Berry v. State

BARBERA, Judge. In the summer and fall of 2000, Baltimore City police were investigating a narcotics distribution organization that appeared to be centered at 915 North Patterson Park Avenue. The investigators used wiretaps on numerous telephone lines, including cellular telephones, some of which were registered to fictitious persons, at non-existent addresses. The investigators used the information garnered from thousands of telephone conversations as a basis for surveillance, traffic stops, and, ultimately, a series of raids on various locations.

The investigation led to the arrest of appellants Derrick Berry, Eric Berry, Eric Buckson, William Downing, and Raul Varela. Appellants were tried jointly and all were convicted of multiple counts of conspiracy: to distribute cocaine, to possess cocaine with the intent to distribute it, and to possess cocaine. Appellant Varela was also convicted of being a drug kingpin in the conspiracy, two counts of possession of cocaine, importing cocaine into Maryland, and possession of 448 grams or more of cocaine with the intent to distribute it. 1 In this appeal, all five appellants raise the following issues: I. Did the trial court err in refusing to instruct the jury that a relationship of buyer and seller of a controlled substance does not establish a conspiracy? ¹⁵¹ II. Did the trial court err in reseating a prospective juror who had been the subject of a peremptory challenge by the defense?

III

Did the trial court err in excluding evidence that a judge had previously found two police witnesses not to be credible?

IV

Did the trial court err in admitting evidence of the arrests of individuals alleged to be part of the conspiracy but not joined for trial with appellants? V. Were appellants deprived of a fair trial by the admission into evidence of a gun seized from a car allegedly driven by appellant Buckson, and by the accompanying comments of the prosecutor?

VI

Was the evidence legally insufficient to sustain more than one count of conspiracy for each appellant? Appellant Derrick Berry also asks: VII. Did the trial court err in denying a motion to suppress currency seized from him? And appellant Varela asks: VUI.Was the evidence insufficient to justify his conviction and sentence as a “drug kingpin”?

FACTS The evidence at the nearly-month-long trial included wiretapped telephone conversations between appellants Buckson and Downing, Buckson and Derrick Berry, Buckson and Eric Berry, Downing and Derrick Berry, Derrick Berry and his twin brother, Eric, and Derrick Berry and Keith Demley, the last of whom testified that he was the middleman between the Baltimore organization and Varela, a New York supplier. Some conversations involved more than two appellants. In addition to the wiretapped conversations, police observed meetings between and among some of the appellants. For example, on August 17, 2000, the Berry brothers were seen with Buckson in the 900 block of North Patterson Park Avenue.

On September 1, Downing was seen leaving 915 ¹⁵² North Patterson Park Avenue, as was Eric Berry, who stood on the steps of that house with Buckson. The next day, the same group was seen at that house. Detective William Bristol was accepted as an expert in the identification, packaging, and distribution of controlled dangerous substances, particularly in Baltimore City, as well as the structure of drug organizations, and the terminology of the trade. Detective Bristol testified that many seemingly innocent references in the wiretapped conversations actually referred to drug transactions.

For example, Detective Bristol described the tendency of drug dealers to use a middleman to negotiate with several sources for the best price for a large amount of cocaine. In this context, he interpreted a telephone call between appellant Buckson and a man named Donnell Booker as follows: “Powder or ready” referred to whether the substance would be supplied in the form of hydrochloric cocaine or cocaine base; “yeah, straight” referred to cocaine that was not cooked; and “thirteen and a half’ ounces was the amount for which he was asking the price. Thirteen and a half ounces was worth approximately $10,400.00. Ending a conversation with the phrase, “Let me call my man,” indicated that the speaker was working in conjunction with others.

According to Detective Bristol, high quality cocaine was designated by nicknames such as “love” or “lake trout”; “put it into work” or “put it together” referred to packaging the drug; “wrapped up tight” meant an entire kilogram, or approximately 36 ounces. And “take 5 and put it in the refrigerator” referred to the practice of hiding drugs among ordinary refrigerated items. Detective Bristol also interpreted terms relating to the business aspects of the operation. For example, in conversations between appellants Buckson and Derrick Berry, “like 450 or something” related to the then-current price for a half-ounce of cocaine, $450.00 to $500.00; and Berry’s direction that Buckson “start doing those halfs [sic] for five if they don’t get the whole thing” meant that he should start selling half-ounce quantities for $500.00 if the buyers did not purchase a ¹⁵³ whole ounce.

