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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2045 SEPTEMBER TERM, 2002 _____________________________

SAMUEL MARCEL HOLLAND v. STATE OF MARYLAND

______________________________ Hollander, Adkins, Bishop, John, J., Jr. (Retired, specially assigned) JJ. ______________________________

Opinion by Hollander, J. ______________________________ Filed: December 23, 2003

Following a bench trial in the Circuit Court for Caroline County, Samuel Marcel Holland, appellant, was convicted of first degree burglary, attempted robbery, and attempted theft under five hundred dollars.1 Holland, who was seventeen years old at the time

of the incident, was sentenced to a term of ten years, with all but five years suspended, for the first degree burglary offense, and a concurrent term of ten years, with all but five years suspended, for attempted robbery. sentencing purposes. Appellant raises the following issues on appeal: I. Is the evidence sufficient to support a conviction for first degree burglary, when there was no evidence of a breaking? II. Did the trial court err in denying relief for a discovery violation? III. Did the court err in denying appellant's motion to suppress evidence recovered in the course of a search pursuant to a warrant, when, with reckless disregard for the truth, the affiant omitted crucial information as to the identification of the suspect? For the reasons set forth below, we shall reverse the burglary conviction but affirm the remaining convictions. FACTUAL SUMMARY Just after dark on March 3, 2002, eighty-one year old James William Carter, also known as "Ham," left his home at 105 North Fifth Street in Denton to purchase chewing tobacco at a nearby convenience store. On route to the store, Carter passed appellant The court merged the theft conviction for

Appellant was acquitted of carrying a handgun and second degree assault.

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at the intersection of North Fifth and Gay Streets, approximately thirty feet from Carter's home. heavy black coat and baggy Appellant, who was dressed in a black pants, was still at the

intersection when Carter returned from the store. Upon returning to his house, Carter closed the screen door but did not lock it. Moreover, he left the wooden door to his home When Carter sat down to watch Thinking that it was one At that

ajar some twelve to fourteen inches.

television, he heard a knock at the door.

of the neighborhood boys, Carter responded, "come in."

point, someone opened the screen door and stood in the area between the screen door and the wooden door. After a brief silence, the individual demanded that Mr. Carter give him his money. When Carter did not respond, the suspect again Although Mr.

demanded money while he "hit for his [coat] pocket."

Carter did not know whether the suspect had a gun, he thought he had "something." Instead, he Carter refused to give the assailant any money. Just as

called out for his roommate, Edward Taylor.

Mr. Taylor responded, the suspect fled. Carter testified that he was only able to see the assailant's eyes, nose, and mouth, because the suspect's face was partially covered by the hood of his parka. Mr. Carter further stated that Moreover, he was convinced

the suspect "wasn't no grown person."

that the assailant was the same person he had seen on the corner when he (Carter) went to and from the store. Although the police came to Carter's residence with some 2

photographs, Mr. Carter was unable to identify the assailant. stated: "No, I didn't see it in there." appellant as his assailant.

He

Yet, in court, Carter Carter acknowledged,

identified

however, that he "couldn't see [the assailant's] eyes real good because he had it [i.e., the parka hood] pulled close." The trial court then questioned Mr. Carter at length about how he knew that appellant was the assailant if he could not see the suspect's face. Carter insisted that appellant was the assailant.

The following exchange is noteworthy: [THE COURT]: Now I understand when the person came in, you couldn't tell who was under that hood? [MR. CARTER]: No, ma'am, no ma'am. [THE COURT]: When you were walking to the Farm Store and you noticed the person on the corner wearing the parka, could you see that person's face? [MR. CARTER]: No. [THE COURT]: Okay when you came back from the Farm Store and you saw that same person on the corner ...? [MR. CARTER]: That's right. [THE COURT]: Could you see that person's face? [MR. CARTER]: No, ma'am, I couldn't see him until he come and knocked on my door. [THE COURT]: All right and then you just saw his eyes, his nose and his mouth? [MR. CARTER]: That's right, that's all I could see. [THE COURT]: Now a little earlier you told Mr. Walker that it was the boy standing on the corner, the person on the corner was the Defendant? [MR. CARTER]: It wasn't him. 3

