State v. Hailes, 2384

Citation217 Md.App. 212,92 A.3d 544
Decision Date27 May 2014
Docket NumberNo. 2384,Sept. Term, 2013.,2384
PartiesSTATE of Maryland v. Jermaine HAILES.
CourtCourt of Special Appeals of Maryland

217 Md.App. 212
92 A.3d 544

STATE of Maryland
Jermaine HAILES.

No. 2384, Sept. Term, 2013.

Court of Special Appeals of Maryland.

May 27, 2014.

[92 A.3d 547]

Carrie J. Williams (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellant.

Brian L. Zavin (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellee.

Panel: DEBORAH S. EYLER, KEHOE, and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

CHARLES E. MOYLAN, JR., J. (Retired, Specially Assigned).

This State appeal from an adverse suppression ruling in the Circuit Court for Prince George's County presents us with a bounteous smorgasbord of evidentiary and constitutional issues. Among them are 1) the Dying Declaration as the “granddaddy” of the firmly-rooted exceptions to the Rule Against Hearsay; 2) the impact, if any, of the Confrontation Clause on the Dying Declaration pursuant to the recent reinterpretation of that clause in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); and 3) the suppressability of an extrajudicial identification from a photographic array based on the reliability factors spelled out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). It is a lot to digest under a 28–day time gun.

[92 A.3d 548]

At the outset, let one thing be clear. The issue of the admissibility of a Dying Declaration (even with its complicating Confrontation Clause aspects), on the one hand, and that of the pretrial suppression of a photographic identification, on the other, are separate and distinct. They do not collapse into each other to produce some amorphous hybrid. If there was a fatal flaw at the suppression hearing, such an agglomeration of issues was a significant part of it.

The State Appeal

The appellee, Jermaine Hailes, was indicted by the Grand Jury for Prince George's County on December 11, 2012 on charges of 1) first-degree murder, 2) armed robbery, 3) conspiracy, and 4) possession of a firearm by a prohibited person. He moved pretrial to have the victim's identification of him as the shooter suppressed. Following a hearing on November 1, 2013, the hearing judge filed an Opinion and Order of Court suppressing the identification. The State has filed a timely appeal.

The State appeal is authorized by Maryland Code, Courts & Judicial Proceedings Article, § 12–302(c)(3), which, in pertinent part, provides:

(c) Appeals by State in criminal cases—In a criminal case, the State may appeal as provided in this subsection.


(3)(i) In a case involving a crime of violence as defined in § 14–101 of the Criminal Law Article, and in cases under §§ 5–602 through 5–609 and §§ 5–612 through 5–614 of the Criminal Law Article, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Maryland Constitution, or the Maryland Declaration of Rights.

(ii) The appeal shall be made before jeopardy attaches to the defendant. However, in all cases the appeal shall be taken no more than 15 days after the decision has been rendered and shall be diligently prosecuted.

(iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding. The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final.

(Emphasis supplied). The record in this case was filed in this Court on January 29, 2014. Accordingly, our decision must be rendered no later than May 29, 2014. We heard oral argument on May 1.

The Defendant's Challenge To The State Appeal

The appellee challenges the State's right to take an interlocutory appeal in this case and asks that we dismiss the appeal. He is preliminarily correct that the State may only appeal in a criminal case if expressly authorized to do so by the Legislature. Rush v. State, 403 Md. 68, 98–103, 939 A.2d 689 (2008) (In Rush, the Court recognized the legislatively-authorized right of the State to appeal the pretrial suppression of a confession on the ground that it violated the Fifth Amendment privilege against compelled self-incrimination.); Mateen v. Saar, 376 Md. 385, 399–405, 829 A.2d 1007 (2003); State v. Green, 367 Md. 61, 71–80, 785 A.2d 1275 (2001).

[92 A.3d 549]

The specific challenge to the ostensible statutory authority for this appeal is one of first impression and focuses on the following provision of § 12–302(c)(3)(i):

[T]he State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Maryland Constitution, or the Maryland Declaration of Rights.

(Emphasis supplied).