The profit on half-ounce quantities was greater, and a discount was given on sales of whole ounces. In mid-July 2000, the police intercepted a series of communications between Demley and appellant Derrick Berry, leading the police to think that a major drug transaction was about to occur. Demley lived in New York, but came to Baltimore regularly on drug business, staying at an apartment on Washington Street. That summer, he came to Baltimore to sell drugs for appellant Varela to pay off a debt from a previous drug transaction.

Appellant Varela picked up Demley’s wife and children in New York and drove them to Maryland. Demley saw this as an effort to intimidate him. Varela booked three rooms at the Best Inn, one for himself, one for another man, and one for Demley’s family. He gave Demley a Buick equipped with a hidden compartment containing four kilograms of cocaine, and showed him how to operate the trap door.

Demley arranged a meeting with Derrick Berry and sold him the first of the four kilograms of cocaine. Demley took $21,000.00 in cash back to Varela, who was waiting at the motel. Demley and Derrick Berry engaged in two more transactions. Demley had turned over $50,000.00 to $58,000.00 by the time he was arrested on July 21, 2000.

Demley consented to a search of the car at the time of arrest, relying on the trap door to deceive police. But after a drug-sniffing dog alerted, he showed the police how to operate the trap door. A search of the car revealed approximately one and a half kilograms of cocaine and approximately $60,000.00 in cash. Demley agreed to assist the police in their investigation. 2 In their presence, he made a series of calls to Derrick Berry and arranged to sell him $21,000.00 worth of cocaine on July ¹⁵⁴ 21, 2000, at the Moravia Road McDonald’s.

Police watched the meeting in the McDonald’s parking lot, and approached when Derrick Berry held up a bag and displayed it to Demley. Demley was taken back into custody, but Derrick Berry was allowed to leave after police seized the bag, which contained $26,320.00 in cash. Meanwhile, other officers were involved in conducting surveillance of the motel where Demley’s family and Varela were staying. Detective Keith Gladstone located a car with New York license plates outside of the motel and followed the two men who drove it away.

The car was stopped on Moravia Road, at Sinclair Lane. The driver was Andre Nalan and the passenger was appellant Varela. Varela gave his name as “Darelb.” Detective Gladstone obtained consent to search the car and found motel receipts for room 402 in the name of Paul Darelb, room 412 in the name of Andres Edwardo, and room 426 in the name of Martinez Marita. Detective Gladstone and Detective Sergeant Tracy Geho went back to the motel.

There, Varela’s wife or girlfriend, Martha Consales, let them enter and search room 402. A plastic bag containing papers in Varela’s name and approximately $59,000.00 in cash were found in that room. On July 24, 2000, police intercepted a call between appellant Buckson and a man named Harvey Bruer, and observed their subsequent meeting and what they believed to be a drug transaction. When Buckson drove away, the police attempted to stop him for a traffic violation.

Buckson fled, hitting several cars before he abandoned his vehicle and escaped on foot. His own car caught fire. After the fire was extinguished, police searched the car and found a .38 caliber Derringer handgun and a bag of empty gel caps. In early September 2000, the investigation concluded with nearly simultaneous raids on numerous properties that had been mentioned in the wiretapped conversations, or were places where appellants and their associates had been seen.

We summarize below some of the most significant raids. ¹⁵⁵ Late in the evening of September 1, police began a raid on 915 North Patterson Park Avenue, where they recovered drug paraphernalia, packaging materials and equipment, and papers in the name of appellant Eric Berry. Earlier that evening, police had seen appellants Downing and Buckson at that address. The two men were together in Downing’s car for two blocks, then Buckson exited the vehicle. Downing’s car was followed and stopped.

After a struggle, Downing was subdued, and police recovered a bag of suspected cocaine from his waistband. On September 6, police raided 3525 Pelham Avenue, where appellant Derrick Berry lived with his girlfriend. The police recovered approximately $25,000.00, which Derrick Berry said was drug money. In addition, Derrick Berry told police of the involvement of his aunt, Andrea Dias.

Police then searched Dias’s home at 3113 Kentucky Avenue and recovered $27,400.00. Also on September 6, the police raided 749 Exeter Hall, and seized papers, telephones, and $418.00 from a bedroom where Buckson was found. Shannell Myles was at 2932 West Cold Spring Lane when the police arrived and found approximately 60 bags of suspected cocaine, as well as documents naming both Myles and Buckson. Additional facts will be supplied as pertinent to our discussion of the issues.

