Allen v. State

³⁰ MOTZ, Judge. During 1989, the Prince George’s County Police Department conducted a comprehensive investigation of appellants, Peter Lenox Allen (Peter) and David Alexander Allen (David), and others who were alleged to run a criminal enterprise for the purpose of the sale of cocaine. The investigation culminated in the Allen brothers being indicted for various narcotics-related crimes. After several days of hearings, appellants’ motions to suppress were denied.

Appellants were then tried by a jury in the Circuit Court for Prince George’s County (Johnson, J.) and convicted of all charges. Peter was sentenced to a term of 30 years imprisonment without parole, ten years suspended, and a fine of $30,000, $10,000 suspended, for being a drug “kingpin”; a concurrent 20-year term of imprisonment for importation of cocaine; a concurrent 20-year term of imprisonment for use of a minor in drug distribution; and a consecutive term of ten years, without parole, five years suspended, for possession with intent to distribute in a large quantity. David was sentenced to a term of 20 years imprisonment, ten years suspended, for conspiracy to import; and a concurrent 20-year term, ten years suspended, for conspiracy to distribute. On appeal, reversal is urged on five grounds.

Both brothers assert: 1. The trial court improperly denied their motions to suppress evidence derived from wiretap interceptions. 2. The verdict against them was tainted by improper communications with the jury. In addition, Peter claims: 3.

There was insufficient evidence to support his conviction under the drug “kingpin” statute. 4. The trial court erred in holding his protestations of innocence against him at sentencing. ³¹ Finally, David claims: 5. The trial court erred in imposing separate sentences for his two conspiracy convictions. Facts relevant to each issue are set forth as necessary below.

I. Suppression of Evidence In the spring of 1989, a confidential informant and casual police observation suggested to officials in the Prince George’s County police department that Peter Allen might be involved in the distribution of narcotics. In early July, 1989, the department began a full-scale investigation into Peter Allen’s activities, including surveillance of his home. Among the vehicles that investigators observed parked in front of the house on various occasions was a car belonging to David Allen, Peter’s brother. It soon became apparent to investigators that David lived with Peter.

Over the ensuing weeks, detectives continued their surveillance of both Peter and David, frequently following them and watching for drug-related activity. Investigators also began a series of “trash rips,” i.e., recovery and analysis of the trash placed on the curb in front of Peter Allen’s house. Among the items recovered from the trash, which corroborated growing suspicion that the brothers were involved in narcotics distribution, were trace amounts of cocaine from discarded plastic bags, wrappers useful for packaging large amounts of money, ammunition, assorted bank statements and records, and other materials. In addition, detectives employed dialed number recorders (“DNRs”) on Peter Allen’s home telephone, tracking the numbers and locations of telephones which were in communication with that telephone.

The police then conducted background checks of the telephone numbers and persons who called Peter Allen’s house. In October, 1989, the police applied for an ex parte court order authorizing electronic surveillance of Peter Allen’s home telephone and car telephone. In two affidavits, each over one-hundred pages in length, investigators detailed the nature of their probe and their objectives for placement of ³² the wiretap on the telephones. The objectives of the electronic surveillance, according to the affidavits, were to determine the dates, times and places of drug importation into and distribution throughout Maryland; the locations of drugs stashed for future distribution; the prices charged and paid by conspirators; the use of monies emerging from the drug transactions; and the identities of persons previously unknown who dealt drugs with Peter Allen and with other known suspects.

On October 25, the circuit court granted the state’s request for wiretaps on both of Peter Allen’s telephones. The court directed that the electronic surveillance be terminated by November 24, or upon achievement of the state’s objectives, whichever shall occur first. On October 30, the court extended the order to incorporate the monitoring of conversations dealing with homicides and robberies. The wiretaps terminated on Friday, November 10,1989, when both brothers, as well as several other alleged co-conspirators, were arrested.

On Monday, November 13, in the presence of the circuit court, the investigators placed the tapes generated from the surveillance into a sealed box, pursuant to Md.Cts. & Jud.Proc.Code Ann. § 10-408(g) (1984 Repl.Vol., 1991 Supp.). The next day, again in the presence of the circuit court, they opened the box for the purposes of adding written monitor logs; the box was then resealed and retained by the court. At a hearing on the motion to dismiss on March 27, 1990 the prosecutor unsealed the box. It became immediately apparent that, contrary to the mandate of § 10-408, the petition, affidavits and order for the wiretap were not included in the box.

