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Sweetney v. State, No. 103, September Term, 2010

EVIDENCE; HEARSAY; CROSS-EXAMINATION: The hearsay statement of a police officer cannot be placed before the jury through the cross-examination of another police officer in the police department. Petitioner sought to take advantage of ambiguous language in the "Return" of a search warrant. The ambiguous language was written by a District of Columbia detective. Rather than call that detective as a witness, however, Petitioner attempted to place the ambiguous language before the jury during the cross-examination of a Charles County detective. While Petitioner obviously had a constitutional right to introduce the Return into evidence through the testimony of the detective who had written the document, Petitioner did not have a constitutional right to "confront" the Charles County detective with an out-of-court statement that he did not make.

IN THE COURT OF APPEALS OF MARYLAND No. 103 September Term, 2010

JAMES WILLIAM SWEETNEY v. STATE OF MARYLAND

Bell, C.J. Harrell Battaglia Greene *Murphy Adkins Barbera, JJ.

Opinion by Murphy, J. Filed: October 25, 2011

Murphy, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

In the Circuit Court for Charles County, a jury convicted James William Sweetney, Petitioner, of robbery and related offenses, including use of a handgun in the commission of a crime of violence. The State's evidence was sufficient to establish that he committed those offenses on July 14, 2006, when he and an accomplice participated in a "home invasion" during which they robbed the victim of several items, including a necklace that was (in the words of Petitioner's brief) "snatched from [the victim's] neck." After the Court of Special Appeals affirmed Petitioner's convictions in an unreported opinion, he requested that this Court issue a writ of certiorari to decide: 1) Whether the Court of Special Appeals erred when it decided that [Petitioner's] constitutional right of confrontation was not violated where the trial court curtailed [Petitioner's] crossexamination of the State's detective regarding the contents of a search warrant return that directly contradicted the detective's direct testimony about recovering a key piece of evidence? 2) [Whether] the Court of Special Appeals err[ed] in failing to reverse [Petitioner's] conviction due to prosecutorial misconduct under a plain error analysis where the Court of Appeals had previously held that the precise type of prosecutorial misconduct at issue was highly prejudicial and jeopardized the fundamental fairness of the trial, or in the alternative, should this Court recognize plain error and correct the denial of [Petitioner's] right to a fair trial due to the prosecutorial misconduct? We granted the petition. 417 Md. 125, 9 A.3d 1 (2010). For the reasons that follow, we hold that the trial court did not abuse its discretion in "curtailing the cross-examination of the State's detective regarding the contents of a search warrant return" that was prepared by another law enforcement officer who did not testify at trial, and we decline to review any of Petitioner's "plain error" arguments. We shall therefore affirm the judgment of the Court of Special Appeals.

Background Petitioner's "confrontation" argument is based upon the theory that, to bolster its case against him, the State presented perjured testimony about what tangible evidence was - - and what was not - - recovered from (1) the victim's apartment, and (2) the apartment of Petitioner's girlfriend. According to Petitioner, although the victim made an in-court identification of Petitioner as one of the robbers, the fact that the victim had initially stated that he did not know who had robbed him is what motivated the State to present the perjured testimony. The robbery occurred on the afternoon of Friday, July 14, 2006, when two men forced their way into the victim's apartment. One of the intruders was unmasked, and the other was wearing a ski-mask. Both intruders used handguns to strike the victim's face and head. After the victim had been forced into the bedroom, he lost consciousness. After the victim regained consciousness, one of the intruders grabbed the silver chain that the victim was wearing around his neck, and ripped the chain off the victim's neck. After stealing several items of the victim's personal property, the intruders threw him into a closet, where he remained until five to ten minutes after the intruders left the apartment. The victim did not initiate the investigation of the robbery, which was first reported by an employee of the Southern Maryland Hospital Center, after the victim had been transported there by a friend. At the hospital, while being interviewed by Detective Chris Shankster of the Charles County Sheriff's Department, the victim initially stated that he did not know who robbed him. Detective Shankster testified that "it was within - 2

probably within the hour of speaking with him. You know, he changed his story." At this point, the victim stated that Petitioner was the masked intruder. On July 26, 2006, Detective Shankster and other members of the Charles County Sheriff's Department accompanied Washington, D.C. Metropolitan Police Officers who executed a search warrant at 114 Galveston Street, S.E., Apartment 301, Washington, D.C., where Petitioner had been residing with his girlfriend and her children. Petitioner was present at the apartment when the warrant was executed. Shelley Progovitz, a Charles County evidence technician, who had responded to the victim's residence on July 14, 2006, also accompanied the D.C. officers. In the words of Petitioner's brief: Ms. Progovitz collected and bagged a black tee-shirt, a pair of black Nike boots, and two pairs of brown Timberland boots. She also processed a small box collected from the sill in the bedroom that contained items of jewelry. Ms. Progovitz photographed the box at the scene, but its contents were "all like jumb[led] up ... or on top of each other in the box." Nonetheless, Ms. Progovitz claimed that there was no clasp in the box seized during the search warrant. Detective Shankster explained on cross-examination that he was present for the collection of the necklace and pendant during the execution of the search warrant, and that "[w]e left a search warrant return which documents the items we seize from the residence. We leave a copy of the search warrant and search warrant return with the occupants..." The Return described the box and its contents that were seized as follows: "Box w/chain w/broken clasp w/Jesus & Cross". The trial court would not, however, allow the Defense to crossexamine Detective Shankster (or any State's witness) about the contents of the Return. Detective Shankster testified that after execution of the warrant, he returned with [the victim]
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on July 27, 2006, to [the victim's] apartment to collect the clasp because he "assumed that the [crime scene technician] would have collected it, but she didn't." [The victim] testified that when he returned to the apartment, "the detective [Shankster] was actually right there standing by my side the whole time," however, [the victim] did not see the detective collect any evidence when they returned together to his apartment. [The victim] also testified that he could not remember the detective pointing out anything that the detective located in the apartment. *** Detective Shankster claimed that he took a picture of the bloodstained area in the bedroom that showed a "clasp" but testified he did not collect it or request that it be collected. He then left to go to the hospital to speak with [the victim]. After Detective Shankster left [the victim's] apartment, the crime scene technician, Ms. Progovitz, arrived. Her specific duties were to photograph the scene, search for evidence, collect evidence, and process any evidence. . . Ms. Progovitz photographed [the victim's] apartment and collected items of evidence from it, including a dust particle mask from the bedroom floor near the dresser in the area where Detective Shankster testified the clasp was present. Neither Ms. Progovitz, nor Corporals McCue or Strafella

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