Geiger v. State ( 2017 )

Geiger v. State, No. 2668 of the 2016 Term, Opinion by Moylan J.
HEADNOTE:
THEFT BY DECEPTION– TO FIND NOTHING IS TO DISCOVER
SOMETHING – DETECTIVE KELLY SPOKE FOR HIMSELF – THE
QUINTESSENCE OF HARMLESSNESS – SITTING IN THE DOCK –
PROCEEDING ON “INFORMATION RECEIVED” – FACIAL PROFILING
TECHNOLOGY – HARMLESS ERROR REDUX – A READER’S GUIDE TO
ZEMO V. STATE
Circuit Court for Charles County
Case No. 08-K-16-000014
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2668
September Term, 2016
______________________________________
LAMONT JEFFERY GEIGER
v.
STATE OF MARYLAND
______________________________________
Friedman,
Beachley,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Moylan, J.
______________________________________
Filed: December 5, 2017
This is a simple case of theft by deception. At least, it should have been simple. The
appellant, Lamont Jeffery Geiger, was convicted in the Circuit Court for Charles County
by Judge Amy J. Bragunier, sitting without a jury, of theft pursuant to Maryland Code,
Criminal Law Article, Sect. 7–104. For penalty purposes, it was a theft of property with a
value of at least $1,000 but less than $10,000, pursuant to subsection 7–104(g)(i). The actus
reus of the crime poses no problem. The problem is that of establishing criminal agency.
The Basic Crime
On June 23, 2015, Leanne Ayers, an employee of Southern Tire in Waldorf,
received a telephone call from an individual, giving his name as Brian Johnson, requesting
the purchase of four Continental tires. The caller gave a credit card number over the phone
and used it to charge an $85 deposit for the tires, which were to be installed the following
day. On the next day, June 24, the ostensible Mr. Johnson came in and had the four tires
installed on his car. After the work was completed, the purchaser used the same card
number used the day before to charge the remaining balance of $939.53. Because “Mr.
Johnson” did not have a physical credit card on hand, he showed his ostensible North
Carolina driver’s license as identifying security. Ms. Ayers took and kept a photograph of
that North Carolina driver’s license.
At the appellant’s trial on September 8, 2016, Ms. Ayers identified the appellant as
the ostensible Brian Johnson who purchased the tires from her on June 24, 2015. On cross-
examination, she attested that her identification was one made with 99% certainty. It is not
now challenged. It is only disparaged.
The State’s second witness was Tiro Joson, who worked in the Accounts Receivable
section for Southern Tire. He testified that on July 15, 2015 he received notice from the
credit card company that the company was issuing a “charge back” against Southern Tire
for the $1024.53 on the credit charges of June 23 and 24, 2015. The credit card number
had been fraudulently used. Southern Tire immediately notified the police.
At the trial on September 8, 2016, the State also introduced, in addition to Ms.
Ayers’s identification of the appellant, a copy of the Maryland driver’s license issued to
the appellant in his proper name of Lamont Jeffery Geiger and showing his photograph. It
had also introduced a copy of the ostensible North Carolina driver’s license bearing the
name of Brian Johnson but showing a photograph of the appellant. Judge Bragunier found
as a fact that the picture of “Brian Johnson” on the North Carolina license and the picture
of Lamont Jeffery Geiger on the Maryland license depicted the same man, to wit, the
appellant.
On the merits, it is not without significance that the appellant did not testify and that
he offered neither any witnesses nor other evidence in his defense. Judge Bragunier did not
hesitate in finding that the appellant was the criminal agent in this theft of property. The
case was open and shut.
The Contentions
We have rephrased the appellate challenge as essentially the two contentions
1. that the State used inadmissible hearsay evidence in establishing
that there was no legitimate North Carolina driver’s license issued
to a Brian Johnson; and
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2. that the State used inadmissible hearsay evidence in proving that a
facial recognition analysis had identified the face on the North
Carolina driver’s license as that of the appellant, thereby revealing
the appellant’s name.
To Find Nothing Is To Discover Something
The obvious first investigative step for Detective Matthew Kelly was to attempt to
locate the “Brian Johnson” listed on the North Carolina driver’s license. Ms. Ayers
informed him that the picture on the license was that of the man who had purchased the
tires. Accordingly, Detective Kelly presented the information on the ostensible North
Carolina driver’s license to the desk clerk at the Charles County Sheriff’s Office. As a
regular investigative resource, the Sheriff’s Office has access to the databases kept by the
motor vehicle administrations of various states, including that of North Carolina. With
Detective Kelly looking on and supplying information, the clerk searched the North
Carolina database. There had been no driver’s license issued in North Carolina for a Brian
Johnson with the birthdate listed on the license. The license was a fake and a theft by
deception had obviously been perpetrated on Southern Tire.
The appellant’s first contention grasps at straws. In the first place, he characterizes
the negative information obtained from the database as inadmissible hearsay. It is not that.
Maryland Rule of Procedure 5–803(b)(10) is very clear that among those things “not
excluded by the hearsay rule, even though the declarant is available as a witness” is:
(10) Absence of Public Record or Entry. Unless the circumstances
indicate a lack of trustworthiness, evidence in the form of testimony or a
certification in accordance with Rule 5-902 that a diligent search has failed
to disclose a record, report, statement, or data compilation made by a public
agency, or an entry therein, when offered to prove the absence of such a
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record or entry or the nonoccurrence or nonexistence of a matter about which
a record was regularly made and preserved by the public agency.
(Emphasis supplied).
The search of a database which reveals the absence of a particular record is an event
to which the searcher may testify directly. The testimony “I searched and found nothing”
does not involve inadmissible hearsay. It is a recognized exception to the Rule Against
Hearsay.
