Allen v. State

CATHELL, Judge. Royce D. Allen, appellant, was convicted by the court in the Circuit Court for Worcester County of possession of marijuana and possession of a noncontrolled substance with the intent to distribute it as a controlled dangerous substance. Appellant was sentenced to a term of 20 months imprisonment on the noncontrolled substance conviction, and the court merged the marijuana conviction. Appellant’s notice of appeal was duly filed.

On appeal, he makes the following assignments of error. I. The court below erred in summarily denying appellant a hearing on his motion to suppress.

II

The court below erred in summarily denying appellant’s motion to dismiss the charges on grounds of double jeopardy. THE FACTS On August 28, 1988, at 8:15 a.m., Officer Kevin Ortiz, on his routine patrol in the St. Louis Avenue area of Ocean City, Maryland, noticed two men sleeping in a truck parked on 13th Street. The officer saw a clear plastic bag on the front seat that contained a “brownish green leafy substance” that he recognized as marijuana. He immediately “roused” the occupants and searched the truck with the assistance of Officer Hutchinson.

Appellant was sleeping on the front seat where the marijuana was found and a man identified as Terry Hoffman had been sleeping in the bed of the truck where a jar containing a substance that the officers suspected was PCP was found. The substance was later discovered to be parsley. Also found in the truck was other drug parapher ⁷⁷⁹ nalia. Appellant was subsequently arrested and the truck was seized.

THE LAW I. THE TRIAL COURT PROPERLY DENIED APPELLANT’S MOTION TO SUPPRESS WITHOUT A HEARING. Appellant makes several contentions. First, appellant contends that the trial court erred in refusing to hold a hearing on the motion to suppress statements he made following his arrest and the evidence seized at the time of his arrest. Appellant maintains that the motion to suppress was timely filed because his second counsel filed a motion contemporaneously with the entering of his appearance.

Second, he contends that even if he failed to make a timely filing, Rule 4-252 allows for an exception for “good cause” and the trial court erred by refusing to hold a “good cause” hearing or make a determination on the issue. Finally, appellant contends that the trial court’s ruling on the voluntariness question at the end of the trial presented “surprise” and could not compensate for the lack of a suppression hearing. Rule 4-252(a) provides that, “[i]n the circuit court, the following matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise: ... (3) An unlawful search, seizure, ...

(4) An unlawfully obtained admission, statement, or confession____” (Emphasis added.) Section (b) provides that, “[a] motion under section (a) of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 4-213(c)____” “[A]ny constitutional claim is waived [if] there [is] no[] ... motion filed within the time limited by [Rule 4-252].” Huffington v. State, 304 Md. 559, 586 , 500 A.2d 272 (1985), cert. denied, 478 U.S. 1023 , 106 S.Ct. 3315 , 92 L.Ed.2d 745 (1986) (emphasis added). See also Brooks v. State, 85 ⁷⁸⁰ Md.App. 355, 363 , 584 A.2d 82 (1991). We have stated that “Maryland Rule 4-252(a)(3) and (b) points out ... that a suppression motion is one that ... must be filed in advance of trial.” Green v. State, 81 Md.App. 747, 759 , 569 A.2d 741 (1990). We went on to say that “failure to raise the suppression issue timely operates as a waiver of that issue.” Id. 81 Md.App. at 759 , 569 A.2d 741 (citing Kohr v. State, 40 Md.App. 92, 94-102 , 388 A.2d 1242 , cert. denied, 283 Md. 735 (1978)).

Accord State v. Brown, 324 Md. 532, 539, n. 1 , 597 A.2d 978 (1991) (a defendant is entitled to a suppression hearing on motion filed in accordance with Rule 4-252 raising a factual dispute). In the present case, appellant’s first attorney, Mr. Crawford, entered his appearance on February 21, 1989. He filed a motion to strike his appearance on November 13, 1990, but the motion was not granted until December 14, 1990, almost two years after his initial appearance. The motion to suppress should have been filed approximately one year and eight months before appellant’s first counsel filed the motion to strike his appearance.