DISCUSSION I. Appellants first argue that the trial court erred in refusing to instruct the jury that a relationship between the buyer and seller of a controlled substance does not establish a conspiracy. 3 There was no error. ¹⁵⁶ In Mitchell v. State, 363 Md. 130 , 767 A.2d 844 (2001), the Court of Appeals summarized the requirements for proof of conspiracy. A criminal conspiracy consists of the combination of two or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means. The conspiracy may be shown by circumstantial evidence from which a common design may be inferred. To demonstrate that there has been a meeting of the minds — a unity of purpose and design — the State must show that: (1) the parties to the conspiracy gave the matter sufficient thought, however brief or impulsive, to appreciate or articulate the objective of the conspiracy; and (2) the parties, by word or by gesture, understood and agreed to cooperate to achieve the objective of the conspiracy.

Id. at 145-46, 767 A.2d 844 . In Heckstall v. State, 120 Md.App. 621, 626 , 707 A.2d 953 (1998), we concluded that, “standing alone, a single buyer-seller transaction ordinarily does not constitute a conspiracy,” and we held that, because the evidence at Heckstall’s trial was limited to a single sale of a small amount of heroin, the evidence was legally insufficient to sustain his conviction of conspiracy. Appellants acknowledge that our holding in Heck-stall was narrow and based on the facts of that case. They urge us nonetheless to recognize a “somewhat broader ‘buyer-seller’ doctrine[,]” and then find reversible error in the court’s refusal in this case to instruct the jury on that doctrine.

We decline to do so. Maryland Rule 4-325(c) requires the trial court to give a requested instruction under the following circumstances: “(1) the requested instruction is a correct statement of the law; (2) the requested instruction is applicable under the facts of the case; and (3) the content of the requested instruction was not fairly covered elsewhere in the jury instruction actually given.” Ware v. State, 348 Md. 19, 58 , 702 A.2d 699 (1997). Moreover, a trial court need not give a ¹⁵⁷ requested instruction if the instructions given fairly cover the same subject matter. Binnie v. State, 321 Md. 572, 581-83 , 583 A.2d 1037 (1991); Brooks v. State, 104 Md.App. 203, 211 , 655 A.2d 1311 , cert. denied, 339 Md. 641 , 664 A.2d 885 (1995).

Here, the court fully instructed the jury on what constitutes a conspiracy; the court was not required to explain to the jury what does not constitute a conspiracy. To be sure, discrete portions of the evidence, when divorced from the larger evidentiary context, do reflect some “single buyer-seller transactions.” Yet it strains credulity to suggest that the requested buyer-seller instruction is fairly generated under the facts of this case. The federal courts of appeal have held that defendants are not entitled to the buyer-seller instruction in circumstances like those in the present case. See, e.g., United States v. Martinez-Medina, 279 F.3d 105 , 120 (1st Cir.) (holding that the evidence did not “plausibly” support a buyer-seller instruction, because “overwhelming evidence showed that [defendants] agreed to import drugs with the intent to distribute them, and engaged in repeated transactions of large quantities of narcotic drugs for resale”), cert. denied sub nom.