Detective Kelly Spoke For Himself
The appellant next tries a variation on that theme. He poses a trial scenario that
Judge Bragunier did not buy and that we do not buy. The appellant insists that the search
of the North Carolina database was conducted not by Detective Kelly, even in part, but by
the anonymous desk clerk at the Charles County Sheriff’s Department exclusively. The
appellant insists that the anonymous desk clerk, as an out-of-court declarant, simply
reported to Detective Kelly that the search of the North Carolina database revealed no
record of a Brian Johnson and that that assertion, therefore, was the sole source of Detective
Kelly’s knowledge. The appellant’s contention is that Detective Kelly later offered that
out-of-court assertion by the desk clerk in court for the truth of the matter asserted. That,
of course, would be hearsay.
As the appellant spins the story, Detective Kelly could well have been in another
room. He was not. What the appellant is disinclined to accept is that the search of a database
need not be a solo performance. Two or more might participate in a joint search. In a case
of doubt, how many might qualify for having participated in a given search might be an
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issue of fact to be determined by the factfinder on the basis of the totality of the pertinent
circumstances. Judge Bragunier found as a matter of fact that Detective Kelly jointly
participated with the anonymous desk clerk in the search of the North Carolina database
and that he was, therefore, fully competent to testify about it. That finding was not clearly
erroneous.
As Detective Kelly began to testify about the search of the database, appellant’s
counsel said that he was “going to object if there is no personal knowledge, if it’s the desk
clerk.” Judge Bragunier asked the prosecutor to “just clear that up.” The prosecutor did so.
[PROSECUTOR]: Now, Detective Kelly, first, let’s . . . let’s back up.
This is the desk clerk in the Charles County
Sheriff’s Office station?
DETECTIVE KELLY: That is correct.
[PROSECUTOR]: Okay, and the system . . . were you present at that
time?
DETECTIVE KELLY: Yes.
[PROSECUTOR]: Alright, were you there with this desk clerk?
DETECTIVE KELLY: Yes.
[PROSECUTOR]: Okay, and can you describe what specifically was
being done?
DETECTIVE KELLY: Um . . . their computer system is a little bit different
than ours, but generally if we ever have a request,
we’ll stand with them at the front desk and just
explain what it is that we need checked. The
information, we’ll provide that to them, and they
will conduct the check and explain any findings
that they have as a result of that search.
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[PROSECUTOR]: Okay, and this is done . . . you were . . . you were
seeing the results of the search?
DETECTIVE KELLY: Yeah, I was standing with the individual at the
front desk. I was not monitoring every single move
that they made, but I stood with them.
[PROSECUTOR]: Okay, okay, and this system . . . this is a system
that the Charles County Sheriff’s Office has, where
the desk clerk was --
DETECTIVE KELLY: One of the systems they utilize, yes.
[PROSECUTOR]: And does it access . . . um . . . department, or
vehicles, or MVA of different states?
DETECTIVE KELLY: Yes.
[PROSECUTOR]: Okay, and was the search that you requested and
there with, was that of North Carolina?
DETECTIVE KELLY: Yes.
(Emphasis supplied).
The appellant again objected, attempting to analogize the relationship between the
anonymous clerk and Detective Kelly to the relationship between the doctor who performs
an autopsy and a mere observer of the autopsy. The appellant again ignored the fact that
Detective Kelly and the clerk both participated in the search of the North Carolina database.
The clerk’s fingers may have touched the keys on the keyboard, but it was the information
dictated by Detective Kelly that guided the fingers on the keyboard and that guided the
inquiry. Detective Kelly testified as to what he did, what he saw, and what he knew. He
was no mere conduit for the anonymous clerk. Judge Bragunier agreed:
JUDGE BRAGUNIER: Well, he can testify as to what he asked her to do,
and what she did, and what [he] saw.
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(Emphasis supplied).
Detective Kelly was the indisputable source of the information that guided that
search.
JUDGE BRAGUNIER: I’m going to allow him to say what he was looking
for, what he . . . and what was part of the
investigation.
[DEFENSE COUNSEL]: Right, but the issue is, Your Honor, they’re
looking for something that is done out of state in
North Carolina, you know?
JUDGE BRAGUNIER: Okay, it’s part of their investigative tools. I’m
going to allow it.
[PROSECUTOR]: And so there was a search made of . . . of what?
DETECTIVE KELLY: The copy of the North Carolina driver’s license
that I was provided.
[PROSECUTOR]: Okay . . . um . . . I am giving you back [the
license]. Is that what you used in your search?
DETECTIVE KELLY: That is correct.
[PROSECUTOR]: Okay . . . um . . . what specifically?
DETECTIVE KELLY: Um . . . I would have provided the front desk . . .
um . . . clerk the name and the birth date of the
individual, the state in which it was numbered,
which is indicated near the top right side of the
driver’s license.
(Emphasis supplied).
Judge Bragunier ruled that Detective Kelly was no stranger to the search of the
North Carolina database and that he was competent to testify as to its negative result.
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[PROSECUTOR]: And were you able to confirm or get a return on
Brian Johnson, the individual . . . um . . . in the ID
copy on State’s Exhibit Five?
DETECTIVE KELLY: No.
(Emphasis supplied).
Our holding that no error was committed by Judge Bragunier is reinforced by the
fact that evidentiary rulings such as this are regularly entrusted to the wide, wide discretion
of the trial judge. When what is involved is a judgment call on the field, appellate courts
are routinely extremely deferential.
The Quintessence Of Harmlessness
Even if, purely arguendo, we were to assume that error had somehow occurred, it
would be hard to conceive of an error more harmless than this. Legally sufficient proof of
the fraudulent deception that the appellant practiced on Southern Tire in furtherance of his
theft of four automobile tires worth over $1,000 did not in the remotest way depend on the
search of the North Carolina database. The false driver’s license that the appellant gave to
Leanne Ayers at Southern Tire ipso facto established the appellant’s larcenous deception
beyond any reasonable doubt. It contained his picture on an ostensible North Carolina
driver’s license coupled with the palpably false name of Brian Johnson. That act of
deception would be beyond challenge even if a North Carolina database had never existed.
