Raynor v. State

• Decision Date: 29 September 2011
• Docket Number: Sept. Term,2009.,No. 1629,1629
• Citation: 29 A.3d 617,201 Md.App. 209
• Parties: Glenn Joseph RAYNORv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

201 Md.App. 209

29 A.3d 617

Glenn Joseph RAYNOR

v.STATE of Maryland.

No. 1629

Sept. Term

2009.

Court of Special Appeals of Maryland.

Sept. 29, 2011.

Michael P. Lytle (Byron L. Warnken, LLC, on the brief), Baltimore, MD, for appellant.Daniel J. Jawor (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.Panel: KRAUSER, C.J., MATRICCIANI, JAMES P. SALMON (Retired, Specially Assigned), JJ.KRAUSER, C.J.

Convicted by a jury in the Circuit Court for Harford County of multiple degrees of rape, assault, burglary, and sexual offense, as well as malicious destruction of property,¹ appellant, Glenn Joseph Raynor, contends, first, that the circuit court erred in denying his motion to suppress DNA evidence recovered, without his knowledge and without a warrant, from a chair he sat on at the police station and, second, that the court abused its discretion in denying his request for a mistrial because the State had failed to timely disclose certain emails between the victim and the police prior to trial and further neglected to provide other emails either before or after trial. Finding no merit to either contention, we affirm.

Background

The record, when reviewed in a light most favorable to the State, as the prevailing party, shows that, early on the morning of April 2, 2006, after cutting the victim's telephone line, appellant gained entry to the victim's home by chiseling open the basement door. After entering her bedroom, he pressed a pillow against her face and threatened to kill her if she moved. Then, tying a shirt over the victim's face as a blindfold, he raped her and fled. During the attack, the victim noticed that her attacker had a wedding band on his hand and had a “metallicky odor.”

After appellant left her house, the victim ran to her neighbors' house and, from there, called the police. When the police arrived, they took swabs of blood stains that were found on a pillow case on the victim's bed and on the floor of the back patio of the victim's home, underneath a broken window. Later that day, swabs were taken of the victim's vagina and anus.

Appellant did not become a suspect in the investigation of the rape until, more than two years later, the victim sent an email to the lead investigator in the case, Trooper First Class Dana Wenger of the Maryland State Police, stating that she believed that appellant was the man who had raped her. At trial, the victim described the process by which she had come to that conclusion. She explained that, two years after the attack, she had called Bruce Arthur, her former next-door neighbor, for help with a tree on her property. Mr. Arthur owned a tree-trimming business.

Arthur's failure to return her call prompted the victim to reflect as follows:

So, July 15 [2008] ... I am driving home once again going over in my head as I did every day thinking okay, Bruce didn't call me back, why didn't he call me back. And then I am thinking okay, Bruce is partners with [appellant]. And ... my mind starts going.... [Appellant] used to live in [the house in which the attack took place]. [Appellant] has a body type that closely fits the body type of [the attacker]. Then it's oh, [appellant] is married [and] has children, I went to school with [appellant], he lived in that house. He is partners with Bruce....

When she considered the possibility that appellant was her attacker, “it all fit,” exclaimed the victim. Pursuing this lead, Trooper Wenger left a note at appellant's home asking him to call her. On July 28, 2008, appellant telephoned Trooper Wenger and agreed to go to the police barracks that afternoon. When he arrived, he was taken to a spare office. During the interview that ensued, Trooper Wenger and Sergeant James Decourcey asked appellant for a DNA sample to compare with the DNA recovered from the pillow case, the broken window, and the victim's body. Appellant agreed to provide a sample on the condition that it would be destroyed after the investigation was concluded. When the officers declined to give such an assurance, appellant refused to provide a DNA sample.

At that time, appellant was wearing a short-sleeved shirt and, according to Trooper Wenger, “kept rubbing his arms up and down the armrests of the chair.” The trooper also noticed a “metallic” odor emanating from appellant and observed that he appeared “nervous” and provided “peculiar” answers during the interview. After appellant left the police barracks, Sergeant Decourcey swabbed the armrests of the chair on which appellant had been sitting. The swabs were submitted to the Maryland State Police Forensic Lab, where the forensic sciences supervisor, Bruce Heidebrecht, extracted DNA from the swabs and developed a DNA profile for comparison purposes. That DNA profile was found to match the DNA profile developed from the evidence taken from the pillow case and the patio at the scene of the crime.

