Howard v. State , 232 Md. App. 125 ( 2017 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 747
September Term, 2015
______________________________________
PAUL EARNEST HOWARD, JR.
v.
STATE OF MARYLAND
______________________________________
Eyler, Deborah S.,
Wright,
Alpert, Paul E.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Eyler, Deborah S., J.
______________________________________
Filed: March 28, 2017
.
A jury in the Circuit Court for Baltimore County convicted Paul Howard, Jr., of
first-degree assault, first-degree burglary, theft under $1,000, and false imprisonment.
The court sentenced him to a total of 81½ years of executed prison time. 1
On appeal, Howard presents seven issues for review, which we have rephrased:
I. Did the trial court err by denying his motion to inspect the interior of
the house where the crimes were committed, which was solely under
the control of the victim and her son?
II. Did the trial court abuse its discretion by denying his motion for
mistrial and to strike the testimony of the State’s latent fingerprint
expert?
III. Did the trial court abuse its discretion by giving a modified jury
instruction on first-degree burglary?
IV. Did the trial court abuse its discretion by admitting the State’s DNA
evidence without conducting a Frye-Reed hearing?
V. Was the evidence legally sufficient to sustain his conviction for false
imprisonment?
VI. Did the sentencing court err by not merging his sentences for false
imprisonment and first-degree assault?
VII. Did the sentence for false imprisonment violate his constitutional
right to be free from cruel and unusual punishment?
We shall affirm the judgments of the circuit court.
1
Specifically, Howard was sentenced to 25 years’ imprisonment for first-degree
assault, 20 years’ imprisonment for first-degree burglary, 18 months’ imprisonment for
theft under $1,000, and 35 years’ imprisonment for false imprisonment, all to be served
consecutively.
FACTS AND PROCEEDINGS
Howard’s trial commenced on April 15, 2015, and concluded on April 20, 2015.
The State’s witnesses included Edna Lobell, the victim, who was 98 years old at the time
of the crimes. The following evidence was adduced.
Ms. Lobell moved into her row house in Rogers Forge in 1963. She still lives
there. On April 26, 2014, she was at home when, in the early afternoon, Howard
knocked on her back door. Ms. Lobell did not know Howard and had never met him.
Ms. Lobell answered the door, and Howard told her that her next-door neighbor,
Linda Lang, had hired him to make some repairs to her roof. He offered to make repairs
to her roof as well. In fact, Ms. Lang had not hired Howard to fix her roof or to do
anything and had never met him. Ms. Lobell allowed Howard to come in and eventually
agreed for him to prepare an estimate for the repair work. Howard insisted on being paid
in advance for the estimate and for some materials. Ms. Lobell said she only had $30 in
cash. He told her that was not enough. She gave him the $30 and wrote him a check for
$40 on her State Employees Credit Union (“SECU”) checking account. He gave her his
name to use to make the check out to him. He then left, saying he was going to get some
materials.
At around 6:00 p.m. the same day, Howard again knocked on Ms. Lobell’s back
door. She answered, and he said something to the effect of “Remember me? . . . Didn’t
expect me to come back so soon, did you?” Ms. Lobell let him in, and he proceeded to
sit in a chair in her dining room. He had no materials with him that she could see. He
remained in her house for at least an hour and a half. He asked her for more money. She
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said she didn’t have any. At some point, he went upstairs to her bedroom. She kept
some money hidden in envelopes behind pictures hanging on her bedroom walls. He
found one such envelope, took the money from it, and left the envelope on the dresser.
When Howard returned to the dining room, Ms. Lobell asked him to leave because
it was time for her to eat dinner. He became upset and violent, grabbing her by the arms,
“propel[ing]” her from the dining room into the living room, throwing her to the floor,
and choking her. Having previously broken her right hip, Ms. Lobell knew when she hit
the floor that her left hip had broken. Howard announced that he was going to return the
next day and take her to the bank to withdraw $20,000 for him. He pushed his finger
down her throat, cutting her lip and causing her dentures to come out. He got on top of
her and attempted to have sex with her, but his penis was “limp.” Ms. Lobell bit him
hard on the finger, drawing blood. He got up, turned up the volume on the television, and
went into the kitchen, where he pulled the telephone base out of the wall and threw a
white box that was the electronic connecting device for a medical alert system down the
stairs into the basement.
As she lay on the living room floor, Ms. Lobell managed to press her medical alert
button, which she wore on a device that looked like an ordinary watch. Howard returned
to the living room with a bottle of liquor. As he was starting to get on top of Ms. Lobell
again, Lieutenant Byron Welker, accompanied by other members of the Baltimore
County Fire Department (“BCFD”), arrived at the front door and knocked. Howard
jumped up and ran out the back door. When there was no response to the knock,
Lieutenant Welker gained entry and found Ms. Lobell on the living room floor with her
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pants pulled down around her ankles. She told him a man had tried to rape her and that
he had run out the back door. Lieutenant Welker saw a liquor bottle on the floor near Ms.
Lobell. The base of a phone, which appeared to have been pulled from the wall, was on
the floor. The back door to the house was ajar. Lieutenant Welker contacted the police
and called for an ambulance.
Officer Richard Tabaka of the Baltimore County Police Department (“BCPD”)
quickly responded to the scene. Ms. Lobell was still on the living room floor, awaiting
medical transport. She gave him a basic description of her assailant. Officer Tabaka
secured the scene, taking note of several items on the floor near Ms. Lobell: “a bottle of
what appeared to be an alcoholic beverage, a tan shirt, a bag of what appeared to be
jewelry,” “several spots of what appeared to be blood,” and a phone base that had been
removed from the kitchen wall.
BCPD forensic examiner Sarah Kersse “photograph[ed] the residence as is without
disturbing anything.” She took 113 pictures, almost all of the interior of the house,
photographing “each room of interest.” These included the kitchen, dining room, living
room, and Ms. Lobell’s bedroom. The photographs of the bedroom showed that
containers on Ms. Lobell’s dresser in which she kept jewelry were open, even though she
always left them closed. They also showed an empty envelope on the dresser. There was
no blood on the items in the bedroom, suggesting that Howard had touched them before
Ms. Lobell bit him. By contrast, the photographs of the living room and kitchen showed
blood on several objects. Ms. Kersse processed the scene “for prints on different surfaces
that appear[ed] to be involved in the incident[,]” submitted the fingerprints to the BCPD
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Latent Print Unit for examination, and collected physical evidence, including “swabs of
different areas of possible blood that were present on the living room floor.” She
recovered the t-shirt found on the floor near Ms. Lobell and submitted it for testing.
Ms. Lobell was transported to the hospital where she was diagnosed with a
fractured left hip. Forensic nurse examiner Lisa Krueger performed a modified Sexual
Assault Forensic Examination (“SAFE Exam”). (A complete exam could not be
performed due to Ms. Lobell’s hip fracture.) Nurse Krueger “collected swabs from the
bridge of [Ms. Lobell’s] nose and from her upper and bottom lip” and “photographed
pictures of a sore that she had in her mouth[.]”
Detective Ryan Anderson of the BCPD Special Victims Team served as the lead
investigator on the case. While the crime scene was being processed, he noticed a
“control module for [Ms. Lobell’s] alert medical bracelet” on the basement floor. It was
emitting a beeping sound. Later, Detective Anderson determined that the module
functioned as the conduit from Ms. Lobell’s medical alert bracelet to the BCFD.
On the day of the attack, Barbara Gillin and her husband were staying at their
daughter’s house in Rogers Forge, near Ms. Lobell’s house. As they were walking their
dogs in the afternoon, they were approached by a man who appeared “agitated and
aggressive.” He was holding a check for $40 and wanted to know where the closest
SECU branch was located. The next day, Detective Anderson interviewed Ms. Lobell’s
neighbors, including Ms. Gillin, and she told him about the man with the check.
Detective Anderson found Ms. Lobell’s SECU checkbook in her house and saw that it
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contained a carbon copy of the check written to Howard. The memo line read “chimney
repair.”
Timothy Fitzgerald had lived in the Rogers Forge vicinity for decades and knew
Ms. Lobell. Sometime in the “late afternoon” on the day in question, he was socializing
with his neighbors in a common area behind the row houses that included Ms. Lobell’s
residence when he saw a man walk down an alley and approach a gate to Ms. Lang’s
backyard. The man could not open the gate. He then turned and walked to Ms. Lobell’s
back door. Mr. Fitzgerald saw the man approach Ms. Lobell’s back door and “sa[y]
something into the house.” From a photo array, Mr. Fitzgerald identified Howard as the
man he had seen approach Ms. Lobell’s house.
Howard was arrested on April 30, 2014. Detective Anderson collected buccal
swabs from him and submitted them to the BCPD crime lab for testing. Rebecca
Schlisserman, a forensic biologist with the crime lab, processed the items recovered by
Ms. Kersse. She forwarded select samples of those items, the DNA sample taken from
the bridge of Ms. Lobell’s nose during the SAFE Exam, and the buccal swabs taken from
Howard to a private DNA testing laboratory. Testing revealed that samples taken from
the t-shirt recovered from Ms. Lobell’s living room floor and blood stains from her living
room carpet matched Howard’s DNA. The State presented evidence showing that
Howard’s fingerprint was on the empty envelope on the dresser in Ms. Lobell’s bedroom.
The defense rested without putting on any evidence. Defense counsel did not
dispute that Howard was present in Ms. Lobell’s house on the day in question, but took
the position that the State’s evidence did not prove the elements of the crimes charged.
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We shall include additional facts as pertinent to the issues.
DISCUSSION
I.
A.
After spending several days in the hospital and a month in a rehabilitation facility,
Ms. Lobell moved back to her house in Rogers Forge (“the House”). She was living
there, on her own, in April 2015, when the case against Howard went to trial. By then
she was 99 years old.
