Green v. Brooks

• Decision Date: 02 March 1999
• Docket Number: No. 689,689
• Citation: 125 Md. App. 349,725 A.2d 596
• Parties: Carl GREEN v. Angelo BROOKS et al.
• Court: Court of Special Appeals of Maryland

725 A.2d 596

125 Md. App. 349

Carl GREEN v. Angelo BROOKS et al.

No. 689, September Term, 1998.

Court of Special Appeals of Maryland.

March 2, 1999.

Milton Kaplan, Baltimore, for appellant.

Robert C. Verderaime, Verderaime & Dubois, P.A., Baltimore, Virginia W. Barnhart and Jeffrey Grant Cook, County Attorney, Towson, for appellee.

Argued before DAVIS, HOLLANDER and MARVIN SMITH (Ret., specially assigned), JJ. HOLLANDER, Judge.

This appeal stems from a case of mistaken identity. On June 20, 1995, appellant, Carl Green, was arrested at his home by Baltimore City Police Officer Angelo Brooks, appellee, pursuant to a bench warrant issued for appellant by the District Court for Baltimore County. The bench warrant was issued after Green failed to appear for trial in connection with a shoplifting offense that occurred on March 9, 1995, at a supermarket in Baltimore County. At that time, Kenneth McKlary,¹ appellant's cousin, was apprehended in the store for shoplifting and claimed he was Carl Green. Although he had no identification, McKlary provided the police with Green's address.

Following appellant's arrest, Green was incarcerated for five days before it was discovered that he was not the man who committed the shoplifting offense. Subsequently, appellant instituted suit in the Circuit Court for Baltimore City against two of the officers involved in his arrest.² In his amended complaint, appellant sued Officer Brooks and Baltimore County Police Officer Timothy Murphy, appellee, who responded to the supermarket and arrested McKlary under the name "Carl Green."³

Counts I, III, and V of the amended complaint alleged false arrest, false imprisonment, and malicious prosecution on the part of Brooks and other unnamed officers. Counts II, IV, and VI alleged the same intentional torts against Murphy. Each count sought $200,000.00 damages. On August 11, 1997, the circuit court (Rombro, J.) signed an order granting Brooks's Motion to Dismiss Or, in the Alternative, Motion for Summary Judgment. On September 9, 1997, appellant filed a motion to revise the judgment. Thereafter, on December 9, 1997, Murphy filed a motion for summary judgment. After a hearing held on February 6, 1998, the circuit court (Byrnes, John Carroll, J.) granted Murphy's motion for summary judgment, and denied appellant's motion to revise the previous judgment entered in favor of Brooks. Appellant timely noted his appeal and presents two issues for our review, which we have condensed:

Did the court err in granting appellees' motions to dismiss or for summary judgment?

We answer in the negative and shall affirm.

Factual Summary

At 3:00 p.m. on the afternoon of March 9, 1995, an employee of a Mars Supermarket, located at the corner of York and Ridgley Roads in Baltimore County, observed a man attempting to steal ten bottles of Lubriderm lotion and a bottle of Advil by hiding the items in his coat. The items were valued at $67.00. The Mars employee apprehended the suspect and contacted the County police. Although the suspect had no identification, he told the store employee that his name was Carl Green and that he lived at 1705 Lorman Street in Baltimore City. That is appellant's address.

At 3:32 p.m., Officer Murphy responded to the scene. Based on the information obtained at the scene, Murphy placed appellant under arrest and charged him with petty theft. He listed the man's name in the "Application for Statement of Charges" as "Carl Green (NMN)."⁴ In the narrative section of the Crime Report, Officer Murphy wrote that "Carl Green could produce no I.D. and was taken back to PC7 for processing." At 5:00 p.m. on March 9, "Green" was booked.⁵ A notation on the Baltimore County Police Department's "Arrest Report" indicates that the suspect was subsequently "[r]eleased to Det Vaught Balto City—Fugitive." Bail was set at $5,000.00. The record does not otherwise disclose the circumstances under which McKlary, posing as Green, was released from jail.

A Mars Supermarket "Shoplifting Apprehension Report" described the shoplifter as a 6'2" black man weighing 160 pounds, with black hair and brown eyes. The form listed the suspect's date of birth as "11-26-67." An "Incident Report" completed by employees of the Mars Supermarket described the thief as having a "thin" build.⁶ In the Crime Report, Murphy described the suspect as a black man, 6'2" tall, 160 pounds. In addition, he said the suspect had a "dark" complexion and short black hair. According to appellant's complaint, he "is a dark skinned African-American man, approximately 6'2", 165 lbs." But, contrary to the descriptions given by the Mars employee and Officer Murphy, Green alleged in the Amended Complaint that McKlary is a "light-skinned African-American man, approximately 5'9", 140 lbs."⁷