[THE COURT]: That it was him, you pointed to Mr. Holland, that that was the boy standing on the corner with the parka? [MR. CARTER]: Yeah, yeah. [THE COURT]: How do you know that if you didn't see his face? [MR. CARTER]: I could see it but he's the only, he's the only one out on the street. [THE COURT]: Okay but if you didn't see his face, how do you know it was Mr. Holland? [MR. CARTER]: Oh, it was him. [THE COURT]: Okay, can you tell, it's very important, how do you know it was him if you couldn't see his face? [MR. CARTER]: I couldn't see his face until he come in the house but if he hadn't had that hood pulled up on his head, I could have told that, I could have saw his face but I couldn't see. He had it all pulled up like it was freezing out there. [THE COURT]: I understand that but at what point did you decide that that person in the hood was Mr. Holland? [MR. CARTER]: That's the only one I saw standing there. [THE COURT]: Okay, let's go back, okay, when you passed the person on the corner, you couldn't see their face? [MR. CARTER]: No ma'am. [THE COURT]: When did you decide in you own mind that that person who's face you couldn't see was Mr. Holland? [MR. CARTER]: Well, I couldn't say but one thing about it but when I come back and I kind of looked over there, now I say in mind, something ain't right. He's standing there, why he [sic] standing there and nobody else because any other time all them street, street be full but he was the only one on that corner. [THE COURT]: Okay, this is real, real important Mr. Carter and you've done a great job testifying and you've been, I've understood everything you've said but you have 4

to understand that I need to know why you think it's that young man over there that was in that parka? [MR. CARTER]: Well, I'm going to tell you, that's the only one I saw on that corner. [THE COURT]: Okay but you just told me you didn't, you couldn't see their face? [MR. CARTER]: I could see, you're right ... [THE COURT]: Okay ... [MR. CARTER]: ... I couldn't see a face but still, I still say he was the one on that corner. [THE COURT]: Okay you need to tell me why you think that, why, I mean how, I mean it could have been somebody else in that parka? [MR. CARTER]: No ma'am, no ma'am, no ma'am. [THE COURT]: Then you need to tell me why ... [MR. CARTER]: No ma'am, no ma'am, nuh-uh. [THE COURT]: Okay ... [MR. CARTER]: That was him. [THE COURT]: Okay, so what ... [MR. CARTER]: Now I might, I might (inaudible) but one thing about it, no ma'am, he was the one on that corner because if a person standing on the corner and he's standing when you go by and you come back, they got to be moved. [THE COURT]: Okay but you need, okay Mr. Carter you need to tell me why you think it was him? [MR. CARTER]: I know it was him. [THE COURT]: Tell me how you know it was him if you couldn't see ...? [MR. CARTER]: I couldn't see his face good but he was the one.

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Mr. Taylor testified that he responded to Mr. Carter's call and saw "a person going out of the door from the side view and then I saw the back view of this person going outside the door...." He

noticed the individual's walk, which he described: "[T]he type of walk that they used, like a lazy person walk or a slur walk." Mr. Taylor described the suspect as a dark complected male, about 120 to 130 pounds, approximately 5'2" tall. He wore a dark

colored, hooded jacket with fur around the outside edge of the hood and dark, baggy, "bulky" clothes. Nevertheless, when Taylor was

asked if he saw the face of the person who entered his residence, Mr. Taylor answered, "No, I did not." Taylor recalled that Carter said the suspect had tried to rob him (Carter). Accordingly, Taylor called the police. Taylor

testified: "I gave them a description of the person that I saw leaving out of the doorway...." Then, Taylor went outside to look

for the assailant. As he "went around the street," Taylor "noticed the police had a person standing outside on the passenger side talking to him...." Taylor claimed that person matched the

description of the assailant. He also thought this person lived in that area. However, he noticed that the person was not wearing any Rather, he wore a white tee shirt and jeans.

bulky clothes.