Before trial, on November 11, 2014, Howard’s lawyers asked the prosecutor
assigned to the case to allow them to inspect the interior of the House. The prosecutor
responded that Ms. Lobell and her son, whose name was on the title to the House, would
not agree to such an inspection. On January 9, 2015, defense counsel filed a “Motion To
Visit The Crime Scene[,]” arguing that “[t]he scene of the alleged crime is . . . a part of
discovery” under Rule 4-263. They sought an order directing “the Baltimore County
State’s Attorney’s Office, and the homeowner of [the House]” to provide a date and time
for defense counsel to visit the house for inspection. They asserted that the State’s
Attorney’s Office (“SAO”) was obligated under Rule 4-263 to make the House available
for inspection and that it would violate Howard’s right to due process under the
Fourteenth Amendment and his right of confrontation under the Sixth Amendment not to
be allowed, through counsel, to inspect the place where the crimes were committed.
At a hearing on the motion, Howard’s lawyers repeated these arguments, asserting
that there might be “exculpatory things . . . that the State did not provide us within their
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photos” and because the State’s photographs “are just one point of view” and were taken
“for the benefit of the State’s case[.]” Also, the photographs did not give “dimension or
geography or measurements or anything like that that can help in the Defense’s case.”
Defense counsel asserted that evidence they might find by inspecting the House might be
used to “challenge [Ms. Lobell’s] credibility[.]” They acknowledged that “there are
privacy issues, that [Ms. Lobell] has a right to the privacy of her home[,]” but maintained
that the inspection they had proposed “would be so limited in time and so little that [the
need to inspect] outweighs [Ms. Lobell’s] privacy for the probative value that [defense
counsel] can get out of it.” 2 Without elaborating, defense counsel argued that the
Maryland Rules, the Sixth Amendment rights to effective assistance of counsel and to
confront witnesses, and the Fourteenth Amendment right to due process all entitled
Howard to inspect the interior of the House, as the crime scene location, even though it
was not in the possession or control of the SAO.
The State responded that the court lacked authority to order the requested
inspection. It argued that the discovery obligations established in Rule 4-263 do not
encompass an inspection of a crime scene location that is in the possession or control of a
third party, and defense counsel provided nothing to support their contention that the
court had the authority to require the State to provide the defense with such an inspection.
The State maintained that the photographs produced in discovery adequately depicted the
2
Defense counsel stated that their inspection of the House would take one-half
hour, that they would bring an investigator to take photographs, and that they would want
to inspect the kitchen, living room, and dining room, and perhaps the upstairs and
downstairs, i.e., the basement.
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crime scene and urged the court to reject, as “incredibly speculative[,]” the argument that
there might be exculpatory evidence at the House.
In rebuttal, defense counsel acknowledged that he “could find no authority that
said that we have the right to enter [Ms. Lobell’s] home[,]” but suggested, somewhat
inconsistently, that regardless of what the rules provide the court had discretion to order
the inspection because the house was “a part of the discovery.”
The court framed the issue before it as follows:
The issue is whether I have the authority to order this relief, and I --
if you look at our civil discovery rules as a kind of a comparison, I know
they don’t apply, but 2-422 does permit the entry upon designated land or
other property in the possession or control of a party upon whom the
request is served, and there’s an annotation that I just looked at that says
non-parties may not be compelled to submit to an inspection of their
property. The case cited is Webb [v.] Joyce Real Estate, Inc., 108 Md. App.
512 [(1996)].
Forget about people’s motivations. The issue is whether I can take
all or any part of the Maryland authorities on discovery in criminal cases
and interpret any of that to mean that I can compel some -- a property
owner in this case -- it’s slightly even more interesting cause it’s apparently
not the victim’s, it’s her -- her son that owns the property -- to -- to give
access to their property for the purpose of an inspection in advance of trial.
So -- so I think the issue really is narrowly -- it’s not motivations, it’s just
authority. Do I have -- do I have the power to do it. . . .
The court took the matter under advisement, giving the parties an opportunity to
supplement their arguments with authority from other jurisdictions. Neither party did so.
In an order entered on January 27, 2015, the court denied defense counsel’s
motion, explaining:
Maryland law does not authorize the Court to order a non-party in a
criminal action to permit entry upon designated land for the purpose of
inspection of that land. While the Maryland Rules are clear that a court
may order a property owner to submit to a property inspection in a civil
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action, no such authority exits in Maryland’s criminal jurisprudence, and in
this case, the alleged victim and her family object to granting access.
B.
Howard contends the circuit court erred in ruling that it lacked authority to grant
the motion to inspect the House, and this error caused the court to further err by failing to
exercise any discretion to decide whether an inspection should be permitted. He no
longer argues that Rule 4-263 authorizes a circuit court to order either the SAO or a third
party in possession or control of real property to make the property available for
inspection by the defendant before trial. Indeed, he makes no mention of that rule in his
brief. Rather, he takes the position that because “nothing in Maryland law precludes a
trial court from issuing an order permitting defense counsel to enter private property over
objection of the property owner” (emphasis in original), the court has the inherent
authority to do so, without any authority by rule or statute. Beyond that, he argues that
the right to “‘a meaningful opportunity to present a complete defense’” (quoting Crane v.
Kentucky, 476 U.S. 683, 690 (1986)), as guaranteed by the Due Process Clause of the
Fifth Amendment and the Confrontation Clause of the Sixth Amendment, entitles him to
inspect the crime scene before trial. He asserts that the circuit court should have
exercised its discretion to decide “whether [his] constitutional rights trumped the property
rights of Ms. Lobell’s family.” 3
3
Howard also argues that because the court has authority to permit a jury view of
the crime scene, it must have authority to permit a defendant to inspect the crime scene
before trial. Maryland follows “‘the general rule . . . that the granting or refusing of a
request to allow the jury to view the premises where a crime is alleged to have been
(Continued…)
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The State maintains that Rule 4-263 has no application because the SAO’s
discovery obligations only pertain to property in its possession or control, and the House
is private property in the sole possession and control of Ms. Lobell and her son. 4 It
further argues that the constitutional rights to confrontation and due process do not apply
to pre-trial discovery, except in limited situations not present here. It argues that because
there is no statute, rule, or constitutional provision that gives a Maryland circuit court the
power, in a criminal case, to order a third party in possession or control of real property
that was the scene of the crime to make that property available for inspection by the
defense before trial, the circuit court’s ruling was legally correct. In the alternative, the
State argues that even if the circuit court had the power to grant Howard’s motion with
(…continued)
committed is within the discretion of the trial court.’” Waddell v. State, 65 Md. App. 606,
611 (1985) (quoting Corens v. State, 185 Md. 561, 573 (1946)); see also 2 McCormick on
Evidence § 219 (7th ed. 2013) (“[E]ven without express statutory authorization there is an
inherent power in the trial judge to order a view by the jury[.]”); 4 Wigmore on Evidence
§ 1163 (1972) (stating a trial “court is empowered to order such a view, in consequence
of its ordinary common law function, and irrespective of statutes conferring express
power” (emphasis in original)). An inspection of a crime scene before trial and a jury
view of a crime scene during trial are not comparable, because a jury view is not an
aspect of discovery or pre-trial procedure.
4
In the State’s view, subsection (g)(1)(b) of Rule 4-263 creates a “catch-all”
entitlement to discovery not otherwise covered by the rule, when constitutionally required
and upon a showing of an adequate need. Whether the language can be read that way is
highly questionable but does not matter because the subsection does not apply here as the
rule as a whole does not apply to non-parties such as Ms. Lobell and her son.
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respect to Ms. Lobell and her son, it correctly denied the motion because Howard failed
to “make a sufficient showing of need.” 5
C.
Rule 4-263 “governs discovery and inspection in a circuit court” criminal case.
The State’s required discovery disclosures are listed in subsection (d) of the rule. The
SAO must disclose “material and information” required by subsection (d) that is in the
SAO’s “possession or control,” including in the possession or control of the “attorney,
members of the attorney’s staff, or any other person who either reports regularly to the
attorney’s office or has reported to the attorney’s office in regard to the particular case.”
Id. at §§ (c)(1) and (c)(2), respectively. The required discovery disclosures include
“[e]vidence for use at trial.” Md. Rule 4-263(d)(9). That subsection provides that the
SAO must give the defense “[t]he opportunity to inspect, copy, and photograph all
documents, computer-generated evidence . . . recordings, photographs, or other tangible
things that the [SAO] intends to use at a hearing or at trial[.]” Id. (emphasis added).
It is undisputed that the SAO was not in possession or control of the House. For
that reason alone, even if the House were a “tangible thing” within the meaning of
subsection (d)(9), the State would not be obligated to produce it for inspection. Given the
clarity of the rule respecting the scope of the parties’ discovery obligations, it is not
5
The State also argues that if the court erred its error was harmless, and if not
harmless the appropriate remedy is a limited remand to allow the trial court to balance
Howard’s right to mount a defense against Ms. Lobell’s privacy interests. Because we
hold that the court did not err, we need not reach those arguments.
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surprising that Howard no longer argues that Rule 4-263 authorized the circuit court to
issue an order compelling the State to make the House available for inspection.
Relatedly, Rule 4-263 pertains only to the parties to a circuit court criminal case.
Ms. Lobell and her son are not parties. Rule 4-264, which was not invoked and is not
mentioned by either party in their briefs, governs production and inspection by non-
parties prior to trial. Under that rule, on motion of a party, the court may order that a
subpoena be issued “commanding a person to produce for inspection and copying at a
specified time and place before trial designated documents, recordings, photographs, or
other tangible things, not privileged, which may constitute or contain evidence relevant
to the action.” Md. Rule 4-264 (emphasis added). If the House were a “tangible thing,”
Ms. Lobell and her son could have been compelled to produce it for inspection by the
defense, had the court exercised its discretion to do so. The House is not a “tangible
thing,” however.
