In Re D.M.

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2712
September Term, 2014
IN RE: D.M.
Meredith,
Arthur,
Sharer, J. Frederick,
(Retired, Specially Assigned),
JJ.
Opinion by Sharer, J.
Filed: June 29, 2016
The Circuit Court for Baltimore City, sitting as a juvenile court, found D.M.,
appellant, “involved” in the delinquent act of theft of property valued at less than $1,000,
thus affirming the findings of the juvenile master. Appellant was subsequently committed
to the Department of Juvenile Services for placement.
In this appeal, appellant raises two questions for our consideration:
1. Did the juvenile court err in refusing to permit the
removal of shackles from appellant during the court
proceedings?
2. Did the juvenile court err in denying appellant’s motion
to suppress?
For the reasons expressed herein, we find neither reversible error nor abuse of
discretion, and affirm the judgments of the circuit court.
BACKGROUND
At about 9:50 a.m. on August 5, 2014, Nicole DiHart was walking on Pratt Street in
Baltimore City when her cell phone rang. As she retrieved the cell phone to answer the call,
it was snatched from her hands by a young black man with short hair, whom she estimated
to be between ten and 12 years of age, wearing blue jeans, blue underwear visible above the
jeans, and no shirt, riding an older blue and red BMX-style bicycle. As he rode away, he
looked back over his shoulder two times, allowing DiHart to see his face. When she got to
work at the University of Maryland, DiHart reported the incident to the campus security
officers in her building.
About two-and-a-half hours later, DiHart was contacted by the police who asked her
if she would ride by in a police cruiser to view a potential suspect at a nearby McDonald’s.
At the McDonald’s, DiHart first noticed an older blue and red BMX-style bicycle parked
nearby. She then recognized appellant as the person who had snatched her cell phone earlier
that morning. She noticed that he had changed his clothes and was now wearing a shirt or
jumpsuit, but was, nonetheless, able to affirmatively identify him to the police. At the
adjudicatory hearing, DiHart again identified appellant as the individual who had stolen her
cell phone.
Following his arrest, appellant appeared with his attorney at several hearings before
a juvenile court master.1 On November 6, 2014, appellant was brought to court for an
adjudicatory hearing before the master. He was transported in leg and wrist restraints by
court security officers, and remained so shackled during the proceedings.
At the outset, appellant’s attorney requested that the master authorize the removal of
appellant’s restraints, which the master declined to order. We shall discuss that matter in
further detail in Part I of this opinion. Counsel also moved to suppress DiHart’s out-of-court
identification. After hearing testimony from DiHart and argument from counsel, the master
denied the suppression motion and ruled that appellant was involved in the theft of DiHart’s
cell phone.2 The formal adjudication followed.
1
As of October 1, 2015, after the relevant hearings in this case, juvenile court masters
are now known as magistrates. Md. Rule 1-501 (effective March 15, 2015).
2
By stipulation, the evidence produced at the motions hearing was incorporated into
the merits trial.
2
Appellant filed exceptions challenging both the master’s denial of his motion to
suppress and her refusal to order removal of his shackles during the adjudication hearing.
The exceptions were heard, on the record, in the circuit court on January 20, 2015. After
hearing the arguments of counsel, the court determined that the identification procedure used
by the police was not impermissibly suggestive and that DiHart’s out-of-court identification
was reliable. The court further concluded that requiring appellant to remain shackled during
his adjudication hearing was not prejudicial. Accordingly, the court denied appellant’s
exceptions, and affirmed the delinquency adjudication.
ANALYSIS
I. Shackling During Adjudicatory Hearing
Prior to each of his hearings before the juvenile master, defense counsel requested that
appellant’s shackles be removed. In each instance, the master denied the request without
making any findings of the need for him to remain shackled.
At the adjudicatory hearing on November 6, 2014, appellant’s attorney again
requested that appellant’s restraints be removed during the proceedings. For understanding
of the issue, we include the following exchange:
[Defense Counsel]: I would like the restraints removed before any
witnesses come into the courtroom. This is –
THE COURT: They’re not going to be removed. He can have them in
front if the officer says it’s okay.