Once it was known that the face on the North Carolina driver’s license was the face of the
appellant (as the factfinding judge found it to be), all else was benignly redundant.
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We note simply in passing that a finding of harmless error is, if anything, even easier
to make in a case such as this, where there is not so much as a murmur of affirmative
defense or even mitigation. It is in cases where the facts are hotly contested and where
contradictory credibilities clash with one another that a trial error might readily shift the
balance. In this case, nobody’s credibility was even in issue. Procedural tiffs are of tamer
stuff.
If any further minimization of harm were even possible, it would be in a case such
as this where the verdict has been rendered not by a panel of twelve unpredictable jurors
but by a veteran trial judge sitting without a jury. In assessing the possible effect of an
erroneous ruling on a factfinder, a volatile jury and a legally trained and steadfast judge are
very different tribunals. That difference can be a decisive factor in harmless error analysis.
We cannot imagine how the appellant here could genuinely believe that Judge Bragunier’s
verdict would have been different if a search of the North Carolina database had never been
made. Leanne Ayers’s identification of him and his picture on the fake driver’s license told
the entire story, a story the appellant never contested. In any event, we are persuaded
beyond a reasonable doubt that Judge Bragunier’s verdict of guilty would not have been
different if no mention of the North Carolina database had ever been made.
Sitting In The Dock
It is difficult to decipher just what the second contention is actually contending. As
the thief drove away from Southern Tire on June 24, 2015, with $1,000 worth of stolen
tires, his identity was unknown. As he sat in the dock of the Charles County Courthouse
on September 8, 2016, however, the thief was indisputably identified as Lamont Jeffery
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Geiger, the appellant. How did this change from unknown to known come about? Both the
testimony of the deceived saleslady, Leanne Ayers, and the photograph on the fake driver’s
license the thief had used at the scene solidly established that the tire-stealing thief and the
defendant in the dock were one and the same. The investigative odyssey by way of which
the unknown became the known and by way of which the defendant came to be sitting in
the dock, albeit narratively interesting perhaps, was legally immaterial. If the man sitting
in the dock did it, we really don’t need to know how he came to be sitting in the dock.
How do the police routinely discover an unknown criminal’s identity? Or his
whereabouts? With Elizabeth Barrett Browning, let us count the ways. Perhaps a police
“hotline” receives a tip, anonymous or otherwise, from a good citizen. Perhaps the police,
by cash or other inducement, pay for a tip from a snitch, to wit, a confidential informant.
Perhaps the crime victim randomly spots the culprit on a crowded street or in Times Square
on New Year’s Eve. Perhaps the fugitive becomes an instant celebrity by winning the
lottery. Perhaps it is the prescience of a Gypsy fortune-teller or the wisdom of the tea
leaves. Perhaps it is just dumb luck. Or perhaps law enforcement has available to it, as does
Maryland in the present case, latter-day facial profiling technology. Like Shakespeare’s
Cleopatra, Dame Fortune is possessed of “infinite variety” in how she points her finger at
the avatar of guilt. The point is that the modus operandi just doesn’t matter. Even if reading
the entrails of birds is a questionable technique for identifying a suspect, a suspect thus
identified most assuredly does not go free.
The law’s essential indifference to such finger-pointing happenstance enjoys a long
pedigree, reaching back into the first presidency of Grover Cleveland. In Ker v. Illinois,
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119 U.S. 436, 7 S. Ct. 225, 30 L. Ed. 421 (1886), Ker was ultimately convicted of larceny
in Chicago. Before the United States Supreme Court, he claimed that he had been denied
due process of law when he was “forcibly and with violence” kidnapped from Lima, Peru
and brought to stand trial in Illinois. The Supreme Court was emphatic that the due process
inquiry was tightly focused within the four corners of the Illinois trial transcript and was
unconcerned with the antecedent events by which Ker was brought to Illinois.
The ‘due process of law’ here guarantied is complied with when the party is
regularly indicted by the proper grand jury in the state court, has a trial
according to the forms and modes prescribed for such trials, and when, in
that trial and proceedings, he is deprived of no rights to which he is lawfully
entitled.
119 U.S. at 440.
Even conceded irregularities in the antecedent procedure of the authorities would
be of no avail to the defendant.
[F]or mere irregularities in the manner in which he may be brought into
custody of the law, we do not think he is entitled to say that he should not be
tried at all for the crime with which he is charged in a regular indictment. He
may be arrested for a very heinous offense by persons without any warrant,
or without any previous complaint, and brought before a proper officer; and
this may be, in some sense, said to be ‘without due process of law.’ But it
would hardly be claimed that, after the case had been investigated and the
defendant held by the proper authorities to answer for the crime, he could
plead that he was first arrested ‘without due process of law.’ So here, when
found within the jurisdiction of the state of Illinois, and liable to answer for
a crime against the laws of that state, unless there was some positive
provision of the constitution or of the laws of this country violated in bringing
him into court, it is not easy to see how he can say that he is there ‘without
due process of law,’ within the meaning of the constitutional provision.
Id. (Emphasis Supplied). See also Mahon v. Justice, 127 U.S. 700, 715, 8 S. Ct. 1204, 32
L. Ed. 283 (1888); Lascelles v. Georgia, 148 U.S. 537, 544, 13 S. Ct. 687, 37 L. Ed. 549
11
(1893) (“The jurisdiction of the court in which the indictment is found is not impaired by
the manner in which the accused is brought before it.”); Ex parte Johnson, 167 U.S. 120,
126, 17 S. Ct. 735, 42 L. Ed. 103 (1897) (“[I]n criminal cases a forcible abduction is no
sufficient reason why the party should not answer when brought within the jurisdiction of
the court which has the right to try him for such an offense, and presents no valid objection
to his trial in such court.”).