After a search for the missing documents, it was discovered that the judge who issued the ex parte electronic surveillance order had inadvertently left them on a shelf in his office. Called to testify at the motions hearing, that judge stated that he placed the materials on his shelf immediately after they were signed by the detectives in November and they remained there, within nine inches of his chair, until that morning. After remov ³³ ing dust which had accumulated on the materials and reading them for possible tampering, the judge testified that “there have been no changes, no alterations, no modifications at all” to the material. The defendants’ motion to suppress the tapes was then denied.

On appeal, appellants claim that admission of the tapes was contrary to Maryland’s wiretap statute, Md.Cts. & Jud.Proc.Code Ann., §§ 10-401 to 10-412 (1984 Repl.Vol., 1991 Supp.). The Maryland statute is an offspring of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, tit. Ill, § 802, codified at 18 U.S.C. §§ 2510-2520 (commonly referred to as “Title III”). The statutory provisions in both the state and federal statutes that require a wiretap order to conform to specific minimum guidelines are those that are perceived to contain minimum safeguards to constitutional rights.

State v. Bailey, 289 Md. 143, 154 , 422 A.2d 1021 (1980). 1 Almost universally, other states that have based their own wiretapping statutes on Title III permit introduction into evidence of information acquired through electronic surveillance, if there is substantial compliance with the statute and no prejudice is shown. See Howard v. State, 51 Md.App. 46, 60 , 442 A.2d 176 (1982). Maryland, however, distinguishes between the statutory conditions that apply before or during the interception (preconditions) and those that apply after the termination of the interception (postconditions). Id., 51 Md.App. at 61 , 442 A.2d 176 ; see also State v. Bailey, 289 Md. at 154 , 422 A.2d 1021 .

A defect in the State’s adherence to postconditions will not vitiate the order if there has been substantial compliance and no prejudice to the defendant shown; on the other hand, a defect with respect to preconditions will void the order and cause suppression of the evidence. Poore v. State, 39 Md.App. 44, 53-54 , 384 A.2d 103 (1978); see also Howard v. State, 51 ³⁴ Md.App. at 61, 442 A.2d 176 . 2 Appellants make two precondition challenges and two postcondition challenges. 1. The Exhaustion Requirement First, appellants claim that, prior to obtaining the wiretap order, the State failed to demonstrate that alternative investigative techniques had been exhausted or would have been futile. An application for an order authorizing the interception of electronic communications must contain “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” Md.Cts. & Jud.Proc.Code Ann. § 10-408(a)(3).

See also Vandegrift v. State, 82 Md.App. 617, 626-27 , 573 A.2d 56 , cert. denied, 320 Md. 801 , 580 A.2d 219 (1990). The underlying purpose of this precondition is to guard against the use of electronic surveillance as an initial investigative tool. Vandegrift, 82 Md.App. at 627 , 573 A.2d 56 ; Bell v. State, 48 Md.App. 669, 674-75 , 429 A.2d 300 , cert. denied., 291 Md. 771 (1981). Here, appellants are not arguing that the State’s preliminary investigation was insufficient to warrant the issuing of an electronic surveillance order.

Rather, they assert that the State’s investigation was so exhaustive as to negate any further need to wiretap the suspects. Appellants point to the DNRs, trash rips, surveillance and use of confidential sources as being “successful in obtaining a great deal of information both about parties involved and physical evidence of drug involvement.” It has been held under Title III, the federal counterpart of the Maryland wiretap statute, that “where tradition ³⁵ al techniques could have led to the successful infiltration of the entire enterprise,” a wiretap order will not be granted. United States v. Simpson, 813 F.2d 1462, 1472-73 (9th Cir.), cert. denied, 484 U.S. 898 , 108 S.Ct. 233 , 98 L.Ed.2d 192 (1987). Moreover, courts are not free to infer from the mere presentation of an application or petition, supported by an affidavit, that normal investigative procedure will not work.

Calhoun v. State, 34 Md.App. 365, 376 , 367 A.2d 40 (1977). On the other hand, if the application demonstrates "to the issuing judge that normal investigative measures have been tried and failed,” it is sufficient. Id. at 377 , 367 A.2d 40 . The State “need not exhaust every conceivable investigative possibility before seeking a wiretap order.” Salzman v. State, 49 Md.App. 25, 33 , 430 A.2d 847 (1981).