3
[Defense Counsel]: Your Honor, this is a case that I’ve had
(indiscernible). Most cases are a witness identifying D as the person
who –
THE COURT: That happens all the time.
[Defense Counsel]: But, Your Honor, having him in shackles is an
indication to the witnesses that this is the young man who did it. This
is a due process issue, Your Honor. It’s not just I want them off
because we’re having a hearing. We don’t allow – in the adult system
we would never allow a jury –
THE COURT: This is not the adult system, sir.
[Defense Counsel]: Okay. But the implication is the same.
THE COURT: If his hands are handcuffed in front of him then they
could be down in his lap and no one can see.
[Defense Counsel]: You know, Your Honor, when you walk in the
courtroom you’ll see the leg shackles. They will see –
THE COURT: Oh, I’m not having anybody’s leg shackles taken off.
[Defense Counsel]: Your Honor –
THE COURT: It’s not going to happen, sir.
[Defense Counsel]: Then this is not going to be a fair trial because
you’ll be sending the signal –
THE COURT: Okay, [Defense Counsel], let’s do this. We’ll just go
ahead and then you’ll take your exception.
Now, Officer [W.] –
OFFICER [W.]: Yes.
4
THE COURT: – the young man has a trial. Is he handcuffed in front
or in back right now? Okay. Now, are you going to be staying with
him the whole time?
OFFICER [W.]: If I have to, probably will.
THE COURT: Okay. Are you comfortable putting his handcuffs in
front?
OFFICER [W.]: No. I’m going to leave them on the back. He has a
problem with his fingers so I have him –
THE COURT: Say that again.
OFFICER [W.]: He has a problem with his fingers.
THE COURT: What do you mean with his fingers?
OFFICER [W.]: He –
THE COURT: You mean he gives people the finger?
OFFICER [W.]: Yeah, he (indiscernible).
[Defense Counsel]: Your Honor, he’s never done that in a courtroom.
THE COURT: Okay. Hold on. Well, here’s the thing. It’s going to
be awhile and I don’t think he can sit comfortably handcuffed behind.
[D.], –
[D.M.]: Yes.
THE COURT: – you know we don’t allow that here. You don’t give
people the finger here in court. Do you understand that?
[D.M.]: Yes.
5
THE COURT: So I’m going to ask Officer [W.] to put your handcuffs
in front and I’m going to trust you to respect the rules of court and not
give anybody the finger, okay?
[D.M.]: Yes, Your Honor.
THE COURT: Okay. Now –
[Defense Counsel]: You’re not giving me an exception. You’re giving
me a plea. This is an issue where –
THE COURT: [Defense Counsel], you do your thing, my friend. I’m
just trying to run my courtroom the way I’ve been doing it for about 20
years now. Okay. Now, do you want to borrow a jacket or something
to put over his handcuffs since the officer doesn’t feel comfortable?
[Defense Counsel]: I don’t see how that makes it any better, Your
Honor, not really.
THE COURT: Well, other than that, he’d just have to keep them down
in his lap.
[Defense Counsel]: Well, I mean, if he –
THE COURT: Your attorney, [D.], is concerned about someone seeing
your handcuffs. So when you’re sitting down, can you keep your hands
in your lap?
[Defense Counsel]: Well, Your Honor, that’s a problem too because I
need him to communicate with me.
THE COURT: Well, he can talk to you in your ear.
[Defense Counsel]: I need him to write things down so I can –
THE COURT: He’s not going to write anything down.
[Defense Counsel]: Are you kidding me? The last two adjudications
we had all he did was write things down and he has an absolute right to
communicate with –
6
THE COURT: Well, then he can put the pad in his lap.
[Defense Counsel]: Your Honor, you’re restricting his right to
effectively assist his own counsel.
THE COURT: Well, I appreciate your argument. I do not agree with
your argument. I’m going to try to put him in a situation where he can
participate fully. Now, actually, I don’t think that people are going to
be able to see all the way over there to his table. If he wants to write on
the table with a pad and pen, that’s fine. If he wants to write down in
his lap, keep the pad and pen down in his lap, that’s fine, too. You two
may decide that. I’m happy to lend you something to put over his
handcuffs physically so they won’t be obvious or he can just –
[Defense Counsel]: Your Honor, I’m not –
THE COURT: – keep them in his lap.