The prerequisite for a State appeal is that the exclusionary ruling must have been based on constitutional grounds. The ruling by the suppression hearing court that is the gravamen of this appeal was that a dying declaration would be excluded from evidence because its introduction would violate the appellee's Sixth Amendment right to confront the witnesses against him. There may have been (although it is not absolutely clear) a second constitutional basis for the exclusion, to wit, that the extrajudicial identification made by the dying declarant was constitutionally unreliable in ostensible violation of Neil v. Biggers, supra; Manson v. Brathwaite, supra; and the Due Process Clause.

The definitive analysis (and the only truly probing examination) of the required subject matter for a State appeal pursuant to § 12–302(c)(3) is the opinion of the Court of Appeals in Derry v. State, 358 Md. 325, 748 A.2d 478 (2000). The entitlement of the State to take, under certain conditions, an interlocutory appeal from the pretrial suppression of evidence on constitutional grounds was first made a part of Maryland law by Chap. 493 of the Acts of 1982. Judge Raker's opinion for the Court of Appeals in Derry held squarely that the State did not enjoy a right to appeal in a case where the suppression had been based upon a violation of Maryland Code, Courts & Judicial Proceedings Article, § 10–411(c), the Maryland Wiretapping and Electronic Surveillance Act. To justify a State appeal, the suppression must be based on constitutional grounds and not on statutory grounds.

Of utmost importance is the fact that the Circuit Court's order of suppression was grounded solely upon the Wiretap Act.

358 Md. at 335, 748 A.2d 478. The appeal in Derry was, therefore, improper.

The Court of Appeals's interpretation of legislative intent is that the State's grievance, to be appealable, must be of “constitutional magnitude.”

The General Assembly patently intended that the limitation of interlocutory appeals to issues of constitutional magnitude apply to a trial court decision that ... “excludes evidence” ... [T]he court's finding of a constitutional violation is a necessary precondition to the availability to the State of an interlocutory appeal in the specified criminal cases.

358 Md. at 339, 748 A.2d 478 (emphasis supplied). Judge Raker's opinion looked at the lay of the land both before and after 1982.

Reading § 12–302(c)(3)to permit the State to challenge by interlocutory appeal only constitutionally based exclusions of evidence is more consonant with the long-time unavailability of interlocutory appeals that served as precedent to the statute's original passage in 1982. Prior to that year, Maryland law afforded the State no opportunity to pursue an interlocutory appeal in a criminal case. It was against this backdrop that the General Assembly determined to create a right of interlocutory appeal for the State in only a limited number of criminal prosecutions while

[92 A.3d 550]

explicitly restricting this right in other ways.

358 Md. at 340, 748 A.2d 478 (emphasis supplied).

From the beginning of its analysis to the end, the distinction guiding the Court's interpretation of the statute was that separating matters of constitutional gravity from matters of less than constitutional gravity.

We therefore believe the more reasonable interpretation of § 12–302(c)(3) is that its limitation to constitutional issues, like all other limitations within the statute, applies to every exercise by the State of its right to interlocutory appeal.

... [W]e find that the language of § 12–302(c)(3)(i) reveals a legislative intent to deny the State a right of interlocutory appeal of a trial court's exclusion of evidence on non-constitutional grounds.

358 Md. at 341, 748 A.2d 478 (emphasis supplied).

The Court of Appeals concluded its analysis by stressing the General Assembly's focus on “constitutionally based suppressions.”

[T]he legislative history of § 12–302(c)(3) makes all the more evident that through its enactment the General Assembly sought to subject to immediate judicial review at the State's request only constitutionally based suppressions.

358 Md. at 341, 748 A.2d 478 (emphasis supplied).

The appellee, however, posits a radically different reading of § 12–302(c)(3). Instead of focusing on the distinction between a constitutional violation and a sub-constitutional violation, he would limit the subject matter of the State's appeal to the exclusion of “property ... seized.” Under the appellee's cramped interpretation, the State's right to appeal would be limited, therefore, to the exclusion of tangible property, to wit, the type of property that could be physically “seized” as opposed to other types of evidence that could only be overheard or observed or smelled. It would not extend, for instance, to the exclusion of an intangible extrajudicial...

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