Geiger v. State ( 2017 )


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  • 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
    2
    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
    3
    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
    4
    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.
    5
    [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.
    6
    (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.
    7
    [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.
    8
    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
    9
    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,
    10
    
    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,
    13
    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).
    15
    “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.
    16
    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
    17
    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.
    18
    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
    

Document Info

Docket Number: 2668-16

Judges: Friedman, Beachley, Moylan

Filed Date: 12/5/2017

Precedential Status: Precedential

Modified Date: 10/19/2024