[Defense Counsel]: – conceding anything. He shouldn’t have
handcuffs on his hands -
THE COURT: Okay.
[Defense Counsel]: – during trial.
THE COURT: Okay. Thank you, [Defense Counsel].
[Defense Counsel]: So when the –
THE COURT: He should have handcuffs on. If–
[Defense Counsel]: – witness sees him with handcuffs on –
THE COURT: – the Court makes a decision that he should wear
handcuffs, he should wear handcuffs and I have already –
[Defense Counsel]: But there’s –
THE COURT: – spoken to –
7
[Defense Counsel]: – no danger, Your Honor. There’s no risk of
violence, Your Honor.
THE COURT: [Defense Counsel], I am responsible. Now, this is my
training. I am responsible for the welfare of everybody who comes into
my courtroom. I speak to the officers about security and I respect what
they tell me because I am the one who will answer if someone gets hurt
in here, including [D.]. So that’s what - that’s the perspective that I’m
coming from, just so you understand. Now –
[Defense Counsel]: And the first allegation that’s been raised
(indiscernible) –
THE COURT: Okay. That’s enough. Don’t answer me back another
time.
[Defense Counsel]: – dangerous, Your Honor.
THE COURT: Do not answer me back another time because there’s a
point in time where you need to stop and say thank you Your Honor and
have a seat. Call your case.
Appellant suggests that the presumption against shackling that is recognized in adult
criminal courts should likewise be applied in juvenile proceedings. We agree and explain.
The U.S. Supreme Court has held that, in criminal proceedings against adult
defendants, the Due Process Clause “prohibit[s] the use of physical restraints visible to the
jury absent a trial court determination, in the exercise of its discretion, that they are justified
by a state interest specific to a particular trial.” Deck v. Missouri, 544 U.S. 622, 629 (2005).
The prohibition applies to both the guilt and penalty phases of trial, id. at 633, and is based
on “three fundamental legal principles”: (1) the presumption of innocence; (2) the right to
consult with counsel; and (3) the “courtroom’s formal dignity, which includes the respectful
8
treatment of defendants....” Id. at 630–31. Maryland has adopted the law enunciated in
Deck: “The prejudice posed by security measures, and whether a compelling state interest
outweighs that prejudice, must be measured on a case by case basis.” Lovell v. State, 347
Md. 623, 640 (1997) (quoting Hunt v. State, 321 Md. 387, 410 (1990)).
Nonetheless, there are practical limits to this constitutional right. Where a defendant
is “disruptive, contumacious, stubbornly defiant” in a manner that interferes with the dignity,
order, and decorum of a courtroom, the trial court has the discretion to order “constitutionally
permissible” accommodations made, after warning the defendant of those potential
consequences, up to and including expelling the defendant from the courtroom. Illinois v.
Allen, 397 U.S. 337, 343-44 (1970) (offering shackling, citation for contempt, and outright
removal from the courtroom as among acceptable means of maintaining order during
criminal proceedings). The right does not expire upon the court’s use of such consequences;
once lost, it “can, of course, be reclaimed as soon as the defendant is willing to conduct
himself consistently with the decorum and respect inherent in the concept of courts and
judicial proceedings.” Id. at 343. These measures are to be tailored to the specifics of each
case, though, and are not meant for use in a blanket application to all defendants. Id.
Shackling and other such accommodations are only appropriate when there is a
compelling state interest. Wagner v. State, 213 Md. App. 419, 477 (2013). Such essential
state interests that may justify the physical restraint of a defendant include preventing the
defendant's escape, protecting those in the courtroom, and maintaining order in the
9
courtroom. Hunt v. State, 321 Md. at 410. But, “[u]nless one or more of these factors
outweigh any prejudice to the defendant, physical restraint is inappropriate.” Id. A
particularized finding of such must be made on the record. See id.