The phrase “other tangible things” appears in Rule 4-264 and, as noted, in Rule 4-
263. It stands in contrast to the language of Rule 2-422, which permits party discovery of
“documents, electronically stored information, and property” in civil cases. In that rule,
in addition to allowing each party to serve a request for production of “designated
tangible things[,]” id. at (a)(1), each party may serve a request “to permit entry upon
designated land . . . in the possession or control of the party upon whom the request is
served for the purpose of inspection [and other purposes that are specified].” Id. at (a)(2)
(emphasis added). Thus, Rule 2-422(a) draws a distinction between “tangible things” and
“land.” The language in Rule 4-263(d)(9) also stands in contrast to Federal Rule of
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Criminal Procedure 16, which in some circumstances requires the government to permit
the defendant to inspect “documents and objects,” and specifies that “documents and
objects” include “tangible objects” and “buildings or places[.]” Fed. R. Crim. Proc.
16(a)(1)(E). This language also draws a distinction between tangible things and
buildings. The phrase “other tangible things” in Rule 4-263(d)(9) and in Rule 4-264
cannot reasonably be read to include “buildings” or “land.” 6
As mentioned above, Howard takes the position that because there is no statute or
rule that precludes the circuit court from issuing an order permitting an accused to inspect
a building where the crime took place, the court has the inherent power to do so,
regardless of who has possession or control of the building. In other words, the court has
the inherent power to grant pre-trial discovery to a defendant in a criminal case so long as
that power is not expressly negated by statute or rule. This argument is at odds with
long-established Maryland common law.
In Goldsmith v. State, 337 Md. 112 (1995), a defendant charged with child sexual
abuse sought, under Rule 4-264, to obtain pre-trial discovery of the victim’s
psychotherapy records. The circuit court denied the motion on the ground that the
records were privileged, and Rule 4-264 excludes privileged documents. The case
reached the Court of Appeals, which explained at the outset of its analysis that, “[a]t
common law, a criminal defendant had no right to pre-trial discovery.” 337 Md. at 121
6
Federal Rule of Criminal Procedure 16(a)(1)(e) requires that the item be “within
the government’s possession, custody, or control” and that it be either “material to
preparing the defense[,]” an item the government intends to use in its case-in-chief, or an
item that was “obtained from or belongs to the defendant.”
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(citing State v. Haas, 188 Md. 63, 69 (1947), overruled on other grounds, In re Petition
for Writ of Prohibition, 312 Md. 280, 305 (1988)). “‘American courts, relying on the
English precedent, adopted a common law rule holding that the judiciary lacked any
inherent authority to order pretrial discovery in criminal cases.’” Id. (citing and quoting
Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 20.1 at 836 (2d ed. 1992)).
The Court continued:
Over time, we have expanded the common law and given the trial courts
some authority to either require or permit discovery. Nevertheless, the
right to pre-trial discovery is strictly limited to that which is permitted by
statute or court rule or mandated by constitutional guarantees. We
therefore must look to our statutes, court rules, and constitutional
requirements to determine the propriety of the defendant’s right to pre-trial
discovery.
Id. at 122 (citations omitted). 7
The Court agreed with the circuit court that the plain language of Rule 4-264 did
not permit a defendant to obtain pre-trial discovery of privileged material in the hands of
a third party. As no statute governed the request, the Court considered whether the
7
Maryland first permitted pretrial discovery in criminal cases in July 1951, when
the Court of Appeals adopted the Maryland Criminal Rules of Practice and Procedure.
Rule 5 of those rules, the predecessor to Rule 4-263, stated in its entirety:
Discovery and Inspection. Upon motion of a defendant, the court, in any
case pending before it, may order the State’s Attorney to permit the
defendant to inspect and copy or photograph designated books, papers,
documents, or tangible objects, including written statements by the
defendant, obtained from or belonging to the defendant or obtained from
others by seizure or by process upon a showing that the items sought may
be material to the preparation of his defense and that the request is
reasonable.
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defendant had any constitutional right to obtain, pre-trial, psychological records of the
victim. After reviewing pertinent case law, it concluded that “[n]either due process,
compulsory process nor the right to confront adverse witnesses establishes a pre-trial
right of a defendant to discovery review of a potential witness’s privileged psychotherapy
records.” Id. at 127. “Thus, we find no common law, court rule, statutory or
constitutional requirement that a defendant be permitted pre-trial discovery of privileged
records held by a third party.” Id.
For purposes of this portion of our discussion, the significance of Goldsmith is that
it makes clear that in a criminal case, the circuit court does not have inherent authority to
grant pre-trial discovery so long as it is not precluded. Contrary to the argument Howard
advances, in a criminal case discovery only may be obtained when permitted by the
common law, by statute, or by court rule, or when it is constitutionally necessary. See
also Cole v. State, 378 Md. 42, 57–58 (2003) (“trial judges have no power beyond that
conferred by Rule 4-263 to order discovery of tangible evidence or documents in the
State’s possession[,]” and “‘the right to pre-trial discovery is strictly limited to that which
is permitted by statute or court rule or mandated by constitutional guarantees’” (quoting
Tharp v. State, 362 Md. 77, 115 (2000)). 8
8
There was a time when the “Criminal Rules of Practice and Procedure” made
reference to an inherent authority of the court with respect to discovery. In 1956, Rule 5
was reorganized and moved to Chapter 700 of the Maryland Rules of Procedure, as Rule
728. Effective January 1, 1962, the section in which Rule 728 was included was
“completely rewritten” and the rule was revised. Jennings v. State, 303 Md. 72, 80
(1985). As revised, Rule 728 included section (c), entitled “Common Law Discovery
Preserved[,]” which stated, “Nothing in this Rule shall limit the inherent common law
(Continued…)
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Goldsmith, Cole, and Tharp (holding that trial judges have no authority beyond
what is permitted by Rule 4-261 to order depositions in criminal cases) also undercut
Howard’s attempt to analogize this case to civil actions in which we have recognized that
a circuit court may grant an equitable bill of discovery to compel a non-party to open his
property for inspection before trial.
In Johnson v. Franklin, 223 Md. App. 273 (2015), and Stokes v. 835 N.
Washington Street, LLC, 141 Md. App. 214 (2001), we held that a circuit court may grant
an equitable bill of discovery to compel the present owner of a building to make it
accessible to the plaintiff in a lead paint case against the former owner of the building to
perform non-destructive tests for the presence of lead paint. Recognizing that there is no
civil discovery rule authorizing a court to compel a third party to open his real property
for inspection, see Webb v. Joyce Real Estate, Inc., 108 Md. App. 512 (1996), we
explained that the circuit court has inherent authority to do so through an equitable bill of
discovery “when it is in the interest of justice[.]” Stokes, 141 Md. App. at 223. To obtain
an equitable bill of discovery, a party must prove by a preponderance of the evidence that
the information the party is seeking to discover is material and necessary; that the party
has no other adequate means to obtain that information; that the party’s right of access to
(…continued)
power of the court to require or permit discovery.” A later version of that rule changed
the title of section (c) to “Inherent Power of Court Preserved” and removed the phrase
“common law.” In mid-1975, the Maryland Standing Committee on Rules of Practice
and Procedures (“Rules Committee”) recommended in its Fifty-Third Report to the Court
of Appeals an expanded version of Rule 728, to be renumbered Rule 741, that no longer
contained section (c). The Court of Appeals adopted that revision, which went into effect
on July 1, 1977.
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the premises outweighs the privacy right of the owners and the occupants of the property;
and that issuance of an equitable bill of discovery will not impose an unreasonable
hardship upon the owner or any occupant of the premises. Johnson, 223 Md. App. at
288.
An equitable bill of discovery is “‘a procedural tool in use for centuries’” that
“allows a litigant to obtain information that is in the exclusive possession of another
person and is necessary to the establishment of the litigant’s case.” 223 Md. App. at 281
(quoting Estate of Bochiccho v. Quinn, 136 Conn. App. 359 (2012). Long before
discovery rules were adopted for civil cases, the equitable bill of discovery served as a
remedy that, “‘when used as an auxiliary process in aid of trials at law,’” allowed a
litigant to gather evidence necessary to prove his cause of action. Id. (quoting Pottetti v.
Clifford, 146 Conn. 252, 258 (1959)). Thus, as we explained in Stokes, the equitable bill
of discovery still exists for use in civil cases because in those cases the circuit court has
inherent authority to order discovery, beyond what is permitted by the discovery rules.
141 Md. App. at 226. This stands in direct contrast to discovery in criminal cases, where
the common law did not provide for discovery at all, and there is no inherent authority on
the part of the court to order discovery.
In the case at bar, there is no statute or rule, and nothing in the common law, that
authorized the circuit court to issue an order directing Ms. Lobell and her son to make the
House available to Howard’s lawyers for inspection before trial. That leaves Howard
with the sole argument that such an order was necessary to protect his constitutional
rights. The argument he makes is meager, to say the least. He identifies the constitutional
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right at stake as that to “‘a meaningful opportunity to present a complete defense.’”
Appellant’s Brief at 8 (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986) (in turn
quoting California v. Trombetta, 467 U.S. 479, 485 (1984))). He quotes Crane as
observing that such a right is guaranteed to a criminal defendant, “[w]hether rooted
directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory
Process or Confrontation Clauses of the Sixth Amendment[.]” 476 U. S. at 690 (internal
citations omitted). That is the sum and substance of his constitutional argument.
