Banks v. State

ROBERT M. BELL, Judge. Following his second jury trial in the Circuit Court for Harford County, 1 William Eugene Banks, appellant, was convicted of distribution of cocaine, for which he was sentenced to a term of 15 years imprisonment. Being dissatisfied with that judgment, he noted a timely appeal, raising the following issues: 1. Did the trial judge err by admitting photographic evidence that was irrelevant, incompetent, and highly prejudicial? 2.

Did the trial judge err by admitting photographic evidence seized from Appellant’s apartment without affording him an opportunity to challenge the constitutionality of the seizure? ⁵⁸⁴ 3. Did the trial judge err by admitting into evidence a chain of custody report and the results of a laboratory analysis even though the State did not sufficiently prove the chain of custody? The first issue has merit; hence, we will reverse and remand for a new trial. Although it is unnecessary to address the second issue, we will consider the third issue for the edification of the trial court on remand. 1 Deputy Richard Lyne of the Harford County Sheriffs Department, an undercover narcotics officer, met a confidential informant at the Washington Park Apartments for the purpose of making a cocaine buy.

While on Hanover Street in that complex, they saw a large Black male, approximately 6’2” or 6’3” tall, weighing in excess of 200 lbs., and wearing a tan Fedora, white shirt, vest, tan pants, and glasses, approaching one of the buildings. The informant identified the man to Lyne as “Eugene Banks” and called out to him, “hey, Eugene”. In response, the man looked in their direction, waved, and then approached them. When the man reached them, the informant introduced him as “Eugene Banks”.

After some small talk, Lyne purchased a half gram of cocaine from “Eugene Banks”. Thereafter, the man got into a white Audi, Delaware registration tag, “INC FUN”, which was parked at the curb, and drove away. Lyne testified that he later contacted Detective Corporal Steve Smith of the Aberdeen Police Department, whom he characterized as “virtually a walking encyclopedia about criminal activity in Aberdeen”, for the purpose of identifying the person from whom he purchased the cocaine. In response to the physical description and name Lyne supplied, Smith showed Lyne two pictures of appellant.

These pictures depicted a large Black male wearing a Panama- ⁵⁸⁵ type Fedora and displaying a handgun. 2 Lyne identified the person in the photograph as the person the informant called “Eugene Banks” and as the person who sold him cocaine. The photographs were offered into evidence, and appellant objected. Appellant initially challenged only the propriety of the State’s seizure of the film, from which the photographs were developed: MR. D’AYELLA [Appellant’s Counsel]: These, to my knowledge, were not produced or offered in the first trial.

I think subsequent to the first trial, the State amended some discovery and made the photocopies and submitted them to us. However, I now know that these photographs were seized out of the Defendant’s apartment as a result of an unrelated matter. I don’t think, to my knowledge, that the photographs were properly taken. I don’t know what the basis of the search was, but they were seized as a result of that search warrant, and I would submit that these were improperly to be produced or referred to in this trial if he wanted to testify that he was shown some photographs. * * * * * * I believe they were [seized pursuant to a warrant], but I’m not sure.

They are not evidence of drugs. Even if they were seized, I don’t know any basis that the police would have had them as evidence in the case that they should have, in fact, seized them because they are not evidence of drugs, and they were illegally taken by the police and should not be used. The court overruled that objection, apparently on the basis that suppression of evidence, i.e., the photographs, was ⁵⁸⁶ “something that should have been raised in a pretrial motion.” Reconsideration of the court’s ruling admitting the photographs was sought at the end of the State’s case. At that time, appellant did not state with particularity why the ruling should have been reconsidered; he merely stated: ...

Again, with respect to the State’s case, the Court over our objection, allowed the admissibility of certain photographs which were testified to by Deputy Lyne regarding his use of those photographs for an identification or in confirming perhaps an identification of an individual that he was told appeared in the photographs. I would again ask the Court to strike out, not necessarily the testimony that he utilized those photographs, but the photographs, themselves, not be allowed to be viewed by the jury. Without specifically addressing the reconsideration request, the court denied that motion. 3 The first clear statement of the relevancy and prejudicial effect grounds raised by appellant on appeal was presented at the end of all the evidence. At that time, appellant specifically argued that the photographs depicting him holding a handgun were irrelevant and, indeed, served no purpose but to prejudice him.

