Channer v. State

BISHOP, Judge. This appeal stems from appellant’s second trial in the Circuit Court for Montgomery County on charges of possession of cocaine with intent to distribute, simple possession of cocaine, conspiracy to distribute cocaine, and conspiracy to maintain a common nuisance. The first trial resulted in a mistrial when the jury was unable to reach a verdict. The jury in the second trial convicted appellant of all of the charges.

The court merged simple possession into possession with intent to distribute and imposed a prison sentence of ten years with all but 18 months suspended in favor of two years probation. It further merged conspiracy to maintain a common nuisance into conspiracy to distribute cocaine and imposed a concurrent prison sentence of five years with all but 18 months suspended in favor of two years probation. Issues Appellant presents four arguments for our review. He contends, in essence, that ³⁶⁰ I. the trial court erred by (1) refusing to suppress certain statements appellant made to police without determining if the statements were voluntary, and (2) permitting the State to question a police officer about a statement he overheard appellant make, even though the court had ruled that the statement was inadmissible because it was made before appellant was advised of his rights, II. the trial court erred by refusing to consider appellant’s challenge to the validity of the search warrant, III. the trial court erred by permitting the State to call a police officer twice during its case, first as a fact witness and second as an expert witness, and IV. the evidence was insufficient to sustain his convictions.

Finding no merit in any of these arguments, we shall affirm. Facts Appellant was arrested during the execution of a search warrant for an apartment in Silver Spring. At trial, the State presented evidence that, as a team of police officers entered the first apartment, officers stationed outside the apartment found, beneath a window, a bag containing approximately 14 ounces of powdered cocaine and one ounce of crack cocaine. Appellant and a woman were found inside the apartment.

A related warrant was executed upon a nearby apartment shortly thereafter. Pursuant to that search, police recovered, among other things, drug paraphernalia and cash. Police detective Kirk Holub, who applied for the search warrants and assisted in the execution of the warrant at the first apartment, testified that he spoke with appellant at the scene and obtained a written statement from him later at the police station. According to Detective Holub, appellant explained that he and his brother purchased cocaine from a source in Florida, manufactured it into crack cocaine in the first apartment, and distributed it from the second apart ³⁶¹ ment.

Appellant admitted that he tossed the bag of cocaine from the window when the raid began. Discussion I Statements to Police Prior to the first trial, defense counsel timely moved to suppress statements made by appellant to Detective Holub. See Md.Rule 4-252 (regarding mandatory motions). The detective was the sole witness at a pretrial hearing on the motion.

He testified that he found appellant in a bedroom, that he “basically told [appellant] exactly what was going on,” and that appellant indicated that he wanted to talk. The two then went into a bathroom so that they could speak in private. Once inside the bathroom, before any statements were made, Detective Holub advised appellant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Later at the police station, appellant prepared a written statement.

Detective Holub explained that appellant “would write things, and he would hand it to me, ... and basically he was summarizing what he had told me verbally at the scene. I said, well, what about this, and then he would say okay, and he would write it.” At the suppression hearing before the first trial, at the close of the detective’s testimony, defense counsel argued that a police report prepared by Detective Holub indicated that appellant said he wanted to “come clean” just before the detective took him into the bathroom and advised him of his rights. Defense counsel asserted: “Clearly that is an incriminating statement when you want to come clean and basically do the right thing____ Clearly, there is interrogation without Miranda . Anything that flows from that is equally tainted.” (Emphasis added.) Counsel further posited that the detective’s “participation in the statement at the police station in the form of directing, vitiates the voluntariness on my client’s part.

And since the officer couldn’t ³⁶² segregate one portion from the other as to input, I think that is an independent basis for the written statement to be suppressed.” The court responded simply: “I think the parts of the law today militates my denying your ... motion at this point.” The court did finally deny the motion. At the first trial, defense counsel attempted to reopen the motion to suppress the statements but was not permitted to do so. After the first trial ended in a mistrial, defense counsel withdrew from the case and was replaced by new counsel. That counsel as well attempted to reopen the matter.

At a hearing held prior to the second trial, the request was again denied. At the start of the second trial, defense counsel informed the court, inter alia, that appellant had made a statement to Detective Holub (the “come clean” statement) before making the statement in the bathroom. He contended that the original defense counsel was unaware of the “come clean” statement until it was introduced at the first trial. This is patently not supported by the record.

In fact, at the suppression hearing before the first trial, appellant’s then counsel explicitly argued “in the police report he (Holub) says that he does Mirandize him, but, prior to that, my client says that he wants to tell the truth and come clean on everything.” Based on the foregoing incorrect assertion, defense counsel argued that the statement should be suppressed and again attempted to reargue the motion to suppress all of the statements made by appellant. The trial court refused to reconsider the admissibility of those statements that were at issue in the original suppression hearing, but agreed to suppress the statement made before appellant and Detective Holub entered the bathroom because it was made before appellant was advised of his rights. At the State’s request, however, the court held that the statement was voluntary and could be used for impeachment purposes. The court commented: “based on what I have heard so far, I haven’t heard anything to indicate it wasn’t voluntary.” ³⁶³ (1) Appellant now contends that “[t]he voluntariness of all statements made by the appellant remains undecided by any judicial authority.” In making this argument, appellant seemingly ignores the record. “In a criminal cause, when the prosecution introduces an extrajudicial confession or admission given by the defendant to the authorities, the basic rule is that it must, upon proper challenge, establish by a preponderance of the evidence that the statement was obtained (1) voluntarily, and (2) in conformance with the dictates of Miranda [, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 ].” State v. Kidd, 281 Md. 32, 34 , 375 A.2d 1105 , cert. denied, 434 U.S. 1002 , 98 S.Ct. 646 , 54 L.Ed.2d 498 (1977) (emphasis added; footnote omitted).

The short answer to appellant’s argument, as to the statement he made to Detective Holub in the bathroom, is that it has been waived. Original defense counsel did not pursue the matter at the suppression hearing held prior to the first trial. The voluntariness of the statement made in the bathroom was first raised by replacement counsel at the start of the second trial, and the trial court properly exercised its discretion by refusing to consid er it. The fact that a mistrial was declared at the close of the first trial did not nullify the pretrial hearing on the motion to suppress.

See Johnson v. State, 67 Md.App. 347, 374-76 , 507 A.2d 1134 , cert. denied, 307 Md. 260 , 513 A.2d 314 , cert. denied, 479 U.S. 993 , 107 S.Ct. 594 , 93 L.Ed.2d 595 (1986) (a court presiding over the retrial of a defendant whose first trial ended in a mistrial did not abuse its discretion by refusing to rehear a motion to suppress evidence that was denied prior to the first trial). “When such a motion has been fully heard and considered and there is no new evidence which was unavailable at the first hearing, the trial judge may exercise his discretion and bind himself by the prior ruling____” Id. (quoting Logue v. State, 282 Md. 625, 628 , 386 A.2d 780 (1978) (a court presiding over the retrial of a defendant who had been granted a new trial properly refused to rehear a motion to suppress evidence ³⁶⁴ that was denied prior to the first trial)). Cf. Md.Rule 4-252(g)(2) (a trial court has discretion to permit or deny a hearing de novo on a motion to suppress evidence that was denied prior to trial).

It follows that a judge at a second trial may deem an argument waived where, as here, the defendant