*1 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 *2 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. *3 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. On November 6, 2014, appellant was brought to court for an [1]
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. The formal adjudication followed. [2]
*4 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.
[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.
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.
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 –
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 –
[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
,
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
,
Shackling and other such accommodations are only appropriate when there is a
compelling state interest.
Wagner v. State
,
In
Holbrook v. Flynn
,
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
,
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
,
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. There is a careful
[3]
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
,
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 *14 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.
,
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
*15
for the loss of liberty, a juvenile’s needs in court are “comparable in seriousness to a felony
prosecution.”
Gault
,
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. For many of the same reasons appellant so eloquently asserted in his brief [5]
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: *16 [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 7,8 necessary. 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.
*17 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
,
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 *19 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 *20 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
,
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
,
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
,
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
,
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
,
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 *23 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
,
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
,
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. We conclude, therefore, that the master [10]
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.
Notes
[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.
[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.
[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/.
[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).
[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.
[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).
[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.