs and I have already—

[Defense Counsel]: But there's—

THE COURT: —spoken to—

[Defense Counsel]: —no danger, Your Honor. There's no risk of violence, Your Honor.

THE COURT: [Defense Counsel], I am responsible. Now, this is my training. I am responsible for the welfare of everybody who comes into my courtroom. I speak to the officers about security and I respect what they tell me because I am the one who will answer if someone gets hurt in here, including [D.]. So that's what—that's the perspective that I'm coming from, just so you understand. Now—

[Defense Counsel]: And the first allegation that's been raised (indiscernible)—

THE COURT: Okay. That's enough. Don't answer me back another time.

[Defense Counsel]: —dangerous, Your

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