Using the name "Carl Green," the suspect was scheduled to be tried for misdemeanor theft on May 15, 1995. McKlary did not appear for trial, however. Not surprisingly, the real Carl Green did not appear for trial either. Presumably, Green had no idea that his cousin had given the police Green's name at the time of his arrest. As a result of the failure to appear, on May 15, 1995, the District Court for Baltimore County (Boone, J.), issued a bench warrant for Green. The warrant ordered "any peace officer" to "arrest the above-named defendant who is to answer unto the State of Maryland concerning certain contempt committed by him by: Failing to appear in [the District] Court on 05/15/95 for hearing or trial after being notified to do so." It also identified Green's address as 1705 Lorman Street, Baltimore, Md, 21217, and described him as having the following characteristics: "Race: 1 Sex: M Ht. 6 02 St: 160 Hair: BLK DOB: 11/26/67".

On June 20, 1995, Officer Brooks, together with other unnamed police officers, arrested appellant, the real Carl Green, at his home on Lorman Street. At his deposition, appellant said that "between five and six" police officers participated in the arrest, which he described as follows:

Best as I can recall, I heard a knock—we locks [sic] our screen door. You have the door, then you have the screen door. And to knock on the door, he used his flashlight by the way he knocked. So I got up, put on my shorts and a baseball shirt, went to the door, opened the door and wind [sic] the window open, so I was like, "Yes, can I help you?" He was like, "Yo, Carl Green live here?" I said, "I'm Carl Green."

So he said, "Can you open the door?" So I opened the screen door, and he came in, and he was like, "I have a warrant for your arrest," so I was like, "For What?" And he was like, "For failure to appear in court."

* * *

So I'm like, "Failure to appear in court?" You know, I said, "I ain't got no letters telling me to come to court."

* * *

And they was like, "We have you for a failure to appear in court." And I was like, "What's the charge?" And he said, "For shoplifting at Owings Mills." I was like, "Owings Mills? I never been to Owings Mills."

* * *

So I'm trying to say, "Well, do you all have a picture of this Carl Green?" because now I'm telling him that, you know, "You have the wrong guy, you know, I never been in Owings Mills." You know, they was like no, no. Based on this piece—the subjects—they was going on subjects that they had.

* * *

So I'm telling them, you know, "You all have the wrong Carl Green."

* * *

You know, at that time, they had cuffed me, so my little niece had to put my socks and my shoes on. As they was taking me out, you know, my moms is telling me, "Don't worry about it." As we're going out, the officer that had me handcuffed, I'm asking him, you know, "When we get down to the police station, can you please contact the county and tell them to send you a picture of this Carl Green because you all have the wrong Carl Green."

Unfortunately, Green was mistakenly incarcerated for five days. According to appellant's complaint, the police subsequently learned that McKlary was the one who failed to appear for the theft charge and who had told the police, at the time of his arrest, that he was Green.⁸ The docket of the Baltimore District Court indicates that on November 20, 1995, the charge against Carl Green was "disposed."

On July 17, 1997, Officer Brooks filed a Motion to Dismiss Or, in the Alternative, Motion for Summary Judgment. A certificate of service affixed to the motion claimed that it was mailed to appellant's counsel on July 16, 1997. Although an answer to the motion was due on August 4, 1997, appellant failed to respond to Brooks's motion. Thereafter, on August 11, 1997, the circuit court signed an order granting Brooks's motion.⁹ The order provided:

ORDER OF COURT

The motion to dismiss or, alternatively, the motion for summary judgment heretofore filed by Off. Angelo Brooks, on the defendants, having been read and considered, and the Court also having considered the memorandum of law in support of the motions and exhibits which were attached as part of plaintiff's amended complaint and attached as part of defendant Brook's [sic] memorandum of law, and the Court having considered plaintiff's opposition thereto,¹⁰ it is this 11th day of August, 1997,

ORDERED, that the motion to dismiss filed by defendant Off. Angelo Brooks BE and the same hereby IS GRANTED; and, it is further,

ORDERED, that the motion for summary judgment heretofore filed by defendant Off. Angelo Brooks BE and the same hereby IS GRANTED; and it is further,

ORDERED, that judgment be entered in favor of defendant Off. Angelo Brooks against plaintiff for costs.

(Strike-outs in original).

The docket contains two entries relating to the order. The first, dated August 13, 1997, says: "FILE RETURNED FROM J. ROMBRO, ORDER SIGNED AND DELIVERED TO ORDER'S [sic] CLERK." The docket indicates, however, that the order was not filed until September 8, 1997. An entry on that date provides: "ORDER OF COURT DATED 8-11-97, THAT THE MOTION TO DISMISS FILED BY DEFT (ANGELO BROOKS) IS HEREBY "GRANTED" & ...