In Holbrook v. Flynn, 475 U.S. 560 (1986), the Supreme Court limited the scope of
the right of adults to appear without overtly suggestive security measures to the effects of its
possible violation. Id. at 567 (“This does not mean, however, that every practice tending to
single out the accused from everyone else in the courtroom must be struck down.”). Judicial
review of such a complaint is limited to determining whether “what [jurors] saw was so
inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial; if
the challenged practice is not found inherently prejudicial and if the defendant fails to show
actual prejudice, the inquiry is over.” Id. at 572.
The constitutional rights afforded adult defendants are not automatically applied to
juveniles, because the juvenile system is not in the nature of criminal proceedings. Rather,
it is a system designed with the goal of treatment and rehabilitation of children, rather than
punishment. Md. Code Ann., Cts. & Jud. Proc. § 3-8A-02(a)(1); see also In re Keith W., 310
Md. 99, 106 (1987).
The distinctions between the juvenile and criminal systems have engendered
considerable discussion. “Juvenile proceedings are of a special species that has been
designed by the General Assembly in response to a particular need and to meet a peculiar
problem.” In re Appeal Misc. No. 32, 29 Md. App. 701, 704 (1976). “[A] distinction exists
10
between delinquency proceedings involving juvenile offenders and criminal proceedings
involving adults in the criminal justice arena, even though the conduct underlying a
delinquent act and a crime may be the same.” Lopez-Sanchez v. State, 155 Md. App. 580,
598 (2004). “The dispositions of the juvenile court are not to be considered as punishment
for a crime nor are adjudications of delinquency ‘convictions’, as that word is generally
applied with respect to criminal proceedings.” Appeal Misc. No. 32, 29 Md. App. at 704.
Juvenile proceedings aspire to “the idealistic prospect of an intimate, informal protective
proceeding,” McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971), and “retain their special
and informal nature,” In re Victor B., 336 Md. 85, 92 (1994) (quotation marks omitted). The
purpose of juvenile delinquency proceedings is not primarily to punish the child; rather, “in
disposition, the court will fashion a plan of supervision, treatment, and rehabilitation
appropriate to the juvenile and serving the rehabilitative goals of the [Juvenile Causes] Act.”
Lopez-Sanchez, 155 Md. App. at 598; see also Cts. & Jud. Proc. § 3-8A-19(d)(1)-(2).
Given the special characteristics of the juvenile system, the procedural rights accorded
to juveniles have always deviated substantially from those guaranteed to adult defendants –
differences that have been insisted upon in order to meet the treatment goals of the juvenile
system. See In re Gault, 387 U.S. 1, 14 (1967). To combat the dangers of an entirely civil
system, though, where a child theoretically cannot be deprived of his constitutional rights
because he has none, the Supreme Court has held that children in the juvenile system are
entitled to due process. Id. at 30-31.
11
However, the Court has refrained from “taking the easy way with a flat holding that
all rights constitutionally assured for the adult accused are to be imposed upon the state
juvenile proceeding.” McKeiver v. Pennsylvania, 403 U.S. at 545.3 There is a careful
consideration required of each right prior to extending it to juveniles, which arises from a
deep respect for the juvenile system’s purpose. For instance, the Supreme Court has ruled
that coerced confessions may not be used against juveniles, Haley v. Ohio, 332 U.S. 596, 601
(1948), but it has also been held “that the juvenile is not entitled to bail, to indictment by
grand jury, to a public trial or to a trial by jury,” Gault, 387 U.S. at 14, as those rights would
skew the focus from treatment of the child to something reflective of the criminal system.
We have noted several other rights that Maryland courts have reviewed and found applicable
to juveniles, including the right to a speedy trial, double jeopardy protections, and the right
to counsel. See Lopez-Sanchez, 155 Md. App. at 599 (surveying Maryland case law as it
pertains to rights of accused juvenile offenders). The analysis of whether a particular
procedural right is guaranteed to juveniles under the Due Process Clause centers on whether
granting that right would help achieve or serve to hinder the goals of the juvenile system.
