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Headnote: Communications From Jurors The requirement contained in Md. Rule 4-326, that the Court shall notify the defendant and the State's Attorney as soon as practicable after any communication is received from the jury is mandatory. If there is a violation of Rule 4-326 and if the defendant is convicted, a reversal of the conviction is required unless the State can meet its burden of convincing an appellate court that the violation was unimportant in relationship to everything else the jury considered and was therefore harmless beyond a reasonable doubt.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND Nos. 1719 & 1944 September Term, 2006

ADAN ESPINOZA CANELA & POLICARPIO ESPINOZA PEREZ v. STATE OF MARYLAND

*Salmon, Eyler, Deborah S., Woodward, JJ.

Opinion by Salmon, J.

Filed: July 1, 2010 * James P. Salmon, J., participated in the hearing and conference of this case while an active member of this Court; he participated in the adoption of this opinion as a specially assigned member of this Court.

In May 2004, Lucero Espinoza ("Lucero"), age 8, and her older brother, Ricardo Espinoza, Jr. ("Ricardo Jr."), age 9, lived with their parents in an apartment located on Park Heights Avenue in Northwest Baltimore. Also living in the same apartment were Lucero's and Ricardo Jr.'s cousin, Alexis Espenjo Quezada ("Alexis"), age 10, and Alexis's mother, Maria Andrea Espenjo Quezada ("Maria"). At that time, Lucero, Ricardo Jr. and Alexis were all students at Cross Country Elementary School in Baltimore City. On the afternoon of May 27, 2004, the three children returned to their apartment after school. The children were alone in the apartment that afternoon when a person or persons invaded the apartment and brutally murdered all three of them. Ricardo Jr. and his cousin Alexis were hit in the head with a blunt object and strangled. Lucero was also bludgeoned. All three children had their throats slit. Several hours after the murders, Adam Espinoza Canela ("Canela") and his uncle Policarpio Espinoza Perez ("Perez") were arrested for the murders. The two were tried before a jury in July and August 2005 on three counts of first-degree murder and three counts of conspiracy to murder. The jury could not agree as to a verdict and a mistrial was declared. A second jury trial commenced on June 22, 2006. The trial lasted over six weeks. More than twenty witnesses testified and over 300 exhibits were introduced. On August 8, 2006, after four days of deliberations, the jury found both Canela and Perez guilty of two counts of first-degree murder, one count of second-degree murder and three counts of conspiracy to commit murder. Canela and Perez received the same sentence, viz: two consecutive terms of life in

prison without the possibility of parole for the first-degree murder convictions and a consecutive thirty-year sentence for second-degree murder; a life sentence was also imposed for all three counts of conspiracy to commit murder, but that sentence was to be served concurrently with the other sentences. Canela and Perez each filed separate appeals. On April 29, 2008, we granted the State's motion to consolidate these appeals. On August 15, 2008, we remanded the cases to the Circuit Court for Baltimore City, pursuant to Maryland Rule 8-413(a), with directions to the circuit court to conduct a hearing to resolve factual issues concerning whether certain notes from the jury had been shown to defense counsel by the trial judge, the Honorable David B. Mitchell. In late January 2009, the Honorable Dennis Sweeney commenced a three-day hearing to resolve the issue of which notes had been shown to counsel. On April 16, 2009, Judge Sweeney filed an opinion in which he found that Judge Mitchell, in contravention of Maryland Rule 4-326(d), had failed to show counsel six notes that were sent to him from the jury. In this appeal, four questions are raised by Canela and Perez jointly; Canela raises one question not raised by Perez; and Perez raises three additional questions. These questions will be discussed, in detail, infra. I. Background Facts At the time of the murders, Canela, age 17, and his uncle, Perez, age 22, were