That venerable principle that a trial of a defendant will not be compromised by the
manner in which the defendant was brought before the court for trial has been consistently
reaffirmed. In Frisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509, 96 L. Ed. 541 (1952), the
defendant was convicted of murder in Michigan “after Michigan officers forcibly seized,
handcuffed, blackjacked and took him to Michigan” in clear violation of the Federal
Kidnapping Act. 342 U.S. at 520. The Supreme Court held unanimously that the manner
in which Michigan acquired the person of the defendant and brought him to trial did not
adversely affect the propriety of the trial itself.
This Court has never departed from the rule announced in Ker v.
Illinois . . . , that the power of a court to try a person for crime is not impaired
by the fact that he had been brought within the court’s jurisdiction by reason
of a ‘forcible abduction.’ No persuasive reasons are now presented to justify
overruling this line of cases. They rest on the sound basis that due process of
law is satisfied when one present in court is convicted of crime after having
been fairly apprised of the charges against him and after a fair trial in
accordance with constitutional procedural safeguards. There is nothing in the
Constitution that requires a court to permit a guilty person rightfully
convicted to escape justice because he was brought to trial against his will.
342 U.S. at 522 (emphasis supplied).
12
In United States v. Crews, 445 U.S. 463, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980),
the Supreme Court again reaffirmed this principle.
Insofar as respondent challenges his own presence at trial, he cannot
claim immunity from prosecution simply because his appearance in court
was precipitated by an unlawful arrest. An illegal arrest, without more, has
never been viewed as a bar to subsequent prosecution, nor as a defense to a
valid conviction. . . . Respondent is not himself a suppressible “fruit,” and
the illegality of his detention cannot deprive the Government of the
opportunity to prove his guilt through the introduction of evidence wholly
untainted by the police misconduct.
445 U.S. at 474 (emphasis supplied). See also New York v. Harris, 495 U.S. 14, 18, 110 S.
Ct. 1640, 109 L. Ed. 2d 13 (1990) (“There could be no valid claim here that Harris was
immune from prosecution because his person was the fruit of an illegal arrest.”).
The thinking of this Court is completely in line with that of the Supreme Court. The
appellant in Modecki v. State, 138 Md. App. 372, 771 A.2d 521 (2001), brought the
challenge that it was his illegal arrest that led to “the discovery of his identity,” something
“the police would otherwise not have been aware of.” 138 Md. App. at 378. In rejecting
that challenge, Judge Bloom concluded:
In accordance with Justice Brennan’s opinion in Crews, we hereby hold that
neither appellant’s person nor his identity was a “fruit” of his detention that
would be subject to suppression even if that detention was unlawful. . . . The
evidence used to convict him was wholly untainted by that seizure and
detention.
138 Md. App. at 380 (emphasis supplied).
What the appellant argues for is something not generally cognizable at law—a “but
for” chain of impermissible causation. “But for some questionable procedure or
unsubstantiated step taken by the investigators, they would never have found me and I,
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therefore, would not be here in court.” There is, of course, no such thing as a viable “but
for” defense. There is no right not to be identified. Confronted with such “but for”
reasoning, the police could never, for instance, bridge such a gap in the investigative chain
as that posed by an anonymous telephone tip or by the fingering of the suspect by an
undercover “mole.”
Proceeding On “Information Received”
The arrival of this appellant at the trial table in Charles County involved nothing so
melodramatic as having been kidnapped from Lima, Peru. In terms of identifying and
apprehending the thief, Detective Kelly had nothing to go on except the North Carolina
driver’s license. After he testified about the search of the North Carolina database that
established that it was a fake, he was asked to describe his next investigative move.
[PROSECUTOR]: Is there anything else that you did in terms of this
investigation?
DETECTIVE KELLY: Yes. I made contact with . . . a crime analyst, Mr.
Rodriguez . . . , who works in conjunction with
our office, and I provided him with the photo that
I had obtained from the driver’s license. He
entered that into --
[DEFENSE COUNSEL]: Your Honor, this is where I am going to object.
[PROSECUTOR]: And I’m fine with that.
JUDGE BRAGUNIER: Okay.
(Emphasis supplied).
Into what black hole that “photo” disappeared we might never know, for Detective
Kelly never finished his sentence. When defense counsel objected, the State immediately
14
agreed not to pursue the matter further. In a situation such as this, in order to allow an
officer to narrate what his next investigative step was but yet to avoid the danger of possibly
prejudicial hearsay, the law is clear that the investigator should simply be permitted to say
that he took the next step “upon information received.” As explained in McCormick on
Evidence, Sect. 246, at 587 (Edward W. Cleary ed. 2d ed. 1972):
In criminal cases, the arresting or investigating officer will often explain his
going to the scene of the crime or his interview with the defendant, or a search
or seizure, by stating that he did so “upon information received” and this of
course will not be objectionable as hearsay.
(Emphasis supplied).
In Parker v. State, 408 Md. 428, 446, 970 A.2d 320 (2009), Judge Adkins wrote for
the Court of Appeals:
In permitting McGowan to explain why he was working at the 1200 block of
Laurens Street, the court should have allowed McGowan to say only that he
was there “based ‘on information received.’”
(Emphasis supplied). See also Graves v. State, 334 Md. 30, 39–40, 637 A.2d 1197 (1994).
At that point in the direct examination of Detective Kelly, the State took precisely
that direct and summary approach recommended by the law.
[PROSECUTOR]: Was a suspect developed?
DETECTIVE KELLY: Yes.
[DEFENSE COUNSEL]: Objection, Your Honor.
