Jones v. State, 120 September Term, 2005.

CourtCourt of Special Appeals of Maryland
Writing for the CourtRaker
Citation909 A.2d 650,395 Md. 97
PartiesKevin Cornell JONES v. STATE of Maryland.
Docket NumberNo. 120 September Term, 2005.,120 September Term, 2005.
Decision Date18 October 2006

Page 650

909 A.2d 650
395 Md. 97
Kevin Cornell JONES
STATE of Maryland.
No. 120 September Term, 2005.
Court of Appeals of Maryland.
October 18, 2006.

Page 651

Amy E. Brennan, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, MD, for Appellant.

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Jeremy M. McCoy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD, on brief), Baltimore, for Appellee.


RAKER, Judge.

This case concerns a motion to suppress a photographic array displayed by the police to a witness in a criminal case and the proper procedure to be employed in the circuit court in conducting a motions hearing. The issue presented is whether the Circuit Court for Montgomery County erred in refusing to allow defense counsel at the motions hearing to call the detective who presented the photo array in order to establish that the photo array procedure was unduly suggestive and should be suppressed. We shall hold that the court erred in not permitting defense counsel to call the witness. Appellant raises also the sufficiency of the evidence with respect to the second degree burglary conviction. We shall hold that the evidence was insufficient to establish that a breaking occurred, a necessary element of the offense, and accordingly, we shall reverse.


Appellant was indicted by the Grand Jury for Montgomery County in a five count indictment charging burglary in the first degree, theft, burglary in the second degree, burglary in the first degree, and burglary in the fourth degree.1 All charges related to a series of thefts at the Academy of the Holy Cross in Kensington, Maryland. He proceeded to trial before a jury and was convicted of second degree burglary, Md.Code (2002, 2004 Cum. Supp.), § 6-203 of the Criminal Law Article.2 The following facts were elicited at trial.

Several nuns employed at the Academy of the Holy Cross reported that money had been stolen from their rooms at the convent on different dates. Appellant was charged with several offenses related to these reports and proceeded to trial. One of the offenses for which appellant was charged related to events which occurred on June 30, 2004. On that date, two employees of the Academy of the Holy Cross, Marcia Fuoss and Erin Fristoe, saw appellant inside school premises. Ms. Fristoe initially witnessed appellant leaving Ms. Fuoss' office. After Ms. Fuoss learned that appellant had been in her office, she confronted appellant in the hallway. She asked appellant if she could "help him, and who he was looking for." Ms. Fuoss testified that appellant responded as follows:

"He said someone came in a back door here and I said who are you looking for and he repeated again that someone came in a door back there, so I said I need to know who you're looking for, so he headed toward the area where he was saying someone had entered the building and I said how did you come into the building and he indicated that he had

Page 653

come in the door at the back, one of the back doors at the theater lobby entrance.

* * *

I asked him how he came in and I said that that door is locked and asked him who let him into the building because that door is locked and is not, it's not a door where people can come in unless someone lets them in. And he said that, and I'm not sure at this point if he was saying he was there to see the Hispanic man who was on the maintenance crew or if he said that the Hispanic man on the maintenance crew had let him in that door.

* * *

And then he said, he said you know, he said the Hispanic man, he said the guy who speaks Spanish, he said you know I saw him here about a month ago. And so I explained to him that any guests needed to come in through the front door and be checked in at the reception booth."

Ms. Fuoss offered to escort appellant to the reception desk for him to register as a guest. Appellant refused and apparently left Holy Cross. When Ms. Fuoss returned to her office, she discovered that either $11.00 or $13.00 was missing from her wallet. Ms. Fuoss contacted David Flores, head of maintenance at Holy Cross, and asked him whether he had seen anyone matching appellant's description in the building. Mr. Flores stated that he had not. He subsequently walked around the hallways looking for such an individual, but never found anyone matching appellant's description. Mr. Flores further testified that he neither let anyone into the building, nor spoke to anyone about a job that day.

