Brown v. State

BISHOP, Judge. Shirley Mitchell Brown appeals from his conviction after a jury trial in the Circuit Court for Anne Arundel County of distribution and conspiracy to distribute a controlled dangerous substance. ISSUES Appellant presents the following issues on appeal: I. Whether the trial court erred when it admitted into evidence, over the objection of counsel, a statement made ⁵²⁶ by defendant, notice of which was not provided to defense counsel prior to trial; II. Whether the trial court erred in allowing evidence of appellant’s narcotics transaction with Officer Young on March 7, 1988 and his subsequent conviction therefor; III.

Whether the trial court’s refusal to strike for cause a venireman who indicated both that he would give more weight to the testimony of a police officer and that he was biased against blacks constituted reversible error; IV. Whether the trial court erred in considering evidence of dubious reliability at sentencing; and V. Whether the trial court erred in denying defense counsel the opportunity to respond to the trial court’s remarks made prior to sentencing. FACTS Appellant was tried for distribution and conspiracy to distribute cocaine on or about February 17, 1988. Both charges derived from an undercover purchase by Special Agent Kenneth Johnson of the Drug Enforcement Administration and Reginald Gray, a paid confidential informant.

Johnson testified that he and Gray drove to Brooks Court in the Newton 20 area of Annapolis, Maryland. Gray identified appellant who was standing among a group of men repairing a car in the Brooks Court parking lot. Gray left the car, approached appellant, and had a short conversation. Gray returned to the car and Johnson drove the car farther down the parking lot.

At the same time, Johnson saw appellant talk to another individual who then walked into apartment 805B of Brooks Court. Johnson testified that approximately five minutes later, “an individual walked from the direction of the crowd where Mr. Brown was.” This individual approached Johnson, who was seated in his car, and introduced himself as “Larry.” Larry handed Johnson a package of white powder, later identified as cocaine, and stated that it cost $1,350.00. Johnson gave Larry $1,400.00. Larry returned to the group ⁵²⁷ of men, made an exchange with appellant, and then returned to Johnson’s car and handed Johnson $50.00.

During cross-examination, Johnson stated that he first noticed Larry as he was walking toward Johnson’s car from the direction of apartment 805B. Gray testified that he was with Johnson at Brooks Court in Annapolis on February 17, 1988 and that, after Johnson parked the car, Gray approached appellant and asked the price of an ounce of cocaine. Appellant told him $1,350.00. Gray returned to the car, relayed this information to Johnson and returned to appellant who instructed him to move the car farther down the parking lot.

Gray entered the car, and Johnson moved it as instructed. Gray then testified that he saw appellant and his brother go into an apartment. When they came out, one of them approached Larry who was “a runner.” Larry approached the car and handed an ounce of cocaine to Johnson. Larry returned to appellant and brought back $50.00 which he gave to Johnson.

Gray acknowledged that he was compensated for his assistance. Detective Todd Young of the Anne Arundel County Police Department testified that he and Detective Arthur Foote conducted surveillance on February 17, 1988 from a car in another section of the parking lot. Young testified that Larry was part of the group in the parking lot and that he had not observed anyone go into apartment 805B. Young further testified, over objection, about a cocaine purchase on March 7, 1988, to which appellant pled guilty.

The court granted a continuing objection pursuant to Md. Rule 4-323(b) 1 to any testimony regarding the March 7, 1988 incident on the grounds of surprise, failure of the State to provide discovery, and due process. The following ⁵²⁸ exchange which occurred between the prosecutor and Officer Young is the statement at issue: Q. Now, did he hand the drugs to you or did he hand the drugs to the CI [confidential informant]? A. No, he handed the drugs to the CI. Q. What did Mr. Brown say to the CI?

A. He told the CI the next time for him to do a deal by himself. Q. Did Mr. Brown then have occasion to say anything to you? A. Yes. He told me that it’s not that — he said exactly, “It’s not that you’re not okay, I just don't deal with anybody new.” The State called three more witnesses whose testimony added nothing to the above facts.

Appellant did not testify and did not call any witnesses. DISCUSSION I. A. The Statement Md. rule 4-263(b)(2) 2 provides: (b) Disclosure Upon Request. — Upon request of the defendant, the State’s Attorney shall: (2) Statements of the Defendant. — As to all statements made by the defendant to a State agent that the State intends to use at a hearing or trial, furnish to the defendant, but not file unless the court so orders: (A) a copy of each written or recorded statement, and (B) the substance of each oral statement and a copy of all reports of each oral statement. “The major purpose of Md.Rule 4-263 and its predecessors ... is to assist the defendant in preparing a defense and to ⁵²⁹ afford protection from surprise.” Russell v. State, 69 Md.App. 554, 564-5 , 518 A.2d 1081 (1987), citing Mayson v. State, 238 Md. 283 , 208 A.2d 599 (1965) and Powell v. State, 23 Md.App. 666, 675-6 , 329 A.2d 413 (1974). Although Md.Rule 4-263(b)(2) includes the phrase “all statements,” the courts have limited the required State disclosure. In Blake v. State, 15 Md.App. 674 , 292 A.2d 780 , cert. denied, 266 Md. 734 (1972), appellant was convicted of unlawful distribution of heroin, and appealed arguing, inter alia, that he was not afforded proper discovery pursuant to former Md.Rule 728.