We see no reason why extending to children the right guaranteed adult criminal
defendants to appear in court free of shackles, absent a particularized finding of need, would
impede the objectives of the juvenile system. Indeed, a presumption against shackling would
3
Although the Supreme Court has not yet addressed whether juvenile defendants are
or should be entitled to an individualized determination before they are required to appear
shackled before a juvenile court, several states have done so.
12
more closely serve those objectives, while indiscriminate shackling threatens them.
The Court of Appeals summarized: “the overriding goal of Maryland’s juvenile
statutory scheme is to rehabilitate and treat delinquent juveniles so that they become useful
and productive members of society.” Keith W., 310 Md. at 106. The General Assembly
included the creation of competency, character development, protection and treatment of the
child, and wholesome mental and physical development among the purposes of the Juvenile
Causes Act. Cts. & Jud. Proc. § 3-8A-02(a). These are less likely to be achieved in parallel
to the risks of psychological harm, of an exacerbated sense of shame, and of distrust in the
court system that may arise from the unnecessary shackling of juveniles.4
There are practical consequences to the appearance of juveniles in restraints. While
juveniles are not entitled to trial by jury, their cases often involve witnesses whose
perceptions may be swayed by the sight of a child in physical restraints. Indiscriminate
shackling also physically and, at times, psychologically inhibits the juvenile respondent’s
right to assist counsel and participate in his or her own defense. Where there is the potential
4
The National Center for Mental Health and Juvenile Justice, the Child Welfare
League of America, the National Juvenile Defender Center, and the National Council of
Juvenile and Family Court Judges, among others, have done extensive work in collecting
quantitative, qualitative, and anecdotal data regarding the ill effects of indiscriminate
shackling of juveniles. The National Juvenile Defender Center created the Campaign
Against Indiscriminate Juvenile Shackling in conjunction with the National Campaign to
Reform State Juvenile Justice Systems; in support of the Campaign’s goals, medical and
mental health professionals have published detailed affidavits explaining the harmful
consequences of automatic shackling of juveniles using up-to-date psychological and social
research. As of the date of this opinion, nine such affidavits are available for viewing at:
http://njdc.info/campaign-against-indiscriminate-juvenile-shackling/.
13
for the loss of liberty, a juvenile’s needs in court are “comparable in seriousness to a felony
prosecution.” Gault, 387 U.S. at 36. The use of restraints may impair a juvenile’s physical
ability to take notes and confer freely with counsel, and it might also impair a psychological
willingness to testify or answer a magistrate’s questions openly and candidly. The goals of
the juvenile system being rehabilitative, a juvenile’s active participation in his or her defense
may demonstrate to the court an eagerness to receive treatment or may help guide the court
in crafting an effective and personalized treatment plan. It may further serve as an example
to the juvenile of how engaging the support of others can be beneficial.
The presumption against shackling juvenile respondents has, in recent months, been
one of public concern and discussion.
During the briefing in this case, effective September 21, 2015, the Court of Appeals
adopted the Maryland Judicial Council’s Resolution Regarding Shackling of Children in
Juvenile Court.5 For many of the same reasons appellant so eloquently asserted in his brief
and during oral argument, the Resolution “adopts as policy the presumption against the
shackling of children during proceedings in the Juvenile Court.” Pursuant to the Resolution:
5
The subject was also taken up during the 2016 Session of the General Assembly.
The Senate introduced a bill prohibiting the use of restraints by the Department of Juvenile
Services except under certain circumstances. Juveniles - Restraint and Searches -
Limitations, S. 1072, 2016 Assemb., Reg. Sess. (Md. 2016). The Judiciary Committee of the
House of Delegates amended the bill to implement a task force study instead. Task Force to
Study the Restraint, Searches, and Needs of Children in the Juvenile Justice System, H.D.
1634, 2016 Assemb., Reg. Sess. (Md. 2016).