Courts in a number of other states have faced the question whether a trial court has
authority to allow a defendant in a criminal case to inspect the location of the crime when
it is a private residence that is not in the possession or control of the State. In one of the
earlier cases to address the issue, Henshaw v. Commonwealth, 19 Va. App. 338 (1994),
the defendant, charged with voluntary manslaughter, moved to inspect the house in which
the crime was perpetrated, which was in the possession and control of a third party. The
motion was denied on the ground that the court lacked authority to grant it, as no statute
or rule allowed for such discovery. The Virginia Court of Appeals held that the trial
court has authority to grant such a motion to protect a defendant’s right to due process
under Virginia’s constitution, so long as the defendant shows a substantial basis for the
inspection and provided the owner or possessor of the property has not rebutted that
showing with a showing that his constitutional right to privacy outweighs the accused’s
right to view or inspect. The court did not reverse the conviction, however, because it
concluded that the trial court’s error in denying the motion was harmless.
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In Commonwealth v. Matis, 446 Mass. 632 (2006), the defendant was charged
with raping a 15-year-old girl in the early morning hours, in the living room of her
parents’ very small house, when six or seven other people were present. His defense was
that the crime did not happen and that others in the house would have been aware if it
had. Before trial, the defense moved to inspect the house in order to measure and
photograph the rooms. The court granted the motion, and the Commonwealth noted an
interlocutory appeal. The Supreme Judicial Court of Massachusetts broadly interpreted
one of its discovery rules to allow a trial court to order an inspection of a private
residence that was the location of the crime so as to protect the defendant’s rights, under
the Sixth Amendment and the Massachusetts Declaration of Rights, to obtain relevant
evidence bearing on guilt or innocence or otherwise helpful to the defense. It was
implicit in the court’s decision that the defense had made a satisfactory threshold
showing of need. The court vacated the trial court’s order, however, because the owners
of the house had not been given an opportunity to be heard. The case was remanded for a
hearing in which they could participate.
More recently, in a case factually similar to Matis, the Supreme Court of New
Jersey held that a trial court did not abuse its discretion in granting a pretrial motion by a
juvenile respondent to inspect the private residence where the alleged wrongful act had
been committed. In State in Interest of A.B., 219 N. J. 542 (2014), the 17 year old
juvenile was charged with sexually abusing his six year old cousin, at the home of her
parents (the juvenile’s aunt and uncle). The abuse was alleged to have taken place on the
Fourth of July, when there was a gathering of people at the house for a cookout. Counsel
-20-
for the juvenile moved for a pre-trial inspection of the aunt and uncle’s house, on the
ground that it was essential to the juvenile’s defense for counsel to have a “spatial
understanding of the layout of the rooms and an opportunity to take photographs[.]” Id.
at 551. The trial court granted the motion, and the State noted an interlocutory appeal.
The case reached the Supreme Court of New Jersey, which did not have to wrestle
with the question whether the trial court had the authority to grant the motion, but only
with the standard to be applied by the court in exercising its discretion to do so. Unlike in
Maryland, it is established law in New Jersey that a trial court has “the inherent power to
order discovery when justice requires[.]” Id. at 552. The court explained that when a
defendant in a criminal case seeks discovery beyond that provided by the automatic
discovery rule, he bears the burden of establishing need. Specifically, with respect to a
motion “to inspect the crime scene that is an alleged victim’s home[,]” the defendant
must “articulat[e] a reasonable basis to believe the inspection will lead to relevant
evidence on a material issue[.]” Id. at 562. If he does so, “then, subject to appropriate
time, place, and manner restrictions intended to protect the privacy interests of the
alleged victim and her family, the discovery should be granted.” Id.The court held that the trial court had not abused its discretion in assessing the
need for the inspection and imposing restrictions that would protect the privacy interests
of the victim’s family. The inspection was necessary to advance the juvenile’s defense
that “it was not possible for the acts alleged by [the victim] to have occurred undetected
by any of the five adults” present at the relevant time. Id. at 563. The State had provided
photographs, but they did not show the proximity of the victim’s bedroom, where the
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sexual act was alleged to have been perpetrated, to the kitchen and the patio and pool
area, where other people were gathered. The inspection was to be limited to 30 minutes,
the victim was not required to be present or to know of it, only the victim’s bedroom and
the juvenile’s sleeping area were to be inspected, the juvenile’s parents were barred from
participating, and a representative of the prosecutor’s office was to be present. The court
concluded that these restrictions protected the rights of the victim and her family and thus
struck a fair balance.
By contrast, even more recently, the Supreme Court of Colorado held that the trial
courts in that state do not have any authority to grant discovery in criminal cases beyond
that which is expressly permitted by statute or rule and that no constitutional right entitles
a defendant in such a case to inspect a crime location that is a private residence not in the
possession or control of the State. In People in the Interest of E.G., 368 P.3d 946 (Colo.
2016), a juvenile was charged with offenses arising out of the sexual abuse of his younger
twin cousins. The abuse was alleged to have taken place in the basement of their mutual
grandmother’s house. Before trial, defense counsel filed a motion seeking an order
directing the grandmother to make her house available for inspection and photographing.
The court denied the motion on the ground that it had no authority to grant it. The
juvenile was convicted of two counts of sexual assault on a child.
On appeal, the juvenile challenged the lower court’s denial of the motion for
inspection. The Colorado Court of Appeals concluded that “concepts of fundamental
fairness and due process” authorized the trial court to grant such a request, but affirmed
the convictions because the juvenile had failed to demonstrate that “his inspection of the
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crime scene would yield relevant material evidence necessary to present his defense[.]”
People in Interest of E.G., 371 P.3d 693, 697 (Colo. App. 2015).
The Supreme Court of Colorado took the case and affirmed, but on the ground that
the trial court correctly ruled that it had no authority to order the grandmother to open her
residence for inspection by the defense. The court observed that “Colorado remains one
of the few states that has never deviated from the traditional doctrine” against trial courts
having “freestanding authority to grant discovery in criminal cases beyond what is
authorized by the Constitution, the rules, or by statute[.]” E.G., 368 P.3d at 949-50
(footnote omitted). It concluded that Colorado’s general discovery rule, which requires
the State to make available to the defense, without request, evidence favorable to the
defense that is in the possession or control of the State, comports with the due process
requirements established in Brady v. Maryland, 373 U.S. 83 (1963), but does not grant
the trial court “authority to order access to a private home that is not subject to the court’s
jurisdiction.” E.G., 368 P.3d at 950. Likewise, to the extent Colorado’s compulsory
process rule, which allows a defendant to obtain a subpoena commanding a witness to
attend and give testimony and “‘may also command the person . . . to produce . . . books,
papers, documents, photographs, or other objects[,]’” id. at 951 (quoting Colorado
Criminal Procedure 17(a)(c)), permits the defense to obtain such materials pretrial, it does
not permit access to a private home, which is not an “object.”
The court went on to address and reject the constitutional arguments made by the
juvenile. It reasoned that the Compulsory Process and Confrontation clauses of the Sixth
Amendment embody trial rights, not pretrial discovery rights, and that due process of law
-23-
does not give a criminal defendant the “constitutional right to force a third party to open
her private home for an investigation.” Id. at 954. The court held that under no
circumstance could a third party owner/possessor of residential property’s Fourth
Amendment “right to be free from an unreasonable search of her home conducted by the
defense” be outweighed by the accused’s right to present a defense upon the state action
of a court order. Id. at 949. The court emphasized that the due process right of access to
favorable evidence only pertains to evidence in the possession or control of the State. It
concluded that the Due Process Clause does not grant a right to discovery in criminal
matters, see Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (under federal law, “[t]here
is no general constitutional right to discovery in a criminal case”), including a right to use
court-provided “‘investigative tools.’” E.G., 368 P.3d at 952 (quoting People v. Baltazar,
241 P. 3d 941, 943-44 (Colo. 2010)).
A concurring judge wrote that, in his view, the Due Process Clause of the Fifth,
Sixth, and Fourteenth amendments safeguards a defendant’s right to a fair trial, which
encompasses the right to pretrial access to evidence important to his defense. Relying
upon the reasoning of the Virginia Court of Appeals in Henshaw, he concluded that if a
defendant shows that the proposed inspection of private property that was the location of
the crime will produce evidence that is relevant and material to his defense, so as to allow
him to “meaningfully defend” against the charges,
then he or she would be entitled to access the crime scene, subject to such
reasonable limitations and restrictions as the court deemed necessary,
unless the private citizen’s constitutional right to privacy outweighed the
defendant’s right to view or inspect the premises.
-24-
Id. at 956.
Several courts have assumed without deciding that to protect a criminal
defendant’s due process right to access evidence relevant and material to his defense, a
trial court has the authority to order a third party to open his home for inspection by a
criminal defendant, when the home was the crime scene location, but have held that the
defendant did not make a threshold showing of need that would justify the court’s
exercise of that authority.
In Bullen v. Superior Court, 204 Cal. App. 3d 22 (1988), for example, the victim
was murdered in the house in which he lived with his wife. Investigating police officers
took sixty-one photographs of the crime scene. These, along with four detailed diagrams
of the house and fifteen pages of reports about the police investigation of the crime scene,
were provided to the defense. The defense moved the court for an order compelling the
victim’s widow to open her house to defense counsel for further investigation. She
opposed the motion on the ground that the order “would constitute ‘a profound personal
violation and an intimidating invasion of [her] privacy[.]’” Id. at 24.
The trial court issued a pretrial order directing the widow to open her house for
inspection by defense counsel. The widow took an interlocutory appeal, seeking to have
the order vacated. The appellate court noted that it did not have to address whether the
trial court had jurisdiction to order an inspection of the widow’s house, because even
assuming it did, the defendant had not made an adequate showing of need for the
inspection. To support the request for inspection, defense counsel had stated that it was
“‘necessary to view the scene of the crime, observe spatial distance, investigate possible
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defense theories and to generally prepare examination and cross-examination of key
witnesses.’” Id. at 27. Finding that this request was “conclusional and thus inadequate to
support judicially compelled access to [the widow’s] home with the resulting deprivation
of her right to privacy in and freedom from unwanted intrusion into her home[,]” the
appellate court directed the trial court to vacate its order. Id.
