Circuit Court for Baltimore City Case No. 118057003
C.J., Berger, Moylan, Charles E., Jr. (Senior Judge,
Specially Assigned), JJ.
appellant, Murray Myers, was convicted in the Circuit Court
for Baltimore City by a jury, presided over by Judge Althea
M. Handy, of burglary in the second degree, conspiracy to
commit second-degree burglary, and theft of more than $100
but less than $1, 500.
Security Cameras Are Better Than One
evidence of the appellant's complicity was
straightforward. At approximately 3:44 a.m. on December 12,
2017, a burglary was committed at an animal clinic operated
by the Society for the Prevention of Cruelty to Animals at
4007 Falls Road in Baltimore City. Not one, but two security
surveillance cameras memorialized the crime. One of the
cameras was located on the SPCA Clinic property itself. The
second was located on the Red Fish Liquor Store, on the same
side of the street as the burglarized premises but one
security camera on the SPCA Clinic building did a yeomanlike
job of recording the corpus delicti but utterly
failed to establish anyone's criminal agency. Initially
it showed two individuals walking south on Falls Road toward
the SPCA Clinic. As one of them, referred to as
"Individual One," closed in on the target, the
other, referred to by the State simply as the
"lookout," was observed walking back and forth
generally in front of the clinic. At 3:44 a.m., Individual
One entered the building through a side window. A hoody,
however, obscured his face. As the burglar alarm sounded,
Individual One exited the clinic. Almost immediately,
however, he returned to the side window, grabbed a cash
register that was sitting on a desk, and fled the scene with
the cash register in hand. The cash register was later
determined to have been empty, but its own value was
established to have been $500.
of the hoody covering his face, the identity of Individual
One could not be established either by the SPCA Clinic
manager, Amy Stormann, or by Detective William Nickles, both
of whom viewed the security tape from the clinic's
camera. The identity of the other individual, the
"lookout," was never established. The crime might
well have become an unsolved cold case, but for a stroke of
good fortune. Although the security camera on the burglarized
premises itself had come up short, a Good Samaritan security
camera on the neighboring Red Fish Liquor Store stepped in to
save the day. It was a day later as part of his follow-up
investigation that Detective Nickles visited Red Fish to see
if it had any surveillance footage from the night of the
burglary. It had. From its more fortuitous coign of vantage,
moreover, the burglar's face was visible, unhidden by the
hoody. Detective Nickles, who had known the appellant for
years, immediately identified Individual One as the
appellant. Detective Nickles actually knew the appellant by
name and was thereby able to obtain his address from the
Department of Motor Vehicles. The appellant was shortly
thereafter arrested and indicted.
trial, the clinic manager testified briefly. The only other
State's witness, and its key witness, was Detective
Nickles. He testified that he was "[o]ne hundred percent
positive that that is Mr. Murray Myers [(the appellant)] in
that video." He explained to the jury that he possessed
that level of certainty because "I've known of Mr.
Murray Myers for many years being associated from the same
neighborhood." Detective Nickles further explained that
he and the appellant had numerous mutual friends.
My ex-sister-in-law, which is [the appellant's]
cousin, by the name of Brenda Brown. Numerous
friends from the neighborhood. We have multiple mutual
Facebook friends. From being from the neighborhood, I
mean, it's only obvious that we would have these mutual
friends. I guess, numerous.
(Emphasis supplied). Detective Nickles also identified the
appellant in court:
Q. Okay. The person you see in the video with the cash
register, do you see that person in court here
A. I do, yes.
Q. Can you please identify him by an article of clothing?
A. Sitting at the Defense table with a black shirt and a
green and black tie with a cane in his hand.
Q. How certain are you that that is that person?
A. I'm a hundred percent certain.
(Emphasis supplied). The appellant, moreover, was established
as living at 3735 Falls Road, just under three blocks away
from the burglarized premises.
cross-examination of Detective Nickles, the defense never
really challenged the detective's ability to recognize
the appellant as someone he had known for a number of years.
The appellant neither took the stand nor offered any
witnesses or other evidence in his defense. The jury
convicted him on all counts.
appeal, the appellant raises three contentions.