Perez-Colon v. United States, 536 U.S. 932 , 122 S.Ct. 2608 , 153 L.Ed.2d 794 (2002); United States v. Span, 170 F.3d 798, 801 (7th Cir.) (holding that conspiracy instruction accurately stated the law and properly “emphasized the necessity of finding a conspiratorial agreement,” even though the instruction omitted defendant’s requested statement that an agreement between a buyer and seller of illegal drugs does not constitute conspiracy), cert. denied, 528 U.S. 862 , 120 S.Ct. 153 , 145 L.Ed.2d 130 (1999); United States v. Jones, 160 F.3d 473, 481-82 (8th Cir.1998) (holding that defendant was not entitled to buyer-seller instruction in drug conspiracy prosecution, given evidence that defendant “played numerous roles in the conspiracy,” and that “massive amounts of cocaine were involved”); United States v. Starnes, 109 F.3d 648, 651 (10th Cir.) (holding that defendant was not entitled to buyer-seller instruction, despite defendant’s contention that buyer-seller transactions were the only contacts between defendant and ¹⁵⁸ alleged coconspirator, “because the government adduced far more evidence than the prior drug purchases to establish the conspiracy,” and instructions as a whole did not allow jury to convict on mere buyer-seller theory), cert. denied, 521 U.S. 1128 , 117 S.Ct. 2529 , 138 L.Ed.2d 1029 (1997); United States v. Mills, 995 F.2d 480, 485 (4th Cir.) (drug conspiracy defendant was not entitled to instruction on buyer-seller defense where facts showed that relationship of parties went beyond that of mere buyer-seller transaction), cert. denied, 510 U.S. 904 , 114 S.Ct. 283 , 126 L.Ed.2d 233 (1993); United States v. Medina, 944 F.2d 60, 65 (2d Cir.1991) (holding that trial court did not err in refusing to give instruction that mere buyer-seller relationship in single transaction “does not alone support a conspiracy conviction,” where there was evidence of “advanced planning among the alleged conspirators to deal in wholesale quantities of drugs obviously not intended for personal use”), cert. denied sub nom. Mata v. United States, 503 U.S. 949 , 112 S.Ct. 1508 , 117 L.Ed.2d 646 (1992); see also Riggs v. United States, 209 F.3d 828, 832-33 (6th Cir.) (holding that defendant charged with conspiracy to manufacture marijuana and possessing marijuana with intent to distribute was not entitled to specific buyer-seller instruction, even though support for such instruction existed, because court gave a “complete instruction reciting all the elements of conspiracy”), cert. denied, 531 U.S. 884 , 121 S.Ct. 200 , 148 L.Ed.2d 140 (2000). In the instant case, there was extensive evidence offered by the State that went to establish the existence of a complex conspiracy among all of the appellants to purchase large quantities of cocaine and re-package the drugs for sale to consumers. This evidence included not only police observations of individual transactions between some of the participants, but conversations and contacts suggesting that each had a role in the overall plan.

Under these circumstances, the trial court did not err in refusing to deliver the requested buyer-seller instruction. ¹⁵⁹ II. During jury selection, the prosecutor repeatedly complained that counsel for all of the defendants were conniving to exclude white jurors, and various defense counsel complained that the prosecutor was striking young black men. The trial court considered each situation as it arose, ruling sometimes in favor of the State and sometimes in favor of the defense. On one occasion, the court reinstated a juror struck by the State on the basis of age.

On another, the trial court reinstated a juror struck by counsel for Downing, a ruling that appellants argue was error on the part of the trial court. Initially, we address the State’s claim that this issue is not preserved for appellate review because the appellants each stated that the jury panel was acceptable. This is true of the appellants other than Downing. Downing was given several opportunities to argue his point, and the trial court noted that this was being done for the sake of preservation.

When Downing’s attorney replied that the panel was acceptable, the trial court interjected: “Subject to my ruling.” Downing’s attorney then asked “to be heard again on that. Just so the record is clear.” The record is, in fact, clear that Downing’s attorney and the trial court understood that Downing’s argument was preserved, and that his acquiescence to the jury as empaneled was not intended to waive his objection. Consequently, Downing has preserved the issue for our review. The other appellants, however, have not.

See Gilchrist v. State, 340 Md. 606, 618 , 667 A.2d 876 (1995) (holding that a party waives complaint concerning unconstitutional exercise of peremptory challenge by stating without qualification that the jury is acceptable). 4 ¹⁶⁰ In Batson v. Kentucky, 476 U.S. 79, 89 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), the Supreme Court of the United States declared that “the State’s privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause.” Batson announced a three-step process for evaluating claims that peremptory challenges have been used in a manner violating the Equal Protection Clause. Id. at 96-98 . A party claiming discrimination must first make out a prima facie case of purposeful discrimination, and show that the totality of the relevant facts creates an inference of discriminatory purpose. Once such a showing is made, the burden shifts to the striking party to produce neutral explanations for the exercise of its strikes.

Purkett v. Elem, 514 U.S. 765, 767 , 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995). If the striking party proffers a race-neutral explanation, the trial court must then decide whether there has been purposeful racial discrimination. Id. The third level determination of whether there has been purposeful discrimination is one of credibility, which is measured by many factors: the demeanor of counsel, the reasonableness or improbability of the explanations, and whether the proffered rationale has some basis in accepted trial strategy.

Miller-El v. Cockrell, 537 U.S. 322, 338-39 , 123 S.Ct. 1029 , 154 L.Ed.2d 931 (2003). “If a trial court determines that a reason given for a peremptory challenge is a pretext for purposeful discrimination and upholds a Batson motion, the court has ‘the discretion to fashion a remedy for a Batson violation that addresses and resolves the specific harm caused by that violation.’ ” Edmonds v. State, 372 Md. 314, 331 , 812 A.2d 1034 (2002) (citations omitted). We afford great deference to a trial court’s Batson rulings and findings of fact on the question of discriminatory intent. Hernandez v. New York, 500 U.S. 352, 364 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991). Such findings are overturned only when clearly erroneous.