JUDGE BRAGUNIER: Overruled.
(Emphasis supplied).
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“Upon information received,” Detective Kelly went to the Maryland Department of
Motor Vehicles and obtained a copy of the driver’s license of the appellant. We need not
inquire further into the “information received” because it might be hearsay injurious to the
defendant. That is exactly the protocol by which these things are supposed to be done.
Ironically, it was the appellant himself who then inquired further into of what the
“information received” consisted. If the revelation offended him, he had but himself to
blame.
[DEFENSE COUNSEL]: Your Honor, I would like to be heard on that. I’d
like to be heard on that, Your Honor?
JUDGE BRAGUNIER: Okay?
[DEFENSE COUNSEL]: Your Honor, based on this technology that the
officer is relying on, there’s several matches that
come up. This technology spits out several
matches. We don’t know how this match came
about. We don’t know who the other people were.
JUDGE BRAGUNIER: I don’t know either[.]
[DEFENSE COUNSEL]: Right, and it’s unfair . . . for this officer to testify
that this gentleman came up among others. [W]ho
else came up?
JUDGE BRAGUNIER: Well, I don’t . . . know. I haven’t heard the
evidence[.]
(Emphasis supplied).
It was the State that argued that how the appellant came to be a suspect was
irrelevant. Judge Bragunier agreed.
[PROSECUTOR]: [F]rankly the fact that a suspect was developed . .
. the reason, or the way how the suspect was
developed, is irrelevant.
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JUDGE BRAGUNIER: That’s all that she asked[.] . . . [W]as a suspect
developed, and the answer was yes. Now, we’ll
ask another question.
(Emphasis supplied).
Facial Profiling Technology
After several brief questions, not here pertinent, the State prepared to turn Detective
Kelly over to the defense for cross-examination. The State offered in evidence a copy of
the Maryland driver’s license of the appellant. In protesting vigorously, the appellant again
reverted, this time in lurid detail, to the facial profiling technology that the State had never
mentioned.
[DEFENSE COUNSEL]: Your Honor, I’m going to object to the
identification or the Motor Vehicle photo of Mr.
Geiger coming in. Again, . . . that photo
identification was generated using unproven
technology.
That technology is not certified or authorized in
any state in this country, as well as the federal . . .
government. Those kind of searches and the
results that are generated from them are not
accepted anywhere, nor is the technology
accepted anywhere.
(Emphasis supplied).
Judge Bragunier explained that the defendant “doesn’t have a right to protect his
image.” Defense counsel nonetheless went on, making for the first time an express
reference to “facial recognition technology” and describing the process in some detail.
[DEFENSE COUNSEL]: But we don’t have the other images. . . . [T]hat’s
the frustrating thing here. They generate a search
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that’s supposed to spit out several images, and
they just present you with one.
I can see if there was a photo array where there
were six or seven other individuals that were
produced as a result of this search, then you know,
I would feel more comfortable. But if you give us
one image, we don’t know where the other ones
were, and we’re saying, “Well, this is indeed the
guy.” And that’s a little bit unfortunate for my
client.
JUDGE BRAGUNIER: Well, he’s not . . . this witness isn’t saying that.
[DEFENSE COUNSEL]: No, but he is talking about what somebody else
ran through a machine, what somebody else ran
through . . . some facial recognition technology.
So, we’re getting . . . evidence that was generated
by two other individuals. One was a desk clerk at
the Charles County Sheriff’s office and the other
one was an investigator . . . from who knows
where?
(Emphasis supplied).
Facial profiling technology is a new weapon in the investigative arsenal, but it is
one increasingly familiar to any aficionado of modern-day detective dramas on television.
A photograph of a face, such as the one from the fake North Carolina driver’s license in
this case, is fed into the system. The system then compares that photograph with the
thousands or even millions of known faces already in the system, as it searches for a
counterpart. It is akin to computerized searching for identical fingerprints. Precisely how
the computer does this is something well beyond our ken. There is no suggestion, however,
that these computerized identification methodologies are not now perfectly reliable
investigative tools.
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Reliability does not matter, however, because the computerized identification is not
ultimately evidence in court. It is simply a guide to put the investigator on the right track.
The only evidentiary identification that mattered was the one-on-one identification made
in the courtroom between the face on the fake North Carolina driver’s license and the face
on the appellant’s known Maryland driver’s license or, perhaps, the comparison between
the face on the fake North Carolina driver’s license and the face of the defendant sitting in
the dock. That was the evidence that was before Judge Bragunier in her factfinding
capacity. She was never asked to rely upon the computerized identification. How Detective
Kelly found his way to the appellant’s Maryland driver’s license, therefore, was
immaterial. That license spoke for itself.
Detective Kelly himself did not testify in any way about facial profiling technology.
The State never questioned him about such technology. Information about facial profiling
technology, against which the appellant rails now as fatally contaminating, did not come
from the mouth of Detective Kelly. It came only from the mouth of defense counsel. The
entire subject was mentioned only by defense counsel in the course of arguing to the court.
If Judge Bragunier was influenced by repeated references to such technology, it was
defense counsel who did the referencing. The State never mentioned the subject.
Instead of allowing Detective Kelly to proceed, as the law clearly directs, on the
basis of “information received,” defense counsel continued to insist that there must be a
full explanation as to how the “information received” was generated and by whom.
[DEFENSE COUNSEL]: So, Your Honor . . . Your Honor, he has no
personal knowledge, nor can he tell the Court how
19
he generated this information, he can only rely on
what somebody else did.
And that’s where we are today, it’s just . . . there
is no link, no connection. Nobody is testifying as
to how that information was generated. The State
is just giving you a picture of a Motor, you know,
a Motor Vehicle picture and saying, “Well, you
know, this is what he did.” And we don’t have all
the other pictures that were generated.
