Cason v. State

DEBORAH S. EYLER, Judge. A jury in the Circuit Court for Baltimore City convicted Robert James Cason, 1 the appellant, of possession of heroin with intent to distribute, possession of cocaine with intent to ³⁸⁴ distribute, simple possession of heroin, and simple possession of cocaine. He was sentenced to a term of 20 years imprisonment for the possession of heroin with intent to distribute conviction and a concurrent 20 year term for the possession of cocaine with intent to distribute conviction. The other convictions were merged for sentencing.

On appeal, the appellant presents the following questions for review: I. Did the suppression hearing judge err by abandoning his role of neutrality and assuming the role of prosecutor?

II

Did the suppression hearing court err in denying the appellant’s motion to suppress evidence observed by the police during a warrantless search of his house?

III

Did the trial court err in denying the appellant’s motion for recusal?

IV

Did the trial court err in allowing the case to continue after a violation of the sequestration rule? V. Did the trial court err in allowing the case to be tried using a xeroxed copy of the search and seizure warrant? For the following reasons, we answer “no” to these questions. Accordingly, we shall affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS In December 1998, the appellant and his wife and daughter were living at 811 Druid Park Lake Drive, in Baltimore City. The home, which was owned by the appellant’s mother, was protected by an ADT alarm system. The front bedroom window, on the second story of the house, was not wired into the alarm system, but had a grate affixed to it. On December 10, 1998, the appellant called his insurance company and reported that he had found the grate on the front bedroom window ajar, that the window itself was damaged, and that some items of personal property were missing ³⁸⁵ from the room.

When the appellant inquired about having the insurance company pay to fix the window, the adjuster responded that he would need a police report number to process the claim. The appellant did not have such a number because he had not reported the alleged break-in to the police. That night, the appellant called the police to report the break-in. The police did not respond.

The following morning, December 11, the appellant again called the police. This time, Officer Steven Mayhan and his partner, Officer Whiting, patrol officers with the central district, responded to the call. 2 They arrived at the appellant’s house at approximately 10:00 a.m. The following is Officer Mayhan’s version of the events that culminated in the appellant’s arrest. 3 The appellant met the officers outside, in front of his house. The appellant told the officers that the house had been broken into and pointed to the front bedroom window as the point of entry.

He further told the officers that he needed a police report to submit to his insurance company. In response, Officer Mayhan told the appellant that the officers needed to investigate. The appellant then took the officers into the house and led them upstairs to the front bedroom. Officer Mayhan found the front bedroom window closed with the grate ajar.

He examined the window and found no signs of forced entry. The appellant told Officer Mayhan that the items stolen from the room were a .380 handgun and some jewelry. Officer Mayhan looked around the room and saw that it contained numerous palm-sized camcorders and cell phones, a tray of silver coins, and many new VCRs, still in their boxes. Officer Mayhan and the appellant walked back downstairs.

Officer Mayhan asked to be seated at the dining room table so ³⁸⁶ he could speak to the appellant and get some more information from him. Officer Mayhan proceeded to ask the appellant his name, date of birth, and general information necessary for the burglary report. Officer Mayhan sensed that the appellant was irritated about having to give the general information necessary for the burglary report. While Officer Mayhan was seated at the dining room table asking questions of the appellant, he noticed an ashtray on the table that contained several bullets of different calibers.

He also noticed an open toolbox containing “several hundred empty gelatin capsules.” Officer Mayhan told the appellant that he was going out to his police cruiser to get some more reports. In fact, Officer Mayhan went to the cruiser to call the appellant’s name and date of birth into the police computer to see if there were any outstanding warrants for him. Officer Mayhan learned that there were two warrants for the appellant, one for a traffic violation and one for a failure to appear. Officer Mayhan then used the cellular telephone in his cruiser to call the district drug unit to determine whether the appellant had a criminal record.

He spoke to Detective William Denford and Detective Mark Lunzford, who informed him that the appellant was a convicted felon. Officer Mayhan returned to the appellant’s dining room to continue writing his report. The appellant told him that he thought the burglar had only been inside the front bedroom of the house because the window in that room was the only entry to the house that was not connected to the alarm system. In response to Officer Mayhan’s call to the district drug unit, a number of officers from that unit came to the scene, among them Detective Denford.

Officer Mayhan showed Detective Denford the front bedroom window. Officer Mayhan and Detective Denford then went to the basement of the house, where they observed an interior basement room with a door that was knocked off its hinges. The officers looked through the doorway opening to that room and saw a scale, a sandwich bag containing a large amount of white powder, and ³⁸⁷ what appeared to be drug packaging material. At that point, the officers placed the appellant under arrest.

Detective Denford’s rendition of the events in question was as follows. 4 He and his partner, Detective Lunzford, arrived at the appellant’s house and were told by Officer Mayhan that he had a suspicious report of a burglary, that the complainant was very nervous, and that there were “several” gelatin capsules in the complainant’s dining room. Officer Mayhan and Detective Denford then went to the upstairs bedroom. Detective Denford observed that, although the window grate was open, there were no scrape marks or any signs of forced entry on the window. Detective Denford, Officer Mayhan, and Detective Lunzford then went to the basement of the house, where they saw an interior door that had been smashed off its hinges and was lying on its side in the doorway.

