Southern v. State
Decision Date | 17 September 2002 |
Docket Number | No. 109,109 |
Citation | 371 Md. 93,807 A.2d 13 |
Parties | George Wendell SOUTHERN v. STATE of Maryland. |
Court | Maryland 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.
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.
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 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:
(Pause in the Proceedings)
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:
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