[Copyrighted Material Omitted]
Appeal from the Circuit Court for Prince George's County, Leo E. Green, Jr., Judge.
Argued by: Carrie J. Williams (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD. for Appellant.
Argued by: Brian L. Zavin (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD. for Appellee.
Panel: Eyler, Deborah S., Kehoe, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.
[217 Md.App. 218] Moylan, J.
This State appeal from an adverse suppression ruling in the Circuit Court for Prince George's County presents us with a bounteous smorgasbord of evidentiary and constitutional issues. Among them are 1) the Dying Declaration as the " granddaddy" of the firmly-rooted exceptions to the Rule Against Hearsay; 2) the impact, if any, of the Confrontation Clause on the Dying Declaration pursuant to the recent reinterpretation of that clause in
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); and 3) the suppressability of an extrajudicial identification from a photographic array based on the reliability factors spelled out in
Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and
Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). It is a lot to digest under a 28-day time gun.
At the outset, let one thing be clear. The issue of the admissibility of a Dying Declaration (even with its complicating Confrontation Clause aspects), on the one hand, and that of the pretrial suppression of a photographic identification, on the other, are separate and distinct. They do not collapse into each other to produce some amorphous hybrid. If there was a [217 Md.App. 219] fatal flaw at the suppression hearing, such an agglomeration of issues was a significant part of it.
The State Appeal
The appellee, Jermaine Hailes, was indicted by the Grand Jury for Prince George's County on December 11, 2012 on charges of 1) first-degree murder, 2) armed robbery, 3) conspiracy, and 4) possession of a firearm by a prohibited person. He moved pretrial to have the victim's identification of him as the shooter suppressed. Following a hearing on November 1, 2013, the hearing judge filed an Opinion and Order of Court suppressing the identification. The State has filed a timely appeal.
The State appeal is authorized by Maryland Code, Courts & Judicial Proceedings Article, § 12-302(c)(3), which, in pertinent part, provides:
(c) Appeals by State in criminal cases
In a criminal case, the State may appeal as provided in this subsection.
(3)(i) In a case involving a crime of violence as defined in § 14-101 of the Criminal Law Article, and in cases under § § 5-602 through 5-609 and § § 5-612 through 5-614 of the Criminal Law Article, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Maryland Constitution, or the Maryland Declaration of Rights.
(ii) The appeal shall be made before jeopardy attaches to the defendant. However, in all cases the appeal shall be taken no more than 15 days after the decision has been rendered and shall be diligently prosecuted.
(iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding. The appeal shall be heard and the decision [217 Md.App. 220] rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final.
(Emphasis supplied). The record in this case was filed in this Court on January 29, 2014. Accordingly, our decision must be rendered no later than May ...