Gilchrist, 340 Md. at 627 , 667 A.2d 876 . The decisive question is whether counsel’s race-neutral explanations should be believed, and the best evidence ¹⁶¹ often will be the demeanor of the attorney who exercises the challenge. Hernandez, 500 U.S. at 365 , 111 S.Ct. 1859 . Here, the issue was developed in the following colloquy between counsel and the court: MR.

MOORE [THE PROSECUTOR]: Your honor, two more strikes by the defense team, two more whites who didn’t answer questions. Additionally, as to Mr. Rich individually, I’ll note he has stricken four jurors, three whites who didn’t answer questions. I renew my assertion there is a defense effort to remove whites from the jury. The last two jurors stricken were whites who didn’t answer any questions.

Once again, defense consistently attempt to remove all white jurors from the jury pool. THE COURT: Mr. Rosenberg, why did you strike him? MR. ROSENBERG [COUNSEL FOR DOWNING]: Because he is a professor.

The state could produce technical evidence and— THE COURT: Are you ready? Are you ready? I’m reinstating him. MS.

FRASER [COUNSEL FOR VARELA]: Your hon- or— THE COURT: I’m reinstating him. MR. PURPURA [COUNSEL FOR DERRICK BERRY]: I agree with the court’s ruling, [I] have no objection to the court’s ruling. I do object to the state’s characterization.

THE COURT: Objection noted. MR. ROSENBERG: Let me give some other reasons, judge. It is more than that reason.

I do not have any strategy of striking white jurors. I have struck an equal amount of white jurors as [A]fricanAmerican jurors. And the reason [I] struck this man is he is not acceptable because he is too bright. I want a jury of peers.

None of these people have ever gone passed [sic] the 4th grade. THE COURT: You made it clear. It is preserved. ¹⁶² Appellant Downing mounts a two-pronged attack upon the court’s ruling, arguing, first, that he was not given an adequate opportunity to explain his race-neutral reasons for the strike, and, second, that the court made no express finding that the reasons that were offered were not credible. In support of the second argument, Downing cites Parker v. State, 865 Md. 299 , 778 A.2d 1096 (2001).

Neither argument has merit. First, the exchange quoted reflects that Downing’s counsel was given a full opportunity to explain his reasons for striking the juror in question. Second, the record does reflect, albeit not in the above-quoted exchange, that the court expressly found that Downing’s counsel had struck the juror because of his race. At the outset of the first of three sentencing proceedings in this case, the court put the following on the record: Since this case was tried, I read a case called Mantise Parker v. State____ During the course of the trial, I just want to put this on the record and I’ll put it on the record tomorrow, there were, I’ll use the term several, not as many a number, discussions at the bench over the striking of certain jurors because of race.

I do not recall specifically anyone’s precise words, other than something that I said. There came a point in time, and this really affects Mr. Rosenberg’s client [Downing] more specifically, ... when it appeared that a number of African-American and Caucasian jurors were being stricken.... I recognized, at least implicitly, and maybe not specifically, that there had been a pattern otherwise I would not ask an attorney to present a reason. The reason I mention this Mantise Parker case is that I perceive two issues, one that there are-and I certainly recognize it, there are certainly non-race based but legally justifiable reasons, for striking jurors regardless of their color or their race or their gender.

There came a time, as I recall, when I determined it was necessary to require an explanation for the striking of and I ¹⁶³ don’t remember the number, the record would reflect that number, of white jurors. And there was a Caucasian juror, who was a professor that was stricken and I reinstated him. And I used the words, as I recall, when counsel presented a reason I said that’s not acceptable. I believe the reason was that he was too intelligent.

But, to get to the point without taking any more of your time, I would not have reinstated the Caucasian professor if I did not believe that he was stricken because of race. Now, I make that comment in the light of the case because, put it this way, if a motion for a new trial had been filed based on that case, I would not grant it. I thought it necessary to clarify why I made that decision and that’s all I have to say about it. It is clear from the above that the court both understood and fully satisfied its obligations under the law.

