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George Wendell Southern v. State of Maryland No. 109, September Term, 2001 Headnote: The appropriate appellate response in a criminal case, where at a pretrial suppression proceeding the defendant adequately challenged the constitutionality of a warrantless stop and in response the State proffered no evidence to sustain its burden of proving the constitutionality of the stop, is not a limited remand for the taking of additional evidence in a reopened suppression proceeding in the same case. This disposition would improperly permit the State another opportunity to prevail on a suppression motion that should have been granted in the first instance. The appropriate appellate response is a reversal with a new trial.

Circuit Co urt for Prince George 's County Case # CT000482X

IN THE COURT OF APPEALS OF MARYLAND No. 109 September Term, 2001

GEORGE WENDELL SOUTHERN

v.

STATE OF MARYLAND

Bell, C. J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ.

Opinion by Cathell, J. Raker and Wilner, JJ., dissent

Filed:

September 17, 2002

George Wendell Southern, petitioner, was indicted by a Grand Jury in Prince Georg e's County on two counts of robbery and related offenses due to his alleged participation in the robberies of two 7-Eleven stores on the morning of February 19, 2000. On September 20, 2000, the Circuit Court for Prince George's County denied petitioner's Motion to Suppress. On September 22, 2000, after a jury trial, petitioner was convicted of two counts of robbery and one co unt of s econd -degre e assau lt. On No vember 9 , 2000, the C ircuit Court imposed a sentence o f ten years inca rceration w ithout the possibility of parole for the first robbery count1 and a con secutive ten -year sentence on the seco nd robbe ry count. On November 15, 2000, petitioner noted an appeal to the Court of Special Appeals. In that appeal, petitioner argued that at the hearing on his Motion to Suppress and after petitioner challenged the constitutionality of his initial detention, the State failed to put on any evid ence to su stain its bu rden of proving th e con stitutionality of the stop and, thus, petitioner's motion should have b een gra nted. In a rep orted o pinion , Southern v. State , 140 Md. App. 4 95, 780 A.2d 1228 (2001), the intermediate appellate court, after agreeing that petitioner properly had raised the issue of the constitutionality of the initial stop, held that the State had the burden of establishing the constitutionality of the stop, that the State had not presented evidence sufficient to meet that burden, and that the Circuit Court had not ruled on the issue. Nevertheless, the Court of Special Appeals did not reverse the convic tions, but, instead, ordered that petitioner's convictions were to remain in effect pending further

The conviction for second-degree assault merged into petitioner's conviction on the first robbery count.

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proceedings and remanded the case to the Circuit Court for the purpose of reopening the suppression proceedin g to give the State the op portunity to introduce evidence relating to the constitutiona lity of the stop and for the Circuit C ourt to then ru le on the co nstitutionality of the stop . On December 13, 2001, we granted Southern's Petition for Writ of Certiorari and denied the State 's Con ditional Cross- Petition . Southern v. State , 367 Md. 88, 785 A.2d 1292 (2001). Petitioner presents one question for our review: "Where the defen se challeng ed the legality of an initial stop at a suppression hearing and the State failed to introduce any evidence on that issue, was it prop er for the C ourt of Sp ecial App eals to order a limited remand at which the State will have a second opportunity to introduce evidence supporting the legality of the stop?" We answer no to petitioner's question and reverse. We hold that it was improper for the Court of Special App eals to rema nd and re open the s uppression proceedin g in order to provide the State w ith a second opportun ity to present new evidence on the con stitutionality of the initial stop. The Co urt of Spe cial Appe als should have reversed the convictions and reman ded the case to th e Circu it Cour t for a ne w trial. I. Procedural F acts a. Motion to Suppress Petitioner filed two one-page omnibus motions, both stating inter alia that he "moves to suppress a ny and all evid ence obta ined by the Sta te in violation of the def endant's rig hts as guaranteed by the 4 th , 5 th , 6 th , and 14th Amendments to the Constitution of the United

