Hopkins v. State, 25

Decision Date11 December 1998
Docket NumberNo. 25,25
Citation352 Md. 146,721 A.2d 231
PartiesMarquis Yaphet HOPKINS v. STATE of Maryland.
CourtMaryland 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.

I. FACTS

The facts of this case were stated in the opinion of the Court of Special Appeals, Hopkins v. State, 118 Md.App. 715 [No. 612, 1997 Term, slip op. at 1-3, filed Dec. 24, 1997]:

Laurene Theresa McQuay, and her husband, Franklin Andrew McQuay were robbed at gun point outside their townhouse in Timonium, Maryland, shortly after 9:15 p.m. on 27 April 1996. Their testimony at trial established the following.
The McQuays were returning home from a restaurant. Mrs. McQuay had parked their car in the front of their townhouse. As Mr. McQuay exited from the passenger door, a man, later identified as the appellant, approached Mr. McQuay from the back and said, "Yo, check it out." As he spoke, the man placed a gun next to Mr. McQuay's head.
At this point in time, Mrs. McQuay was standing beside their car. The man ordered her to the front of the car. When she arrived, the man demanded that she hand over her money or her husband "would have his mother-fucking head blown off." She handed him her purse, wedding ring, and car keys. The man then said, "[g]ive me the necklace, bitch." As she turned her necklace around to undo the clasp, the man stepped within two feet of her and yanked the necklace off her neck. The man then reached into Mr. McQuay's pocket and removed his wallet. After he did this, the man hit Mr. McQuay on the head with the butt of the gun, knocking him to the ground. The man then ran away.
Dizzy from the blow to his head, Mr. McQuay stayed on the ground a few seconds after the man fled. The McQuays then ran inside their house. Mr. McQuay called 911. When asked to described the robber, Mr. McQuay handed the telephone to Mrs. McQuay who told the police that the robber was a black male, wearing a dark hooded sweatshirt, and "almost" six feet tall.
A little over a month later, on June 6 th, Officer Mark G. Carter of the Baltimore County Police Department asked Mrs. McQuay to look at a photographic array to see if she could make an identification. She picked out appellant's photograph as a picture of the man who had robbed them. She wrote on the back of the photograph, "The man in the photo looks very close to the actual guy. His profile is extremely close. I need to see him in person to be sure, I need to hear him speak too." She then signed her name to the back of the photograph. Her husband was unable to identify anyone from the photographic array.
At trial, Mrs. McQuay testified that the robbery lasted only a few minutes, and that during that time she was directly in front of the assailant and between two and ten feet from him at different times. She also testified that the area where the robbery occurred was reasonably well-lit by their front house light and a nearby street lamp.
II. DISCUSSION

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. [By the State's Attorney] How certain are you that that's the person who robbed you sitting next to [Defense Counsel]?

[DEFENSE COUNSEL]: Objection, objection.

THE COURT: I'll sustain.

Q. Is there any question in your mind that that's the person who robbed you?

[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled.

Q. Would you like to have him stand up and speak?

A. Yes.

[DEFENSE COUNSEL]: Wait a minute, wait a minute. Don't be so accommodating.
[STATE'S ATTORNEY]: Your Honor, I'd ask the Court's permission to require the Defendant to stand up and make a statement.

[DEFENSE COUNSEL]: Your Honor, I'm going to object to that. The opportunity to do that is long since past.

[STATE'S ATTORNEY]: Your Honor, I think it's certainly within the Court's discretion. This case comes down to the identification. For the man to stand up—it's her identification that makes the case, quite frankly.
[DEFENSE COUNSEL]: I don't disagree with that. I don't disagree with that.

THE COURT: What do you wish the Defendant to say?

First of all, the question is you would like him to stand. Do you object to that?

[DEFENSE COUNSEL]: No.

THE COURT: Would you stand, sir?

[STATE'S ATTORNEY]: The statement which I would request the Court to order the Defendant to say is, "Yo, check it out."
THE COURT: Pardon? You'd like him to say what?
[STATE'S ATTORNEY]: "Yo, check it out." That is what the witness indicated—
THE COURT: "Yo, check it out." All right. Do you object to that?
[DEFENSE COUNSEL]: I do, your Honor. This occurred nine months ago.
THE COURT: All right. That would go to the weight, not admissibility. You can tell him to say that. Objection noted for the record.

Please state that, sir.

THE DEFENDANT: Yo, check it out.

THE COURT: You may be seated, sir.

Q. [By the State's Attorney] My question is: How certain are you that the Defendant seated next to [Defense Counsel] is the person who robbed you and your husband?

[DEFENSE COUNSEL]: Objection.

THE COURT: Sustained.

Before [the State's Attorney's] question was—"Do you have any question in your mind?" is what he said to you.

A. Absolutely not. [Emphasis added.]

On recross-examination by defense counsel, Mrs. McQuay testified:

Q. [By Defense Counsel] Ma'am, what is that distinguished by his voice that distinguishes him from other African Americans?

[STATE'S ATTORNEY]: Objection.

THE COURT: Overruled.

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.

A. THE FIFTH AMENDMENT

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.

The Supreme Court extended ...

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