Hopkins v. State
Decision Date | 11 December 1998 |
Docket Number | No. 25,25 |
Citation | 352 Md. 146,721 A.2d 231 |
Parties | Marquis Yaphet HOPKINS v. STATE of Maryland. |
Court | Maryland Court of Appeals |
Claudia A. Cortese, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.
Regina Hollins Lewis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for respondent.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ CATHELL, Judge.
Marquis Yaphet Hopkins, petitioner, was convicted at a bench trial in the Circuit Court for Baltimore County of robbery with a deadly and dangerous weapon, robbery, battery, two counts of assault, two counts of use of a handgun in the commission of a felony or crime of violence, and unlawfully carrying a handgun. He received sentences of ten years for the armed robbery conviction, three years consecutive for one of the assault convictions, and a concurrent five-year sentence without the possibility of parole for one of the handgun use convictions. His remaining convictions were merged for sentencing purposes.
Petitioner raised three issues on appeal to the Court of Special Appeals. That court affirmed his convictions, finding no merit in any of the questions presented. We granted the petition for certiorari on a single issue:
Did the trial court err in compelling [petitioner] to give a voice exemplar at trial?
We shall affirm.
The facts of this case were stated in the opinion of the Court of Special Appeals, Hopkins v. State, 118 Md.App. 715 [ ]:
During the cross-examination of Mrs. McQuay, the following occurred:
Q. [By Defense Counsel] You wanted a lineup. And were you ever afforded a lineup, Ma'am?
A. No.
Q. In fact you said, "I need to see him in person to be sure"?
A. I also wanted to hear him speak.
Q. And you were never afforded that opportunity either, were you?
A. No.
Q. And that was eight, nine months ago, correct?
A. Correct.
On redirect examination, the following exchange occurred:
Q. Would you like to have him stand up and speak?
A. Yes.
Please state that, sir.
A. Absolutely not. [Emphasis added.]
On recross-examination by defense counsel, Mrs. McQuay testified:
A. He's articulate.
Defense counsel's only grounds for objecting to the voice exemplar being elicited in the court trial were: "The opportunity for that is long since past" and "[t]his occurred nine months ago." The trial court, responding to the express grounds proffered for the objection, stated that the nine-month period between the offense and the in-court voice exemplar "would go to the weight, not admissibility." On recross-examination, after petitioner gave the voice exemplar, defense counsel elicited from Mrs. McQuay that what distinguished petitioner's voice was that he was "articulate." Petitioner made no further objection nor did he move to strike the testimony based upon Mrs. McQuay's reason for recognizing the voice exemplar. The objections we noted above were the only objections ever made to the voice exemplar, namely, that the opportunity to object "is long since past" and the voice exemplar was being given nine months after the incident. At no time was a Fifth Amendment or any other ground for the objection presented to the trial court.
Petitioner completely failed to proffer to the trial court the ground for objection that he now presents to this Court. A serious question of whether the issue was preserved for appellate review exists. Although the State has raised the preservation issue as to certain arguments made by petitioner, it proffers that the issue of the articulateness of the defendant's exemplar is preserved. We fail to discern from the record where any objection or motion to strike was made by petitioner during recross-examination when the "articulate" testimony first appeared. We also question whether the issue of articulateness was preserved for appellate review. Nonetheless, the Court of Special Appeals exercised its discretion to address these issues on their merits. The same issues were presented to this Court in the petition for writ of certiorari, and the issue of the admissibility of the voice exemplar was contained within the writ granted. We shall address the issues presented.
The United States Supreme Court said in Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966), that the Fifth Amendment "offers no protection against compulsion ... to write or speak for identification...." In United States v. Wade, 388 U.S. 218, 222-23, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967), the Court held that when used as an identifying physical characteristic and not as a testimonial admission, voice exemplars compelled during a lineup do not violate the Fifth Amendment. What is more, in Wade the Supreme Court stated that "even to utter words purportedly uttered by the [person who committed the crime]" was not testimonial in nature because he was required only to "use his voice as an identifying physical characteristic," not to disclose his knowledge of any particular fact. Id.
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