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Southern v. State9/12/2001
In the morning hours of February 19, 2000, two 7-11 stores in Prince George's County, one located on Auth Road and the second located on Old Branch Avenue, were the subject of separate robberies. George Wendell Southern, appellant, was convicted by a jury in the Circuit Court for Prince George's County of two counts of robbery, and one count of second degree assault for his participation in these robberies. On appeal, appellant presents four questions for our review:
I. Did the State fail to sustain its burden of proving at the motion to suppress hearing that the appellant's detention was constitutional?
II. Did the court deny appellant's trial counsel a reasonable opportunity to present argument on the motion to suppress?
III. Was it improper for the prosecutor to tell the jury in closing argument that certain counts would not have been included in the indictment unless they were valid?
IV. Did the State fail to prove beyond a reasonable doubt the prerequisites for imposition of the enhanced penalty for violent offenders set forth in Article 27, section 643B(d)?
We hold that the suppression hearing court failed to rule on the propriety of appellant's initial stop and arrest, and remand the case for the limited purpose of addressing this claim. This holding requires us to address a novel question not raised by the parties - whether on remand, the State may introduce evidence regarding the constitutionality of the initial stop that was not introduced at the first suppression hearing. We hold that the State may do so. Because we remand the case for this purpose, we need not address appellant's second contention. We find no merit in appellant's third and fourth contentions.
FACTS AND LEGAL PROCEEDINGS
At the hearing on appellant's motion to suppress, appellant presented two issues to the hearing court. First, appellant challenged the procedures used to identify him. Second, he challenged "the stop and anything that flowed from it."
The Identification
Officer Richard Pippin of the Prince George's County Police Department testified that on February 19, 2000, he responded to a call concerning a robbery at a 7-11 store located on Old Branch Avenue. When Pippin arrived at the store, he met with Carolyn Pryor, a customer at the scene who witnessed the robbery. Approximately fifteen minutes later, Pippin drove Pryor and another witness, Gail Alexander, to a nearby location where the police had a suspect, later identified as appellant, in custody. From inside the car, Pryor positively identified appellant as the robber. Alexander stated that she was "fairly certain" that appellant was the robber, but that she was not certain. Alexander further remarked that appellant was not wearing the same clothing as the robber.
Corporal Charles Burgess testified that he, along with a K-9 officer, arrested appellant and turned him over to Officer Monty Burkhalter. Burkhalter testified that appellant was in his custody during the "show up" procedure. He said that appellant was handcuffed at the time, and that four police officers and a police dog were "in the area" when the identification was made.
Pryor testified concerning the robbery and her identification of appellant. She explained that she was in the store on February 19 at approximately 7:30 a.m. when a robbery occurred. She remembered that she saw the robber for "about ten seconds or more." From about twenty feet away she observed the robber come in the door, he had like a dark red, either a t-shirt or bandanna-type thing covering his nose down. As I walked back, I continued to observe. He jumped the counter by the cash register and
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