Likewise, in People v. Poole, 123 Ill. App. 3d 375 (1984), the court found it
unnecessary to decide whether the trial court had authority to enter an order compelling
the owner of a house where a burglary was committed to open it for inspection by the
defense. The burglary was perpetrated in the early morning hours, in a one story house
when the four family members were asleep in bed. The intruder entered the bedroom of a
ten year old girl and rubbed her arm, waking her. When he attempted to place a towel
around her head, she kicked him and ran from the room screaming. The other family
members awoke but the burglar was able to escape without being seen. The girl described
the intruder to the police and identified him in a photo array. Family members described
the size and layout of the rooms in the house and that the girl’s bedroom “picked up light
from the fluorescent lighting in the bathroom across the hall and from an outside
streetlight and parking lot vapor light.” Id. at 377.
Before trial, the defendant sought an order compelling access to the daughter’s
bedroom in order to take photographs at night. Defense counsel argued that “the express
reason he wanted the photographs was so the jury could make the determination of
whether there was sufficient lighting in order for a witness to make an identification.” Id.
at 378. The prosecutor responded that it would be nearly impossible to replicate the
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lighting conditions that existed at the time of the burglary, and therefore any photographs
would be misleading. The trial court denied the motion on the ground that it lacked
authority to order a third party to make his residence available for inspection. The
defendant was convicted and appealed, challenging this ruling. The appellate court
affirmed, holding that the defense did not make a showing that a photograph could be
taken that would depict the nighttime lighting conditions at the time of the burglary, and
any photograph that did not accurately depict those conditions would be misleading and
therefore not admissible. Thus, even if the trial court had the authority to compel the
family to make its house available for inspection, the defendant did not make a threshold
showing of need.
Finally, in State v. Muscari, 174 Vt. 101 (2002), the defendant was charged with
crimes stemming from a violent attack on his ex-girlfriend, in her home. When the police
were called, they took extensive photographs of the interior of the house. The defendant
filed a pretrial motion to inspect and photograph the house, arguing that because the
police were permitted to photograph it, he should be too. By the time the motion came
on for a hearing, the ex-girlfriend had moved and the house was occupied by another
third party. The trial court denied the motion. The defendant was convicted and
appealed, arguing among other things that the trial court’s ruling was in error.
Without addressing whether the trial court had authority to order a third party to
open her home for inspection by a defendant charged with crimes committed there, and
simply assuming that it did, the court commented that “[a] defendant’s need for access to
a crime scene controlled by a private third party must be balanced against the property
-27-
occupant’s right to privacy[,]” and that that balance ordinarily is struck by first “requiring
a defendant to make some showing that the requested intrusion is relevant and material to
the defense.” Id. at 114. The court concluded that the defendant had not satisfied that
burden, as he “offered no reason or justification why the court should order the occupants
to allow him to enter their home.” Id. Indeed, even on appeal, counsel for the defendant
“ha[d] not indicated what information [the defense] hoped to gain from access.” Id. at
115.
We return to the case at bar. As we have explained, Maryland has no rule or
statute in criminal cases authorizing a circuit court to order a third party in possession or
control of real property that was the location of a crime to open the property for
inspection by the defendant before trial. The Sixth Amendment Compulsory Process and
Confrontation clauses, mentioned in passing in Howard’s brief, are trial rights, not pre-
trial discovery rights. See Goldsmith, 337 Md. at 123-27 (that the Confrontation Clause,
and the related right of Compulsory Process, do not establish a right to pre-trial
discovery) (citing Zaal v. State, 326 Md. 54, 67 n.6 (1992)). Whether the Due Process
Clause of the Fourteenth Amendment entitles a criminal defendant to obtain, pre-trial,
evidence relevant and material to his defense that is not in the possession or control of the
SAO is a complex issue that, like the others, Howard mentions but does not argue with
any substance. Fortunately, we need not decide it. We agree with those courts that have
held that, assuming without deciding that the Due Process Clause guarantees a criminal
defendant the right to obtain such evidence before trial, the right nevertheless is
predicated on a showing of need. Thus, before a trial court may exercise discretion to
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compel a third party in possession or control of real property to make it available for
inspection pre-trial by the defense in a criminal case, the defendant must show that he
needs to make such an inspection to obtain material relevant and material to his defense.
And, once that showing of need is made, the court must balance that need against the
privacy interests of the third party.
In this case, it is clear that even if the trial court could compel Ms. Lobell and her
son to make the House available for inspection by Howard’s counsel, in order to protect
Howard’s due process rights, Howard did not make a basic threshold showing that he
needed to inspect the House to obtain relevant and material evidence in his defense.
Defense counsel’s motion to inspect the House and their oral argument on the motion
gave three reasons in support. First, the “evidence” from an inspection “could be . . .
exculpatory in nature, and useful for impeachment purposes[,] especially in light or [sic]
the discovery of inconsistent statements by Ms. Lobell.” This is conclusory. It says
nothing about why an inspection of the House months after the crime was committed
would be expected to produce exculpatory evidence and, most significantly, what that
exculpatory evidence might be. Nor does it describe the supposedly inconsistent
statements by Ms. Lobell, or explain how they relate to anything that would be learned
from an inspection of the House at all, or that the existing crime scene photographs do
not show anyway.
Second, defense counsel asserted that the 113 crime scene photographs were “not
enough” because they do not “allow a viewer a proper sense of dimensions, or space, or
distance, or geography.” This also is conclusory. How are the crime scene photographs
-29-
inadequate? What do they not show that is important for the defense to see? What might
the defense expect to learn about the dimensions of the rooms and their spatial
relationships to each other that the crime scene photographs do not show and that is
significant and would tend to support Howard’s defense? In Matis and A.B., the layout of
the home in which the crime was alleged to have been committed was integral to the
defense that the crime was not perpetrated at all, because it could not have been
committed without being heard or seen by others. By contrast, here, the layout of the
House is not material to any defense Howard offered. Indeed, Howard’s only defense
was that the State did not adequately prove the elements of the crimes. He did not
maintain that the layout of the House in some way showed that the crimes could not have
been perpetrated by him, or at all, or as described by Ms. Lobell or that the crimes would
have been witnessed or heard by others.
Third, and last, defense counsel complained of inherent bias in the mere fact that
the BCPD, not people assisting the defense, gathered the evidence at the crime scene and
took the crime scene photographs. They argued that those photographs were taken “with
the sole intent to help the State in preparing their case, not the Defendant’s case[,]” and
that Howard needs photographs taken from a “point of view” that will assist in his
defense.
This argument lacks substance and borders on the nonsensical. Crime scene
photographs always are taken by first responders, and here, when they were taken, right
after the police arrived at the House, Howard was not even a known suspect. Howard
does not say what it is about the crime scene photographs that leads him to believe they
-30-
were taken from a “point of view” that would advance the prosecution and detract from
his defense. He ignores the fact that when defense counsel moved to inspect the House,
six months had passed since the crime and Ms. Lobell had moved back in. Obviously, by
then the crime scene no longer existed. The House existed as a crime location but not as
a crime scene. To the extent defense counsel were unhappy with the way the evidence
was photographed by the police—and they have given nothing to justify such a
reaction—the evidence could not be re-photographed.
Howard failed to make a threshold showing of a need to inspect the House to
obtain evidence that was relevant and material to his defense. Accordingly, even if the
trial court had authority to order Ms. Lobell and her son to make the House available for
inspection by the defense before trial, the court would have abused its discretion by
exercising that authority to issue such an order.
II.
The prosecutor planned to call BCPD Officer Denise Wallace, an expert in the
field of latent fingerprint examination, to testify that she had examined a fingerprint lifted
from an envelope in Ms. Lobell’s bedroom, had compared it to Howard’s fingerprint in
the BCPD database, and had confirmed that the fingerprints matched.
The day before Officer Wallace was scheduled to testify, defense counsel moved
to preclude her from making mention of the “known prints” in the BCPD database. They
argued that any reference to “known prints” would signal to the jury that Howard had a
criminal history. In response, the prosecutor offered to have Officer Wallace roll
Howard’s fingerprints in court, outside the presence of the jury, and then compare those
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fingerprints to the fingerprint lifted from the envelope in Ms. Lobell’s bedroom. Defense
counsel agreed. Howard’s fingerprints were rolled in court. The court directed the
prosecutor to instruct Officer Wallace “that there’s to be no overt or even indirect
references to prior arrests [or] the genesis of these known prints[.]”
The next day, Officer Wallace’s testimony went as follows:
[THE STATE]: So the latent . . . print card, the known prints that you had
of [Howard] that you compared it to, did you have an opportunity to
actually see [Howard’s] prints be rolled?
[WALLACE]: Not at the time, no.
[THE STATE]: Not at the time. Okay.
The -- at that time, the card that you had, then you were just told that
it belonged to [Howard], is that correct?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[WALLACE]: The card that I received, I received it from an archive file
that we have --
[DEFENSE COUNSEL]: Objection.
[THE STATE]: Okay. And that -- from that file, did you -- did you see
that those prints came from [Howard]?
[WALLACE]: Yes.
[THE STATE]: Okay. And did you also have an opportunity to observe
those prints and identify --
[DEFENSE COUNSEL]: Objection. Your Honor, may we approach?
[THE STATE]: -- observe [Howard] being printed?
-32-
[THE COURT]: Yes.[9]
(Emphasis added.)
At the bench, defense counsel moved for a mistrial or to strike Officer Wallace’s
testimony about the “archive file.” The court denied both motions, finding that “there
[was no] impermissible suggestion that the archived file was a consequence of a prior
arrest or conviction.”
Howard contends the trial court abused its discretion by denying his motion for a
mistrial or to strike Officer Wallace’s testimony about the “archive file.” He asserts that
“[Officer] Wallace’s reference to [his] ‘archive file’ very likely led the jury to infer that
[Howard] had a prior criminal record−a fact both irrelevant and unfairly prejudicial[,]”
thereby denying him a fair trial. He argues that even if a mistrial were not warranted, the
trial court abused its discretion by denying his motion to strike because the reference to
an “archive file” violated the prohibition against inadmissible other crimes evidence.