Detective Denford and the other officers went to the basement as part of their investigation of the point of entry of the alleged burglary and to protect the crime scene. Detective Denford denied that the burglary investigation had become a “ruse ... [for] traipsing throughout [the] entire house looking to undercover [sic] controlled dangerous substances [.]” He explained that he looked inside the basement room and saw a plastic bag containing a white substance and vials, capsules, and “stuff’ strewn about a table in the room. Based on his training and experience in the field of narcotics investigation, he suspected the white substance to be heroin or cocaine. Using the information they had obtained in their walk through the basement of the appellant’s house, the officers prepared a written application for a search and seizure warrant.

The warrant was issued and executed the same day. In the search and seizure effected pursuant to the warrant, the officers found in the basement room of the appellant’s house: a brown bag containing 90 red capsules of heroin; a plastic bag containing 49 grams of cocaine; a plastic bag containing ³⁸⁸ 8.9 grams of heroin; a plastic bag containing 121 grams of a white substance determined to be a non-controlled dangerous substance; a plastic bag containing 10 pounds of a white substance suspected to be a cutting agent; an electronic scale with residue; and implements used in drug processing and distribution. In addition, the officers found and seized 25 bullets from an upstairs bedroom. Detective Denford testified that an item of evidence marked “item 9,” identified as “[thousands of empty gel capsules,” was recovered from the basement and the dining room of the house.

When asked by the suppression hearing judge to specify what was seized from the dining room, Detective Denford replied, “bullets, Your Honor, and a bag with several gelatin capsules.” Additional facts will be recounted in our discussion of the issues. DISCUSSION I. The appellant first contends that the suppression hearing judge abused his discretion by abandoning his neutral role and assuming the role of prosecutor. Specifically, the appellant argues that the suppression hearing judge acted improperly by reopening the evidentiary portion of the case to admit additional testimony and evidence that the prosecutor had not introduced during his presentation of the case. Officer Mayhan and Detective Denford were the only witnesses called by the State at the suppression hearing.

The appellant and his mother, Carolyn Cason, testified at the suppression hearing. The State called Officer Mayhan as a rebuttal witness and the defense then announced that it had no surrebuttal. The contraband seized in the search of the house was not moved into evidence. The prosecutor and defense counsel then gave closing arguments to the court.

The arguments were interactive, in that the court posed questions and had exchanges with each lawyer ³⁸⁹ as the lawyer was presenting his argument. During defense counsel’s presentation, he argued that the police had acted improperly by going into the basement of the house and, therefore, any contraband seen by them in the basement was not admissible under the plain view doctrine. The following exchange then occurred between the court and the prosecutor: THE COURT: Can the Court conclude that [appellant’s counsel] ... is correct as to the basement — if so, can you dissect from that which is in the basement and show me what was found in the tool box? Can you tell me exactly what was found in the dining room? [THE PROSECUTOR]: The officer’s testimony says the bag of caps in the box and the several different calibers of ammunition in the ashtray.

THE COURT: All right. Put on that table the bag of narcotics [t]hat was found in the dining room____I want to see the bag of narcotics from the dining room. The prosecutor pointed out that the contraband had not been admitted into evidence and offered to see if the State’s witnesses had the evidence. The court then directed the prosecutor to bring the officers, who were in the hallway, into the courtroom.

One of the officers informed the court that the contraband was in the State’s Attorney’s Office, upstairs in the courthouse. The court directed the officer to retrieve the contraband and bring it into the courtroom. The court then took a brief recess while the officers retrieved the contraband. When the officers returned to the courtroom, the court asked Detective Denford, who was holding the contraband, to put it on the table and show the court what part of it had been found in the dining room of the house.

The record reflects that Officer Mayhan then identified the bag that had been sitting in the toolbox in the dining room by pointing to it. Ultimately, the court denied the motion to suppress. It concluded that the police had rightfully entered the appellant’s house because the appellant had called them and had invited ³⁹⁰ them into the premises to investigate an alleged break-in. The court further concluded that the search performed by the police “in fact [was] lawfully done in ... accordance [with] the following of [the] request of the Defendant and their presence in the property itself and that which was found [was] properly seized in accordance with their observations and plain view____” We note, preliminarily, that the appellant failed to preserve his first issue for review.

When the trial judge directed the prosecutor and the officers to bring the contraband into the courtroom, the appellant did not object; nor did he object to the presentation of the collection of gelatin capsules at any time before or during the demonstration. An issue not raised or decided in the lower court is not properly preserved for review by this Court. Maryland Rule 8 — 131(a); see also State v. Bell, 334 Md. 178, 189 , 638 A.2d 107 (1994) (stating that Md. Rule 8-131(a) furthers the interests of fairness for all parties by “ ‘requiring] counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings.’ ” (citations omitted) (alteration in original)). There is no merit to the appellant’s argument, moreover, that he did not have time to object, and any objection would have been futile.

