Moreland v. State
| Decision Date | 26 September 2012 |
| Docket Number | No. 1360,Sept. Term, 2010.,1360 |
| Citation | 53 A.3d 449,207 Md.App. 563 |
| Parties | Garrett Maurice MORELAND v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Peter F. Rose (Paul B. Dewolfe, Public Defender, on the brief) Baltimore, MD, for Appellant.
James E. Williams (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for Appellee.
Panel: EYLER, DEBORAH S., KEHOE and IRMA S. RAKER (Retired, Specially Assigned), JJ.
After a jury trial in the Circuit Court for Anne Arundel County, Garrett Maurice Moreland, the appellant, was convicted of three counts of armed robbery; three counts of robbery; use of a handgun in the commission of a felony; use of a handgun in the commission of a crime of violence; wearing, carrying, and transporting a handgun; and conspiracy to commit robbery with a dangerous and deadly weapon. He was sentenced to five years' imprisonment without the possibility of parole for the use of a handgun in the commission of a crime of violence conviction; 20 years' imprisonment, with all but five years suspended, for the conspiracy conviction and for each of the three armed robbery convictions, to be served concurrent to the sentence for use of a handgun; and three years' imprisonment for the wearing, carrying, and transporting a handgun conviction, also to be served concurrent to the five-year sentence imposed for the use of a handgun conviction. The court also imposed a period of five years' supervised probation. The remaining convictions were merged for sentencing.
On appeal, the appellant presents one issue for our consideration: Did the trial court err in admitting the testimony of the appellant's “cousin,” Eric Owens, that the image captured on the Bank of Annapolis's surveillance video was that of the appellant? Finding no error, we shall affirm the judgments of the circuit court.
This appeal arises out of the October 2, 2009 robbery of a branch of the Bank of Annapolis in Edgewater. At about 11:00 a.m. that day, Vadus Traylor, the bank's branch manager, was sitting at her desk when she saw a man wearing a ski hat and dark sunglasses enter the bank. Ms. Traylor pressed an alarm button because the man “just didn't look like a normal customer coming in.” The man, whom Ms. Traylor identified as the appellant, “was a black gentleman, probably 5'9?, kind of very stocky,” with a “wide nose,” “distinct jaw line,” and “a little bit of a moustache.” Ms. Traylor estimated that he was in his late 30s or early 40s. He was wearing a dark blue fleece jacket. A few minutes later, another man, wearing a hat, sunglasses, and a royal blue fleece jacket, entered the bank. At the time the appellant and the second man entered the bank, the lock on the door to the teller line was broken and a repairman was working on it. As a result, the door was propped open.
Ms. Traylor's instincts were borne out when the appellant brandished a gun with a silver barrel. He paced the lobby floor of the bank while displaying the gun. The second man approached the open teller line door, saying, Judy O'Neill, a bank employee, stepped out of her office and the second man “put her down on the floor.” The second man also forced the repairman down on the floor and went behind the teller line. The second man pulled out a white plastic bag and went through each teller's drawer pulling out cash and stuffing it in the bag. When the second man got to the last drawer, the appellant “started getting a little uptight” and said,
After they had removed the money from all the drawers, the two men exited the branch. Ms. Traylor saw the second man remove his gloves and stuff the money inside his fleece jacket. According to Ms. Traylor, the appellant was not wearing gloves. She stated that the entire event lasted only two and a half minutes and that “just under $15,000.00” was taken from the bank.
Ms. Traylor gave the police a thumb drive containing a video recording of the robbery from the bank's surveillance cameras. At trial, she reviewed images from the video recording and still photographs made from the recording and identified the appellant as the person shown in the bank lobby.
Matthew Marceron, a customer in the bank at the time of the robbery, and three bank tellers, Linda Hayden, Stacy Blevins, and Lisa Dunay, gave similar testimony about the robbery. Each identified the appellant as the man who stayed in the lobby area of the bank holding a silver gun. Each bank teller gave slightly different testimony about the appellant's height, but placed him between five feet eight inches and five feet ten inches tall. This testimony conflicted with the height given on the appellant's Motor Vehicle Administration record, which states that he is five feet, four inches tall.