On the strength of the DNA comparison and circumstantial evidence developed by Trooper Wenger—specifically the victim's identification, appellant's familiarity with the victim and her home, Trooper Wenger's detection of a “metallic” odor emanating from appellant's person, and appellant's nervousness and “peculiar” conduct during his interview with the police—Trooper Wenger obtained warrants to arrest appellant, search his home, and collect an additional DNA sample. The DNA from the additional sample, gathered by swabbing appellant's cheek, also matched the DNA on the pillow case and the patio. An independent lab compared the DNA obtained from appellant's cheek with DNA from swabs of the victim's anus and vagina, taken during the forensic examination the day of the rape, and concluded that neither appellant nor any of his male paternal relatives could be excluded as a potential contributor to that DNA sample, but that 99.57% of the male population in a country the size of the United States could be.

Discussion

I.

Appellant contends that the circuit court erred in failing to suppress the DNA sample gathered from the chair that he sat on at the police barracks. ² The suppression court denied appellant's motion, concluding that, because appellant did not have “any reasonable expectation of privacy with regard to the sweat he left on the chair,” the police were lawfully in possession of his DNA.

There is no dispute that the officers had the right to swab their own chair without a warrant. It was the property of the police and not of appellant, and thus he had no reasonable expectation of privacy in the chair itself. See Gamble v. State, 78 Md.App. 112, 116, 552 A.2d 928 (1989) (“The police needed no warrant to search [an officer's] cruiser since it was police property, and no warrant is required to search one's own property.”).

But appellant contends that he had a reasonable expectation of privacy in the DNA contained in his skin cells, even if the police lawfully acquired the skin cells by swabbing their own chair. In the absence of a warrant, the police were prohibited by the Fourth Amendment, maintains appellant, from analyzing the swab they took from the chair, developing a DNA profile, and comparing it to the DNA recovered from the crime scene.

In reviewing a trial court's denial of a motion to suppress evidence alleged to have been seized in contravention of the Fourth Amendment, we view the evidence adduced at the suppression hearing and the inferences fairly drawn therefrom in the light most favorable to the prevailing party. Williamson v. State, 413 Md. 521, 532, 993 A.2d 626 (2010) (citations omitted). We defer, moreover, to the fact-findings of the suppression court, unless those findings were clearly erroneous. Id. But, with respect to the ultimate question of constitutionality, we “make our own independent constitutional appraisal by reviewing the law and applying it to the facts.” Id. (quoting Bailey v. State, 412 Md. 349, 362, 987 A.2d 72 (2010)).

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV; McFarlin v. State, 409 Md. 391, 403, 975 A.2d 862 (2009). “The person invoking Fourth Amendment protections bears the burden of demonstrating his or her legitimate expectation of privacy in the place searched or items seized.” Williamson, 413 Md. at 534, 993 A.2d 626 (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)).

The burden of demonstrating a “legitimate” or “reasonable” ³ expectation of privacy includes both a subjective and an objective component. Id. First, the individual invoking Fourth Amendment protection must “demonstrate an actual (subjective) expectation of privacy in the item or place searched.” Id. (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); Venner v. State, 279 Md. 47, 51–52, 367 A.2d 949 (1977)). A subjective expectation of privacy is demonstrated by a showing that the person “sought ‘to preserve something as private.’ ” Id. at 535, 993 A.2d 626 (quoting McFarlin, 409 Md. at 404, 975 A.2d 862). Second, the expectation must be “objectively reasonable under the circumstances.” Id. at 534, 975 A.2d 862 (citing Laney v. State, 379 Md. 522, 545, 842 A.2d 773 (2004)). That is, “[a]n expectation of privacy does not give rise to Fourth Amendment protection ... unless society is prepared to accept that expectation as objectively reasonable.” Id. at 535, 975 A.2d 862 (quoting California v. Greenwood, 486 U.S. 35, 39–40, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988)).

The Court of Appeals, in Williamson v. State, 413 Md. 521, 993 A.2d 626 (2010), recently addressed the issue of a suspect's reasonable expectation of privacy in DNA evidence recovered from an object in the possession of the police. The DNA sample at issue was obtained, as here, by police without the suspect's knowledge.

The events leading up to the taking...