Ptomey v. State, 2573

• Decision Date: 28 May 2021
• Docket Number: No. 2573,2573
• Parties: JAMES PTOMEY v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

JAMES PTOMEY v. STATE OF MARYLAND

No. 2573

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

May 28, 2021

Circuit Court for Garrett County

Case No. C-11-CR-18-000135

UNREPORTED

Leahy, Reed, Beachley, JJ.

Opinion by Beachley, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Following a two-day trial in the Circuit Court for Garrett County, a jury convicted appellant James Ptomey of attempted first-degree murder and violation of a protective order. The court sentenced appellant to twenty-five years' imprisonment for attempted first-degree murder, and thirty days concurrent for violation of the protective order. Appellant timely noted an appeal to this Court and presents the following issues for our review, which we have slightly rephrased and consolidated as follows:

I. Did the trial court err by allowing evidence of Ms. Ptomey's in-court identification of the mask allegedly worn by her assailant, where it had granted appellant's pre-trial motion to suppress the identification, and the State made no pre-trial motion for reconsideration?

II. Did the trial court err by denying appellant's motion for judgment of acquittal?

Although we hold that the trial court committed error by allowing evidence of Ms. Ptomey's in-court identification of the mask, we conclude that the error was harmless beyond a reasonable doubt. Additionally, we hold that the court did not err in denying appellant's motion for judgment of acquittal. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Nancy Ptomey, the victim in this case, had been married to appellant for approximately twenty-four years prior to the events that brought about the charges in this case.¹ On August 28, 2018, both Ms. Ptomey and appellant appeared in court wherein Ms. Ptomey obtained a temporary protective order against appellant. After her work shift onSeptember 7, 2018, Ms. Ptomey decided to stay in a motel for the night, rather than her home, "because [she] had a bad feeling." At the time, Ms. Ptomey and appellant were living separately. The following day, she returned home at approximately 11:00 a.m. As soon as she entered her house, she checked her landline phone to see if it was working because, according to Ms. Ptomey, appellant previously "had it shut off." After unsuccessfully attempting to contact the phone company, Ms. Ptomey began preparing for work when she heard a knock at her front door. Ms. Ptomey opened the door and saw a man wearing a gold and black mask holding a wooden object.² He immediately said, "bitch, I'm going to kill you." Ms. Ptomey recognized the man's voice as appellant's. The man then began striking Ms. Ptomey with the object. The assault continued in the dining room of Ms. Ptomey's home, where the man struck Ms. Ptomey with the object, kicked her in the ribs, punched her in the face, and repeatedly slammed her up against a bookshelf. According to Ms. Ptomey, the attacker then went to the kitchen to retrieve a knife, allowing her an opportunity to escape by running out the front door.

Once Ms. Ptomey made it to the road outside her home, she collapsed. After two cars passed her, a third car finally stopped. Ms. Ptomey told the occupants that her husband was trying to kill her, and they called 9-1-1. Police arrived, and Ms. Ptomey was taken to Garrett Memorial Hospital for medical treatment.

Later that day, appellant was arrested. On November 7, 2018, the State charged appellant by way of criminal information with attempted first-degree murder, first-degree assault, second-degree assault, and violation of a protective order. As noted above, the jury convicted appellant of attempted first-degree murder and violation of a protective order. We shall provide additional facts as necessary to inform our analysis.

DISCUSSION

Appellant argues that the circuit court erred in allowing Ms. Ptomey's in-court identification of the mask he allegedly wore during the attack despite the fact that the suppression court granted his pre-trial motion to suppress that identification. We agree, but conclude that the court's error was harmless beyond a reasonable doubt. We also conclude that the evidence was sufficient to sustain appellant's conviction for attempted first-degree murder.

I. THE COURT ERRED BY VIOLATING ITS SUPPRESSION RULING, BUT THAT ERROR WAS HARMLESS

Prior to trial, appellant filed a motion to suppress, among other things, "an out-of-court identification made by [Ms. Ptomey] on September 8, 2018 of a picture of a mask sent by D/Sgt. Sigmund to Ms. Ptomey's relative, Jennifer [Ptomey³]." On February 27, 2019, the circuit court held a suppression hearing on that motion. At the hearing, DetectiveSergeant Michael Sigmund of the Maryland State Police, Criminal Enforcement Division in the Western Region, testified that he received a call at approximately 2:00 p.m. regarding the attack on Ms. Ptomey, and that he responded to the hospital in order to interview her. During this interview, Ms. Ptomey told Sgt. Sigmund the details of her attack, including the fact that her attacker was wearing "a black and gold color mask." Notably, the only description Ms. Ptomey provided at that time was that the mask was a black and gold colored face mask.

