Southern v. State

Decision Date17 September 2002
Docket NumberNo. 109,109
Citation371 Md. 93,807 A.2d 13
PartiesGeorge Wendell SOUTHERN v. STATE of Maryland.
CourtMaryland Court of Appeals

Martha Weisheit, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

CATHELL, Judge.

George Wendell Southern, petitioner, was indicted by a Grand Jury in Prince George's County on two counts of robbery and related offenses due to his alleged participation in the robberies of two 7-Eleven stores on the morning of February 19, 2000. On September 20, 2000, the Circuit Court for Prince George's County denied petitioner's Motion to Suppress. On September 22, 2000, after a jury trial, petitioner was convicted of two counts of robbery and one count of second-degree assault. On November 9, 2000, the Circuit Court imposed a sentence of ten years incarceration without the possibility of parole for the first robbery count1 and a consecutive ten-year sentence on the second robbery count.

On November 15, 2000, petitioner noted an appeal to the Court of Special Appeals. In that appeal, petitioner argued that at the hearing on his Motion to Suppress and after petitioner challenged the constitutionality of his initial detention, the State failed to put on any evidence to sustain its burden of proving the constitutionality of the stop and, thus, petitioner's motion should have been granted. In a reported opinion, Southern v. State, 140 Md.App. 495, 780 A.2d 1228 (2001), the intermediate appellate court, after agreeing that petitioner properly had raised the issue of the constitutionality of the initial stop, held that the State had the burden of establishing the constitutionality of the stop, that the State had not presented evidence sufficient to meet that burden, and that the Circuit Court had not ruled on the issue. Nevertheless, the Court of Special Appeals did not reverse the convictions, but, instead, ordered that petitioner's convictions were to remain in effect pending further proceedings and remanded the case to the Circuit Court for the purpose of reopening the suppression proceeding to give the State the opportunity to introduce evidence relating to the constitutionality of the stop and for the Circuit Court to then rule on the constitutionality of the stop.

On December 13, 2001, we granted Southern's Petition for Writ of Certiorari and denied the State's Conditional Cross-Petition. Southern v. State, 367 Md. 88, 785 A.2d 1292 (2001). Petitioner presents one question for our review:

"Where the defense challenged the legality of an initial stop at a suppression hearing and the State failed to introduce any evidence on that issue, was it proper for the Court of Special Appeals to order a limited remand at which the State will have a second opportunity to introduce evidence supporting the legality of the stop?"

We answer no to petitioner's question and reverse. We hold that it was improper for the Court of Special Appeals to remand and reopen the suppression proceeding in order to provide the State with a second opportunity to present new evidence on the constitutionality of the initial stop. The Court of Special Appeals should have reversed the convictions and remanded the case to the Circuit Court for a new trial.

I. Procedural Facts
a. Motion to Suppress

Petitioner filed two one-page omnibus motions, both stating inter alia that he "moves to suppress any and all evidence obtained by the State in violation of the defendant's rights as guaranteed by the 4th, 5th, 6th, and 14th Amendments to the Constitution of the United States, and the Maryland Declaration of Rights."2

The Circuit Court for Prince George's County held a hearing on petitioner's motions on September 20, 2000. The Circuit Court addressed the pre-trial motions and asked the State, "[w]ell, which motions are we taking up first?" The prosecutor responded, "I.D., and then the statement." The State then proceeded to call various witnesses to testify about the events on the day of the robberies. The Circuit Court heard evidence relating to the circumstances of the post-apprehension showup identification and denied petitioner's motion to suppress the identification. In respect to the issue of the validity of petitioner's initial apprehension, the testimony was limited to the following:

"The first to testify was Officer Richard Pippin of the Prince George's County Police. He testified that on February 19th, 2000, he responded to a call regarding a robbery at a 7-11 on Old Branch Avenue. When he arrived, he spoke to a Carolyn Pryor, and approximately 15 minutes later drove her and one other individual several blocks away to Wolverton Avenue. He told her that the police had apprehended a suspect fitting the description of the person who had robbed the 7-11....

"The next witness called by the prosecutor was Corporal Charles Burgess. He stated that he had responded to the report of the robbery and had been involved in the apprehension of a suspect, together with a K-9 officer....