TRIAL COURT ERRED WHEN IT DENIED [THE APPELLANT'S] MOTION
TO SUPPRESS DETECTIVE NICKLES'[S] PRE-TRIAL
TRIAL COURT VIOLATED [THE APPELLANT'S] SIXTH AMENDMENT
RIGHT AND ARTICLE 21 OF THE MARYLAND DECLARATION OF RIGHTS
WHEN IT DENIED DEFENSE COUNSEL'S ABILITY TO PRESENT A
FULL DEFENSE DURING CROSS-EXAMINATION OF THE STATE'S KEY
STATE COMMITTED PLAIN ERROR IN ITS CLOSING WHEN IT BOLSTERED
DETECTIVE NICKLES'[S] TESTIMONY WITH FACTS NOT IN THE
Case Of Baying At The Moon
military jargon, one would not characterize the
appellant's contentions as arguments that turn square
corners. He beguiles us with facts, but he never tells us
where he is going with those facts.
most serious contention is that Judge Handy committed
reversible error when she denied the appellant's motion
to suppress a pre-trial identification of him by Detective
Nickles. A hearing was held on that motion on Tuesday,
September 18, 2018. The entire suppression hearing that day
consumed a scant 24 pages of transcript. The oddity is that
that brief hearing disposed of, sequentially, not one but two
suppression motions. The first of the two denials is not now
before us. It nonetheless behooves us to refer to it because
it is indicative of the general slackness of the
appellant's analysis of the legal issues in the case,
indicative of his disinclination to turn square corners.
that we are told in appellate briefs or in the testimony at
the suppression hearing or testimony at the trial, there was
not so much as a hint that the search warrant the appellant
tells us the police were applying for was ever actually
issued by a judge. Even assuming that it was, there is not a
suggestion that a search, warranted or unwarranted, was ever
executed. There was no fruit of a search and seizure ever
offered in evidence. It was certainly not the case that the
stolen cash register was recovered from the appellant's
apartment or some reference would certainly have been made of
so prominent a piece of evidence. What, therefore, was this
companion suppression motion all about and why was it in the
after a mere seven pages of essentially meaningless
conversation between court and counsel with respect to it,
the motion to suppress physical evidence because of an
ostensible Fourth Amendment violation just withered on the
vine. The appellant never suggested how a Fourth Amendment
violation had even occurred. Judge Handy, with some
exasperation, explained that if the motion were based on the
fact that an application for a warrant did not establish
probable cause, the motion to suppress evidence on such a
basis was denied. As attention immediately turned to the
separate and pertinent issue of pre-trial identification,
there was no allegation that a warrant application had ever
actually been submitted to a judge, let alone that any judge
had actually issued such a warrant, and let alone that a
warranted search had ever been executed. The Fourth Amendment
issue simply evanesced, as immediately and as completely as
if it had been a magician's puff of magic smoke.
left with the quandary of why the appellant would clutter the
record with a motion to suppress physical evidence when there
was no physical evidence to be suppressed. What, moreover,
does the appellant suggest the sanction should be for a
possibly contemplated Fourth Amendment violation that never
took place? To the question, "What difference does it
make?" the possible answer may be that, if nothing else,
it sets the tone for much of the argument that follows. If an
argument is raised, we would like to know where it is going.
The Right Church
is yet another aspect to the strategic value, to the
persuasive cogency, of turning square corners. It is always
prudent not to get too deeply involved in the detailed
minutiae of any issue before identifying the larger category
to which the issue itself belongs. Don't worry about
which pew you are in until you are sure that you are in the
right church. Don't worry about winning the battle until
you are sure you are in the right war. A fact is not a
self-contained entity. In forensic argument, the fact is used
to point to a legal conclusion. An advocate should not simply
give us a fact. He should identify the precise legal
conclusion toward which he is pointing that fact.
appellant's first actual contention, ultimately
unencumbered by any irrelevant Fourth Amendment spin-off, is
that Judge Handy erroneously denied his motion to suppress
Detective Nickles's pretrial identification of him. At
first blush, that sounds like a problem involving
identification law. The enveloping category on this appeal,
however, is not identification law. It is discovery law.