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roommates. They lived in a house on Bedford Road in Baltimore. Their house was located a few miles from where the murdered children lived. The parents of two of the murder victims (Lucero and Ricardo Jr.) were Ricardo Espinoza Perez, Sr. ("Ricardo Sr.") and his wife Noemi Quezada Morales, who is known by her nickname, "Mimi." Ricardo Sr. and Mimi owned and operated a lunch wagon that served construction sites in the Baltimore metropolitan area. Maria, the mother of Alexis, worked on another lunch wagon that was owned by Ricardo Sr.'s brother. Mimi, Ricardo Sr., and Maria, the parents of the murdered victims, were all immigrants from Mexico. None were proficient in English. After finishing work on May 27, 2004, Ricardo Sr. and other family members stopped on the way home to buy meat and then went to a bank. After these errands were performed, Ricardo Sr., his wife Mimi, and Alexis's mother, Maria, along with two other family members, returned to the Park Heights Avenue apartment where the three murder victims lived. The parents were driven to the apartment by Ricardo Sr.'s sister-in-law. After unloading their purchases, Ricardo Sr. rang the doorbell of the apartment because he had forgotten his key. When there was no answer, Ricardo Sr. entered the ground-floor apartment through the kitchen window. Once inside, he discovered the corpses of the three children and ran out the front door. A neighbor called "911" at 5:21 p.m. The police arrived promptly. They found that the kitchen window had been opened and the screen pushed in. A dining room window was also open. Blood stains were found in various places in the apartment. An impression identified as having been made by a glove 3

was found on the front of a drawer. A knife and aluminum bat, which were later proven to have been used in the killings, were found wedged between a wall of the garage and a fence post separating the rear of the apartment complex from an adjacent school yard. Because of the horrific nature of the crime, a large number of people, including representatives of the media, quickly gathered near the scene of the murders. Soon after the police arrived, Dana Jones, a neighbor, told Baltimore City Detective Ervin Bradley that two days previously, at about 10:00 p.m., she saw two men coming out of the bushes near the rear of the victims' apartment, and then saw them peeping in the windows and acting suspiciously.1 As other family members began arriving at the murder scene, they were taken into a conference room in the rental office of the apartment complex. Ultimately, about fifteen family members voluntarily went into the conference room, where they were interviewed by Detective Bradley, with Officer Juan Diaz serving as interpreter. The relatives were asked simple questions such as their names, the last time they had seen the murder victims alive, and where they were employed. At that point, the police did not ask for details. Among the family members that were interviewed were Perez (the uncle of Ricardo, Jr. and Lucero) and Canela (cousin of Ricardo Jr., and Lucero). While other family members looked as if they had just come from work, Canela and Perez both arrived with wet hair and,

She was later to testify at trial that on the afternoon of the murders, at about 4:20 p.m., she was leaving her apartment when she saw one of the victims, Alexis. He had opened the door when she passed the apartment. Ms. Jones admonished him to keep the door closed "so that the cicadas would not get in." He closed the door and Ms. Jones left. 4

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according to later testimony by police officers, looked as if they had recently showered. Perez told the detectives when interviewed at the apartment complex that he was working that day and that when he got off from work "he went down to Broadway and Central." On the other hand Canela claimed that he "was with his uncle Poli [i.e., Perez] and they stayed home (on the days of the murders) and watched TV all day." Later in the evening, Dana Jones, who lived near the victims' apartment, told Detective Bradley that she had seen Canela and Perez arrive at the apartment complex after the police arrived and recognized them as the men that she had seen two days earlier coming out of the bushes near the rear of the victims' apartment. After the interviews at the scene were completed, family members were told that the police needed to interview them at the homicide unit's headquarters and that police officers would provide transportation. Some relatives drove themselves to the police station; others, including appellants, were transported in police vehicles. All family members, even those who drove themselves to the police station, were escorted into the homicide unit by uniformed police personnel. Perez and Canela were placed in adjacent holding cells to await their interviews. The doors to the holding cells were not locked or even closed, and neither appellant was handcuffed or restrained in any way. As other family members arrived, they were placed in various cubicles or offices throughout the homicide unit. Detective Sergeant Darryl Massey interviewed Perez and Canela separately with Detective Juan Diaz translating. Prior to questioning, both Canela and Perez were fully 5