It is plain from the record that the process by which the contraband was retrieved and brought into the courtroom was prolonged, and permitted ample time for the appellant to lodge an objection. Moreover, we detect nothing about the nature of the suppression hearing judge’s direction to the officers to fetch the contraband, or his inquiries of the officers once they had done so, to suggest that he would not have entertained an objection, if one had been made. Even if this issue had been preserved, we would conclude that the suppression hearing judge’s act of reopening the evidence and considering the testimony about what part of the contraband was in the toolbox in the dining room was a proper exercise of discretion. In general, the court has ³⁹¹ “broad discretion to reopen a case to receive additional evidence.” Dyson v. State, 328 Md. 490, 500 , 615 A.2d 1182 (1992); see also Spillers v. State, 10 Md.App. 643, 649 , 272 A.2d 49 (1971) (stating that “[o]rdinarily, there is no abuse of discretion in permitting the State to reopen its case for the purpose of proving important or even essential facts to support a conviction....”).

The critical issue in determining whether a court abused its discretion in reopening the case is whether its doing so “impaired the ability of the defendant to answer and otherwise receive a fair trial.” State v. Booze, 334 Md. 64, 76 , 637 A.2d 1214 (1994), subsequent appeal at 111 Md.App. 208 , 681 A.2d 534 (1996), rev’d on other grounds, 347 Md. 51 , 698 A.2d 1087 (1997). Usually, whether the reopening of evidence impaired the defendant’s ability to receive a fair trial “is answered by reference to the State’s intention in withholding the evidence, i.e., whether it did so in order to gain an unfair advantage from the impact later use of the evidence likely would have on the trier of facts, the nature of the evidence, and its relationship to evidence already in the case.” Id. (citing State v. Hepple, 279 Md. 265, 271 , 368 A.2d 445 (1977)). In exercising its discretion, the court “must consider whether the State deliberately withheld the evidence proffered in order to have it presented at such time as to obtain an unfair advantage by its impact on the trier of facts.

To this end the judge must see whether the proposed evidence is merely cumulative to, or corroborative of, that already offered in chief or whether it is important or essential to a conviction.” [Hepple v. State, 31 Md.App. 525, 534 , 358 A.2d 283 (1976), aff'd, State v. Hepple, 279 Md. 265 , 368 A.2d 445 (1977) ]. Other factors which have been identified as important to the assessment of the propriety of the trial court’s exercise of discretion to vary the order of proof include: “Whether good cause is shown; whether the new evidence is significant; whether the jury would be likely to give undue emphasis, prejudicing the party against whom it is ³⁹² offered; whether the evidence is controversial in nature; and, whether the reopening is at the request of the jury or a party.” Dyson v. State, 328 Md. 490 , 615 A.2d 1182 (1992). Booze, 334 Md. at 69 , 637 A.2d 1214 . Obviously, these factors are only indirectly applicable to the case sub judice because the State did not seek to reopen its case; rather, the judge reopened it of his own accord.

Thus, there is no evidence of the absence of good cause, i.e., that the State deliberately withheld the evidence in order to present it at a later time and thereby gain an unfair advantage. The nature of the evidence and its relationship to evidence already admitted was that it was corroborative and clarifying of the officers’ testimony describing the gelatin capsules on the toolbox. See Garbutt v. State, 94 Md.App. 627, 631 , 618 A.2d 272 (1993) (holding that the court bailiffs demonstration of various loading procedures of a semiautomatic rifle, following an initial demonstration by a firearms expert, was “simply a clarification of evidence that had been previously presented to the jury” and was solely repetitive.); but see Boyer v. State, 102 Md.App. 648, 656-58 , 651 A.2d 403 (1995) (holding that introduction into evidence of the actual written document containing the defendant’s confession constituted additional, corroborative evidence of the testimony previously presented concerning the confession); Dyson, supra, 328 Md. 490 , 615 A.2d 1182 (holding that the victim’s act of pointing to a knot that she had placed inside a radio that was allegedly hers constituted additional evidence to the victim’s previous testimony concerning the knot, and reversing this Court’s holding that such evidence was simply a further clarification of previously introduced evidence). Additionally, there was no danger that a jury would be unduly prejudiced, as the proceeding was before a judge.

Furthermore, the appellant in this case was not denied the opportunity to cross-examine or to present rebuttal. See Dyson, 328 Md. at 504 , 615 A.2d 1182 (stating that “[w]hen reopening a case is permitted, it must be done in a way that does not unduly prejudice the rights of any party----[t]hus ‘ample opportunity [must be afforded the opposing party] for ³⁹³ cross-examination or rebuttal.’ ”) (quoting Perkins v. State, 253 Miss. 652 , 178 So.2d 694, 696 (1965)) (last alteration in original). Rather, the defense did not attempt to cross-examine the officer after he gave his demonstration. All but one of the cases that the appellant relies upon in support of his argument that the suppression hearing judge “assumed the role of prosecutor” in reopening the evidence involved situations in which, after the State.failed to