Identification law, after all, is obsessed with the issue of
the ultimate reliability of the identification. The dramatic
change of direction of Simmons v. United States, 390
U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, in 1968 from
impermissible suggestiveness to ultimate reliability and the
five-factored reliability tests of 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), are all consumed by reliability as the
ultimate dispositive criterion. They have nothing to do,
however, with the challenged identification in this case. The
appellant's facts in this case are not pointed in that
after the distinction made by this Court in State v.
Greene, 240 Md.App. 119, 130-34, 201 A.3d 43, cert.
granted, 463 Md. 525, 206 A.3d 315 (2019), following the
lead of People v. Rodriguez, 79 N.Y.2d 445, 583
N.Y.S.2d 814, 593 N.E.2d 268 (1992), and recognizing the
analytic distinction between selective identification issues
and confirmatory identification issues, the controlling
criterion remained the reliability of the confirmatory
discovery law, by dramatic contrast, an appropriate sanction
for a discovery violation might well be the suppression of an
identification, notwithstanding its impeccable reliability.
The purpose of the exclusionary sanction is to punish the
discovery violation, not to ensure reliability.
Identification law and discovery law serve very different,
and sometimes contradictory, masters. The same facts may
point in a very different direction. Albeit dealing, to be
sure, with the possible suppression of an identification, our
overarching legal consideration (our "church," our
"war") in this case is discovery law, not
identification law. That is our controlling body of law in
this case. The appellant's argument, however, never makes
its larger legal context, the direction of its forensic
attack, unmistakably clear. He wanders back and forth across
a doctrinal boundary line. This random lack of direction is
the very opposite of turning square corners.
Hearing Law 101
narrow our focus to the hearing on the motion to suppress the
identification of the appellant by Detective Nickles, no
precept of appellate review is more fundamental than that
articulated by the Court of Appeals in In re Tariq
A-R-Y, 347 Md. 484, 488, 701 A.2d 691 (1997):
In reviewing the denial of a motion to suppress, we look
only to the record of the suppression hearing and do not
consider the evidence admitted at trial. Gamble v.
State, 318 Md. 120, 125, 567 A.2d 95, 98 (1989);
Herod v. State, 311 Md. 288, 290, 534 A.2d 362, 363
(1987); Trusty v. State, 308 Md. 658, 670, 521 A.2d
749, 755 (1987).
Coley v. State, 215 Md.App. 570, 582, 81 A.3d 650
(2013), Judge Rodowsky wrote for this Court to the same
As we have explained, "[i]n reviewing the denial of a
motion to suppress, we look only to the record of the
suppression hearing and do not consider the evidence admitted
at trial." See, e.g., In re Tariq A-R-Y,
347 Md. 484, 488, 701 A.2d 691, 693 (1997), cert.
denied, 522 U.S. 1140, 118 S.Ct. 1105, 140 L.Ed.2d 158
(1998). See also Stokeling v. State, 189 Md.App.
653, 661, 985 A.2d 175, 180 (2009), cert. denied,
414 Md. 332, 995 A.2d 297 (2010) ("In reviewing the
denial of a motion to suppress evidence, we look exclusively
to the record of the suppression hearing.").
Wallace v. State, 219 Md.App. 234, 243, 100 A.3d
1173 (2014), Judge Nazarian wrote for this Court, in
re-affirming that fundamental tenet of appellate review.
In reviewing the circuit court's disposition of Mr.
Wallace's motion to suppress, "'we look only
to the record of the suppression hearing and do not consider
the evidence admitted at trial.'" James v.
State, 191 Md.App. 233, 251, 991 A.2d 122 (2010)
(quoting Massey v. State, 173 Md.App. 94, 100, 917
A.2d 1175 (2007)).
Suppression Hearing Procedure 101. In reviewing the
appellant's argument on this contention, however, we are
immediately confronted with a massive and flagrant violation
of that fundamental precept as to what not to consider. The
appellant does not sneak across the line separating the trial
from the suppression hearing. He crosses it with a tractor
trailer. The appellant's argument on suppression runs for
five pages in his brief. Three of those five pages, however,
are a self-contained subdivision of his larger argument
entitled, "B. Detective Nickles'[s] Trial
Testimony Confirms the State's Violation of Rule
4-263." (Emphasis supplied). The appellant does not
simply commit a procedural transgression. He holds up a sign,
with his subhead, pointing out exactly where the
transgression is going to be. That subdivision of the
appellant's argument then details at significant length
the trial testimony of Detective Nickles. Precisely
such a violation was before this Court in Coley v.