Implicit in that argument is the inference, made explicit in his arguments to this Court, that, since drug dealers are known to use firearms to ply their trade, 4 a picture showing him holding a handgun served only to communicate to the jury that he was a drug dealer. Appellant stated ⁵⁸⁷ “... it clearly is prejudicial in the sense it showed something that has no relevancy to this case, and certainly is very prejudicial in terms of depiction of the Defendant, if this be the Defendant in the photograph. And would have no bearing on this particular case except to the prejudice of the Defendant. And I would submit it should not be admitted at least for the jury’s consideration and view____” In denying the motion as it pertained to the admission of the photographs, the court stated: As to the photographs, I think the photographs were introduced strictly to show how the officer identified the Defendant and how they were obtained.

I’m not even sure it’s relevant, but be that as it may, I’m going to deny the motions on both counts____ Since, as we have seen, appellant did not interpose a relevancy objection until the close of all the evidence, and then it was proffered in support of a motion to, in effect, reconsider the prior ruling, the threshold question which must be addressed is: Is the issue preserved? Maryland Rule 4-323(a) provides: (a) Objections to evidence. — An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent, otherwise, the objection is waived. The grounds for the objection need not be stated unless the court, at the request of a party or on its own initiative, so directs. The court shall rule upon the objection promptly.

When the relevancy of the evidence depends upon the fulfillment of a condition of fact, the court may admit the evidence subject to the introduction of additional evidence sufficient to support a finding of the fulfillment of the condition. The objection is waived unless, at some time before final argument in a jury trial or before the entry of judgment in a court trial, the objecting party moves to strike the evidence on the ground that the condition was not fulfilled. ⁵⁸⁸ Although not required, when the grounds for an objection are stated by the objecting party, either on a voltmteered basis or at the request of the court, only those specifically stated are preserved for appellate review; those not stated are deemed waived. Von Lusch v. State, 279 Md. 255, 261 , 368 A.2d 468 (1977), Leuschner v. State, 41 Md.App. 423, 436 , 397 A.2d 622 , cert. denied, 285 Md. 731 , cert. denied, 444 U.S. 933 , 100 S.Ct. 279 , 62 L.Ed.2d 192 (1979) reh’g denied, 444 U.S. 1027 , 100 S.Ct. 693 ; 62 L.Ed.2d 662 (1980). The rule does not address the question whether additional grounds for objection, supplied in connection with a request in the nature of a motion for reconsideration of the prior ruling, are preserved for review when presented prior to action being taken pursuant to that prior ruling, in this case, prior to the photographs being displayed to the jury.

It is undisputed that appellant did not, when he initially objected, raise the issues he now presses on appeal. Instead, he dealt solely with the illegality of and his lack of an opportunity to challenge the seizure of the film. At the close of all the evidence, and during argument on his motion for judgment of acquittal, however, he argued quite forcefully that the photographs were not relevant to the case against him and, indeed, their admission would serve only to prejudice him. And judging from the context, i.e., what was said on the motion, it appears that, when this argument was made, the photographs had not yet been viewed by the jury.

Requiring an objecting party, who volunteers, or is requested to give the basis, to state all reasons for the objection permits the court to focus its attention upon only those reasons deemed meritorious by that party, excusing it from considering the universe of reasons that might impact the decision. This ensures that the court will be afforded an opportunity to rule fully informed of the objecting party’s position. When the court’s attention has been so directed at the time that it rules, the objecting party may not advance other, more meritorious reasons after the ruling has been implemented. To allow him or her to do so ⁵⁸⁹ would be unfair to the court, since it would permit a party to sandbag the judge.

Where, however the party provides the court with additional grounds for the objection before the action which the objection sought to avoid has occurred, the court is not sandbagged; it is afforded the opportunity of correcting any error it may have made. Therefore, since the purpose of the rule, and the policy underlying it, will have been met, those grounds are preserved for review. We hold that appellant’s relevancy argument is properly before us. The critical issue in the case was appellant’s criminal agency.

Lyne testified that appellant sold him cocaine; based on what the informant told him and his own observations during the transaction, he identified appellant as the seller. On the other hand, appellant denied doing so, testifying that he was not present at the time when or the place where Lyne said he bought the cocaine. The photographs were offered by the State to establish how Lyne confirmed that the person from whom he purchased cocaine was, in fact, the person introduced to him as