Appellant does not allege that any such motion was timely filed by his first attorney. We hold that the provisions of Rule 4-252(b) require a motion to suppress to be filed within 30 days of the entry of the appearance of a defendant’s first attorney. The later appearance of other counsel does not revive the 30-day period in which to file such a motion. Additionally, appellant contends that the trial court erred by refusing to hold a hearing on the question of good cause, or, in the alternative, it should have made some sort of determination of whether good cause existed to excuse the Rule 4-252 violation.

We have stated that “[n]othing in the due process clause of the United States Constitution and nothing in Rule 736 [predecessor to Rule 4-252] requires the court to make such an inquiry. Just as the appellant had the responsibility to raise on his own initiative the motion to suppress, he likewise had the responsibility to show good cause____” ⁷⁸¹ Jones v. State, 42 Md.App. 209, 214 , 400 A.2d 1 (1979), rev’d on other grounds, 286 Md. 540 , 410 A.2d 16 (1979) (footnote omitted). In the instant case, appellant failed to furnish below or on appeal “good cause” as to why his first attorney failed to comply with Rule 4-252. Finally, appellant contends that the trial court surprised him by ruling on the voluntariness question at the end of the trial.

At the conclusion of the trial, the court said the following: THE COURT: Well, as far as, basically, what we are dealing with is whether, in fact, Mr. Allen’s statement was voluntary statement or not____ I find the testimony of Officer Ortiz to be the credible testimony; that, in fact, Mr. Allen was advised of his rights, voluntarily gave a statement as to ownership of the jar of parsley, that he made the statement that it was fake dope, that he sprayed it with lighter fluid because he wanted to make some money. For that reason, I will find him guilty of the possession of counterfeit CDS with the intent to distribute. Likewise, by Mr. Allen’s own testimony, he does admit that the marijuana was his on the floor, on the bench of his truck. For that reason, I will find him guilty of the possession of marijuana.

Appellant was convicted following a bench trial during which the facts relevant to his motion to suppress were fully developed. The Court of Appeals has said: Since the appellant here was tried by the court without a jury, [the trial judge’s] sole duty when he considered receiving the confession was to determine if there was prima facie proof of its voluntariness. However, once the statement was received, the judge re-assumed his role as trier of fact which is no different than a jury’s role---Just as with the jury, if the judge concludes the confession was voluntary he should again consider it together with all the other evidence as composite whole before ⁷⁸² making the ultimate determination of whether the accused is guilty or innocent. Lodowski v. State, 307 Md. 233, 257 , 513 A.2d 299 (1986) (quoting Gill v. State, 265 Md. 350, 359 , 289 A.2d 575 (1972)) (bracketed material in original).

In the case sub judice, it is clear that the trial court would be required to rule at the trial as finder of fact on the voluntariness of appellant’s statement before it could consider the statement in reaching a verdict. The trial judge considered the statement by appellant, the credibility of the appellant and the police officer, and other evidence generated at trial before rendering his verdict. We perceive no error.

II

THE COURT BELOW PROPERLY DENIED APPELLANT’S MOTION TO DISMISS THE CHARGES ON GROUNDS OF DOUBLE JEOPARDY. Prior to appellant’s criminal trial, his truck was forfeited pursuant to the Maryland Annotated Code Article 27, section 297(b)(4) (1992), which provides for the forfeiture of all property rights in motor vehicles in which a controlled dangerous substance (CDS) is carried. 1 Appellant filed a motion to dismiss the criminal possession charges against him on the grounds of double jeopardy. Before us, he argues that the forfeiture of his truck was a punishment for the crime of possessing a CDS and a criminal prosecution based upon the same facts violates the Double Jeopardy Clause of the Fifth Amendment because successive prosecutions are prohibited. ⁷⁸³ The Fifth Amendment, which is applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), and the Maryland common law, protect a person from being twice put in jeopardy for the same offense. Flaherty v. State, 322 Md. 356, 365 , 587 A.2d 522 (1991); Gianiny v. State, 320 Md. 337, 342 , 577 A.2d 795 (1990); Randall Book Corp. v. State, 316 Md. 315, 323 , 558 A.2d 715 (1989).