14
[A]gencies that are responsible for the transport
or transfer of children to, from, and within
courthouses shall retain the discretion to employ
practices that will ensure the security of the child
and others. Once in the court or hearing room,
however, a child is to be unshackled and remain
so absent a particularized security concern. The
judge or juvenile magistrate conducting the
proceeding shall determine whether the child
needs to be shackled in the court or hearing room
pursuant to this policy. Security personnel have
the ongoing responsibility for maintaining
security and order throughout the proceeding.[6]
While the adoption of the Judicial Council Resolution would preclude the routine use
of shackles in juvenile proceedings, the fact remains that, prior to the Court of Appeals doing
so, no court rule, policy, or statute precluded the shackling of juvenile offenders appearing
in Maryland juvenile courts without any particularized findings that such restrictions were
necessary.7,8 Neither the Court of Appeals nor this Court has opined regarding the due
process implications of in-court restraint of juvenile respondents. Likewise, the policy has
never been considered by the Rules Committee as a procedural requirement.
6
The full text of the Resolution is available at: http://mdcourts.gov/
judicialcouncil/pdfs/resolutionregardingshackling20150921.pdf. (last visited June 27, 2016).
7
As of a survey conducted in 2012, Maryland was among the “thirty-six states and the
District of Columbia” which continued to “allow indiscriminate shackling” of juveniles
during juvenile court proceedings. Kim M. McLaurin, Children in Chains: Indiscriminate
Shackling of Juveniles, 38 Wash. U. J.L. & Pol’y 213, 232 (2012).
8
The Circuit Court for Baltimore City, Division of Juvenile Causes, has since adopted
the Court of Appeals policy, effective March 8, 2016.
15
The actions of the Judicial Council and the Court of Appeals are aspirational policies
without, as yet, force of either statutory or case law. To effect uniformity and to eliminate
disparities in practice from courtroom to courtroom, we hold that juveniles should not be
shackled while appearing at juvenile court hearings, unless and until there has been a finding
on the record that the juvenile poses a security concern or threat that would disrupt those
particular proceedings or involve danger to the juvenile or others.
Prejudice
Appellant asserts that the master erred by denying defense counsel’s request to remove
his shackles during his adjudicatory hearing, that the master failed to make individualized
findings that he posed a risk that justified the use of restraints, and that the record did not
demonstrate that the restraints were necessary. Appellant concludes that, because the
master’s refusal to remove his restraints was so highly prejudicial, it constituted reversible
error, and that the circuit court further erred by overruling his exception to the master’s
determinations.
In our view, the undisputed fact of D. having been restrained throughout the
proceeding did not impede his right to a fair adjudicatory proceeding. It is our function to
consider the scene presented to those who might have been prejudiced by the sight of the
shackles and determine whether what they saw was so inherently prejudicial as to pose an
unacceptable threat to D.’s right to a fair proceeding. See Holbrook, 475 U.S. at 572. As in
Holbrook, D. has failed to show that he was unable to communicate with his counsel, or that
16
the witness was unduly prejudiced by his restraints. DiHart made a reliable out-of-court
identification prior to seeing him in restraints in the courtroom, reducing the need for a
constitutionally pure in-court identification. Accordingly, we shall affirm the holding of the
juvenile court overruling D.’s exceptions.
Moreover, the juvenile court master who conducted appellant’s adjudicatory hearing
was not bound by then-existing rules, policies, statutes, or holdings of any other jurisdiction.9
Thus, at the time of appellant’s adjudicatory hearing, whether to remove his shackles was left
to the discretion of the court and no particularized findings of fact were required to justify
denying defense counsel’s request for removal of the shackles.
The juvenile master’s function was to make factual findings and recommendations for
review by the circuit court regarding the sufficiency of the evidence of appellant’s
involvement in the theft of DiHart’s cell phone. See Cts. & Jud. Proc. § 3-807(d)(1)
(providing “the proposals and recommendations of a master for juvenile causes do not
constitute orders or final action of the court”) (applicable to this case through § 3-8A-04 of
same Article); Md. Rule 11-111(a)(2) (same); § 3-807(d)(2) (a master’s “proposals and
recommendations shall be promptly reviewed by the court, and, in the absence of timely and
9
At the time of the 2012 McLaurin survey, “[o]nly eleven states ha[d] banned
indiscriminate shackling of juveniles via legislation, regulation, appellate case law, or court
policy.” 38 Wash. U. J.L. & Pol’y 213, 239 (2012) (identifying three other states with
pending legislation).