Former Md.Rule 728 provided: a. Generally. Upon motion of a defendant and upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable, the Court, at any time after indictment, may order the State’s attorney or other person pursuant to an order to be passed as provided by section b of this Rule: 2. Defendant’s Statements.

To furnish the defendant the substance of any oral statement made by him which the State proposes to produce as evidence to prove its case in chief, a copy of any written statement made by him, and the substance of any oral confession made by him. b. Form of Order. An order under this Rule shall specify the time, place and manner of making the production, inspection, observations and of taking the copies and photographs and may prescribe such terms and conditions as are just. Blake filed a Motion for Discovery and Inspection in which he demanded copies of any statements made by him to any ⁵³⁰ agent of the State. 3 The State replied, “None,” when in fact the State intended to have a trooper testify that during the alleged drug sale Blake told him that the purchase price was $3.00 a package.

Blake argued that the non-disclosure of this “oral statement” impaired his ability to defend himself. We disagreed. We find no merit in this contention. We believe that the “Motion for Discovery and Inspection” called for statements, confessions or admissions obtained after completion of the crime and not those that occurred during the course of the commission of the crime.

We think that the trooper’s testimony that the purchase price would be $3.00 per packet was a reiteration of part of the res gestae and not within the ambit of the “Motion for Discovery and Inspection.” We find Smith v. State, 4 Md.App. 146 [ 241 A.2d 728 ] (1968), relied on by the appellant, to be inapposite. Appellant knew that he was charged with selling heroin and he further obviously knew that some conversation, of necessity, would have ensued between the appellant and the buyer in order to effect the sale. We do not believe appellant was misled or put in such a position that his ability to defend himself was impaired by his not being advised as to the officer’s proposed testimony that the purchase price would be $3.00 per packet. Rule 728 addresses itself to statements, oral or written, inculpatory or exculpatory, made by an accused to an agent of the State after the completion of the crime.

Id. at 681, 292 A.2d 780 . Subsequently, on facts highly analogous to Blake, the Court of Appeals, in Jennings v. State, 303 Md. 72 , 492 A.2d 295 (1985) held that conversations in which the defendant negotiated for the purchase of illegal drugs were not ⁵³¹ “statements” within the meaning of former Md.Rule 741. 4 The Court examined the history of former Md.Rule 728 and concluded that the discussions and proposals of the Rules Committee “concerning discovery of utterances by an accused were in terms of ‘confessions and admissions.’ ” Id. at 81 , 492 A.2d 295 . Consequently, “[i]t does not appear that the terminology ‘any oral statements’ was intentionally selected for the purpose of making discoverable testimony of state agent witnesses to verbal acts forming part of the crime.” Id. at 81-2 , 492 A.2d 295 . The Court supported its interpretation by quoting from our opinion in Blake.

Id. at 83 , 492 A.2d 295 . Md.Rule 741, the Court continued, was a revision of Md.Rule 728. Its developmental history revealed that the Rules Committee did not directly discuss Blake although it did consider the scope of “statements” which should be discoverable. Id.

The Court concluded that because Blake was the only Maryland opinion on this subject during the years preceding the revision of the criminal rules that culminated in Md.Rule 741, “any conscious intent to reject the Blake interpretation of ‘statements’ as used in Md.Rule 741 would have been expressed in explicit language.” Id. at 84, 492 A.2d 295 . It was not and, therefore, “the Blake interpretation [is] inherent in former Md.Rule 741 and in current Md.Rule 4-263.” Id. This is not to be interpreted to mean that all statements made to a State agent during the commission of a crime are excluded from discovery. For example, a pre-arrest conversation between the accused and a police officer during ⁵³² transportation of a stolen vehicle was held to be discoverable.

Bailey v. State, 303 Md. 650, 654 , 496 A.2d 665 (1985). Moreover, Blake and Jennings concern statements made to State agents during the commission of the crime on trial, and not statements made during subsequent crimes. The case sub judice does not fall within the limited Blake and Jennings exclusions. The plain reading of Md.Rule 4-263(b)(2) requires the disclosure of “all statements” made to State agents.

Blake and Jennings have excluded the “obvious” statements in any illegal drug sale, the verbal acts necessary to effect a transaction. In Blake the statements concerned price and in Jennings the statements were negotiations for the purchase of illegal drugs. Further, the excluded verbal acts formed the crime for which the defendant was standing trial. To ensure that the accused will have the opportunity to prepare a defense free from unfair surprise, we will strictly construe every limitation upon Md.Rule 4-263(b)(2).