The State responds that the court did not abuse its discretion because Officer
Wallace’s reference to the “archive file” “did not suggest that the fingerprints that
[Officer Wallace] used for comparison were obtained in connection with a criminal
case[,]” and Officer Wallace’s testimony was admissible and relevant to show that
Howard was present at the crime scene. Moreover, any prejudice was diminished by the
9
We agree with the State that it appears that the prosecutor became “flummoxed”
when Officer Wallace testified not about the card bearing the fingerprint that was rolled
in court the day before but about the card bearing the fingerprint that she originally used
in determining whether the fingerprint was a match for Howard. The prosecutor’s use of
the past tense in questioning Officer Wallace likely confused her.
-33-
overwhelming evidence that he was present at the crime scene. The State argues that
because Officer Wallace’s testimony was relevant and not unfairly prejudicial, “there was
no basis to grant either a motion for mistrial or a motion to strike.”
“A mistrial is an extreme remedy and it is well established that the decision
whether to grant it is within the sound discretion of the trial court.” Walls v. State, 228
Md. App. 646, 668 (2016) (citing Carter v. State, 366 Md. 574, 589 (2001)). “‘In the
environment of the trial the trial court is peculiarly in a superior position to judge the
effect of any . . . alleged improper remarks.’” Simmons v. State, 436 Md. 202, 212 (2013)
(quoting Wilhelm v. State, 272 Md. 404, 429 (1974)). “[T]he key question for the
appellate court is whether the defendant was so prejudiced by the improper reference that
he was deprived of a fair trial.” Parker v. State, 189 Md. App. 474, 494 (2009) (citing
Kosmas v. State, 316 Md. 587, 594 (1989)).
Officer Wallace complied with the trial court’s directive that she not make any
“overt or even indirect reference[] to prior arrests [or] the genesis of the[] known
prints[.]” Her reference to an “archive file” was ambiguous at best, and would not have
suggested to the jury that Howard had a prior criminal record. Indeed, as we noted in
Edmonds v. State,
[s]ince fingerprinting is used in numerous branches of business and civil
and military service, . . . the fact of fingerprinting cannot, of itself, be
deemed a badge of crime or connote the existence of a criminal record, nor
would the introduction of such evidence for the limited purpose of
comparison with latent fingerprints of an accused found at a crime scene
per se constitute prejudice or deny the accused his constitutional right to a
fair trial.
5 Md. App. 132, 139 (1976) (citations omitted).
-34-
Nor did the trial court abuse its discretion by denying Howard’s motion to strike
Officer Wallace’s testimony. Her reference to the “archive file” is not the same as
evidence of “an activity or conduct, not necessarily criminal, that tends to impugn or
reflect adversely upon one’s character, taking into consideration the facts of the
underlying lawsuit.” Klauenberg v. State, 355 Md. 528, 549 (1999). Because an
“archived” fingerprint could come from any number of sources, and Officer Wallace’s
reference would not have been a clear indication that Howard had engaged in past
criminal conduct, the trial court acted within its discretion in denying both the motion for
mistrial and the motion to strike.
III.
Howard was charged with the felony of first-degree burglary, in violation of Md.
Code (2002, 2012 Repl. Vol., 2014 Supp.), section 6-202 of the Criminal Law Article
(“CL”). That statute states that “[a] person may not break and enter the dwelling of
another with the intent to commit theft” or “a crime of violence.”
The Maryland Pattern Jury Instruction for first-degree burglary includes the
following with respect to a “breaking”:
Breaking means the creation or enlargement of an opening, such as
breaking or opening a window or pushing open a door. [Breaking includes
gaining entry by fraud, trick, or force.]
MPJI-Cr 4:06. In the discussion among the court and counsel about instructions, the
prosecutor asked the court to elaborate slightly on the definition of “breaking” in the
pattern instruction, to explain that there are two types of breaking and to include the
parenthetical above. The trial court agreed, and instructed the jury as follows:
-35-
There are two types of breaking: actual breaking and constructive breaking.
Actual breaking means the creation of an enlargement or an opening, such
as breaking or opening a window or pushing . . . open a door. Constructive
breaking means gaining entry by fraud, fraudulent misrepresentation, trick
or force.
Howard contends the trial court abused its discretion by giving this modified
instruction about “breaking.” He argues that the modification “impermissibly amplified
the State’s theory of guilt” and “effectively tilted the scales in the State’s favor.” The
State responds that the instruction was a correct statement of the law that was generated
by the evidence and that “where the instruction was correct, a few sentences that depart
from [MPJI-Cr 4:06] in a way that clarifies, rather than confuses, the applicable law can
hardly generate error.”
We review a trial court’s decision to give a requested jury instruction for abuse of
discretion. Hall v. State, 437 Md. 534, 539 (2014). “[A] trial court must give a requested
jury instruction where ‘(1) the instruction is a correct statement of law; (2) the instruction
is applicable to the facts of the case; and (3) the content of the instruction was not fairly
covered elsewhere in instructions actually given.’” Vielot v. State, 225 Md. App. 492,
505 (2015) (quoting Dickey v. State, 404 Md. 187, 197−98 (2008)). “[I]f, taken as a
whole, [the court’s instructions] correctly state the law, are not misleading, and cover
adequately the issues raised by the evidence, the defendant has not been prejudiced and
reversal is inappropriate.” Fleming v. State, 373 Md. 426, 433 (2003).
The modified instruction was a correct statement of the law. In Hobby v. State,
436 Md. 526, 556 (2014), the Court of Appeals explained that “[a]ctual breaking” is the
“‘unloosing, removing or displacing any covering or fastening of the premises’” and
-36-
“[c]onstructive breaking” is the “‘entry gained by artifice, fraud, conspiracy or threat.’”
Id. (quoting Jones v. State, 395 Md. 97, 119 (2006)). Howard complains, however, that
without modification the pattern jury instruction would have adequately explained the
“breaking” element of first degree burglary; but as modified, the instruction “created a
State-friendly instruction when there was absolutely no need to do so.”
Howard cites no authority for the proposition that a trial court abuses its discretion
by providing a more comprehensive jury instruction than the pattern instruction when the
instruction accurately recites the law. The only cases he cites are inapposite. In Brogden
v. State, 384 Md. 631, 644 (2005), the Court held that the trial court committed reversible
error by giving a jury instruction that shifted the burden of proof to the defendant; and in
Gore v. State, 309 Md. 203, 214 (1987), the Court held that the trial court committed
reversible error by giving an instruction that improperly suggested the State’s evidence
was sufficient to support a conviction. The modified instruction at issue in this case did
neither such thing. It accurately described actual and constructive “breaking” in a way
that would be most understandable to the jurors. See Sydnor v. State, 133 Md. App. 173,
184 (2000) (observing that trial courts should seek “to give the jury the most accurate
recitation of the law”).
The modified instruction also was generated by the evidence. The State’s theory of
prosecution was that Howard fraudulently misrepresented himself as a licensed repairman
so as to gain entry to Ms. Lobell’s house in order to steal from her and commit crimes of
violence against her. Ms. Lobell testified that Howard told her that Ms. Lang had hired
him to repair her roof, and that he entered her home on the pretext of doing repair work
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on her house as well. Detective Anderson testified that he verified with the Maryland
Department of Labor, Licensing and Regulation that Howard was not a licensed
“salesmen, subcontractor or contractor with the Maryland Home Improvement
Commission.”
Finally, the instruction was not fairly covered by any other instruction given.
The trial court did not abuse its discretion by giving the modified instruction on
breaking.
IV.
The State designated Shannon Weitz, a forensic biologist and DNA analyst with
Bode Technology, a “private DNA testing laboratory[,]” as an expert witness in the field
of DNA analysis. Ms. Weitz examined DNA samples submitted by the BCPD crime lab,
including samples taken from a stain from the t-shirt recovered from Ms. Lobell’s living
room floor, blood on the living room carpet, and Howard’s buccal swab. She created a
DNA profile for each sample, compared the profiles, and concluded to a reasonable
degree of scientific certainty that all three were a match.
Ms. Weitz’s findings were documented in a report the SAO provided to defense
counsel in discovery, at least six months before trial. The report includes the following
“Notes”:
1. Testing performed for this case is in compliance with accredited
procedures under the laboratory’s ISO/IEC 17025 accreditation issued
by ASCLD/LAB and ANSI-ASQ National Accreditation Board/FQS.
Refer to certificates and scopes of accreditation for certificate numbers
ALI-231-T and AT-1672, respectively.
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2. The DNA profiles reported in this case were determined by procedures
that have been validated according to the standards established in the
FBI’s Quality Assurance Standards for Forensic DNA Testing
Laboratories.
On the second day of trial, moments before Ms. Weitz was to testify, defense
counsel moved to exclude her “DNA report” from evidence, arguing that the report’s
certification did not comport with standards required by Md. Code (1974, 2013 Repl.
Vol.), section 10-915 of the Courts and Judicial Proceedings Article (“CJP”). 10
Specifically, counsel asserted that the DNA profiles created from the t-shirt, blood stain,
10
At the time of trial, CJP section 10-915 stated, in pertinent part:
(a)(1) In this section the following words have the meanings indicated.
(2) “Deoxyribonucleic acid (DNA)” means the molecules in all cellular
forms that contain genetic information in a chemical structure of each
individual.
(3) “DNA profile” means an analysis of genetic loci that have been
validated according to standards established by:
(i) The Technical Working Group on DNA Analysis Methods
(TWGDAM); or
(ii) The DNA Advisory Board of the Federal Bureau of
Investigation.