17
proper exceptions, they may be adopted by the court and appropriate orders entered based on
them.”); Md. Rule 11-111(c)-(d) (same).
In conducting its exceptions function, the circuit court recognized that the master was
required to act as a “neutral arbitrator in the case” and to exercise her “capacity to separate
and ignore any shackles” appellant was wearing during the hearing. There is no indication
in the record that the master’s fact-finding and application of the law was adversely affected
by the shackles. Nor, despite counsel’s assertions, does the record reveal that the shackles
prevented appellant from taking notes or communicating effectively with his attorney during
the hearing. While appellant asserts damaging prejudice, none is apparent from the record.
Therefore, discerning no prejudice, we conclude that appellant’s due process rights and
presumption of innocence were not compromised by the master’s refusal to order removal
of the restraints during the adjudicatory hearing.
Appellant further suggests that DiHart may have misidentified him as her assailant at
the adjudication hearing because he was the only person in the room bound in restraints. As
we discuss at greater length below, neither the master nor the circuit court erred in
concluding that DiHart’s out-of-court identification of appellant was reliable and therefore
admissible at his adjudication hearing. It was for the master to consider all the applicable
circumstances, including that appellant’s shackles were potentially visible, and to evaluate
DiHart’s credibility in light of those circumstances. The master was able, throughout the
proceedings, to consider DiHart’s demeanor and hear her responses to the parties’ questions
18
as they occurred. The master found DiHart’s testimony, which was consistent with her
previous out-of-court identification, to be compelling. There is nothing in the record to
indicate that the master’s findings in this case were clearly erroneous.
For all the foregoing reasons, we conclude that the circuit court did not err by
sustaining appellant’s exception to the master’s denial of his request to remove his shackles
during his adjudication hearing.
II. The Out-of-Court Identification
We turn now to the assertions that the show-up procedure utilized by the police was
impermissibly suggestive and that the master erred in not granting appellant’s motion to
suppress the resulting out-of-court identification by DiHart. On review of D.’s exceptions,
the circuit court accepted the master’s findings, agreeing that her identification was reliable,
based on DiHart’s opportunity to view her assailant at the time of the incident, the detailed
descriptions she provided regarding both her assailant and the bicycle, and the fact “that she
appeared to memorize what he was wearing or the lack thereof.”
Principles of due process protect those accused of criminal acts “‘against the
introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through
unnecessarily suggestive procedures.’” James v. State, 191 Md. App. 233, 251-52 (2010)
(quoting Webster v. State, 299 Md. 581, 599-600 (1984)). The Court of Appeals recently
reaffirmed the two-step analysis of the admissibility of an extrajudicial identification:
19
The first question is whether the identification procedure
was impermissibly suggestive. If the procedure is not
impermissibly suggestive, then the inquiry ends. If, however,
the procedure is determined to be impermissibly suggestive, then
the second step is triggered, and the court must determine
whether, under the totality of circumstances, the identification
was reliable. If a prima facie showing is made that the
identification was impermissibly suggestive, then the burden
shifts to the State to show, under a totality of the circumstances,
that it was reliable.
Smiley v. State, 442 Md. 168, 180 (2015) (internal quotation marks and citations omitted).
In evaluating the reliability of an out-of-court identification, the factors we consider
include the following:
(i) the opportunity of the witness to view the criminal at the time
of the crime;
(ii) the witness’ degree of attention;
(iii) the accuracy of the witness’ prior description of the
criminal;
(iv) the level of certainty demonstrated by the witness at the
confrontation; [and]
(v) the length of time between the crime and the confrontation.
Webster, 299 Md. at 607.
This Court has emphasized: “It is only where there is ‘a very substantial likelihood
of irreparable misidentification,’ to wit, a situation where the identification could not be
found to be reliable, that exclusion would be warranted. Short of that point, the ‘evidence
is for the jury to weigh.’” Turner v. State, 184 Md. App. 175, 184 (2009) (drawing on
Manson v. Brathwaite, 432 U.S. 98, 116 (1977) and Neil v. Biggers, 409 U.S. 188 (1972)).