The Double Jeopardy Clause, however, is inapplicable to a forfeiture sanction “[ujnless the forfeiture sanction was intended as punishment, so that the proceeding is essentially criminal in character____” United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362 , 104 S.Ct. 1099, 1104 , 79 L.Ed.2d 361 (1984) (citing Helvering v. Mitchell, 303 U.S. 391, 398-99 , 58 S.Ct. 630, 632-33 , 82 L.Ed. 917 (1938)). See In Re John P., 311 Md. 700, 706-07 , 537 A.2d 263 (1988) (ordinarily, the initial proceeding must have subjected the individual to risk of punishment before subsequent proceeding involving criminal sanctions is barred by double jeopardy). Section 297, enacted by Chapter 403, Acts of 1970 and the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 2 were modeled on the Uniform Controlled Substances Act. State v. One 1984 Toyota Truck, 311 Md. 171, 177 , 533 A.2d 659 (1987); Douglass v. State, 78 Md. App. 328, 340 , 552 A.2d 1371 (1989).

The two statutes are similar and the construction of the federal statute has been beneficial in construing the meaning of the Maryland statute. See Prince George’s County v. One (1) 1969 Opel, 267 Md. 491 , 298 A.2d 168 (1973). The forfeiture provision of the federal act has been held to be civil in nature. United States v. Price, 914 F.2d 1507, 1512 (D.C.Cir.1990); In the Case of One 1985 Nissan, 300ZX, VIN: JN1C214SFX069854, 889 F.2d 1317 , 1319 (4th Cir.1989); United States v. Castro, 883 F.2d 1018, 1019 (11th Cir.1989); United States v. Santoro, 866 F.2d 1538, 1543-44 ⁷⁸⁴ (4th Cir.1989); United States v. D.K.G. Appaloosas, Inc., 829 F.2d 532, 543 (5th Cir.1987), cert. denied sub nom.

One 1984 Lincoln Mark VII Two-Door v. United States, 485 U.S. 976 , 108 S.Ct. 1270 , 99 L.Ed.2d 481 (1988). See generally United States v. Regan, 232 U.S. 37 , 34 S.Ct. 213 , 58 L.Ed. 494 (1914) (forfeitures have been traditionally regarded as civil); Director of Finance of Prince George’s County v. Cole, 296 Md. 607 , 465 A.2d 450 (discussing the history of forfeiture). 3 Section 297’s forfeiture provision also has been construed as civil in nature. State v. One 1980 Harley-Davidson Motorcycle VIN No. 9G3593950, 303 Md. 154 , 160 n. 5, 492 A.2d 896 (1985); State v. One 1967 Ford Mustang, 266 Md. 275, 278 , 292 A.2d 64 (1972); Gatewood v. State, 264 Md. 301, 304-05 , 285 A.2d 623 (1972); State v. Greer, 263 Md. 692, 694 , 284 A.2d 233 (1971); Prince George’s County v. Blue Bird Cab Co., 263 Md. 655, 659 , 284 A.2d 203 (1971) (Maryland treats forfeiture as an in rem action); Allied Bail Bonds v. State, 66 Md.App. 754, 756 , 505 A.2d 918 (1986); One (1) Motor Vehicle To Wit: 1983 Toyota v. State, 63 Md.App. 208, 209 , 492 A.2d 643 , cert. denied sub nom. One 1983 Toyota v. State, 304 Md. 299 , 498 A.2d 1185 (1985); State v. One 158 Gaming Devices, 59 Md.App. 44, 51 ,