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Morales v. State

Court of Special Appeals of Maryland

August 29, 2014

LUIS A. MORALES
v.
STATE OF MARYLAND

Page 1033

Appeal from the Circuit Court for Prince George's County. Beverly Woodard, Judge.

Submitted by: Juan P. Reyes (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD for Appellant.

Submitted by: Jessica V. Carter (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellee.

Krauser, C.J., Zarnoch, Raker, Irma S. (Retired, specially assigned), JJ.

OPINION

Page 1034

[219 Md.App. 4] Raker, J.

Luis Morales, appellant, was convicted in the Circuit Court for Prince George's County of robbery with a deadly weapon and related charges. Before this Court he presents the following questions for our review, which we have rephrased slightly:

1. Did the trial court admit prejudicial hearsay improperly?
2. Did the motions court err in denying appellant's motion to suppress pre-trial photographic identifications?

We shall answer both questions in the negative and affirm.

I.

Appellant was indicted by the Grand Jury for Prince George's County with the offenses of robbery with a deadly weapon, robbery, attempted robbery with a deadly weapon, attempted robbery, two counts of first degree assault, two counts of second degree assault, theft under $1,000, use of a handgun in the commission of a crime of violence, possession of a regulated firearm after a disqualifying crime and carrying a handgun. The jury convicted appellant of all the charges and the court sentenced him to the following terms of incarceration: twenty years, with all but ten years suspended for robbery with a deadly weapon; twenty years, to run consecutively, with all but five years suspended for use of a handgun [219 Md.App. 5] in the commission of a crime of violence; and five years, to run concurrently, for possession of a regulated firearm.[1]

On February 22, 2013, Sahid Kaleem and his son, Taha Kaleem, arranged to meet appellant at 14701 Bowie Road in Laurel to purchase two cellular phones for $550. Appellant had advertised the phones for sale on the Internet website, Craigslist, which the Kaleems used to set up the transaction. Javeria Kaleem, Sahid's daughter and Taha's sister, accompanied her father and brother. When they arrived at the location, Sahid and Taha exited their vehicle to meet appellant, and Javeria stayed in the car. Appellant

Page 1035

walked with the Kaleems over to their vehicle, pulled out a handgun and informed them that they were being robbed. Appellant first demanded money from Taha and shot him when Taha failed to comply. Appellant pointed the handgun at Sahid and made the same demand. Sahid complied, and appellant ran away. Taha called 911.

In the course of the investigation of the crime, the Kaleems made photographic identifications of appellant as the assailant. Appellant moved pre-trial to suppress the identifications. He argued that the police employed impermissibly suggestive procedures in obtaining the identifications and that the reliability of the identifications did not outweigh the corrupting effect of the suggestive procedures. The following facts were adduced at the suppression hearing.

Prince George's County Police Detective Andrew Batavick was the lead investigator of the robbery. On the night of the incident, the Kaleems went to the police station and met with Detective Batavick to make a statement and to look through a photo book that contained pictures of potential suspects. The detective put Taha and Javeria in one room, and he placed Sahid in a different room. Detective Batavick gave the photo book to Javeria and instructed her and Taha to look through the photos individually, not to communicate with one another [219 Md.App. 6] and to just go through the pictures to see if anyone looked similar to the person who robbed them.

Detective Batavick sat outside of the room while Taha and Javeria reviewed independently the pictures in the photo book. The detective left the door ajar. He monitored the children and stated that he did not see or hear the children communicating. Once they were finished, Taha and Javeria had selected two photographs, one of which was appellant, and they indicated that the two people in the photographs had similar features to the assailant. Neither Taha nor Javeria asserted that either of the two individuals was the robber. Sahid reviewed the pictures and indicated that, although some pictures looked similar, he could not identify the robber.

The following day, Detective Batavick and two other detectives went to the Kaleem's home to show them a photo array. Taha and Javeria were home, but Sahid was at work. Detective Batavick showed Taha and Javeria a photo array containing the pictures of six individuals, including appellant.[2] The photo of appellant was a more recent photo of him than the one in the photo book that the Kaleems saw on the previous night. The photo array did not include a photo of the other individual that Taha and Javeria had selected from the photo book. After reviewing independently the photo array, Taha and Javeria each identified appellant as the assailant.[3]

On February 28, 2013, the detectives met with Sahid to show him the same photo array that was presented to the children. Sahid identified appellant as the

Page 1036

person who robbed him and stated, " that's him."

[219 Md.App. 7] The Kaleems testified at the suppression hearing about their identifications. Javeria claimed that she communicated openly with her brother while reviewing the photo book at the police station on the night of the incident. She indicated that because she did not get a good look at the assailant's face, she relied on her brother's input. In doing so, however, Javeria claimed that Taha did not tell her which picture to select. Javeria also testified that she told her father which picture she thought looked like the assailant. On cross-examination, Javeria stated that the police did not tell her which picture to select nor did they influence her in any way. Taha denied communicating with his sister. He testified that Javeria did not confide in him to make her identification and that the police gave them instructions to not communicate with one another.

After hearing testimony, the court ruled as follows:

" [I]t is apparent to the Court that, of course, their testimonies are not, of the two children, are not consistent, but that is more fodder for trial than motions. What we're looking at here is the conduct of the State agents, the police. And in this case, both children were very clear on the fact that the police didn't tell them which picture to pick, they didn't suggest to pick any particular picture, and the Court found their testimony as to that, which is really the issue in this case, the conduct by the police, credible.
And, so, the Court finds that the Defense has not met its burden in this case to get to the second prong in that the Court does not find that there was any - - the Court does not find, based upon the evidence, that there was any suggestivity on the part of the police in any of the witnesses' identifications to cause this Court to suppress those pretrial identifications. So, I'm going to deny the Defense Motion to Suppress."

The court denied appellant's motion to suppress the photo identifications and the case proceeded to trial.

At trial, Detective Batavick testified about the details of the investigation that led to appellant's arrest. At one point, the [219 Md.App. 8] State sought to elicit testimony from the detective explaining how he ...


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