"Officer Monty Burkhalter ... testified that Corporal Burgess had handed over the Petitioner to him after he was apprehended.... Burkhalter stated that at the time the Petitioner was turned over to him, he had already been arrested and was in handcuffs.

"The State's next witness on the identification was Carolyn Pryor. She stated that she had been a customer in the 7-11 on the morning of the robbery, and as she was approaching the cashier, a man came in the door with dark red Tshirt or bandanna covering the lower part of his face. He jumped over the counter and began kicking the cash register, and while he was doing this the bandanna or T-shirt kept falling down. She described this person to the police after the incident, and they took her to another location to see if she could identify a person they had apprehended. When she saw the suspect, she told the police officer, `That's him.'

"Gail Alexander was called as a defense witness on the motion. She stated that on the morning of the robbery she was getting some coffee at the 7-11 on Old Branch Avenue when she heard noises coming from the area of the cash register. When she looked up, she saw a white male attempting to pull out the cash register drawer and saw that over his face he had a red shirt, which kept falling down. Later after the police were called, she and Ms. Pryor accompanied Officer Pippin to an area where they were holding a suspect. She stated that when they arrived at their destination the suspect was removed from the back seat of the police car and made to stand up and face them. She recalled that at that time `he was handcuffed with his hands behind him.' Ms. Alexander testified that although she heard Ms. Pryor identify the man as the robber, she (Ms. Alexander) was unable to identify his face. She also told the officers that the man wasn't wearing the same clothes that the robber had worn."

The balance of the evidence proffered at the suppression hearing (as well as most of that discussed next above) was completely unrelated to the events surrounding the apprehension of the petitioner. In its brief to this Court, the State conceded as much, saying: "None of the witnesses called during the suppression hearing described the circumstances of the K-9 tracking or the initial detention of Southern."

The following dialogue then transpired regarding the evidence as to other matters then before the motions hearing judge:

"[DEFENSE COUNSEL]: Your Honor, the State is saying they [have] my client in custody, and there was a stop by a K-9, and obviously the seizure of whatever they seized from him, and two statements, the statement to Detective Cheeks and the statement to Detective Arscott.

"THE COURT: Okay.

(Pause in the Proceedings)

"[DEFENSE COUNSEL]: Your Honor, we're seeking to suppress the stop and anything that flowed from that. I believe evidence was seized from him when he was stopped by Officer Peton, I can't remember how they—Peton, and his K-9, and Officer Burgess. So anything that was seized from that stop.

"THE COURT: Okay.

"[DEFENSE COUNSEL]: The defendant's statement to Officer Cheeks, which was memorialized in writing allegedly by Mr. Southern and also as it appears by Officer Cheeks. There's also an oral statement that was allegedly given to Corporal Arscott at the hospital. We're moving to suppress that. And there was a search of the vehicle. Officer—responded to the car, and Officer Stuehmeier seized it, and they are alleging my client had custody of that vehicle."

The State then presented testimony regarding petitioner's time in custody, petitioner's statements, and the seizure of a cash register drawer from the automobile petitioner allegedly drove to the stores. There was no evidence at the suppression hearing describing the initial detention of petitioner or the reasons, i.e., probable cause supporting that apprehension.

After the State concluded its presentation of testimony on the omnibus motion, the following exchange between the court and counsel occurred:

"THE COURT: Any further evidence?

"[STATE'S ATTORNEY]: No, Your Honor.

"THE COURT: Okay. Anything further?

"[DEFENSE COUNSEL]: I will not present any witnesses, Your Honor.

"THE COURT: All right. Are you going to argue, or you want to submit?

"[DEFENSE COUNSEL]: I would like to argue.

"THE COURT: Go ahead and argue. First of all, what are you going to argue about?

"[DEFENSE COUNSEL]: I'm going to re-argue with regard to the search and seizure and the stop, when they stopped the defendant, about the identification, and the statements of Detective Cheeks and—

"THE COURT: Then go ahead and start.

"[DEFENSE COUNSEL]: Okay. Your Honor, with regard to the stop, the defendant should really be...

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