Hubbard v. State

544 A.2d 346, 76 Md. App. 228, 1988 Md. App. LEXIS 152
CourtCourt of Special Appeals of Maryland
DecidedJuly 18, 1988
DocketNo. 1721
StatusPublished
Cited by3 cases

This text of 544 A.2d 346 (Hubbard v. State) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hubbard v. State, 544 A.2d 346, 76 Md. App. 228, 1988 Md. App. LEXIS 152 (Md. Ct. App. 1988).

Opinion

BLOOM, Judge.

A jury in the Circuit Court for Montgomery County convicted Richard Allen Hubbard of daytime housebreaking under Md.Code Ann. (1957, 1987 Repl.Yol.) art. 27, § 30b. On the basis of two prior convictions of crimes of violence, Hubbard was sentenced to a term of twenty-five years imprisonment without parole, pursuant to Md.Code Ann. (1957, 1987 Repl.Vol.) art. 27, § 643B. In this appeal from that judgment, Hubbard contends that he received an unfair trial and an illegal sentence. We disagree with his contentions and, for the reasons which follow, will affirm the verdict and the sentence.

Facts

On the morning of 5 September 1986 Hubbard broke into and entered the residence of Tina Dove, Larry Schwartz-back, and Nancy Davido in Columbia, Maryland, entering the home through a dining room window after all three residents had left for work. Unfortunately for Hubbard, Tina Dove returned unexpectedly to the house that morning because her employer had no work for her. Ms. Dove observed a man leaving the house with stereo speakers. Her first thought was that Nancy Davido’s stereo was being repossessed. The man loaded the stereo speakers into a brown, four door car and drove away.

[232]*232When Ms. Dove entered the house, she found that a dining room window was cracked and its screen removed, that the house had been ransacked, and that all of Ms. Davido’s stereo equipment had been taken. She immediately telephoned Ms. Davido and Mr. Schwartzback; several hours later she telephoned the police.

The verbal description Ms. Dove gave the police of the man she had seen leaving the house with the stereo speakers did not exactly match appellant’s description, but she did pick Hubbard’s picture from a photographic array, and in court she identified Hubbard as the man who took the speakers. The police found Hubbard’s fingerprints on the dining room window screen.

Tina Dove had never seen appellant before the day of the break-in, but Ms. Davido and Mr. Schwartzback knew him. Hubbard had formerly worked with Mr. Schwartzback; Ms. Davido had met Hubbard on one or two occasions when Hubbard came to visit Schwartzback.

Hubbard was charged with breaking and entering and with theft of goods valued over $300. At trial, he challenged Ms. Dove’s photographic and in-court identifications, pointing out discrepancies between his appearance on the day of the break-in and the oral description initially given by Ms. Dove to the police of the man she saw with the stereo speakers. Appellant’s counsel vigorously argued (1) that Ms. Davido and Mr. Schwartzback had influenced Tina Dove to accuse Hubbard of the crime, and (2) that the fingerprints found on the outside and inside of the dining room window screen were left by Hubbard during one of his prior visits to the home.

The jury convicted Hubbard of breaking and entering but was unable to reach a verdict on the theft charge, and the State then nolle prossed the theft charge. The court imposed the sentence of twenty-five years imprisonment without parole, pursuant to Md.Code Ann. (1957, 1987 Repl.Yol.) art. 27, § 643B, on the basis of evidence that Hubbard [233]*233previously had been convicted in Maryland of burglary and in California of attempted robbery.

Appellant’s Contentions

Appellant contends that the trial judge committed prejudicial error during the course of the trial when he refused to permit adequate cross-examination of one of the State’s witnesses. In addition, appellant claims the trial judge erred when he instructed the jury “... that fingerprint evidence, if believed, places the defendant at the scene of the crime on the day in question,” and also when he told the jury that Tina Dove “made an identification of appellant at the time of the crime.”

Attacking the legality of the mandatory sentence under Md.Ann.Code art. 27, § 643B, appellant asserts first that the California “conviction” of attempted armed robbery did not amount to a conviction under Maryland law and, second, that attempted armed robbery, under California law, is not a violent crime within the meaning of § 643B.

I

The Cross-examination

During the course of trial, the State called as a witness Officer Joyce, the police officer who responded to Ms. Dove’s call on the day of the break-in. Appellant contends that the court thwarted his counsel’s attempt to elicit testimony, during cross-examination of the officer, which would have indicated that Tina Dove’s identification of Hubbard was influenced by Nancy Davido. Both Ms. Dove and Ms. Davido had previously denied any discussion between them concerning the identification of the culprit prior to Dove’s identification of Hubbard’s photograph. In addition, Ms. Davido had denied speaking to Officer Joyce concerning the culprit’s identity. Hubbard’s counsel for this appeal, based on his interpretation of the record, asserts that the trial court impermissibly limited this line of questioning. We believe that counsel misinterprets the record.

[234]*234During defense counsel’s cross-examination of Officer Joyce, the following exchange took place:

Q. Did you hear Tina Dove give a description to Nancy Davido?
A. Oh, yes.
Q. All right, and it was on the basis of Nancy Davido’s say so that you—
[STATE’S ATTORNEY]: Objection to what Nancy Davido might have said.
[THE COURT]: I think that is probably right.
[APPELLANT'S ATTORNEY]: Well, let me ask this.
[BY APPELLANT’S ATTORNEY]:
Q. Did you write in your report, “Hubbard was developed as a suspect from the victim, Davido”?
[STATE’S ATTORNEY]: Objection, Your Honor. Objection.

At a lengthy bench conference which followed that exchange, the prosecuting attorney indicated that she objected to appellant’s question because she believed Nancy Davido had told Officer Joyce that appellant had committed other break-ins, so appellant’s question therefore might “[open] up doors for all that to come in.” She then insisted that “if [appellant] really wants to go into what Nancy Davido said, I just want to let him know that I am going to come back and ask all the other questions.” The judge, indicating that he agreed with the State’s position, suggested that appellant’s question concerning what Nancy Davido told the police might elicit other crimes evidence. Defense counsel replied that he did not want to reveal what Nancy Davido told the police, and the following exchange took place:

[APPELLANT’S COUNSEL]: But just so we are clear, I would like to get unobjected answers to the question, “Do [sic] you write in your report that the subject was developed as a suspect by the victim?”
[THE COURT]: All right, and he can say yes or no and if he says, “Yes”—
[APPELLANT’S COUNSEL]: That is the end of it.
[235]*235[THE COURT]: That is the end of it.

Before ending the bench conference the trial judge once more indicated that if appellant’s counsel brought out what Nancy Davido told Officer Joyce, the State would be allowed to ask “what else did Nancy Davido say.”

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Bluebook (online)
544 A.2d 346, 76 Md. App. 228, 1988 Md. App. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hubbard-v-state-mdctspecapp-1988.