Only those statements that pertain directly to verbal acts necessary to effect the commission of the crime for which the defendant is accused are excluded from Md.Rule 4-263(b)(2). Appellant’s statement was an extraneous remark made at the conclusion of a sale of cocaine conducted almost three weeks after the alleged transaction for which the defendant was on trial. It was discoverable under Md.Rule 4-263(b)(2), and should have been produced in response to the defendant’s request. B. Reversible Error [W]hen a discovery violation comes to light in the course of trial, whether any sanction is to be imposed and, if so, what it is to be, is in the first instance committed to the discretion of the trial judge.

The exercise of that discretion includes evaluating whether a discovery violation has caused prejudice. When asked to grant a mistrial as a sanction for a discovery violation by the State which was revealed during trial a circuit judge would look at the record as a whole to determine whether the matter omitted from a formal discovery production by ⁵³³ the State had nevertheless been timely communicated to or known to the defense in some other way. Warrick v. State, 302 Md. 162, 173 , 486 A.2d 189 (1985) (citations omitted). There was no evidence that appellant knew prior to trial that the alleged statement was going to be used.

The fact that appellant plead guilty to the charge upon which the disputed statement was based does not render that statement admissible. In Bailey, supra, the Court of Appeals held that there had been a discovery violation, contrary to the determination of the trial court. Relying in part on Warrick , the Court fashioned a three step test for the trial court to determine on remand the appropriate sanction for a discovery violation that came to light in the course of the trial. Step three provides: Here the circuit judge should consider whether Bailey was otherwise prejudiced by the State’s discovery violation.

The burden is on the State to prove beyond a reasonable doubt that there was no prejudice. Warrick, supra, 302 Md. at 174 , 486 A.2d at 195 . If the State is able to meet that burden, the judgment of conviction stands. If the State cannot show the absence of prejudice, the circuit court should grant a new trial. 303 Md. at 659, 496 A.2d 665 .

After a review of the record, we cannot say, beyond a reasonable doubt, that absent appellant’s statement, he would have been convicted. Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976). None of the witnesses saw appellant handle the ounce of cocaine or the money exchanged between Johnson and “the runner” Larry. None of the witnesses could state where Larry obtained the cocaine.

None of the witnesses agreed on appellant’s actions during the transaction. Gray testified that appellant walked into apartment 805B with his brother. Young testified that no one went into the apartment. Johnson testified that appellant remained with the group of men throughout the transaction but another individual walked into apartment 805B after speaking with appellant.

It is only by adding appel ⁵³⁴ lant’s statement to this evidence that the glue needed to bind him to the transaction is provided. Although appellant was never seen with cocaine or money, considering appellant’s statement, one can reasonably infer that he was the dealer surrounded by employees. We cannot say beyond a reasonable doubt that appellant was not prejudiced by the jury’s consideration of Officer Young’s testimony concerning appellant’s statement. We, therefore, reverse.

Although this issue is dispositive of the appeal, for the direction of the court on retrial we will respond to the remaining issues.

II

Appellant contends that the court erred in admitting evidence of his actions during an unrelated sale of illegal drugs for which he pled guilty to Possession with Intent to Distribute. “Whenever evidence of prior misconduct is offered for any purpose other than to show propensity, it is, subject only to the universal balancing of relevance and its counterweights, presumptively admissible.” Harris v. State, 81 Md.App. 247, 270 , 567 A.2d 476 (1989), cert. granted, 319 Md. 111 , 570 A.2d 1244 (1990). Harris did not change the law, but “simply changed the overall construct from exclusionary rule with exceptions to general rule of inclusion with the exception of showing propensity to commit bad acts.” Simms v. State, 83 Md.App. 204, 211 , 574 A.2d 12 (1990); accord, Harris, 81 Md.App. at 279 , 567 A.2d 476 ; cf. Ross v. State, 276 Md. 664, 669-70 , 350 A.2d 680 (1976). The State proffered that appellant’s participation in the March 7 sale was “offered for every other reason other than the propensity [to commit crime]”; however, in their brief the essence of the State’s argument is that it is probative of modus operandi, a subset of identity, for it was necessary to establish that appellant was a participant in the sale at issue although he did not make actual delivery of the cocaine. Modus operandi is a permissible reason ⁵³⁵ under Harris ; although it does not guarantee admissibility.

The evidence is still subject to “the universal balancing of relevance and its counterweights ... [of which] the greatest of these is unfair prejudice.” Harris, 81 Md.App. at 270, 285 , 567 A.2d 476 . “[E]vidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice____” Id. at 285 , 567 A.2d 476 , quoting Federal Rule of Evidence 403. Indeed, “because of the potential danger involved, the admission of other crimes evidence ‘should be subjected to rigid scrutiny by the court.’ ” State v. Faulkner, 314 Md. 630, 634 , 552 A.2d 896 (1989), quoting Ross, 276 Md. at 671 , 350 A.2d 680 . Chief Judge Murphy described the dangers in Straughn v. State, 297 Md. 329, 333 ,