Walter Glaude, head of security at Holy Cross, testified that whenever guests enter the school, they must check in at the receptionist station, sign in, and log in their car. After doing so, the receptionist issues an ID badge which must be visible while the guest remains in the school. Ms. Fristoe testified that appellant was not wearing a security badge on the day she saw appellant in Ms. Fuoss' office. Ms. Fuoss also said that appellant had not registered as a guest at Holy Cross on that date.

During the investigation, Detective Sarit Scott showed Mr. Flores a photo array which included a photograph of appellant. In response to the array, Mr. Flores identified appellant as an individual that he had spoken to about a job at Holy Cross in April 2004. Prior to trial, appellant filed an "omnibus" motion3 which included a motion to suppress the photo identification made by Mr. Flores. The court held a pre-trial hearing on the motion to suppress. At the beginning of the hearing, defense counsel moved into evidence State's Exhibit No. 1, six photographs of black males and State's Exhibit No. 2, a document captioned "Photographic Array Information Sheet, Form MCP 619, Rev.

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7/99."4 Both defense counsel and the State requested the opportunity to call Detective Scott as a witness, but the motions court denied the requests. The following exchange occurred during the hearing:

"DEFENSE COUNSEL: Well, specifically if you note the second page of, page 110,5 has Mr. Flores's statement `oh, wait, that's him.' And this kind of causes two issues. First of all, `oh, wait, that's him,' implies that perhaps Mr. Flores had viewed that photographic array once before and more importantly Mr. Flores, the only prior identification Mr. Flores gave was in an interview that he offered to Detective Scott on July 7th, and in that interview Mr. Flores specifically said that two months earlier, Your Honor, he had seen somebody who appeared to be in their mid-30s, who was about five foot seven who he believed was the defendant, the suspect at issue.

During that time frame he claims, Mr. Flores said in the interview that he was walking and talking to the defendant, or to the person who he believes is the defendant, and so not only was this identification prior to the photo array made two months earlier, but he identified the person as being in their mid-30s. The defendant is in his mid to late 40s. He identified the defendant as being five-seven, the defendant's five-nine. And moreover, he was in the middle of a conversation, he was walking and talking so there's some question as to whether or not his earlier identification was even one where he would have had an opportunity to take note of the person that he's now claiming subsequent to arrest to be the person he identified two months earlier.

And so for these reasons we call into question the validity and relevance, if you will, of that particular identification that was made on, I believe, July 20th.

* * *

THE COURT: The only thing that's before me are these two sheets of paper with the comment, `oh, wait, this is the guy.' I have a hard time seeing how that constitutes an improper identification procedure or an unduly suggestive. I mean the, I just, is there any further evidence that you wish me to consider, [Defense Counsel]?

DEFENSE COUNSEL: Well, Your Honor, we believe that the photo array, there are reasons to question the set up of the photo array. If you look at the evidence in front of you, you'll note that Number 3, there's a cross through, if you turn to the first page, 109, you'll note that there is a marked out Number 3. So there's some question as to how this photo array was conducted. There's some question as to the procedure, and there's also some question as to why there was a gap between the arrest, about a two week gap, between the arrest and the showing of the photo array.

Moreover, it's not clear how these individuals whose pictures you see were selected, and it's also not clear why Mr. Flores ... [was] selected when, as [the

Page 655

assistant state's attorney] said earlier, there were a host of, alleged host of witnesses who claim that they saw defendant on and around the property on the dates in question.

And so the questions are as follows: What is the validity of the photo array, why is number 3 crossed out? Why was there a two week gap, and why are there only two witnesses who saw the photo array and whose evidence has been entered in this case?

And so we would like to question further, I believe it's Detective Scott who was responsible for the photo array.

THE COURT: If this is the only evidence that's being offered in support of the motion to suppress it, the fact that there may be some questions or, that isn't enough for me to make a determination that there was an unduly suggestive procedure.

* * *

THE COURT: Well, the issue on a motion to suppress the identification as to whether or not the viewing procedure, which was conducted was illegal. The burden is on the defendant to establish, to raise something about the procedure that could be viewed as illegal. It's a prima facie burden. There's some question raised with respect to age, height of an individual identified by Mr. Flores. But that doesn't, there's nothing before me that would allow me to find on a prima facie basis that the viewing procedure was illegally conducted. That would then shift the burden to the State.

So I'm...

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