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States, a nd the M aryland D eclaratio n of R ights." 2 The Circuit Co urt for Princ e Georg e's Coun ty held a hearing on petitioner's motions on September 2 0, 2000. The Circuit Court addressed the pre-trial motions and asked the State, "[w]ell, which motions are we taking up first?" The prosecutor responded, "I.D., and then the statement." The State then proceeded to call various witnesses to testify about the events on the day of the robberies. The Circuit Court heard evidence relating to the circumstances of the post-apprehension show-up iden tification and denied petitioner's motion to suppress the identifica tion. In respec t to the issue of the validity of Pe titioner's initial apprehension, the testimony was limited to the following: "The first to testify was Officer Richard Pippin of the Prince G eorge's C ounty Police. He testified that on February 19th , 2000, he re sponded to a call regarding a robbery at a 7-11 on Old Branch Avenue. When he arrived, he spoke to a Carolyn Pryor, and approxim ately 15 minutes later drove her a nd one other individual severa l blocks away to W olverto n Ave nue. He told her that the police had apprehended a suspect fitting the description of the person who h ad robb ed the 7 -11. . . . "The next witness called by the prosecutor was Corporal Charles Burgess. He stated that he had responded to the report of the robbery and had been involved in the apprehension o f a suspect, together with a K -9 officer. . .. "Officer Monty Burkhalter . . . testified that Corporal Burgess had handed over the Petit ioner to him af ter he w as appr ehend ed . . . . Burkhalter stated that at the time the Petitioner was turned over to h im, he had already

"Omnibus motion" is the term given to a motion that encompasses the mandatory motions that must be filed in the circuit court pursuant to Maryland Rule 4-252(a). They must be filed within a certain period of time and if not filed within that time period the right to file the motions may be considered waived.
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been arrested and was in handcuffs. "The State's next witness on the id entif ication w as Carolyn Pryor. She stated that she had been a customer in the 7-11 on the morning of the robb ery, and as she was approaching the cashier, a man came in the door with dark red T-shirt or bandanna covering the lower part of his face. He jumped over the counter and began kicking the cash register, and while he was doing this the bandanna or T-shirt kept falling d own. Sh e described this person to the police after the incident, and th ey took her to a nother loca tion to see if sh e could identify a person the y had appreh ended. W hen she sa w the susp ect, she told the polic e offic er, `Tha t's him.' "Gail Alexander was called as a defense witness on the motion. She stated that on the mo rning of the robbery she w as getting so me coff ee at the 7-11 on Old Branch Avenue when she heard noises coming from the area of the cash register. When she looked up, she saw a white male attem pting to pull out the cash register drawer a nd saw th at over his fa ce he had a red shirt, which kept falling down. Later after the police were called, she and Ms. Pryor accompanied Officer Pippin to an area where they were holding a suspect. She stated that when they arrived at their destination the suspect was removed from the back seat of the police car and made to stand up and face them. She recalled that at that time `he was handcuffed with his hands behind him.' Ms. Alexander testified that although she heard Ms. Pryor identify the man as the robber, she (Ms. Alexa nder) w as unab le to iden tify his fac e. She also told the officers that the man wasn't wearing the same clothes that the robber had worn ." The balance of the evidence proffered at the suppression hearing (as well as most of that discussed next above) was complete ly unrelated to the events surrounding the apprehension of the petitioner. In its brief to this Court, the State conceded as much, saying: "None of the witnesses called during the suppression hearing described the circumstances of the K-9 tracking or the initial detention of Southern." The following dialogue then transpired regarding the evidence as to other matters then before the motions hearing judge: -4-

"[DEFENSE COUN SEL]: Your Honor, th e State is saying they [have] my client in custody, and there was a stop by a K-9, and obv iously the seizure of whateve r they seized fro m him, and two statem ents, the statem ent to Detective C heeks an d the statem ent to Dete ctive Arsco tt. "TH E CO UR T: O kay. (Pause in the Proceedings) "[DEFENSE COUN SEL]: You r Honor, we're seeking to suppress the stop and anything that flowed from that. I believe evidence was seized from him when he was stopped by Officer Peton, I can't remember how they - Peton, and his K-9, and Officer Burgess. So anything that was seized from that stop. "TH E CO UR T: O kay. "[DEFENSE COUNSE L]: The defendant's statement to Officer Cheeks, which was memorialized in writing alle gedly by Mr. S outhern an d also as it appears by Officer Chee ks. There's als o an oral state ment that w as allegedly given to Corporal Arscott at the hospital. W e're movin g to suppre ss that. And there was a search of the vehicle. Officer - - responded to the car, and Officer Stuehmeier seized it, and th ey are alleging m y client had custody of that vehicle." The State then presented testimony regard ing petitioner's time in custody, petitioner's statements, and the seiz ure of a ca sh register dra wer from the autom obile petitione r allegedly drove to the sto res. There was no evidence at the suppression hearing describing the initial detentio n of pe titioner o r the rea sons , i.e ., probab le cause suppo rting tha t appreh ension . After the State co ncluded its p resentation o f testimony on the omnib us motion, the following exchang e betwee n the court a nd coun sel occurred : "THE COUR T: Any further evidence? "[STAT E'S ATT ORNE Y]: No, Your H onor.

