In re S., 1184

• Citation: 23 A.3d 250,199 Md.App. 436
• Decision Date: 01 July 2011
• Docket Number: 2009.,No. 1184,Sept. Term,1184
• Parties: In re MATTHEW S.
• Court: Court of Special Appeals of Maryland

199 Md.App. 436

23 A.3d 250

In re MATTHEW S.

No. 1184

Sept. Term

2009.

Court of Special Appeals of Maryland.

July 1, 2011.

Michael R. Braudes (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.Daniel J. Jawor (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.Panel: WRIGHT, GRAEFF, JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.

GRAEFF, J.

On April 16, 2009, the Circuit Court for Montgomery County, sitting as a juvenile court, found Matthew S., appellant, “involved” in the distribution of marijuana. On June 30, 2009, following a final disposition hearing, the court placed appellant on probation.

On appeal, appellant presents three questions for our review, which we have rephrased slightly as follows:

1. Did the juvenile court err in denying appellant's motion to suppress Officer Feldman's pre-trial identification after he viewed appellant's yearbook photograph?

2. When the State's principal witness was granted immunity on the day before the adjudicatory hearing, did the juvenile court abuse its discretion in denying appellant's motion to exclude the witness' testimony or postpone the case?

3. Did the juvenile court err in admitting hearsay evidence?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On September 30, 2008, Officer Scott Feldman, a member of a Montgomery County Police Department “special assignment team,” observed appellant engage in what appeared to be a drug transaction.¹ On November 24, 2008, appellant was arrested.

On April 16, 2009, the Circuit Court for Montgomery County, sitting as a juvenile court, held an adjudicatory hearing. Kaan D., who had been granted use and transactional immunity, testified that, on September 30, 2008, he was driving with Carlos H., Mike M., and Mike R. in Mike M.'s blue Ford pickup truck.² Kaan telephoned appellant to arrange a purchase of marijuana. After driving to the Gaithersburg apartment complex where appellant lived, Kaan exited the vehicle, approached appellant, and gave him twenty dollars in exchange for a plastic bag containing marijuana. When Kaan returned to the truck, he gave the marijuana to Carlos to roll into “blunts.”

The group then left the apartment complex and drove to the parking lot where Kaan had parked his red Ford Expedition.³ Kaan and Mike R. got into Kaan's car and drove away. They subsequently were pulled over by the Montgomery County Police, who questioned Kaan about the purchase of marijuana from appellant. Kaan testified that he advised the police that the person who sold him marijuana was “Matt S.”

Three police members of the special assignment team, who were conducting surveillance in the Kentlands area on September 30, 2008, testified to their observations. Officer Geoffrey Rand testified that he was parked in the Kentlands shopping center looking for drug transactions. At approximately 3:20 p.m., he observed Mike M.'s blue Ford pickup truck pull into the shopping center parking lot. Two males were in the truck. A few minutes later, a black Honda pulled into the parking lot and parked near the truck. The driver of the black Honda got into Mike M.'s truck, and the three occupants left the parking lot in the truck. Officer Rand followed the truck and observed the occupants pick up a fourth individual before driving to appellant's apartment complex, where Officer Feldman picked up the surveillance.

Officer Feldman testified that he received information from Officer Rand regarding some suspicious activity near the Kentlands shopping center. Officer Feldman, Officer Rand, and Sergeant Edward Pallas subsequently followed Mike M.'s truck to appellant's apartment complex. Officer Feldman parked his vehicle near Mike M.'s truck, “on the other side of the island from where [Mike M.] had parked.” At approximately 4:00 p.m., he witnessed a “hand-to-hand transaction” between appellant and Kaan through “high powered binoculars.” He gave an account of the encounter between appellant and Kaan that was consistent with Kaan's testimony.

Officer Feldman described his view of the drug transaction as “clear and unobstructed” and “outstanding.” He explained that the weather was “bright and sunny,” and he was able to obtain “a very good closeup view of [the seller's] face and his facial features to where I was very confident that I could identify him later on.” Officer Feldman identified appellant in court as the individual he saw engage in a hand-to-hand transaction with Kaan.

When Mike M. left the apartment complex in his truck, Officer Rand followed him. He observed Mike M. exceed the speed limit, and he called for backup, in anticipation of making a traffic stop. Before he could stop the truck, however, it came to a stop and parked behind a red Ford Expedition. Two of the occupants of Mike M.'s truck exited the truck, got into the Expedition, and drove away.