(b) In general – A statement from the testing laboratory setting forth that
the analysis of genetic loci has been validated by standards established by
TWGDAM or the DNA Advisory Board is sufficient to admit a DNA
profile under this section.
Effective October 1, 2016, sections (a)(3) and (b) were amended to include
admission of DNA profiles validated by standards established by the FBI’s Quality
Assurance Standards for Forensic DNA Testing Laboratories and the FBI’s Quality
Assurance Standards for DNA Databasing Laboratories. See 2016 Md. Laws 6677, 6680.
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and Howard’s buccal swab were not validated according to standards established by the
Technical Working Group on DNA Analysis Methods (“TWGDAM”) or the DNA
Advisory Board of the Federal Bureau of Investigation (“FBI”). Defense counsel asked
the court to “exclude the report because it is not in compliance with the admissibility
standards that [are] required by the statute” and to exclude Ms. Weitz’s testimony in its
entirety.
The prosecutor countered that CJP section 10-915 is designed “to remove the
necessity for a Frye-Reed hearing” and is not meant to automatically bar the admissibility
of DNA profiles validated according to alternative standards. 11 He asserted that the
report had been produced by the State in its initial discovery and defense counsel had not
raised the issue of admissibility or requested a Frye-Reed hearing. The prosecutor stated
that the DNA analysis performed by Ms. Weitz “is generally accepted within the
scientific community as a reliable testing procedure,” but he was “perfectly willing to
have a Frye-Reed hearing” if defense counsel desired. Defense counsel did not request a
Frye-Reed hearing, however.
The court denied defense counsel’s motion to exclude Ms. Weitz’s report and
testimony, finding it “utterly and completely groundless.” Ms. Weitz was permitted to
11
“A Frye-Reed hearing is conducted in Maryland courts to determine whether
expert testimony is admissible.” Carter v. Wallace & Gale Asbestos Settlement Tr., 439
Md. 333, 354 n.10 (2014). “The name is derived from two cases, Frye v. United States,
293 F. 1013 (D.C. Cir. 1923), where th[e] standard of general acceptance in the relevant
scientific community was first articulated, and Reed v. State, 283 Md. 374 (1978), where
we adopted the Frye Standard.” Blackwell v. Wyeth, 408 Md. 575, 577 n.1 (2009)
(parallel citations omitted).
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opine about her DNA analysis and scientific conclusions. Her report was not offered into
evidence.
Howard contends the trial court erred by not holding a Frye-Reed hearing to
determine whether the analysis Ms. Weitz performed, which was the basis for her opinion
that his DNA matched the DNA recovered from the t-shirt and carpet sample, was
generally accepted by the relevant scientific community and therefore was admissible.
The State counters preliminarily that this issue is not preserved for review. We agree
with the State.
In his reply brief, Howard all but concedes that he failed to request a Frye-Reed
hearing. He asserts, however, that because “the State itself broached the subject when the
court considered the defense motion” and “the trial court made clear that in all respects it
considered the defense motion to be ‘utterly and completely groundless[,]’” the issue was
“‘decided by the trial court’ and therefore preserved.” See Md. Rule 8-131(a)
(“Ordinarily, the appellate court will not decide any . . . issue [other than jurisdiction]
unless it plainly appears by the record to have been raised in or decided by the trial
court[.]”).
The record is clear that the prosecutor’s suggestion that the court hold a Frye-Reed
hearing was made in passing and did not eliminate Howard’s obligation to request such a
hearing himself. The prosecutor explained that he had learned about the defense motion
moments before it was made and focused his opposition on certification grounds. He
briefly stated that the State was “willing to have a Frye-Reed hearing if [the defense]
want[ed]” but asserted that nobody could “with a straight face challenge that the DNA
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analysis is [not] generally accepted within the scientific community as a reliable testing
procedure.” The burden was on the defense to request a Frye-Reed hearing. Having
failed to do so, Howard cannot complain on appeal that the trial court erred by not
holding such a hearing. See Addison, 188 Md. App. 168, 181 (2009). 12
V.
False imprisonment, a common law crime, is the “‘unlawful detention of a person
against his will.’” Street v. State, 307 Md. 262, 265 (1986) (quoting Midgett v. State, 216
Md. 26, 38−39 (1958)) (additional citations omitted). To obtain a conviction, the State
must prove that the defendant “confined or detained” the victim against her will; and
“that the confinement or detention was accomplished by” force or threat of force or
deception. See MPJI-Cr 4:13(3).
At the conclusion of the evidence, defense counsel moved for judgment of
acquittal, arguing:
With respect to the false imprisonment . . . I think it’s just basically
holding somebody in place against their consent. I don’t know if there was
any protestation from [the victim] that she did not want to go from her
dining room to the living room. I don’t even know if -- that sounds like it
happened in seconds. I don’t really know if there -- if that was anything
that was any evidence to substantiate that that was really done.
(Emphasis added.) The motion was denied.
12
Very recently, the Court of Appeals made clear that a DNA analysis conducted
in accordance with the FBI’s Quality Assurance Standards, as Ms. Weitz’s analysis was
certified to have been, qualifies for automatic admissibility under CJP section 10-915.
Phillips v. State, Md. , No. 7, September Term, 2016 (filed January 20, 2017). That
is true even when the prior version of CJP section 10-915, referencing TWGDAM or the
FBI Advisory Board, was in effect. So, Ms. Weitz’s analysis was automatically
admissible without a Frye-Reed hearing.
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On appeal, Howard contends the evidence was legally insufficient “to show
confinement or detention.” The State responds that this issue is not preserved for review
because it was not raised or decided below, and, if preserved, it lacks merit.
We agree with the State that the issue is not preserved for review. When a
defendant is tried by a jury,
“appellate review of sufficiency of evidence is available only when the
defendant moves for judgment of acquittal at the close of all the evidence
and argues precisely the ways in which the evidence is lacking. The issue
of sufficiency of the evidence is not preserved when [the defendant]’s
motion for judgment of acquittal is on a ground different than that set forth
on appeal.”
Mulley v. State, 228 Md. App. 364, 388 (2016) (emphasis omitted) (alteration in original)
(quoting Anthony v. State, 117 Md. App. 119, 126 (1997)).
Before the trial court, Howard argued that there was no evidence that Ms. Lobell
was detained against her will, i.e., that she “did not want to go from her dining room to
the living room.” That is not the argument he now advances, i.e., that “the evidence was
insufficient to show confinement or detention.”
Even if the issue were preserved, it lacks merit. We review “‘a question regarding
the sufficiency of the evidence in a jury trial by asking whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” Grimm v.
State, 447 Md. 482, 494−95 (2016) (quoting Cox v. State, 421 Md. 630, 656−57 (2011)).
“In determining whether evidence was sufficient to support a conviction, an appellate
court ‘defer[s] to any possible reasonable inferences [that] the trier of fact could have
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drawn from the . . . evidence[.]’” Jones v. State, 440 Md. 450, 455 (2014) (alteration in
original) (quoting Hobby, 436 Md. at 538).
The evidence most favorable to the verdict showed that Howard threw Ms. Lobell
from her dining room to her living room floor, breaking her hip and leaving her
immobile; held her down on the floor; removed her phone from its mounted position on
the wall so she could not use it to call for help; threw the medical alert control module
down the basement stairs in an (ultimately failed) effort to keep her from contacting help;
and searched her home while she was lying on the floor immobile. Under the
circumstances, a reasonable juror could conclude that Howard’s separate acts of holding
Ms. Lobell down and preventing her from contacting help established that she was
confined by force and against her will on her living room floor and those acts were
legally sufficient for a rational trier of fact to find that Howard was guilty of false
imprisonment beyond a reasonable doubt.
VI.
At sentencing, Howard argued that his convictions for first-degree assault and
false imprisonment should merge. Defense counsel pointed out that in closing argument,
the prosecutor stated that the “propelling, and picking up [the victim] and the—the
throwing her—her on the ground and breaking of her hip . . . creates the detention and
then the confinement of her inability to move that creates the false imprisonment[.]”
Howard argued that because the false imprisonment and assault were “part of the same
acts,” “the elements of the false imprisonment were the same and included in the
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elements of the first-degree assault.” Therefore, under the required evidence test, the
sentences must merge. See Brooks v. State, 439 Md. 698 (2014).
The State responded that sentences only merge under the required evidence test
when the elements of one crime are identical to the elements of another, and one crime
(the greater offense) carries an additional element not contained in the other. The
elements of false imprisonment and assault are not the same, and therefore merger was
not required. The State further argued that the separate acts of holding the victim down,
keeping her confined in the living room for hours, and removing the telephone from the
wall were “[c]learly distinct from the first-degree assault.”
The court ruled:
[T]he false imprisonment conviction in this case was based on distinct acts
that occurred sequentially in the -- in the timeline here. After the original
first-degree assault, there were independent acts and independent time that
elapsed while this -- the victim in this case was being detained against her
will. And I find also that the two offenses are distinct from the standpoint -
- elementally and they -- and there’s certainly no argument -- no legitimate
argument here that these are lesser included offenses.
So I will sentence the [d]efendant independently with regard to the
first-degree assault charge . . . and the false imprisonment charge.
On appeal, Howard does not renew his argument that his sentence for false
imprisonment should have merged under the required evidence test. Instead, he argues
that his sentence was illegal and should have merged under the rule of lenity and
considerations of fundamental fairness.
Howard’s rule of lenity argument lacks merit. The rule of lenity is one of statutory
construction that applies to merger of two statutory crimes, or one statutory crime and
-45-
one common law crime. Khalifa v. State, 382 Md. 400, 434 (2004). It does not apply to
two common law crimes.
False imprisonment is a common law crime. In Pair v. State, 202 Md. App. 617,
642 (2011), we held that the rule of lenity did not apply to merger of sentences for false
imprisonment and first-degree assault because “[a]ssault, whatever its degree or
statutorily prescribed punishment, remains a common law crime.” When the General
Assembly codified assault into degrees and prescribed punishments, it did not create a
crime or crimes; the common law crime of assault remained. Id. at 642–43.