Nevertheless, Taylor recognized the individual because of his "lazy" walk. A few days after the incident, Taylor called the police again to report that, across the street from their home, he saw "that 6

same type of person with that type of clothes on...."

Because of

the person's walk and clothing, he concluded that the person across the street was the assailant. The following testimony is

pertinent: [PROSECUTOR]: Can you describe what you saw? [MR. TAYLOR]: The person had that same type of slow with a little dip in his walk and I told Ham Carter], I said that's that person and Ham looked there, he said it sure is, just like that and that's I had called the police. walk [Mr. over when

[PROSECUTOR]: And did you provide information to the police? [MR. TAYLOR]: Yes I did. After the incident, Taylor was shown a photo array, but he was unable to make an identification. Nevertheless, Taylor made an incourt identification of appellant. Taylor explained that he

identified Holland based upon "[h]is height and his size" and "he had that same type walk." Indeed, Taylor insisted that "[t]here's

no question at all" that Holland was the perpetrator of the crime. Patrolman First Class ("PFC") Thomas Conneely, Jr. of the Denton Police Department testified that, on March 3, 2002, at approximately 6:30 p.m., he went to 105 North Fifth Street in Denton in response to a call about an attempted armed robbery. There, he met Carter and Taylor. Among other things, they told

Connelly that they could not see all of the suspect's face, because it was partially covered by his hood. After the interview, the officer "broadcast a lookout giving

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a

description

of

the

suspect."

PFC

Conneely

then

received

information from PFC Michael Rodano, indicating that appellant had been seen wearing the described clothing. was developed as a suspect. PFC Conneely stopped appellant "a half an hour to an hour" after he interviewed Carter and Taylor. At the time, appellant was wearing a black nylon "running suit." PFC Conneely conducted a As a result, appellant

pat-down and told appellant that "there had been an attempted robbery or a robbery, home invasion." He also informed appellant

that he resembled the description of the suspect involved in the "attempted robbery" at North Fifth Street. Appellant told PFC

Conneely that he could not have been involved in the incident because he was at a relative's house, located at 106 North Fifth Street. After talking to appellant, the officer continued to

patrol the area, but was unable to locate anyone else who matched the description of the assailant. On the day of the incident, Conneely also responded to 106 North Fifth Street, where appellant's mother, Francis Robinson, and appellant's cousin, Vanessa Hudson, were seated on the front porch, along with other unidentified persons. While PFC Conneely spoke

with Ms. Robinson, appellant and his brother, Michael Holland, arrived. Conneely recalled that appellant asserted: "`I would have got money if I robbed somebody.'" Following his encounter with appellant, PFC Conneely prepared a photo array of six individuals, which included appellant. 8 PFC

Conneely related that he showed the array to both Carter and Taylor, neither of whom could identify a suspect. On March 4, 2002, Conneely returned to the victim's residence to conduct another interview. Thereafter, Conneely obtained a

search warrant for appellant's residence at 515 Lincoln Street, which was executed on March 6, 2002. Conneely told appellant that

a BB gun had been recovered during the search. Appellant responded that he found the BB gun at the basketball court and concealed it behind his house because he knew that his mother would not approve. PFC Michael Rodano testified that he saw appellant on the day of the incident. He related that appellant was wearing a fur-

trimmed, hooded jacket matching the one described by Mr. Carter. This information was relayed to PFC Conneely. Patrolman Daniel Franklin testified that, at the outset of the search, appellant was served with the warrant. Franklin stated: "I believe he was reviewing the charges with his mother and in a louder voice than the rest he had been talking, he said `assault, I didn't assault that man.'" As we discuss in more detail, infra,

appellant unsuccessfully moved to strike this statement on the ground that the State failed to disclose it in discovery. During the search of appellant's residence, the police

recovered a navy blue parka with a fur lined hood.