20
In assessing the admissibility of an extrajudicial identification, we look exclusively
to the record of the suppression hearing and view the facts in the light most favorable to the
prevailing party. White v. State, 374 Md. 232, 249 (2003). We accept the circuit court’s
factual findings unless they are clearly erroneous, but extend no deference to the circuit
court’s ultimate conclusion as to the admissibility of the identification. Id.
The evidence heard by the master revealed that DiHart contacted campus security and
provided an account of the robbery she had experienced just minutes before. She also
provided a detailed description of her assailant and the bicycle he had been riding. Within
two-and-one-half hours, the police located a BMX-style bicycle, matching the description
provided by DiHart, outside a McDonald’s a few blocks from where the robbery had
occurred. After detaining appellant and his bicycle, the police brought DiHart to the scene
and, while she had a clear view of him from the police cruiser, she identified him as the
individual who had stolen her cell phone.
On those facts, we cannot find that DiHart’s identification of appellant was the
product of an impermissibly suggestive procedure. “A show-up has always been considered
a perfectly permissible procedure in the immediate wake of a crime while the apprehension
of the criminals is still turbulently unsettled.” Turner, 184 Md. App. at 185 (citations
omitted). In this case, the show-up took place less than three hours after DiHart contacted
campus security, informed them that she had been robbed, and provided a detailed
21
description of the assailant and the bicycle he was riding. Shortly thereafter, the police
detained appellant with his bicycle.
To determine whether to arrest appellant for the robbery or to release him and
continue the search, the police brought DiHart to the McDonald’s and asked her whether the
individual they had detained was, in fact, the individual who had snatched her cell phone
from her hand that morning. The show-up here was a permissible procedure justified by the
police’s need to assess quickly whether they had the culprit, in which case the search could
be concluded, or whether the culprit was still at large, in which case the suspect in custody
could be released and the search could be continued while the trail was still fresh. See
Turner, 184 Md. App. at 185, and Green v. State, 79 Md. App. 506, 514–15 (1989) (noting
that the “practice of presenting single suspects to persons for the purpose of identification”
may be justified by “the desirable objectives of fresh, accurate identification which in some
instances may lead to the immediate release of an innocent suspect and at the same time
enable the police to resume the search for the fleeing culprit while the trail is still fresh”
(citations omitted)).
Even were we to assume that the show-up was impermissibly suggestive, we cannot
“say that under all the circumstances of this case there is a very substantial likelihood of
irreparable misidentification.” Turner, 184 Md. App. at 186 (internal citations and quotation
marks omitted). DiHart carefully committed the physical appearance of her assailant and his
bicycle to memory as he twice looked back at her while he was riding away. DiHart was able
22
to provide a very detailed description of appellant and his bicycle that was largely consistent
with his physical appearance and that of his bicycle at the time he was apprehended by the
police. At the time of the show-up, DiHart was able to articulate to the police that appellant
had changed his clothing, but that she was certain he was the person who had taken her cell
phone only a few hours before.
We are persuaded that, under the totality of the circumstances presented, there were
sufficient indicia of reliability overall to support the court’s decision to admit DiHart’s out-
of-court identification of appellant, even were we to find that the show-up procedure utilized
by the police rendered it impermissibly suggestive.10 We conclude, therefore, that the master
did not err by denying the defense motion to suppress DiHart’s identification. Nor did the
circuit court err in overruling appellant’s objection to the admission of this evidence.
JUDGMENTS OF THE CIRCUIT
COURT FOR BALTIMORE CITY
AFFIRMED;
COSTS ASSESSED TO APPELLANT.
10
In any event, we conclude that any error in the master’s admission of DiHart’s
identification of appellant was harmless beyond a reasonable doubt, because DiHart made
an in-court identification of appellant as the assailant, without objection from defense
counsel. Therefore, evidence regarding DiHart’s previous out-of-court identification of
appellant was cumulative.
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