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"THE C OURT : Okay. Anything further? "[DEFENSE COUNSEL ]: I will not present any witnesses, Your Honor. "THE COU RT: All rig ht. Are you go ing to argue , or you wan t to submit? "[DEFENSE CO UNSEL]: I would like to argue. "THE COURT: Go ahead and argue. First of all, what are you going to argue ab out? "[DEFENSE COUNSEL ]: I'm going to re-argue with regard to the search and seizure and the stop, when they stopped the defendant, about the identification, and the statements of Detective Cheek s and - "THE COU RT: Th en go ahe ad and start. "[DEFENSE COUN SEL]: Okay. Your Honor, with regard to the stop, the defendant should really be the starting point for everything. We rea lly have no evidence. What we have is Officer Burkhalter, who did not participate in the stop of Mr. Southern, who indicated the description that was given was a white male, and he really didn't have anything furth er than that. I believe it was five-eight to five-ten. "Other than that, the next thing w e know is w e have Mr. So uthern stopped and witnesses driving by. So I don't think the State has established probable cause - - I would therefore like you to suppress the identification based o n that." Petitioner's counsel then argued about the statements and the search of the vehicle; however, during petitioner's argument that the identification should be suppressed because the stop was unconstitutional the trial court interrupted the discussion. "[DEFENSE COUNSEL ]: . . . With regard to the search of the vehicle, I don't believe the State satisfied under the rules who the owner is, or who searched it, or where it came from. And for that reason we would ask -6-

that - - but most importantly, we would ask that the I.D. be suppressed because the stop w as - -. "THE COUR T: The Court finds that the defendant was identified by a witness as the person who perpetrated the robbery and was arrested as a result of that. He was take n into custod y. That a vehic le was reco vered in close proximity to the second location of the robbery. That the vehicle belonged to someone other than the defendant, and that someone gave permission to the police to search it by wr itten consen t. "That the defendant was not d etain ed unduly. That he was advised of his constitutional rights pursuant to Miranda v. Arizona. That he waived h is constitutional rights pursu ant to the sam e decision. T hat he gav e a statemen t. That he answered questions a nd fully coop erated with the police, an d this was not a fter a n undue dela y. . . .

"[DEFENSE COUNSEL]: And Your Honor, with regard to the oral statement and identification that flowed from the stop? "THE COURT: You mean the oral statement when he said: It was my girlfriend's? "[DEF ENSE COU NSEL ]: Right. "THE COURT: The Court finds specifically that was not as the result of any custodial interrogation, that he made that statement when two other police officers were in fairly close proximity but not really in the same location as he was . And tha t doe s not run a foul of a ny 5 th or 6 th Amendment right because it wasn't a cu stodial interrogation. It was a statement that was made voluntarily by him, not in response to any question. "So, quite fr ankly, I w asn't aw are that w as your ch allenge on it. I didn't know that was the subject of your challe nge. Bec ause as I he ard it, he wasn't answering any questions. So I deny the motion to suppress. "[DE FEN SE C OUN SEL] : Than k you, Y our H onor." The suppression proceeding ended and the trial commenced with opening statements. -7-

b. The Court of Special Appeals' Ruling On appeal, petitio ner presen ted several q uestions fo r review to the Court of Special Appeals, only one of those questions is now involved in the case sub judice. Petitioner asked the intermed iate appellate c ourt, "[d]id the State fail to sustain its burden of proving at the motion to suppress hearing that the appellant's detention was constitutional?" Southern v. State , 140 M d. App . 495, 49 9, 780 A .2d 122 8, 1230 (2001 ). The Co urt of Spe cial Appe als held that the trial court erred in failing to rule on the issue of the propriety of the initial stop of petitioner and remanded for the purposes of such a ruling, noting that in its brief to that court the "State admit[ted] that `virtually no evidence was presented at the suppression hearing regarding the circumstances of [petitioner's] initial stop.'" Id. at 504, 780 A.2d at 12 34. Then , the Court o f Special A ppeals stated in its opinion the well settled ru le that: "The State bears the ultimate burden of proving that evidence seized without a warrant should not be suppressed. Nevertheless, it is `always the burden of the defense to raise the issue of unlaw ful sear ch and seizure . . . .' The failure to raise a suppression issue before the hearing court amo unts to a waiver to seek relief u pon app ellate review . Moreo ver, the mo tion to suppress must be presented with particularity in order to preserve an objection." Id. at 505, 780 A.2d at 1234 (citations omitted); see Carte r v. State , 367 Md. 447, 788 A.2d 646 (2 002). Before the Court of Special Appeals, the State contended that petitioner had failed to properly challe nge the pro priety of the initial stop in his motion to suppress. The C ourt

