In re S.H.

1

IN RE: S.H.

No. 144-2021

Court of Special Appeals of Maryland

July 28, 2022

Circuit Court for Charles County Case No. C-08-JV-20-000007

Graeff, Friedman, Eyler, Deborah S. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

GRAEFF, J.

On January 7, 2020, the State filed a delinquency petition alleging that S.H., appellant, committed burglary in the first degree, burglary in the second degree, burglary in the third degree, and theft of $100 to $1,500.^[1] On February 25 2021, following delays related to the COVID-19 pandemic, among other things, the Circuit Court for Charles County found appellant involved on the burglary charges, but not involved on the theft count. The court placed appellant on supervised probation.

On appeal, appellant presents the following questions for this Court's review, which we have rephrased slightly, as follows:

1. Did the circuit court err in denying appellant's motion to dismiss under the speedy trial provisions of Maryland Rule 11-114 and the United States Constitution?

2. Did the circuit court err in ruling that introduction of a cellphone recording of a video did not violate the best evidence rule?

For the reasons set forth below, we shall affirm in part and vacate in part the judgment of the circuit court and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

In 2019, Steven Boyd lived alone at his home in Indian Head, Maryland. Mr. Boyd paid appellant, who lived nearby, and his friend to perform yardwork and other maintenance jobs for him. He never allowed the boys in his house, even to use the restroom.

In the summer of 2019, Mr. Boyd discovered that some of his gasoline containers and tools were missing. He set up motion-detecting cameras in an attempt to catch the suspected thief, but he was unable to catch anyone. He showed the boys where he put the cameras so they would not damage the power lines while using the lawn mower. These cameras, though, did not stop the thefts, and the cameras were often damaged and moved from their spots, or the antennas were broken off and power cords cut. He found one of the cameras chewed up inside his goat pen; he believed that someone had taken the camera off and threw it into the goat pen.

Mr. Boyd also experienced break-ins of his house, and he noticed that "cash envelopes" on his desk and small electronics, like his television remote, were missing. He placed surveillance cameras in his house. At first, these cameras were motion-activated, but he eventually set them to record continuously.

On October 1, 2019, Mr. Boyd checked the surveillance camera after returning home from traveling for one week, saw a figure in his house, and contacted the Charles County Sheriff's Office. He told Detective Hunter Moehler that power tools worth $1,000 were missing. Detective Moehler did not watch the week's worth of surveillance footage from when Mr. Boyd was away, but instead, Mr. Boyd "scrolled through to the portions where he had reviewed it previously." Detective Moehler recorded the surveillance video with his cellphone.

At trial, Mr. Boyd testified that he identified the figure in the video as appellant because of his posture, "especially . . . from his hips, down," as well as his haircut. He told Detective Moehler that he suspected appellant because he "caught him around his residence a few times before."

Appellant's mother testified that the figure in the video did not have appellant's tattoos, which appellant showed to the court. Appellant got the tattoos from a friend, without his mother's permission. Although she was unsure whether he had one of the tattoos he had at trial prior to October 1, 2019, she did identify certain tattoos that she said he had prior to October 2019.^[2]

The court found, beyond a reasonable doubt, that the person captured on the video was appellant. As indicated, it found appellant involved with respect to the burglary counts. It found appellant not involved in the theft count because the video did not capture appellant taking any property.

This appeal followed.

DISCUSSION

I. Speedy Trial

Appellant contends that the delay in his trial violated both his constitutional right to a speedy trial and the timing requirements of Maryland Rule 11-114. As set forth in more detail, infra, the State disagrees.

A. Proceedings Below

On January 7, 2020, the State filed the delinquency petition and on January 13, 2020, appellant was served with the petition. Appellant filed a motion for a speedy trial on January 24, 2020.

An adjudicatory hearing began on February 26, 2020. Mr. Boyd testified about his relationship with appellant and the missing items. When Detective Moehler was discussing how he developed appellant as a suspect, he testified about a conversation that he had with appellant, which he testified was recorded by his microphone and camera. The prosecutor advised that he was not aware of the video. The prosecutor estimated that it would take approximately five to six business days to get the recording. Everyone agreed to continue the case to March 11, 2020, although counsel for appellant told the court that she had at least two lengthy adjudications scheduled for that day. The court remarked that it would "get to what we are able to get to."

