PAUL EARNEST HOWARD, JR.
STATE OF MARYLAND
Deborah S., Wright, Alpert, Paul E. (Senior Judge, Specially
DEBORAH S., J.
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
appeal, Howard presents seven issues for review, which we
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
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
shall affirm the judgments of the circuit court.
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.
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.
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.
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 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.
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
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 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
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.
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 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.
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
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.
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
contained a carbon copy of the check written to Howard. The
memo line read "chimney repair."
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.
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.
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.
shall include additional facts as pertinent to the issues.
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.
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
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
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." 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.
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
crime scene and urged the court to reject, as
"incredibly speculative[, ]" the argument that
there might be exculpatory evidence at the House.
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."
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.
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. . . .
court took the matter under advisement, giving the parties an
opportunity to supplement their arguments with authority from
other jurisdictions. Neither party did so.
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
action, no such authority exits in Maryland's criminal
jurisprudence, and in this case, the alleged victim and her
family object to granting access.
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
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. 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 respect to Ms. Lobell and
her son, it correctly denied the motion because Howard failed
to "make a sufficient showing of
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
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
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.
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.
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 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."
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.
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 (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
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).
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 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.
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)).
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.
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 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.
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
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 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 ...