Here our independent review of the record and the extensive affidavits persuade us that the appellants’ contentions as to exhaustion are meritless. The State adequately demonstrated that alternate investigative techniques had been exhausted. The State aspired to learn the full scope of the conspiracy under investigation, including the identity of all persons conspiring with Peter Allen; the manner in which the conspirators handled the monies involved with their distribution of narcotics; the dates, times and places of the transport of drugs into and throughout Maryland; and the locations of the conspirators’ drug stashes. The affidavits describe in detail the surveillance, trash rips, and other techniques that had been used and were considered by the police, and explain why these techniques were inadequate.

For example, stationery surveillance was soon spotted and mobile surveillance quickly evaded. Similarly, the examination of telephone records and DNRs indicated that the defendants were making sophisticated use of all communication devices to insulate themselves from the law enforcement officers, but, of course, did not indicate the precise conspiracy or conspirators or any other particulars of the drug transactions. Moreover, the timing of an effective search warrant was virtually impossible without additional intelligence provided by telephone interception, and would ³⁶ not, in any event, satisfy the objective of the investigation to identify all confederates, stash houses and sources of supply. Thus, the State’s objectives, as identified in its application seeking the court order, called for means of investigation beyond the traditional techniques.

Where, as here, the objective of an investigation is to seek evidence regarding “higher-ups,” co-conspirators, and sources of supply in a drug distribution network, the inadequacy of traditional techniques of investigation is more than sufficient basis on which to comply with the exhaustion requirement. Vandegrift, 82 Md.App. at 628 , 573 A.2d 56 . 2. Full and Complete Statement of the Facts Next, the Allens assert that the application submitted by the State failed to meet the statutory requirement of “a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued.” Md.Cts. & Jud.Proc.Code Ann. § 10-408(a)(2). They argue that “numerous incidents were either left out entirely or misrepresented” in the State’s application.

They point out that the detective stated in his affidavit that Peter Allen engaged in more than one episode of anti-surveillance driving, but only described one incident in support of that assertion. The Allens further contend that the detective neglected to report both appellants’ sources of income and failed to report that several searches of Peter Allen’s car were conducted in which no drugs were found. “Such gaps in the information provided to the issuing judge,” according to the appellants, “interfered with [the judge’s] ability to make the probable cause determinations required by Cts. & Jud.Proc. § 10-408(c).” In fact, Maryland’s wiretap statute does not mandate a complete narrative of everything discovered during the course of its investigation. Rather, it requires that, upon oath or affirmation and with authority to make the application, the affiant, as necessary, will provide: (1) details as to ³⁷ the particular offense that has been, is being, or is about to be committed; (2) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted; (3) a particular description of the type of communication sought to be intercepted; and (4) the identity of the person, if known, committing the offense and whose communications are to be intercepted. Md.Cts. & Jud.Proc.Code Ann. § 10-408(c)(2).

This rule has not been interpreted as obligating the State to stress to the court particulars and events which may mitigate, but in no way eliminate, the incriminating evidence the State has found. Accordingly, the State’s application for an order permitting electronic surveillance of Peter Allen’s phones complies with Maryland’s wiretap statute. 3. Initial Sealing of the Tapes The Allens’ first “postcondition” challenge is that the State erred in its failure to seal immediately the tape recordings generated from its electronic surveillance of the Allens on Friday, November 10, 1989, the day they were arrested. Very late that night, which was Veteran’s Day, the chief detective in the investigation contacted a circuit court judge and informed him that the surveillance had terminated.

The judge instructed the detective that he would be unavailable over the weekend, but that the tapes would be sealed on Monday, November 13. The tapes were, in fact, sealed that Monday in the presence of the judge. The following day, the box containing the tapes was reopened (for the purpose of adding monitor logs) and then resealed before the judge. Appellants charge that the State violated the provision of Maryland’s wiretap statute which mandates that, “immediately” upon termination of electronic surveillance, tape recordings generated from the investigation “shall be made available to the judge issuing such order and sealed under his directions.” Md.Cts. & Jud.Proc.Code Ann. § 10-408(g)(1).