Officer Rand continued to observe the truck as he waited for a uniformed police officer to arrive to assist. He observed Carlos get out of the passenger door and reach “down underneath” a storm drain adjacent to the passenger side of the truck. After a uniformed officer arrived, Officer Rand approached the vehicle, looked into the drain, and ultimately recovered “a plastic baggie with a green leafy substance inside.” The substance was subsequently tested and determined to be 0.74 grams of marijuana.

Carlos was placed under arrest. Officer Rand spoke with Mike M., who said that “he had met with some friends and they decided to go buy a baggie of marijuana” from someone, and he met them in the parking lot of the Quince Orchard Boulevard apartments. Mike M. stated that Kaan purchased the marijuana and then handed it to Carlos once inside his vehicle.

While Officer Rand stopped Mike M.'s truck, a third member of the special assignment team, Sergeant Pallas, stopped Kaan's Expedition.⁴ A search of that vehicle yielded a “Philly Blunt cigar in the center console” and a “couple little flakes of marijuana from the floorboard area.”

Officer Feldman arrived during Sergeant Pallas' stop of Kaan, and Officer Feldman advised Kaan of his rights. Kaan stated that he had purchased a bag of marijuana from a person he knew as Matt S. He stated that they both attended Quince Orchard High School, and he provided Officer Feldman with the phone number he used to call Matt S. Kaan stated that he gave the bag of marijuana to one of the individuals in the truck.

At some point after the traffic stop, Officer Feldman was asked to assist in further identifying Matt S. He obtained a 2008 Quince Orchard High School yearbook, looked at a photograph of “Matt S.” in the yearbook, and identified Matt S. “possibly as being the same individual” that he saw engage in a hand-to-hand transaction with Kaan on September 30, 2008.

At the conclusion of the adjudicatory hearing, the juvenile court found appellant “involved” in the distribution of marijuana. On June 30, 2009, following a final disposition hearing, the court found appellant to be a delinquent child and in need of services, and it placed appellant on probation.

This timely appeal followed.

DISCUSSION

I.Motion to Suppress Extrajudicial Yearbook Identification

Appellant's first contention involves Officer Feldman's testimony that, during the course of the police investigation, he was asked to “assist in identifying Matthew S.” Officer Feldman explained that, after Kaan told him that the seller was a student at Quince Orchard High School named Matt S., he went to the school:

We didn't have the 2008 yearbook at our station. We do have a number of yearbooks there, but I did have to go to Quince Orchard High School.

* * *

[A school police officer] gave me the 2008 yearbook and I looked through Matt S., saw his picture, and identified him possibly as being the same individual that I saw on ... the 30th, make the transaction with [Kaan].

Counsel for appellant moved to suppress this out-of-court identification, and the following occurred:

[COUNSEL FOR APPELLANT]: Your Honor, I would move to suppress that identification as unduly suggestive based on his explanation and knowledge of Mr. S.'s name and then looking at the picture of Mr. S. It's certainly not a fair way of determining an identification which typically you would have perhaps an array of pictures or an array of people. Or the officer went through the yearbook—

THE COURT: Wait, you're questioning....

* * *

THE COURT: The police officer's identification of [Matt S.]?

[COUNSEL FOR APPELLANT]: Yes, from a yearbook, as unduly suggestive.

[PROSECUTOR]: Your Honor, it's not unduly suggestive as the police officer had an independent opportunity to observe the individual on September 30th, that he gathered information, believed it was the name of the person, and then when he went to double-check to make sure, it was in fact the person he saw. He just was confirming what he already believed to be the truth.

[COUNSEL FOR APPELLANT]: And that's my point as well.

THE COURT: The objection is overruled.

Appellant asserts that the court erred in denying the motion to suppress Officer Feldman's testimony regarding his pre-trial identification of appellant based on his yearbook photograph. He argues that, where Officer Feldman was given the name “Matt S.” by Kaan, and he then looked in the yearbook until he found a photograph with that name, the identification procedure was impermissibly suggestive.

The State disagrees. It asserts that the identification was not suggestive, but rather, it “was an instance of productive investigative footwork,” which “merely confirmed the officer's otherwise highly reliable personal observation of [appellant] during the delinquent act.” The State further argues that, even if the identification procedure was suggestive, it was nonetheless reliable, and therefore, it was properly admitted. Finally, the State argues that, even if the pretrial...