advised of their Miranda rights2 and each executed a written Miranda waiver. The detective questioned Canela first, then Perez. Canela denied any involvement in the crimes and denied that he had been at the children's apartment on the day of the murders. Perez, however, told the detectives that he and Canela drove to the apartment complex where the children lived on the afternoon of the murders. They arrived at approximately 4:20 p.m. The two went to the apartment because Canela said that he had something to discuss with his uncle, Ricardo Sr. Perez stayed in his car, which was parked in the back of the apartment complex, while Canela went inside. According to Perez's statement given to the detectives, Perez saw Canela come out of a rear window of the apartment about twenty minutes after he had entered the apartment; Canela, who at that time was not wearing a shirt, told Perez to drive around and pick him up at the adjacent high school; Canela then climbed over the fence that separated the apartment complex and the school yard. Perez further related in his statement that Canela told him that he left the apartment through the back window because he had been playing with the children and that he threw his shirt away because it was dirty. Perez also told the detectives that, after he picked Canela up in the school yard, the two drove to Fells Point, where Canela purchased a shirt; the two then walked around until they received a phone call informing them that something bad had happened at the apartment where Ricardo, Sr. lived; they then immediately drove back to the Ricardo Sr.'s apartment. After Perez and Canela were arrested, Baltimore City Police Officers obtained a

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See Miranda v. Arizona, 384 U.S. 436 (1966). 6

warrant authorizing the police to search the Bedford Road house where both appellants lived. During the execution of the warrant, the police seized from the room in which Perez and Canela slept a pair of blue jeans, referred to in the testimony as "Route 66" jeans. Those jeans were observed to have apparent blood stains with a knife impression. From Perez's car, the police recovered two gloves and a pair of blue jeans known as "No Boundary," or "Snow Boarder" jeans, which were also stained with blood. DNA from the blood stains on one of the gloves was found to be consistent with a mix of the DNA of the murder victims and Perez. Micro-vacuum samples extracted from interior surfaces of the gloves yielded DNA that was consistent with a mixture of DNA from the victims and Perez. Micro-vacuum samples taken from interior surfaces of the "No Boundary" jeans yielded DNA that was consistent with a mixture of DNA of the victims and Canela. In addition, DNA from the bloodstain on the "No Boundary" jeans were found to be consistent with Lucero's DNA. Micro-vacuum samples taken from interior surfaces of the "No Boundary" jeans also yielded DNA that was consistent with DNA from Perez. A 1/32-inch speck of blood contained DNA that was consistent with Lucero's DNA. That blood speck was found on one of the shoes seized from Perez after he gave his statement to the police. As already mentioned, some of the DNA evidence in this case was obtained from samples collected from interior surfaces of gloves and blue jeans. These samples were recovered by using a small vacuum collecting device invented by Salvatore Bianca, an expert in the field of trace analysis, forensic serology, blood spatter and impressions. The reliability of the vacuum collecting device was the subject of a Frye/Reed hearing before the first trial. 7

The result of the Frye/Reed hearing was adverse to appellants. At the second trial, appellants elected not to renew their motion to exclude evidence collected by that device. At the second trial, Mr. Bianca described the device in detail and named other laboratories that used it. Earlier in the second trial, a serologist named Terry Levy, testified that she regularly used the device because it was the best method for recovering any trace evidence that might be present. According to Levy, the vacuum method was generally scientifically accepted. Additionally, David Exline, a forensic scientist for the RJL Lee Group, who was accepted by the court as an expert in trace evidence analysis, testified, without objection, that, to a reasonable degree of scientific certainty use of the apparatus to recover trace evidence was a valid technique. According to the State's evidence, the vacuum device, when used on interior surfaces of the gloves and blue jeans, was capable of drawing blood cells deposited on the outside of an item through the fabric, and simultaneously collecting skin cells left on the inside of the item by the person or persons who had worn the item. The validity of this scientific proposition was contested by the appellants at trial. Additional facts will be set forth in order to resolve the numerous contentions raised by appellants in this appeal.

II. First Joint Issue

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