By allowing the tapes to remain in the chief detective’s car and at various locations at police head ³⁸ quarters over the weekend, the appellants argue, the State failed to meet this requirement. They assert that the State may have easily “altered the tapes or suppressed any exculpatory evidence.” With respect to the initial sealing requirement, we hold that the State adhered not only to the spirit but also to the letter of the law. By contacting the judge at the end of its investigation, the State “made available” the tapes to the judge; the following Monday, the tapes were in fact “sealed under his directions.” We do not see how the State could have followed the statute’s provisions more closely. In any event, violation of this sealing requirement would not, as explained below, require reversal.

See Md.Cts. & Jud.Proc. Code Ann., § 10-408(g)(3). 4. Failure to Seal Petition, Affidavits and Order Appellants’ final argument is that the issuing court’s inadvertent failure to seal the petition, affidavits and order permitting electronic surveillance in the box along with the actual tape recordings requires reversal. As explained above, the materials in question remained on the shelf in the ordering judge’s chambers from October 25, 1989, the day the wiretap order was issued, through March 27, 1990, the day „the tapes were unsealed at a motions hearing.

Appellants urge that the “totally unsealed condition” of the materials “over many months” violates Md.Cts. & Jud.Proc.Code Ann., § 10-408(g)(2) and requires reversal. 3 In mak ³⁹ ing this assertion, however, they disregard § 10-408(g)(3) of the statute, which directs that a violation of the sealing requirements identified in § 10-408(g)(2) is punishable as contempt only, “and is not remediable by a suppression of the evidence under § 10-408(i).” Nye v. State, 49 Md.App. 111 at 122 , 430 A.2d 867 (1981). 4 Reversal on these grounds, accordingly, is not warranted.

II

Improper Juror Communications Appellants’ trial on the merits began on June 18, 1990. On the morning of June 26, the jury retired to consider the various charges against the Allens and their codefendant. At that time, the alternate jurors were dismissed. By late that afternoon, the jury had not reached a verdict.

The jurors were sent home with instructions to return the following morning to continue their deliberations. Prior to their departure, the trial judge cautioned the jurors, as he had repeatedly during the trial, against discussing the case among themselves or with anyone else. On the morning of June 27, the foreperson of the jury presented a note, which was stapled shut and marked “eyes only” to the trial judge. The note informed the judge that, the previous day, David Allen ate breakfast with one of the dismissed alternate jurors; that the alternate juror called one of the sitting jurors that evening and told her that David Allen “admitted selling drugs, but not for Peter”; that the sitting juror told the foreperson about the telephone call; and that the foreperson, without alerting any of the other jurors, was now informing the judge of the ⁴⁰ telephone conversation. 5 The judge conducted the following voir dire of the jurors who received the ex parte information.

First, the court questioned the juror who had spoken to the dismissed alternate juror. THE COURT: ... I understand that you said that you talked to a dismissed alternate juror last night. JUROR: Uh-huh. [Meaning yes.] THE COURT: First of all, why would you do that?

I gave you strict instructions— JUROR: I didn’t talk to her about the case. What we talked about when she first called she told me that she— THE COURT: Why didn’t you stop it right there? I gave you strict instructions ... You were not to discuss this any further from that moment when I [dismissed] you for the evening until I got you in the box this morning and you returned to the jury room to resume your deliberations.

For the life of me I can’t understand this. So tell me, what was discussed? JUROR: Just exactly what she [the foreperson] said. THE COURT: Tell me in your own words what was discussed.

JUROR: She [the alternate dismissed juror] told me that she had went to breakfast with the Defendant David Allen and that he admitted selling drugs but not for Peter Allen. I told her I had to go, I couldn’t talk to her about this because I was still on the case. That is exactly what happened. THE COURT: ...

I must ask you this and I want you to search your mind and your conscience. Does this in any way affect your deliberations in this case? JUROR: No. THE COURT: Are you sure? ⁴¹ JUROR: I’m positive. THE COURT: Can you still be fair and impartial?

JUROR: Yes. My decision was made yesterday about Dave. THE COURT: I don’t want to know what your decision is. I just want to know can you be fair and impartial during the remaining of these deliberations?

JUROR: Yes. % sjt »{c * * # THE COURT: ... Was any other Defendant’s name mentioned in any way? JUROR: After she said that I got off the phone. No. * * * * * * THE COURT: I know that the foreman knows about this.