Accordingly, the rule of lenity has no application here because false imprisonment and
assault in any degree, including first-degree assault, are common law crimes.
Howard’s fundamental fairness argument also lacks merit. “[T]he principle of
fundamental fairness. . . . is a defense that, by itself, rarely is successful in the context of
merger.” Latray v. State, 221 Md. App. 544, 558 (2015) (citations omitted). In Carroll
v. State, 428 Md. 679, 694−95 (2012), the Court explained:
Fundamental fairness is “[o]ne of the most basic considerations in all our
decisions . . . in meting out punishment for a crime.” Monoker [v.
State], 321 Md. [214,] 223 [(1990)]; Khalifa v. State, 382 Md. 400, 434,
(2004) (observing that additional reasons for merger include “historical
treatment, judicial decisions which generally hold that offenses merge, and
fairness”) (quoting McGrath[,] 356 Md. [at] 25). In deciding whether
fundamental fairness requires merger, we have looked to whether the two
crimes are “part and parcel” of one another, such that one crime is “an
integral component” of the other. Monoker, 321 Md. at 223–24. This
inquiry is “fact-driven” because it depends on considering the
circumstances surrounding a defendant’s convictions, not solely the mere
elements of the crimes. Pair[,] 202 Md. App. [at] 645[.]
(Footnote and parallel citations omitted.)
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Howard maintains his sentences must merge because the acts forming the basis for
his false imprisonment conviction were “incidental to” the acts supporting his conviction
for first-degree assault. He relies on Hawkins v. State, 34 Md. App. 82 (1976). In that
case we held that the trial court erred by not merging the defendant’s convictions for rape
and false imprisonment, where the false imprisonment conviction was based on an
unlawful confinement committed only to enable the defendant to rape the victim. Merger
was required because “[t]o hold otherwise would be to hold that in every case of rape, a
conviction for false imprisonment would also be proper.” Id. at 92.
Hawkins is distinguishable. Here, Howard did not falsely imprison the victim long
enough to assault her; to the contrary, the assault occurred first in time, followed by the
false imprisonment. Indeed, Howard does not contend that the assault conviction should
have merged into his conviction for false imprisonment, but the other way around. As
noted in Hawkins, “confinement after or before” an assault “is committed would preclude
the merger.” Id. Accordingly, the subsequent detention had no bearing on the initial
assault.
Moreover, the acts supporting Howard’s conviction for false imprisonment were
not “part and parcel” or “an integral component” of those forming the basis for his
conviction for first-degree assault. After the initial assault—i.e., Howard’s “propelling”
Ms. Lobell to the floor—he proceeded to hold her down and later left her lying on the
floor with a broken hip, unable to move. Most significantly, he disabled her telephone
and tried to disable the medical alert module in an attempt to prevent her from contacting
assistance and thus escape confinement. These acts were separate from those supporting
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the first-degree assault charge. See Carroll, 428 Md. at 697 (“One of the principal
reasons for rejecting a claim that fundamental fairness requires merger in a given case is
that the crimes punish separate wrongdoing.” (Citations omitted)).
Howard argues that the basis for his false imprisonment conviction is, at the least,
ambiguous because the jury could have reached its verdict based solely on the acts
stemming from the first-degree assault; therefore merger is required. He supports this
argument by pointing to the prosecutor’s statements in summation, where she argued
[a]nd really the false imprisonment in this particular case is . . . that once
h[e] grabs her, once he throws her on the ground, she said, I know
immediately my hip is broken. I know it. I’ve had one before, I know it.
And she can’t move. She is now immobile. She can’t do anything. And
she is helpless. She is detained, she is confined, it is against her will and it
was through force. That is all you have to find for false imprisonment. . . .
Howard ignores the State’s rebuttal closing, in which the prosecutor asserted that
“throwing [the victim] to the floor and then getting on top of her confines and detains”
her, and that he “detain[ed] her further by taking away her avenue of help” by “ripp[ing]
the phone out of the wall[.]” The argument advanced on rebuttal clearly distinguishes the
acts supporting separate convictions for assault and false imprisonment.
At any rate, any ambiguity was resolved by the court’s instructions. The court
properly instructed the jury on the elements of false imprisonment, which require a
finding that Howard “confined or detained” the victim; that she was detained “against her
will”; and “that the confinement or detention” was “accomplished by force or threat of
force or deception.” Indeed, “we presume that juries follow the instructions of trial
judges.” Williams v. State, 137 Md. App. 444, 459 (2001) (citing Wilson v. State, 261
-48-
Md. 551, 570 (1971)) (additional citations omitted). Thus, to convict Howard for false
imprisonment, the jury had to find that Ms. Lobell was detained through “force or threat
of force” separate from the initial assault.
VII.
Alternatively, Howard contends his 35-year consecutive sentence for false
imprisonment must be vacated because it amounts to cruel and unusual punishment.
The Eighth Amendment to the United States Constitution provides that
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishment inflicted.” Similarly, Article 25 of the
Maryland Declaration of Rights provides “[t]hat excessive bail ought not to
be required, nor excessive fines imposed, nor cruel or unusual punishment
inflicted, by the Courts of Law.” Finally, Article 16 of the Maryland
Declaration of Rights provides “[t]hat sanguinary Laws ought to be avoided
as far as is consistent with the safety of the State; and no Law to inflict
cruel and unusual pains and penalties ought to be made in any case, or at
any time, hereafter.”
State v. Stewart, 368 Md. 26, 31 (2002) (footnote omitted) (alterations in original).
In the absence of a statutory penalty, the punishment for any common law crime,
including false imprisonment, “is anything in the discretion of the sentencing judge,
provided only that it not be ‘cruel or unusual.’” Walker v. State, 53 Md. App. 171, 186
(1982) (quoting Apple v. State, 190 Md. 661, 668 (1948)); see also Sharp v. State, 446
Md. 669, 685 (2016) (“[The] trial court ‘may exercise wide discretion in fashioning a
defendant’s sentence.’”) (quoting McGlone v. State, 406 Md. 545, 557 (2008)). Indeed,
“[o]nly rarely should a reviewing court interfere in the sentencing decision at all,
especially because the sentencing court is virtually always better informed of the
particular circumstances.” Thomas v. State, 333 Md. 84, 97 (1993). We review a trial
-49-
court’s sentence for abuse of discretion. Sharp, 446 Md. at 685 (citing State v. Wilkins,
393 Md. 269, 279−80 (2006)).
The prohibition against cruel and unusual punishment “encompasses a narrow
proportionality principle prohibiting ‘grossly disproportionate’ sentences.” Stewart, 368
Md. at 31 (citing Harmelin v. Michigan, 501 U.S. 957, 997 (1991) (Kennedy, J.,
concurring). In other words, a trial court abuses its discretion when a sentence is “truly
egregious.” Thomas, 333 Md. at 97. The Court of Appeals has explained:
In considering a proportionality challenge, a reviewing court must
first determine whether the sentence appears to be grossly disproportionate.
In so doing, the court should look to the seriousness of the conduct
involved, the seriousness of any relevant past conduct as in the recidivist
cases, any articulated purpose supporting the sentence, and the importance
of deferring to the legislature and to the sentencing court. See [State v.]
Davis, 310 Md. [611,] 631–32 [(1987)] and Minor [v. State], 313 Md.
[573,] 583–84, [(1988)].
If these considerations do not lead to a suggestion of gross
disproportionality, the review is at an end. If the sentence does appear to be
grossly disproportionate, the court should engage in a more detailed . . .
analysis. It may conduct an intra- and inter-jurisdictional analysis as a
vehicle for comparison and as a source of objective standards; it must,
however, remember that under principles of federalism, a state legislature
may choose to impose a more severe penalty than other states consider
appropriate. In order to be unconstitutional, a punishment must be more
than very harsh; it must be grossly disproportionate.
Id. at 95−96.
Howard has not satisfied the preliminary threshold established in Thomas. His
conduct plainly was serious in nature. He gained access to the home of a 98-year old
woman by misrepresenting that he could fix her roof; became violent when she asked him
to leave, forcing her to the floor and fracturing her hip; held her there against her will and
attempted to prevent her from calling for help by dismantling both her phone and medical
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alert module; went through her personal effects, as evidenced by his fingerprint in an
envelope recovered from her bedroom; and threatened to return the next day. As the trial
court noted, the victim was “exceedingly vulnerable.”
Moreover, the court considered Howard’s lengthy criminal record in fashioning an
appropriate sentence. Beginning in 1983, Howard had a series of convictions for crimes,
including disorderly conduct, malicious destruction of property, theft, and several charges
of first-degree burglary, one of which, the State proffered, was perpetrated against a 93-
year-old victim. (The charges in that case were dropped because the victim died before
trial.) The court concluded that Howard “must be punished more harshly because of the
vulnerability of this victim and because of his dreadful criminal record.”
Furthermore, the court articulated several reasons for imposing its sentence. The
court found that “the concept of rehabilitation plays absolutely no role in my thinking in
this case[,]” because Howard’s expression of remorse was not “sincere or legitimate[.]”
It further noted that “deterren[ce] and punishment are terribly important” and considered
the “special vulnerability of [the victim.]” And, we give great deference to the
sentencing court, which “is virtually always better informed of the particular
circumstances.” Thomas, 333 Md. at 97. In the absence of a threshold showing that
Howard’s sentence for false imprisonment was “grossly disproportionate,” he has failed
to launch a viable Eighth Amendment challenge to the sentence.
JUDGMENTS OF THE CIRCUIT
COURT FOR BALTIMORE
COUNTY AFFIRMED. COSTS TO
BE PAID BY THE APPELLANT.
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