State, supra. Our unequivocal holding was that
such post-suppression hearing evidence could not and would
not be considered in reviewing the suppression hearing.
Any record that developed in the circuit court after
a binding suppression ruling was made is simply
immaterial to our review. The suppression judge was not
able to consider a possible inconsistency that would not
exist until three weeks after he ruled on the motion and that
would not be raised by either party until the State filed its
appellate brief. We shall not consider it now.
215 Md.App. at 582-83 (emphasis supplied). See also In re
Tariq A-R-Y, 347 Md. at 489 ("Notably, the only
witness who testified at the suppression hearing was Officer
Marker and, as a result, we are limited to a review of
that testimony alone in performance of our
review." (Emphasis supplied).).
we do not consider any of Detective Nickles's trial
testimony as having any bearing on the correctness of Judge
Handy's ruling at the suppression hearing not to suppress
the identification of the appellant by Detective Nickles.
Judge Handy's decision on Tuesday cannot have been wrong
on the basis of evidence that did not exist until Wednesday.
She clearly cannot be held to have been in error for not
having been prescient. The appellant's reasoning strays
outside the clearly demarcated box. He does not turn square
Of Appellate Review
three of the appellant's five pages of argument on the
suppression issue cannot (and will not) be considered by us
because they are grounded in evidence from the trial proper
rather than in evidence from the suppression hearing, the two
remaining pages of argument at least are properly before us.
As we consider them, it is appropriate to set out the
standard guiding our review.
proponent of the motion to suppress Detective Nickles's
confirmatory identification of the appellant, it was the
appellant, of course, who bore the initial burdens of both
production and persuasion. Epps v. State, 193
Md.App. 687, 701-02, 1 A.3d 488 (2010). It was the
appellant's obligation to persuade Judge Handy that the
identification should have been suppressed. It was not the
State's obligation to persuade Judge Handy that the
identification should not have been suppressed. If Judge
Handy had not been persuaded in either direction, of course,
the identification would have remained unsuppressed. It is
the party to whom is allocated the burden of proof who loses
the tie. As this Court explained the significance of the
allocation of the burden in Herbert v. State, 136
Md.App. 458, 484, 766 A.2d 190 (2001):
It is the defendant who must make a case for the
suppression of evidence. The State is not required to make a
case for the non-suppression of evidence. If a judge
should convene a suppression hearing and if both parties
should rest without saying a word, the State would win that
nothing-to-nothing tie. More precisely stated, the defendant
would lose the nothing-to-nothing tie.
(Emphasis supplied; citation omitted). See also Duncan
and Smith v. State, 27 Md.App. 302, 317, 340 A.2d 722
(1975), vacated on other grounds, 276 Md. 715, 351
A.2d 114 (1976).
Herbert v. State, 136 Md.App. at 482, this Court
fully explained the rationale justifying such a decided tilt
against the moving party.
In a criminal trial, the status quo-the norm-is that
evidence of a defendant's guilt that is relevant,
material, and competent will be admitted. It is the defendant
who seeks to alter that status quo-who seeks a departure
from that norm-when he seeks to exclude relevant, material,
and competent evidence of guilt in order to serve some
extrinsic purpose, such as deterring the police from future
unreasonable searches and seizures. Mapp v. Ohio,
367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). To
the moving party is allocated the burden of making the case
for such an alteration of the status quo-for such a departure
from the norm.
(Emphasis supplied). By that standard, how did the appellant
There A Discovery Violation?
operate on the assumption that this contention is based on
discovery law. Maryland Rule 4-263 sets out the pre-trial
discovery rules for criminal trials in Maryland. Rule
4-263(d)(7)(B) specifically provides:
(d) Disclosure by the State's Attorney.
Without the necessity of a request, the State's Attorney
shall provide to the defense:
. . . .
(7) Searches, Seizures, Surveillance, and Pretrial
Identification. All relevant material or information
. . . .
(B) pretrial identification of the defendant by a