Is there anyone else on this jury panel that knows about this? JUROR: No. THE COURT: No one else on the panel knows about it? JUROR: No. The court then conducted the following voir dire of the foreperson: THE COURT: ... Where were you when this was related to you this morning?

Did anyone else hear? JURY FOREPERSON: No one heard. No one. That’s true.

I took great pains to make sure nobody could see or hear what was going on. THE COURT: I appreciate that. It was all stapled up and closed and said “For my eyes only.” ---- I must ask you, does this in any way affect your deliberations? JURY FOREPERSON: Personally for me, none.

THE COURT: Do you feel that you can still be fair and impartial with respect to each of the Defendants? JURY FOREPERSON: Yes, sir. Counsel for the prosecution and the defense witnessed the voir dire of the two jurors and, immediately thereafter, all three defendants moved for a mistrial. The court denied ⁴² their motions and, without informing the remaining jurors of the breakfast conversation or telephone call, instructed the jury to continue its deliberations.

The jury returned with a verdict that afternoon, finding Peter and David guilty on all counts and their co-defendant not-guilty on all counts. On appeal, both brothers assert that the trial court erred in denying their motions for a mistrial. They charge that the extrinsic evidence acquired by at least two jurors deprived them of a “fair and impartial outcome.” The potency of the Sixth Amendment right to a fair trial relies on the promise that a defendant’s fate will be determined by an impartial fact finder who depends solely on the evidence and argument introduced in open court. See Patterson v. Colorado, 205 U.S. 454, 462 , 27 S.Ct. 556, 558 , 51 L.Ed. 879 (1907).

Indeed, the notion that a jury’s verdict shall be based exclusively on the evidence offered at trial “goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury.” Turner v. Louisiana, 379 U.S. 466, 472 , 85 S.Ct. 546, 549 , 13 L.Ed.2d 424 (1965). Moreover, it is a “fundamental tenet of our legal system” that, to be impartial, the fact finder must presume the innocence of the criminal defendant. Wright v. State, 312 Md. 648, 652 , 541 A.2d 988 (1988) (citing Johnson v. State, 227 Md. 159, 163 , 175 A.2d 580 (1961)). That two jurors here were privy to extrinsic information which referred directly to the ultimate question of the appellants’ innocence, therefore, is an extremely serious matter.

It has, however, been repeatedly held that “a trial judge shall declare a mistrial only under extraordinary circumstances and where there is a manifest necessity to do so.” Wilhelm v. State, 272 Md. 404, 429 , 326 A.2d 707 (1974); Russell v. State, 69 Md.App. 554, 562 , 518 A.2d 1081 (1987). The record must compellingly demonstrate “clear and egregious prejudice to the defendant” to warrant such a drastic measure. Leak v. State, 84 Md.App. 353, 358 , 579 A.2d 788 (1990). See also Lusby v. State, 217 Md. 191, 195 , 141 A.2d 893 (1958).

Because a trial judge is in the best ⁴³ position to evaluate whether or not a defendant’s right to an impartial jury has been compromised, an appellate court will not disturb the trial court’s decision on a motion for a mistrial or a new trial absent a clear abuse of discretion. Wright v. State, 312 Md. 648, 654 , 541 A.2d 988 (1988); Hunt v. State, 312 Md. 494, 500-01 , 540 A.2d 1125 (1988); Wilhelm v. State, 272 Md. at 429 , 326 A.2d 707 . With these principles in mind, we consider the claims here that denial of the motions for mistrial was error. First, we note that all evidence in the record indicates that David deliberately behaved in a manner that led to the alleged jury taint.

For this reason, the widely cited “invited error” doctrine may, in and of itself, provide grounds for denial of David’s motion for mistrial. “Invited error” is the shorthand term for the concept that a defendant who himself invites or creates error cannot obtain a benefit — mistrial or reversal — from that error. See, e.g., Tracy v. State, 319 Md. 452, 458 , 573 A.2d 38 (1990); Reed v. State, 78 Md.App. 522, 536 , 554 A.2d 420 (1989). The rule has been extended to a number of situations in which a defendant disputes decisions initially prompted or condoned by his or her own actions, including cases, arising in other states, that involve extrinsic evidence being considered by the jury. For example, in State v. Bonaparte, 222 Neb. 469 , 384 N.W.2d 304 (1986), the Supreme Court of Nebraska declined to grant a new trial to a