The premise upon which Downing’s second challenge to the court’s ruling rests — that the court made no finding that the strike of the juror was based on race — fails in the face of the court’s clarification of the basis for its decision to reseat the juror. The Supreme Court made clear in Miller-El that deference to the trial court’s findings on credibility is crucial because a reviewing court, analyzing only the transcript of the voir dire, is “not as well positioned as the trial court is to make credibility determinations.” 537 U.S. at 339 , 123 S.Ct. 1029 . The court in the instant case discredited defense counsel’s facially neutral explanation for the strike of the juror, believing instead that the strike was race-based. We ought not and therefore do not second-guess the trial court’s assessment of defense counsel’s credibility on that point.' It follows that the court’s decision to reseat the previously stricken juror was not error.

See Jones v. State, 343 Md. 584, 605 , 683 A.2d 520 ¹⁶⁴ (1996) (holding that it was a proper exercise of the court’s discretion to reseat jurors stricken in violation of Batson).

III

Appellants argue that the trial court erred in excluding evidence that a court, in a different and completely unrelated case, granted a motion to suppress evidence on the ground that Detectives Gladstone and Jendrick had made a false statement in a warrant application. According to defense counsel, this evidence was relevant to the credibility of the two detectives, and was admissible under the “catch all” exception to the hearsay rule. Appellants are not entitled to reversal on this ground. This issue was discussed in an extensive bench conference among the court, the prosecutor, and counsel for appellants Eric Berry and Downing.

The conference was sought by counsel for Eric Berry during his cross-examination of State’s witness Detective Cannon. We find it necessary to set forth a good portion of the discussion so as to appreciate fully counsel’s and the court’s respective positions on the issue: MR. NEEDLEMAN [COUNSEL FOR ERIC BERRY]: I want you to put the State on full alert of this. Your Honor, in November of the year 2000 my office was involved in a criminal matter wherein Detective Gladstone and Detective Jendrick testified.

As a matter of fact, they were the agents. As a result — let me just say the whole thing and then — as a result of that, Associate Judge of the Circuit Court for Baltimore City, M. Brooke Murdock, issued an oral opinion basically saying that she felt they were lying. As a result of that, a case of some magnitude, the evidence was suppressed. As a result of that, Phil Jackson, who is an assistant — as you know, His Honor knows him— an assistant United States attorney filed — and I’m trying to get the right word.

I don’t know if it was a secret order. I can’t say that he did that. But he filed an order to— ¹⁶⁵ MR. NEEDLEMAN: He filed a motion.

And basically there was a[n] in-chambers conference that I attended. It also was attended by Tony Canavale, Michael Cannon, John Jendrick, and Keith Gladstone. MR. NEEDLEMAN: Okay.

Now, they requested that Judge Murdock change the wording and change-how can I say this? I’m at a loss of words. Change what she said in that if her ruling stood, under the Jenx Act (phonetic) and under Giglio (phonetic), United States v. Giglio, Defense lawyers would be entitled to that evidence which showed that their officers were called a liar, and she did — well, Judge, she did so. THE COURT: What did she do?

MR. NEEDLEMAN: I’m not too sure what she did. She just said that the evidence was suppressed on another reason. MR.

NEEDLEMAN: If I — before I got into it — and I’m going to have to tell Mr. Moore that I was going to ask questions about State of Maryland v. Antoine Manning (phonetic), and the veracity of Keith Gladstone and John Jendrick. The prosecutor advised the court that he too had been present at the chambers conference with Judge Murdock, and did not recall the proceedings quite as Mr. Needleman did: MR. MOORE [THE PROSECUTOR]: What Judge Murdock did, Your Honor, was she entered an order correcting a clerk’s office entry which she — the clerk’s office had made an entry indicating that the judge made a finding throwing out a search warrant saying that the officer had made a false statement. Judge Murdock entered a[n] order correcting that entry saying that the officer had made a statement unintentionally.

And I don’t recall the exact ¹⁶⁶ wording, but there is a written order in the file which the Court can see if it wants. The point is Judge Murdock was simply correcting a docket entry by the clerk. Mr. Needleman disputed the prosecutor’s understanding of the events in question. The court then sought clarification of counsel’s request: THE COURT: You want me to allow in evidence what some other judge said?

Is that what you’re saying to me? MR. NEEDLEMAN: I think you would take judicial notice of another court — of a court file. Absolutely you can.

The prosecutor acknowledged that the court could take judicial notice of a file in another case, but argued that the evidence was irrelevant to the instant proceedings. The court accepted Mr. Needleman’s proffer, “as an officer of the