Blake v. State

Gilbert, J., delivered the opinion of the Court. William Blake, the appellant, was convicted by a jury in Prince George’s County of unlawfully distributing a proscribed narcotic drug, to wit, heroin. Blake was sentenced by Judge William B. Bowie to a term of 6 years under the jurisdiction of the Department of Correctional Services. Blake here assigns four reasons why the judgment of the trial court should be reversed, the reasons being: I. A motion to dismiss and to suppress the evidence should have been granted because of an unreasonable time lag between the offense and Blake’s apprehension.

The time lag allegedly “fatally impaired” Blake’s ability to defend himself and constitutes a denial of due process.

II

That he was not afforded proper discovery.

III

The trial judge erred in admitting into evidence the aluminum foil packets of heroin in view of a break in the “chain of custody.” IV. The evidence was insufficient to sustain the conviction. Trooper William S. Dorsey of the Maryland State Police testified that at 2:00 p.m. on April 6, 1971, he was in the vicinity of Eastern Avenue and 61st Street, in Prince George’s County. The trooper was in plain clothes.

He met Blake and purchased from him two aluminum foil packets of heroin at $3.00 each. The trooper did not arrest Blake at that time because he felt that to do so would impair other investigations being conducted by the trooper. Blake was not indicted until July 20, 1971. The arrest was actually made on August 3, 1971.

A chemist testified that he analyzed the contents of the two aforementioned aluminum foil packets and found the substance contained therein to be heroin. There was ⁶⁷⁷ testimony relative to the “chain of custody” which we shall hereinafter discuss in more detail. The appellant, Blake, in his testimony, denied making the sale to the trooper and denied knowing the trooper except to the extent that he had seen him previously when he, Blake, was in court as a witness in another proceeding. I. The appellant contends that the trial court should have granted his motion to dismiss “on the grounds that the time lag between the alleged offense and complaint resulted in the Appellant being unable to defend himself.” In support of his contention, appellant points to the fact that the offense occurred on April 6, 1971.

No indictment was handed down until July 20, 1971, and service of process was not effected until August 3, 1971. This period of time encompasses a lapse of 119 days between the time of the offense and the actual arrest, and a total of 105 days between the offense and indictment. To buttress his argument, appellant relies solely upon the case of Ross v. United States, 349 F. 2d 210 (D. C. Cir. 1965). In Ross , there was a delay of 7 months between the time of the offense and the date that the complaint was lodged against the appellant Ross.

The Court noted that the police officer, when called to testify, had refreshed his recollection of the incident by reference to his “contemporaneous entries in a notebook” while in the instant case the “Appellant had no notebook, and, although he denied making the sale, he was unable to account in any detail” for himself with respect to the time and place in question because of an asserted lack of recollection and of means for reconstruction of the day involved. Trooper Dorsey, at the trial of the case, now before us, testified that he had refreshed his memory by a reference to notes that he made at the time of the commission of the offense. The similarity between Ross and the present case ends with the reference by the trooper to his notes, because, unlike Ross , the appellant testified on direct examination as follows: ⁶⁷⁸ “Q. Can you. tell the members of the jury where you were on the 6th of April ? A. Home.

Q. Tell them how you can say you were at home and what circumstances caused you to remember that? A. I was home taking care of my children. My wife was working. * * * “Q. Is there any other way that you can identify to your exact location at two o’clock in the afternoon on the 6th of April, 1971? A. By my wife.

Q. Because of your taking care of the children? . A. Yes, sir. Q. Do you remember that specific date ? A. No, sir.” The appellant also testified that his construction job had come to an end, so that during April, 1971, while his wife was working, he stayed home and took care of the children.

We rejected the rationale of Ross in Brown v. State, 1 Md. App. 571, 574 (1967). There we said: “While that case [Ross v. United States] could be distinguished on its facts, it does not represent the law of this state. We find that there was ample reason for the officer to delay making the arrest * * (Emphasis supplied). In Jones v. State, 3 Md. App. 616, 618 (1968), we said: “* * * in Brown * * * the evidence showed that the delay in procuring the defendant’s arrest on a warrant was occasioned by the existence of undercover work which would have been jeopardized had an earlier arrest been made.

We hold here, as we did in Brown , that the delay in making the arrest was not unjustifiable under the circumstances. In so concluding, we have ⁶⁷⁹ considered Ross v. United States, 349 F. 2d 210 (App. D. C.), upon which appellant relies, but find it inapposite under the facts of the present case.” In the instant case we hold, as we did in Brown and Jones , that the delay in making the arrest was not unjustifiable in view of the trooper’s testimony that to have made the arrest on April 6th “would have hampered efforts to apprehend other violators.” This Court in Hamilton v. State, 14 Md. App. 582, 589 (1972) enunciated a two-pronged test to be met by an accused charging a prejudicial delay by the State in effecting an arrest, when we said: “We can only conclude that with respect to pre-accusation delay the burden is on the defendant to demonstrate violation of due process. He must show actual prejudice to the conduct of the defense and that the prosecution intentionally delayed to gain some tactical advantage over him or to harass him. The real possibility of prejudice inherent in any extended delay is not enough.” (Emphasis supplied).

See also United States v. Marion, 404 U. S. 307 , 92 S. Ct. 455 , 30 L.Ed.2d 468 (1971). Here appellant has made no showing of actual prejudice to the conduct of the defense, nor has he demonstrated that the prosecution “intentionally delayed to gain some tactical advantage over him or to harass him.” II. Appellant next argues that he was not afforded proper pretrial discovery in three respects: a) He was misled as to the time of the occurrence. b) He had demanded a copy of any statements made by the appellant and the State had represented that no such statements were made. c) The State had supplied the name of an expert wit ⁶⁸⁰ ness, a chemist by the name of John Miller, but actually used the testimony of a different chemist, Gene V. Tracey. a) In the appellant’s pretrial motion to suppress the evidence, his then attorney advised the court that the “State’s Attorney’s office in answer to a motion for discovery resulted in us being given the information that this alleged offense occurred on April 6, 1971, at two o’clock in the morning.” The Assistant State’s Attorney denied that he had informed the appellant’s counsel that the offense had occurred at 2:00 a.m., but asserted that it occurred at 2:00 p.m. This information was allegedly related to appellant’s defense attorney in “informal discovery proceedings.” Rules 715 and 728 adequately protect an accused in criminal causes by affording him both a bill of particulars and discovery.

Proper utilization of the Rules would have precluded the possibility of a misunderstanding concerning the exact time of the alleged offense. Judge Bowie was not persuaded by the appellant’s claim and so ruled. We have carefully examined the record and are unable to say that in so doing Judge Bowie was in error. Appellant testified with specificity as to his whereabouts on the date and at the time of the offense, and we fail to see where he has been injured by the confusion as to the time of the offense.

Additionally, we are unable to say, on the record before us, whether the appellant was misled by the State or simply misunderstood the Assistant State’s Attorney. b) Appellant argues that although in his “Motion for Discovery and Inspection” he had demanded “Copies of all statements, memoranda, or transcripts of any state-. ments made by this defendant, * * *” and “Copies of any memoranda or summaries of any oral statements which relate to the subject matter of this case, made by the defendant, * * * to any agent of the