## Facts

- Leon Dulyx was charged with robbery and the kidnapping of DeAndre McIntyre arising from an armed robbery and abduction connected to a Baltimore City GameStop.
- McIntyre identified Dulyx as one of the perpetrators, and Dulyx filed a motion in limine seeking to suppress McIntyre’s extrajudicial identification.
- At the pretrial suppression hearing, McIntyre testified under oath, and Dulyx cross-examined him.
- The suppression-hearing judge limited cross-examination to matters tied to the suppression motion and McIntyre’s ability to remember details.
- The court did not allow Dulyx to cross-examine McIntyre about (1) McIntyre’s ability to see Dulyx during the incident and (2) McIntyre’s attempt at one point to recant his testimony.
- Before trial, McIntyre became unavailable to testify.
- The State sought to introduce a transcript of McIntyre’s suppression-hearing testimony as former testimony under Maryland Rule 5-804(b)(1).
- The trial court admitted the transcript, and Dulyx was convicted.
- The Court of Special Appeals affirmed, and the Court of Appeals of Maryland granted certiorari.

## Issues

1. Whether a transcript of an unavailable witness’s suppression-hearing testimony is admissible at trial under Maryland Rule 5-804(b)(1) when the defendant’s cross-examination at the suppression hearing was substantially limited.

## Decision

- The Court of Appeals of Maryland reversed.
- The court held that McIntyre’s suppression-hearing testimony was not admissible at trial under Rule 5-804(b)(1) because Dulyx did not have an adequate opportunity to develop the testimony at the suppression hearing.
- The case was remanded for further proceedings consistent with the opinion.

## Legal Principles

- Under Maryland Rule 5-804(b)(1), former testimony by an unavailable declarant is admissible only if the opposing party previously had an opportunity and similar motive to develop the testimony through examination.
- A prior opportunity to cross-examine is not satisfied where the trial court’s limits materially prevent inquiry into areas that matter to the use of the testimony at trial.
- When the earlier proceeding is a suppression hearing and the court confines examination to suppression-related topics, the defendant may lack a similar motive and a meaningful chance to test the witness on matters bearing on identification reliability and credibility.
- Testimony from a pretrial hearing is not automatically excluded as “former testimony,” but it cannot be used at trial if the earlier examination was constrained in a way that prevents development of trial-significant lines of questioning.

## Conclusion

Because the suppression court restricted cross-examination so that Dulyx could not question McIntyre about key matters such as his ability to see Dulyx during the crime and a prior attempted recantation, Dulyx lacked an adequate opportunity and similar motive to develop McIntyre’s testimony. As a result, the transcript did not qualify as former testimony under Maryland Rule 5-804(b)(1), and admitting it at trial required reversal and remand.


Dulyx v. State, 40 A.3d 416 (2012)