(Emphasis supplied).
The State replied, “The way that the suspect was developed in this case is
completely irrelevant.” Judge Bragunier agreed with the State and overruled appellant’s
objection. In this, we see no error. Every mention of facial profile technology was made by
the appellant and not by the State. Virtually every even indirect allusion to it was made by
the appellant and not by the State. Only a trial judge, of course, can commit reversible
error, and the appellant does not identify any ruling by Judge Bragunier that constitutes
reversible error. All we have is undifferentiated angst.
Harmless Error Redux
Even if, again purely arguendo, Judge Bragunier committed some conceivable error
in dealing with how Detective Kelly came to locate the appellant, such presumptive error
would have been transcendently harmless. We are persuaded beyond a reasonable doubt
that even if Judge Bragunier had never had an inkling as to how Detective Kelly had been
led to the appellant’s Maryland driver’s license, her verdict of guilty would have been
precisely the same.
A Reader’s Guide To Zemo v. State
20
This brings us to Zemo v. State, 101 Md. App. 303, 646 A.2d 1050 (1994), and the
appellant’s heavy reliance on it. The appellant objects to Detective Kelly’s testimony at
two different levels, and we will respond with respect to each. At the initial admissibility
level, the appellant objected to the admissibility of the search made of the North Carolina
database that revealed that the driver’s license used by the appellant to perpetrate his theft
by deception had been a fake. In addition to contending that the search of the database had
been conducted by the clerk of the Charles County Sheriff’s Office acting alone and not in
conjunction with Detective Kelly, the appellant, in reply brief, argues strenuously that the
search violated the Rule Against Hearsay:
In order for the hearsay exception to apply, Md. Rule 5-803(b)(10)
requires “testimony or certification in accordance with Rule 5-902 that a
diligent search has failed to disclose a record[.]” However, there was no such
testimony or certification in this case. Here, Det. Kelly testified that he gave
the copy of the driver’s license to a desk clerk at the police station. He
explained that desk clerks have access to a different computer system than
he does, and that “[t]he information, we’ll provide that to them, and they will
conduct the check and explain [] any findings that they have as a result of
that search.” This testimony does not establish that a “diligent search” was
conducted, as required by Md. Rule 5-803(b)(10). Additionally, Det. Kelly’s
testimony that he was “standing with the individual at the front desk,” and “I
was not monitoring every single move that they made,” is not equivalent to
Det. Kelly conducting the search himself, particularly when he testified that
“their system is a little different than ours[.]”
(Emphasis supplied).
We have fully answered that contention supra under the subheads “To Find Nothing
Is To Discover Something” and “Detective Kelly Spoke For Himself.”
At that same initial admissibility level, the appellant, strenuously and at great length,
objected to the fact that the use of the facial profiling technology had led to the
21
identification by Detective Kelly of the appellant. Objection was made to the fact that the
identification was based on “unproven technology.”
[DEFENSE COUNSEL]: Your Honor, I’m going to object to the
identification of the Motor Vehicle photo of Mr.
Geiger coming in. Again, . . . that photo
identification was generated using unproven
technology.
That technology is not certified or authorized in
any state in this country, as well as the federal . . .
government. Those kind of searches and the
results that are generated from them are not
accepted anywhere, nor is the technology
accepted anywhere.
(Emphasis supplied).
At one point, the objection seemed to wander mysteriously into the world of
constitutional identification law, as if challenging the impermissible suggestiveness of a
photographic array.
[DEFENSE COUNSEL]: But we don’t have the other images. . . . [T]hat’s
the frustrating thing here. They generate a search
that’s supposed to spit out several images, and
they just present you with one.
I can see if there was a photo array where there
were six or seven other individuals that were
produced as a result of this search, then you know,
I would feel more comfortable. But if you give us
one image, we don’t know where the other ones
were, and we’re saying, “Well, this is indeed the
guy.” And that’s a little bit unfortunate for my
client.
(Emphasis supplied).
22
The objection then reverts to the hearsay theme that Detective Kelly had no personal
knowledge but was simply passing on the work product of someone else, who did not
testify.
[DEFENSE COUNSEL]: Your Honor, he has no personal knowledge, nor
can he tell the Court how he generated this
information, he can only rely on what somebody
else did.
And that’s where we are today, it’s just . . . there
is no link, no connection. Nobody is testifying as
to how that information was generated. The State
is just giving you a picture of a Motor, you know,
a Motor Vehicle picture and saying, “Well, you
know, this is what he did.” And we don’t have all
the other pictures that were generated.
(Emphasis supplied).
We have fully answered that contention supra under the subheads “Sitting In The
Dock,” “Proceeding On ‘Information Received,’” and “Facial Profiling Technology.”
In an unusual appellate maneuver, the appellant, without expressly abandoning
these more directly substantive objections, backs up and makes a run at Detective Kelly’s
testimony from an entirely different direction, relying completely on this Court’s Zemo v.
State. The argument is that by allowing Detective Kelly to testify about investigative steps
he took that were irrelevant, Judge Bragunier erroneously allowed the State, by offering
extraneous corroboration of his irrelevant findings, to bolster Detective Kelly’s credibility.1
The defense brief recites:
1
Detective Kelly’s credibility was never challenged in any respect and did not seem
to be in any need of bolstering.
23
In Zemo, the details of the detective’s investigation had no bearing on the
issue of guilt or innocence. Instead, the prosecution improperly used those
details to bolster the witness’s belief that the defendant was involved in the
crime.
This case is similar to Zemo. Here, Det. Kelly testified about the
investigative steps he took, including whom he spoke to and why he spoke
to them, that ultimately led him to Mr. Geiger—the sole suspect. Det. Kelly
testified about a “driver’s license check” run by a “desk clerk” and about how
crime analyst, Mr. Rodriguez, “entered” the photo and developed Mr. Geiger
as a suspect. Here, as in Zemo, Detective Kelly “vicariously imparted cryptic
reports from unnamed sources off-stage, who would never appear before a
live audience.”
