Nero v. State

• Decision Date: 07 May 2002
• Docket Number: No. 1431,1431
• Citation: 144 Md. App. 333,798 A.2d 5
• Parties: James Herbert NERO v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

798 A.2d 5

144 Md. App. 333

James Herbert NERO v. STATE of Maryland.

No. 1431, Sept. Term, 2001.

Court of Special Appeals of Maryland.

May 7, 2002.

George E. Burns, Jr., Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Steven L. Holcomb, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Douglas Gansler, State's Attorney for Montgomery County of Rockville, on the brief), for appellee.

Submitted Before SALMON, JAMES R., EYLER, and SHARER, JJ. JAMES R. EYLER, Judge.

Appellant, James Herbert Nero, was charged with armed robbery and related offenses. He was tried with a co-defendant, Robert Milton Shuebrooks, by a jury in the Circuit Court for Montgomery County. Appellant was found guilty of two counts of armed robbery, four counts of first degree assault, four counts of use of a handgun in the commission of a felony or crime of violence, two counts of reckless endangerment, and one count of conspiracy to commit robbery. Appellant was sentenced to a total of one hundred years' imprisonment. This appeal followed.

Appellant presents the following issues for our consideration:

I. Whether the trial court erred in denying appellant's motion to suppress;

II. Whether the trial court erred in permitting a police officer to testify as to her opinion that some of the witnesses were certain of their photographic identifications of appellant and his co-defendant;

III. Whether the trial court erred in not admitting exculpatory evidence;

IV. Whether the trial court erred in denying appellant's motion for new trial; and,

V. Whether the trial court committed plain error in its jury instructions.

FACTUAL BACKGROUND

At about midday on May 1, 1999, Robert White was working at the Finlay Fine Jewelry counter at a Hecht's department store in Chevy Chase. Sandy Jones, a manager, was also working there that day.

White testified at trial that as he was assisting a customer, Caroline Neuman, he noticed an African American male whom he described as "maybe six feet" tall, with a "short hair cut," and a "kind of long face." The man was dressed in a "blue nylon, like a blue jacket, jeans maybe." About five minutes after White first noticed the man, he saw another man grab Neuman and put a gun on the counter. The second man told White to start filling a bag with jewelry. White described the second man as being "around five 10 and a half or so" in height. White noticed that the man wore a blazer and pants and that the zipper on his pants was open and his shirt was "hanging through the zipper." The man also wore "a wig like dreadlocks or something like that and [a] Ca[r]go hat with a little flip button [on] the front." White testified that the man had a scar on his eyebrow.

White filled the bag with jewelry. White then noticed that Jones was also filling a bag with jewelry and that the man he first noticed in the store was telling Jones what to put in the bag and to hurry up. When Jones was finished filling the bag with jewelry, the first man took the bag from Jones and the two men left the store together.

White testified that he "stood there for a second and [ ] was still kind of in shock." He then "ran and got a piece of paper and a pen and ran after the guys outside, I wanted to try to get their tag number or see which way they were going at least." White testified that a Hecht's security guard, Hurist Morgan, also ran after the two men as they left the store.

White and Morgan exited the Hecht's department store onto Wisconsin Avenue and ran up a hill. According to White,

when we got to about mid-way at the top of the hill, I saw [the two men] get into a white Jeep Cherokee so I started writing down the tag number and the guy— guy with the gun, as he was opening the door, he looked up and saw us, you know, coming down the hill and the door hit his hand that was holding the bag of jewelry which that dropped it on the ground, I guess he got mad and he pulled out the gun and he fired some shots at us and we dove into the bushes.

White was able to crawl through the bushes and see the tag number of the Jeep Cherokee, which he wrote down and later gave to the police.

At trial, White identified appellant and his co-defendant, Shuebrooks, as the men who were involved in the robbery at the Hecht's department store on May 1, 1999.

Jones testified at trial that, about ten minutes before the robbery took place, she noticed the shorter of the two defendants, later identified as Shuebrooks, looking at some watches while she was showing a lady some earrings. Jones stated that the man she noticed, Shuebrooks, was African American, had long dreadlocks, and wore dark glasses and a suit jacket. While looking in a drawer for a gift box for a customer, Jones saw a man flip a bag over the counter. The man said "take this." Initially, Jones thought the man wanted her to dispose of the bag in the trash, so she took the bag and started to walk off with it. The man then flipped another bag over the counter, told White to fill it up, and showed Jones a gun.