Anne Arundel County Police Detective Norval Cooper was the primary investigator of the robbery. He interviewed witnesses, reviewed the video recorded by the bank's surveillance cameras, and obtained still photographs from the video recording. Detective Cooper provided the still photographs to a public information officer. About five days after the robbery, Detective Cooper had a telephone conversation with Eric Owens about a possible suspect. As a result of that conversation, Detective Cooper gathered information, including photographs of the appellant.
Eric Owens testified that he has known the appellant, whom he refers to as Gary, for 40 to 45 years. They grew up and went to school together. Although Owens is not related to the appellant by blood, he refers to the appellant as his “cousin.” Owens testified that he had last seen the appellant “four or more” years prior to the trial. According to Owens, the appellant's appearance had changed during that time. Owens testified that, at the time of trial, the appellant did not look healthy and appeared to have lost about 20 to 25 pounds. Also, the appellant seemed to be paralyzed, which had not been his condition before. Owens estimated that the appellant was about five feet, four inches tall. He stated that Detective Cooper showed him some photographs and the video recording of the bank robbery, and Owens identified the appellant as one of the robbers.
We shall include additional facts as necessary in our discussion of the issue presented.
Eric Owens is employed as a police officer. He was not involved in the investigation of the subject robbery, however. At trial, defense counsel sought to preclude the State from calling Owens to testify that, after viewing the bank's surveillance video of the robbery and still photographs made from it, it was his opinion that the appellant was one of the people who perpetrated the bank robbery. Defense counsel argued that it was for the jury to decide whether the appellant was one of the people shown in the video and Owens's lay-opinion testimony was irrelevant and improperly invaded the province of the jury. Alternatively, defense counsel argued that, even if the testimony was relevant, its prejudicial effect outweighed its probative value because Owens is a police officer and in any event his testimony was cumulative.
The court ruled that Owens could testify, stating, “If someone's able to recognize them, they're able to recognize them, provided that there's some foundation laid and it's a reasonable foundation that a person knows, or has reason to know, who they're viewing in a video.” The court prohibited Owens from appearing in court in his police uniform and from being identified to the jury as a police officer.
Thereafter, Owens testified that, after viewing the video recording and a still photograph, he had told Detective Cooper that the appellant was one of the robbers. Owens was shown a still photograph, admittedinto evidence as State's Exhibit 2A, and identified the individual depicted in the photograph as the appellant.
The admissibility of evidence ordinarily is left to the sound discretion of the trial court. Md. Rule 5–104(a) (); State v. Simms, 420 Md. 705, 724–25, 25 A.3d 144 (2011) (); Myer v. State, 403 Md. 463, 476, 943 A.2d 615 (2008); Hendrix v. Burns, 205 Md.App. 1, 29, 43 A.3d 415 (2012), cert. denied,427 Md. 608, 50 A.3d 607 (2012). We will not disturb a trial court's evidentiary ruling unless “ ‘the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse of discretion.’ ” Decker v. State, 408 Md. 631, 649, 971 A.2d 268 (2009) (quoting Merzbacher v. State, 346 Md. 391, 405, 697 A.2d 432 (1997)). A court's decision is an abuse of discretion when it is “ ‘well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.’ ” Gray v. State, 388 Md. 366, 383, 879 A.2d 1064 (2005) (quoting Dehn v. Edgecombe, 384 Md. 606, 628, 865 A.2d 603 (2005)).
Rule 5–401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Generally, relevant evidence is admissible and evidence that is not relevant is not admissible. Md. Rule 5–402.1,2
The appellant contends that Owens's testimony identifying him on the bank surveillance video and from a photograph taken from the video was irrelevant and also was inadmissible lay opinion testimony under Rule 5–701. That rule provides:
If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.
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