After transporting Ms. Ptomey to her residence, Sgt. Sigmund went to the Dollar General store in McHenry because, according to Lisa Larue, one of Ms. Ptomey and appellant's daughters, appellant had been in that store that morning. While at the Dollar General, Sgt. Sigmund was able to review video surveillance footage which showed appellant, Ms. Larue, and Ms. Larue's child enter the store at approximately 10:56 a.m. The video showed that, at approximately 11:02 a.m., appellant approached one of the cash registers while holding a gold-colored mask in his hand. One of the Dollar General employees then took Sgt. Sigmund to the mask section of the store and showed Sgt. Sigmund what he believed was the same mask that appellant was holding in the surveillance footage.

Sgt. Sigmund took photographs of the mask with his phone, and after leaving the store, he texted the picture of the mask to Ms. Ptomey's daughter, Jennifer Ptomey, whom Sgt. Sigmund knew was with Ms. Ptomey at the time. Sgt. Sigmund told Jennifer Ptomey that he believed the photograph depicted the same type of mask appellant purchased at thestore, and asked Jennifer to show the picture to Ms. Ptomey to see if it matched the description of the mask her attacker wore. Sgt. Sigmund then called Ms. Ptomey, and she "identified it as being positively -- that it was the mask the suspect was wearing at the time of the crime."

Continuing his investigation, Sgt. Sigmund later returned to the Dollar General to obtain the video surveillance footage. During that visit, he was also able to obtain the receipt for appellant's September 8, 2018 transaction. The receipt indicated that appellant purchased a "skull mask," and the SKU⁴ number of the mask appellant purchased matched the SKU number of the mask Sgt. Sigmund photographed and forwarded to Ms. Ptomey.

Appellant argued that Ms. Ptomey's out-of-court identification of the mask should be suppressed because the photograph was unnecessarily suggestive, and because her initial description of it being "black and gold" was inaccurate in that she failed to articulate that it was actually a skeleton or skull-like mask. Appellant also argued that Ms. Ptomey's identification was tainted by Sgt. Sigmund's indication to her that he was sending her a picture of "the mask." Accordingly, appellant argued that Ms. Ptomey should not be allowed at trial to identify the photograph of the mask in question as identical to the one her attacker wore.

In ruling on appellant's motion to suppress Ms. Ptomey's identification of the mask, the court stated:

There is another issue related to [Ms. Ptomey's] identification of the mask that was shown to her in a photograph and which she then identified. The identification prior to seeing a photograph of that alleged mask was that it was black and gold, and that was nothing more. There was . . . no indication as to the composition of it, whether it was a ski-type mask, it's made out of knit material, or a plastic Halloween-type mask. There's no indication. It's, simply, black and gold is the only description that Ms. Ptomey gives.

The typical way in the case -- in the case law on this matter would indicate that normally the law enforcement would present a photo array to the alleged victim. And, certainly, while it may not have been available to have black and gold items in a photo array, there were, certainly, other masks available. At that time, the product SKU had not been identified as to which mask it was. You could -- the officer testified he could somewhat see which mask he purchased, but, other than that, there was no other identification. I think most telling is that after [showing] the single photograph of a black and gold skull mask to [Ms. Ptomey], she then uses the word skull in referring to this mask. I think that that shows that it was suggestive to her. In showing her a single photograph of a single black and gold mask in this case, I think that the reliability of her testimony is somewhat suspect because after seeing the single photograph, her description of the mask becomes much more specific and much more precise.

So, with respect to [Ms. Ptomey's] identification of the mask in this case, I am going [to] grant the suppression motion in this matter. I think that the showing of a single photograph of a mask that was purchased by [appellant], contemporaneously, was overly suggestive to the alleged victim in this case as evidence[d] by her reference to it then being a skull mask, which seems to be something that she, certainly, could have easily used to describe[] that mask prior to

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