Jones eased over to the cash register, laid down her keys, and knocked the telephone off the hook. Shuebrooks told Jones to be quiet and go back over to where she was and to fill the bag with jewelry. He said that he wanted the diamonds out of the jewelry case. Jones told him that she had to go back to the register to get her keys, and while she was at the register, she used the telephone to dial the number for security. She then returned to the jewelry case, opened it, and started putting the diamonds in the bag. As she was filling the bag, Shuebrooks reached over the counter and grabbed the bag out of her hand. Shuebrooks and appellant then turned and started walking away. Jones witnessed White and the security guard chase after Shuebrooks and appellant. She then dialed 911.

Officer Richard Grapes of the Montgomery County Police Department testified that, around noon on May 1, 1999, he received a call for "an armed robbery in progress where shots were fired." Officer Grapes received information that the suspects were in a Jeep that had left the loading dock area of the department store and was traveling on Friendship Avenue. Officer Grapes found a wig and sunglasses on Friendship Avenue. He roped off the area and secured the evidence.

David McGill, a forensic services technician for the Montgomery County Police Department, was responsible for documenting the crime scene and collecting and preserving the evidence for future analysis. He recovered the wig and sunglasses found by Officer Grapes. He also collected three shell casings from the parking lot, assorted items of jewelry, and some fingerprints.

Montgomery County Police Detective Nancy Bond testified that she investigated the May 1, 1999 robbery at the Hecht's department store. She also investigated a March 5, 1999 robbery of a Lord and Taylor's department store. Detective Bond stated that she obtained surveillance photographs that contained excellent pictures of the suspects of the Lord and Taylor's robbery. A few days after the May 1, 1999 robbery at Hecht's, Detective Bond showed the surveillance photographs of the suspects of the Lord and Taylor's robbery to both White and Jones. At the suppression hearing, Detective Bond testified that there were a total of 9 surveillance photographs, but she could not recall which photographs she showed to White and which photographs she showed to Jones. According to Bond, both White and Jones identified one of the suspects in the photographs as the individual who had had the gun in the Hecht's robbery. At that time, Detective Bond did not know the name of the suspect in the surveillance photographs. Her purpose in showing the surveillance photographs to White and Jones was to determine if the same suspect was involved in both the Lord and Taylor's and the Hecht's robberies.

Detective Bond further testified that during the course of her investigation, she read a newspaper article about another robbery that had occurred at the Uptown Movie Theater in the District of Columbia. Detective Bond believed that the District of Columbia robbery may have been related to the May 1, 1999 robbery at the Hecht's store. Detective Bond contacted an officer at the Metropolitan Police Department in the District of Columbia and arranged to be present when a search of appellant's home in the District of Columbia was conducted, pursuant to a search warrant obtained by the Metropolitan Police Department in connection with their investigation of the theater robbery.

Detective Dave Edelstein of the Metropolitan Police Department testified that on June 23, 1999, he and other officers executed a search warrant for an apartment located at 723 Longfellow Street in Washington, D.C. Detective Bond was present for the search. During the search of the apartment, officers found papers and photographs connecting appellant to the apartment. They also found jewelry, a jewelry tag, and pawn receipts in the apartment, which were seized and subsequently turned over to the Montgomery County Police Department.

After receiving the pawn receipts and jewelry, Detective Bond put a stop on certain jewelry at area pawn shops and, eventually, identified certain items of jewelry as having been taken from the Finlay Fine Jewelry counter at the Hecht's department store on May 1, 1999.

Detective Bond prepared two photographic arrays, one of which included appellant's photograph and one of which included Shuebrooks' photograph.¹ Detective Bond testified that both White and Jones identified the photographs of appellant and Shuebrooks as the men who perpetrated the robbery.

At trial, it was stipulated that appellant was in actual possession of a 9 millimeter handgun that was recovered by the Metropolitan Police Department on June 22, 1999, and admitted in evidence. An expert witness testified that the casings found on the Hecht's parking lot had...