Two unused

Crossman brand CO2 cartridges were found in an upstairs bedroom. A plastic baggie containing suspected crack cocaine was also seized, but it was later found to contain pebbles and candle wax. 9

In addition, in the rear yard the police recovered a chrome colored Daisy CO2-powered BB gun with a black handle. Appellant gave a written statement to the police after his arrest in which he said: I was chilling all day playing with my dogs at my house[.] I don't know what time I was on the block with me and my brother and somebody and he went home and me and Mic went home I was taking my bath and Mic went outside and in the fourt [sic] of the house then he came in the house an[d][sic] side [sic] some body got rob [sic] and they said it was me my [sic] brother went back outside and then I came out[.] I don't know about what time I was over Vanessa because it was my mom and sister Vanessa was backup [sic] at the time when the cops came to her house so she got scared and did not know what to say[.] I find [sic] the gun to the [sic] playground Tuesday[.]

Vanessa Hudson, appellant's cousin, testified that appellant was not at her home at the time of the incident. But, she claimed

that appellant had asked her to tell the police that he was at her residence at that time. Ms. Hudson further testified that

appellant was close to her children, and her children may have seen him at her house at the time of the incident. At the close of the State's case, the court granted

appellant's motion for judgment of acquittal as to the charge of wearing, carrying, and transporting a handgun. Appellant also

moved for acquittal as to the burglary charge, claiming that the evidence of a breaking was insufficient to support a burglary conviction. Defense counsel said: 10 "The evidence is that, well,

one of the elements of burglary is a break in and according to case law, break in requires entering by trespass...." colloquy ensued: THE COURT: Well but I think it also says it doesn't preclude if someone used it by trickery, knocking on the door. To come in with the intent of robbing I think constitutes breaking. [DEFENSE COUNSEL]: Well, trickery, yeah but constructive breaking would be using trickery, a falsehood to gain entry. Now I submit knocking on a door is not trickery.... It's not a breaking, there's not fraud involved. I think the cases where that would apply would be where someone lies to get in or they impersonate someone else to get in. THE COURT: So if he had knocked on the door and said I'm the mailman, he said come on in that would constitute breaking but if he's smart enough.... [DEFENSE COUNSEL]: Like if he had some story. THE COURT: ... not to say anything at all and just wait to see if someone says come in, that's not a breaking? [DEFENSE COUNSEL]: No, it's, it could be ... no, it's not. Part of, I mean... THE COURT: Well my idea of the trickery is you knocking on the door. That's, I mean, in other words, most people that gain entry will ring a doorbell and knock on the door and if someone inside doesn't come to the door to see who it is and just says come on in, in my view that's still gaining entrance by tricking someone to think you've got legitimate business that you're ringing the doorbell or knocking on the door. After the court denied the motion for judgment, appellant called Thomas Harris, an investigator with the Public Defender's Office, as his only witness. Harris testified that on July 12, The following

2002, Taylor told him that when he (Taylor) entered the room, the suspect was leaving and had his back turned toward Mr. Taylor. 11

Moreover, Taylor said he did not see the suspect's face.

Mr.

Taylor also told Mr. Harris that he did not see the suspect walk to the corner, because at that point Mr. Taylor had turned to call 911. When he turned back, however, he saw the suspect standing on

the corner. Harris again spoke to Taylor on July 17, 2002, because the statement of probable cause had been issued and was inconsistent with what Taylor had told Harris. Harris testified that he asked

Taylor if he had seen the suspect on March 3, 2000, standing with a group of people on a porch, and Taylor told Mr. Harris that he had not. But, Taylor saw the suspect standing on the corner. He testified that,

The State called Mr. Taylor in rebuttal.

a few days after the incident, he called the police a second time, because he saw "the same individual" standing across the street, and he "made the same identification." We shall include additional facts in our discussion. DISCUSSION I. Appellant was convicted of first degree burglary, in violation of Md. Code Ann., Art. 27,

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