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of Special A ppeals held that at the suppression hearing d efense counsel's co mments we re sufficient to "articulate[] his challenge to the initial stop," and because the suppression court had not ruled on the propriety of the "initial stop" and instead focused on events surrounding the show-up procedure, the Court of Special Appea ls ordered a limited rema nd pursua nt to Maryland Rule 8-604(d)(1)3 "so tha t the cou rt may rule on the p ropriety of the initia l stop." Southern , 140 M d. App . at 505- 07, 780 A.2d a t 1234- 35. The Court of Special Appeals also opined on whether the State was entitled to introduce new evidence on remand and held that the trial court on remand could "hear additional evidence concerning the propriety of the initial stop." Id. at 513, 780 A.2d at 1239. The correctness of the Co urt of Spe cial Appe als's holding that would allow the S tate to reopen the suppression proceeding and to present additional evidence on the initial stop, is the issue presented for our resolution. II. Discussion a. The Right to Remand The right of an appellate court to remand , in lieu of othe r methods of dispositio n, is specifically recognize d in Rule 8-604(d). Davis Sand & Gravel Corp. v. Buckler, 231 Md. 370, 190 A.2d 531 (1963). Se ction (d) of th is Rule w as designe d to permit th e appellate court, in the interests of justice and judicial expediency, to remand a case for further

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Hereafter, references to Rule 8-604 are to Maryland Rule 8-604.
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proceedings instead of entering a final order affirming, reversing, or modifying the judgment from which the appeal w as taken. Eastgate Associates v. Apper, 276 Md. 698, 350 A.2d 661 (1 976). b. The Purposes for a (Limited) Remand Rule 8-604, governing dispositions by Maryland's appellate courts, reads: "(a) Generally. As to each party to an appeal, the Court shall dispose of an appeal in one of the following ways: (1) dismiss the appeal pursuant to Rule 8-602; (2) affirm th e judgme nt; (3) vacate o r reverse the ju dgment; (4) modif y the judgme nt; (5) remand the action to a lower court in accordance with section (d) of this Rule; or (6) an appropriate combination of the above. . . .

(d) Rem and. (1) Ge nerally. If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand that case to a lower court. In the order remanding a case, the appellate court shall state the purpose for the remand. The order of remand and the opinion upon which the order is based are conclusive as to the points decided. Upon remand, the lower court shall conduct any further proceedings necessary to determine the action in accordance with the opinion and order of the appellate court." There are certain times and types of cases where the limited remand is the proper

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disposition, but Rule 8-604(d) is neither an "antidote" for the errors of the State or of counsel nor a method to correct errors committed during the trial itself. See Reid v. State , 305 Md. 9, 501 A .2d 436 (1985); Comp troller of Trea sury v. Pan itz, 267 Md. 296, 297 A.2d 289 (197 2); Earl v. Anchor Pontiac Buick, Inc., 246 Md. 653 , 229 A.2d 412 (1967). The limited remand is proper in various circumstances, particularly when the purposes of justice will be advanced by permitting further proceedings. Butler v. State , 55 Md. App. 409, 462 A .2d 123 0 (198 3). See McM illian v. State , 325 Md. 272, 600 A.2d 430 (1992) (remand was p roper where a question was no t previously addressed to the trial court because of an error of law); Bailey v. Sta te , 303 Md. 650, 496 A.2d 665 (1985) (a limited remand was needed to determine whether a discovery violation prejudiced the defendant); Warrick v. State , 302 Md. 162, 486 A.2d 189 (1985) (remand when necessary to answer whether the State properly complied with disclosure provisions for discovery); Maha mmitt v. State , 299 Md. 82, 472 A.2d 477 (1984) (a remand to determine facts regarding a grant of postponement relating to a statutory speedy trial claim served the interests of justice); Wiener v. State , 290 Md. 425, 430 A.2d 588 (1981) (where the issue on restricted (limited) remand is collateral to and not an integral part of a criminal trial and advances the purposes of justice, remand is proper

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