(Emphasis supplied).
Relying totally on Zemo, the appellant’s argument goes on to argue that these
irrelevant sources served to corroborate Detective Kelly’s conclusion that the appellant was
guilty.
Det. Kelly’s testimony regarding the details of his investigation had
no relevance other than [to] bolster the accuracy of Det. Kelly’s development
of Mr. Geiger as a suspect. The statements by the unnamed desk clerk to Det.
Kelly regarding the lack of search results in the North Carolina MVA
database and Mr. Rodriguez’s statements to Det. Kelly indicating that the
individual depicted in the driver’s license photograph after Mr. Rodriguez
“entered” the driver’s license photograph were hearsay statements analogous
to the statements made by the confidential informant to the investigating
detective in Zemo.
The only possible import of such testimony was to
convey the message that the [computer search results] 1) knew
who committed the crime, 2) [were] credible, and 3) implicated
the appellant. Both the confrontation clause and the rule
against hearsay scream out that the appellant was denied any
opportunity to confront that confidential accuser.
101 Md. App. at 306. Here, Det. Kelly’s testimony about the digital search
results that pointed the finger at Mr. Geiger conveyed to the factfinder (the
trial court) that they must have gotten it right. Moreover, like in Zemo,
24
neither the computer programs nor those who operated them were available
for cross-examination.
(Emphasis supplied).
In reply brief, the appellant took special umbrage at the fact that “the State never
acknowledge[d] Zemo in its brief.” The appellant wants his case to be a clone of Zemo.
The vexing problem the appellant has with Zemo, however, is that Zemo does not
stand for the proposition for which the appellant cites it. There is, to be sure, one peripheral
similarity between the two cases. The appellant has constructed his thesis based on that one
peripheral similarity. The appellant’s focus in this case is on the testimony of Detective
Kelly describing his investigation. This Court’s focus in Zemo, leading to a reversal of a
conviction, was on the testimony of Detective Augerinos describing his investigation. At
that point, however, all similarity between the two cases has come to an end.
Our focus must shift from the periphery to the core. The actual focus in Zemo was
not on the detective’s testimony describing his investigation per se. It was on the fact,
rather, that the detective, by virtue of unduly extensive and, in that case, totally irrelevant
testimony about his investigative procedures, introduced into the case two highly
prejudicial pieces of information against the defendant. The first was that the defendant
invoked his right to silence in a case where his silence was not admissible.
Detective Augerinos was permitted to testify that he gave the
appellant Miranda warnings and that the appellant, following those
warnings, chose to remain silent. There was no legitimate purpose for that
testimony. The appellant never took the stand and there was no arguable way
in which his silence could have been used for impeachment purposes. Post-
Miranda silence, moreover, has no legitimate relevance or probative value.
25
101 Md. App. at 305 (emphasis supplied). We went on to explain the possible prejudice
accruing from that inadmissible testimony.
Even laymen can figure out that when one is privileged not to respond
because of self-incrimination, it is because the response, if unprivileged,
would be incriminating. Because of the natural (and by no means illogical)
tendency to equate silence with guilt, the Constitution in many
circumstances, including the one at bar, forbids even mentioning, and thereby
drawing attention to, such silence. Flouting the constitutional taboo, attention
was drawn to the appellant’s silence in this case.
101 Md. App. at 316 (emphasis supplied).
The other inadmissible but damning evidence was reference to a confidential
informant and to the gratuitous corroboration of many of the incriminating details of the
story told by the confidential informant, bolstering the informant’s conclusion as to Zemo’s
guilt.
He testified, over objection, that he received evidence about the crime from
a confidential informant, that the informant’s information put him on the trail
of the appellant and other suspects, that other parts of the informant’s
information were corroborated and turned out to be correct, and that, acting
on the informant’s information, he arrested the appellant. The only possible
import of such testimony was to convey the message that the confidential
informant 1) knew who committed the crime, 2) was credible, and 3)
implicated the appellant. Both the confrontation clause and the rule against
hearsay scream out that the appellant was denied any opportunity to confront
that confidential accuser.
101 Md. App. at 306 (emphasis supplied).
The present case and Zemo are diametrically different in that the invocation of the
right to silence in Zemo and the detailed corroboration of information from the confidential
informant in Zemo were both completely inadmissible and highly prejudicial. In this case,
by stark contrast, 1) the information that the North Carolina license presented to the theft
26
victim was a fake and 2) the identification of the anonymous thief as the appellant were
both highly relevant matters as to which evidence would have been admissible. What
Detective Augerinos introduced in Zemo, by contrast, was irrelevant and inadmissible.
What Detective Kelly introduced was properly in the present case. The contrast between
the two cases is one of 180°.
The dissimilarity between this case and Zemo does not end there. An even more
significant difference between this case and Zemo is one that engages the very ABCs of
“How To Read An Appellate Opinion 101.” Stare decisis does not consist of plucking a
lyric phrase here or there from the low-hanging fruit. Nor does it consist even of taking a
succulent looking sentence out of its constraining context. The auditor must make a
genuine search for the central thrust of a decision because therein lies the only locus of
precedential authority.
A genuine reading of Zemo makes clear that the State’s error that led to the reversal
of the conviction in that case consisted not simply of the introduction of two items of
significantly prejudicial evidence against the defendant, but in the deliberate and protracted
fashion in which it was done. We announced at the very outset of our opinion that the
dispositive flaw lay not simply in the State’s introduction of inadmissible and prejudicial
material but in having done so deliberately and repeatedly.