On March 11, 2020, appellant's case was not called until 3:23 p.m. The parties did not attempt to begin the adjudication, but instead, they discussed rescheduling. Based on schedules, the parties agreed to a new date of March 30, 2020.

On March 13, 2020, Chief Judge Barbera issued an administrative order, effective immediately, that closed courts to the public, due to the COVID-19 emergency, until April 3, 2020, and on March 25, 2020, Chief Judge Barbera extended the length of closure until May 1, 2020.^[3] On March 27, 2020, the court held a phone-conference with counsel and provided two alternatives for a hearing, either May 13, 2020, or June 10, 2020. The State's Attorney said that her "preference was to do it sooner rather than later," but she had jury trials scheduled for May 2020, so she preferred June 10, 2020. At that point, the court found "good cause to reschedule the second half of this case" to June 10, citing the orders from Chief Judge Barbera.

On May 1, 2020, Chief Judge Barbera extended the court closures through June 5, 2020. On May 12, 2020, the parties received a notice to appear for trial on July 8, 2020. On June 3, 2020, Chief Judge Barbera ordered that courts would begin a progressive, phased return to full operations. On June 5, 2020, courts would begin Phase II, which expanded the matters that could be heard remotely and on-site, "including matters that were postponed or deferred during restricted operations, as well as matters that must be prioritized." On July 20, 2020, courts were to proceed to Phase III, during which courts were to hold a broader range of matters, including "certain non-jury trials." Regarding juvenile delinquency proceedings, courts would be open to, among other things, "all matters that are contested and/or requiring testimony" and matters for adjudication. On July 14, 2020, the court sent the parties another notice advising that the adjudication was rescheduled again, this time to October 14, 2020.

On October 13, 2020, appellant filed a motion to dismiss for excessive delay. He cited the delay of the February 26, 2020 adjudicatory hearing due to missing discovery, and the March 11, 2020 continuance, during which he and his mother waited for two and a half hours for the adjudication to be continued. Appellant then listed the continuances due to the pandemic, including the continuance to June 10, July 8, July 14, and October 14, 2020. Appellant argued that the "disjointed nature and undue delay in the adjudication . . . well exceed[ed] the scope of what was necessary due to the pandemic."

Appellant argued that Md. Rule 11-114 required the adjudicatory hearing to be held within 60 days and allowed extensions only for showings of extraordinary cause. He argued that, even discounting the delays due to the pandemic, the case violated the timeline for a juvenile proceeding. The delays were due to the State's failure to provide evidence, and the court's overscheduling on March 11, both of which did not constitute extraordinary cause. Moreover, the court did not make a finding of extraordinary cause, but rather, it made a finding of "good cause" to reschedule on March 11 because of over-scheduling. Then, "[i]nstead of continuing the adjudication in a timely manner," the court set the next hearing date for March 30, which was officially "14 days outside of the 60 day time limitation in Rule 11-114." Appellant also argued that the court failed to complete the hearing with a reasonable degree of continuity, which he asserted, citing In re Ryan S., 369 Md. 26, 45 (2002), requires that a juvenile adjudicatory hearing continue, "'insofar as possible, on a day to day basis until completed.'"

Regarding the delays related to COVID-19, appellant noted that, after the court reopened for juvenile adjudicatory hearings, appellant's adjudication was continued for nearly three months, without explanation and despite other juvenile adjudicatory hearings being scheduled. He argued that the court prioritized other matters over appellant's case.

Appellant argued that the prejudice he experienced from these delays entitled him to dismissal of his charges with prejudice. Appellant's mother did not have her own transportation when the case first began and had to rely on others for transportation to the courthouse. Appellant had reached the age of 18, which limited the rehabilitative services that could have been available to him.

Appellant requested that the court dismiss ...