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Howard v. State

Court of Special Appeals of Maryland

March 28, 2017


          Eyler, Deborah S., Wright, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.


          EYLER, DEBORAH S., J.

         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.


         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 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 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 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 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.

         We shall include additional facts as pertinent to the issues.




         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 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 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 action, no such authority exits in Maryland's criminal jurisprudence, and in this case, the alleged victim and her family object to granting access.


         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]

         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 respect to Ms. Lobell and her son, it correctly denied the motion because Howard failed to "make a sufficient showing of need."[5]


         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 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 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 (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 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]

         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 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 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 ...

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