In combination, moreover, [the errors] reveal an instance of prosecutorial
“overkill,” wherein the State, not by passing or careless reference but by a
sustained line of inquiry, sought to “milk” the testimony of Detective
Augerinos for far more than it was legitimately worth.
27
101 Md. App. at 305 (emphasis supplied). Our opinion developed at length the extent to
which the State exploited the wide-ranging exploitation of extrinsic evidence.
Over the course of the first eighteen of those pages, Detective Augerinos
described his physical observations of the method of entry into the buildings,
of the damage done to the vending machines that were broken open, and of
the unsuccessful effort to drill into the floor safe. He was the key witness to
the corpus delicti of the crime.
....
At that point, however, Detective Augerinos’s role in the drama was
concluded, and it was time for him to depart the stage. Instead, he remained
on center-stage for an additional fifteen pages of transcript, recounting events
as to which he had no direct knowledge and which were themselves without
relevance. Once he had, in the trial’s opening scene, established the corpus
delicti of the crime, it was then for other players to develop the appellant’s
unfolding complicity.
....
Detective Augerinos, nonetheless, lingered on stage almost in the role
of a Greek Chorus. He vicariously imparted cryptic reports from unnamed
sources off-stage, who would never appear before the live audience.
101 Md. App. at 307 (emphasis supplied).
Our critical focus in Zemo was on the pivotal difference between an inadvertent
error or even a purposeful but fleeting error, on the one hand, and a deliberate and sustained
exploitation of repeated error, on the other hand. The deliberate and quantitative factor was
significant.
The taboo reference to the silence here was obviously no inadvertent lapse
by a careless witness nor even a gratuitous little bonus tossed in by a more
clever witness. Such evidentiary missteps are little more than ordinary trial
static. The harkening to the sound of silence on this occasion was, by
contrast, the very end sought by this entire phase of the examination.
101 Md. App. at 315 (emphasis supplied).
28
In dramatic contrast to the bravura performance of Detective Augerinos in Zemo,
as he played the role of what Zemo called a “Greek chorus” in narrating the full unfolding
of the prosecution’s case, 101 Md. App. at 307, Detective Kelly’s testimony about the
search of the North Carolina database in this case was becomingly brief and modest. The
appellant refers to this testimony’s having happened over the course of six pages of the
trial transcript. We have examined these pages and find that this phase of the State’s case
did, indeed, stretch over 129 lines of transcript. Detective Kelly, however, only got to speak
39 of those lines and seven of those 39 lines consisted only of a monosyllabic “Yes” or
“No.” The rest was procedural wrangling among the defense attorney, the prosecuting
attorney, and the trial judge. Detective Kelly sat quietly and modestly in the eye of that
forensic hurricane. No Greek chorus was he. This quantitative analysis, moreover, is one
above and beyond the other disparity that Detective Kelly’s testimony in this case was
admissible whereas Detective Augerinos’s testimony in Zemo was inadmissible.
With respect to the State’s use of facial profiling technology, to any insight into how
such technology works, or to the significance of any identification made by the technology,
Detective Kelly was interrupted in mid-sentence almost before he began.
[PROSECUTOR]: Is there anything else that you did in terms of this
investigation?
DETECTIVE KELLY: Yes, I made contact with . . . a crime analyst, Mr.
Rodriguez . . . [,] who works in conjunction with
our office, and I provided him with the photo that
I had obtained from the driver’s license. He
entered that into –
[DEFENSE COUNSEL]: Your Honor, this is where I am going to object.
29
[PROSECUTOR]: And I’m fine with that.
JUDGE BRAGUNIER: Okay.
(Emphasis supplied).
No Greek chorus was ever so effectively silenced. Detective Kelly never even got
to mention the name or the subject of facial profiling technology or to describe its modality
in any way. That all came exclusively from the argument of defense counsel and may not
now be attributed to the State. The appellant attempts to knock down a straw man of his
own making. The testimony of Detective Augerinos in Zemo and of Detective Kelly in this
case are in no way analogues of each other. The appellant’s reliance on Zemo is completely
inapt.
That inapt reliance is ironic in that Zemo, in its opening paragraphs, went out of its
way to caution against such an over-reading of its factual scenario. Under the subhead of
“Random Error Versus Sustained Error,” Zemo even provided a reader’s guide as to HOW
NOT TO READ THE OPINION.
As we begin to examine the tainted testimony of Detective Augerinos,
it is important to note what we are not holding and what we are not even
suggesting.
101 Md. App. at 306 (emphasis in original).
Zemo then went on to amplify that admonition and to emphasize precisely what it
meant by the use of those words.
We are not counseling an overreaction to every passing or random injection
of some arguably prejudicial material into a trial. A few smudges of prejudice
here and there can be found almost universally in any trial and need to be
assessed with a cool eye and realistic balance rather than with the fastidious
over-sensitivity or feigned horror that sometimes characterizes defense
30
protestations at every angry glance. We are not talking about the expected
cuts and bruises of combat. What we are objecting to in this case, rather, is a
sustained and deliberate line of inquiry that can have had no other purpose
than to put before the jury an entire body of information that was none of the
jury’s business. We are not talking about a few allusive references or
testimonial lapses that may technically have been improper. We are talking
about the central thrust of an entire line of inquiry. There is a qualitative
difference. Where we might be inclined to overlook an arguably ill-advised
random skirmish, we are not disposed to overlook a sustained campaign.
Id. (Emphasis supplied).
In relying, as he does, almost exclusively on Zemo, the appellant cites Zemo for a
message that Zemo affirmatively disavowed. It would ill behoove the appellant, moreover,
to tell the Court that wrote Zemo what it was that Zemo meant to say. We affirm the
conviction.
JUDGMENT OF THE CIRCUIT
COURT FOR CHARLES COUNTY
AFFIRMED.
COSTS TO BE PAID BY THE
APPELLANT.
31