Davis v. State

³⁷² HARRELL, Judge. The Carroll County Drug Task Force (the Task Force) searched the home of a locally notorious advocate of marijuana legalization, Pamela Snowhite Davis, appellant. The harvest of that search led to appellant’s indictment for possession of marijuana with intent to distribute, possession of marijuana, possession of paraphernalia, and maintaining a common nuisance. A jury in the Circuit Court for Carroll County convicted appellant of the simple possession, paraphernalia, and common nuisance counts.

She was acquitted of the intent to distribute charge. On 8 April 1993, appellant filed a Motion for New Trial. The court denied the motion on 28 April 1993, sentenced Davis, and refused bond pending appeal. On 30 April 1993, Davis noted a timely appeal to this Court.

In the meantime, following 56 days of incarceration, Davis was released on habeas corpus by the Circuit Court for Anne Arundel County. Appellant then filed a Motion to Modify Sentence, which was heard subsequently and denied by the Circuit Court for Carroll County on 14 October 1993. Appellant next filed a Motion to Review the Sentence. The motion was heard and denied by a three-judge panel of the Circuit Court for Carroll County on 25 October 1993.

ISSUES We have re-organized and re-phrased Davis’s arguments on appeal as follows: I. The trial court erroneously determined that good cause had not been shown to hear appellant’s motion to suppress. A. Because appellant never waived her right to counsel, the circuit court’s failure to advise appellant of the availability of a court-appointed counsel violated appellant’s right to counsel. B. The failure to advise appellant of her right to counsel constituted good cause to waive the thirty-day limitation for filing a motion to suppress. ³⁷³ II. Insufficient evidence existed to convict appellant of maintaining a common nuisance.

III

The trial court incorrectly instructed the jury on the elements of common nuisance.

IV

The trial court improperly admitted evidence that members of appellant’s family believed in the legalization of marijuana and criticized the government’s illegal drug prevention and enforcement efforts. V. The prosecutor’s improper remarks during closing arguments warranted reversal.

VI

The trial court considered impermissible matters when making its sentencing determination. Based on the totality of circumstances set forth in the record, we hold that the trial court committed reversible error by refusing or failing to consider properly appellant’s motion to suppress following her demonstration that the court earlier had failed to resolve, in timely fashion, the issue of whether she was entitled to court-appointed counsel. Because we shall remand the case based on our reversal as to Issue I, we need only consider additionally Issue II. Accordingly, we shall not reach appellant’s other issues.

FACTS Our recitation of the facts is limited to those relevant to the issues we consider. This case arose following execution by the Task Force, on 7 May 1992, of a warrant to search appellant’s residence, known as Terrapin Station, located at 1144 Humbert’s Schoolhouse Road in Carroll County. Ms. Davis occupied the residence with three other individuals, including her son, Kif Davis, and daughter, Sara Davis. The Task Force had received information from an informant at the United Parcel Service that UPS had a package, addressed to appellant’s residence but directed to no particular person residing there, containing 1.5 ounces of marijuana.

A Task Force officer, disguised as a United Parcel Service (UPS) employee, delivered the package to Ms. Davis’s residence. A short time ³⁷⁴ after Sara Davis signed for the package, the Task force raided Davis’s home searching for evidence of other contraband. The search uncovered, inter alia, two bags of what later was determined to be marijuana (totaling 25.8 grams—28 grams equaling one ounce), rolling papers, and marijuana seeds in the nightstand next to appellant’s bed. The police also found in the bathroom closet adjacent to appellant’s bedroom two bogus STP (an engine oil additive) containers of the kind commonly advertised as devices to hide valuables.

In another room of Davis’s residence, the police found various items they later used in an effort to convict appellant. Among the items found were a bag containing marijuana cigarette butts, or “roaches”, a water pipe (or bong), and marijuana seeds and stems hidden in a film canister, as well as a number of posters, photographs, and publications, the subject matter of which focused on marijuana. In a barn adjacent to appellant’s residence, the police found a phototron, or plant growth light, which appeared to contain a marijuana leaf. During the 7 May 1992 raid, Sara, Kif, and Ms. Davis were arrested by Task Force members. 1 The possession charge against Sara Davis eventually was dropped following a successful bid. by her attorney to suppress the evidence recovered from the residential search.

Kif Davis, who had been caught eating the delivered marijuana on the rooftop of the residence at the time of the search, pleaded guilty to a possession of marijuana charge. The “fruits” of the search resulted in the 19 June 1992 grand jury indictment of appellant for possession of marijuana with intent to distribute, maintaining a common nuisance, possession of marijuana, and possession of controlled substance paraphernalia. On 30 July 1992, appellant appeared before the Circuit Court for Carroll County without the benefit of representation. After the court’s recitation of the ³⁷⁵ charges against her, the following dialogue ensued between Davis and the court: COURT: Do you have an attorney, Ms. Davis?

DAVIS: I do not. COURT: Do you plan to have one? DAVIS: I cannot afford an attorney, a private attorney, and I do not qualify for a Public Defense, because I am a property owner and have considerable assets, which are— basically, my assets cannot be borrowed against. Because of the State’s action against me, the bank, who has handled my personal line of credit, has frozen my line of credit, and so, I intend to defend myself in this action.

COURT: All right. You know your trial date is September 23, 1992. Is that correct? DAVIS: Yes, sir, I do.

COURT: Whether you plan to plead guilty or innocent to these charges, an attorney can help you present your case in a light most favorable to yourself. You say that the Public Defender says you have too many assets. DAVIS: That’s my understanding, that my assets exceed that which would be considerable ... COURT: All right.

DAVIS: ...—considered, you know to entitle me to a defense by public taxpayer money. COURT: The Court strongly urges that you be represented by an attorney, but that’s a decision that you’ll have to make in either event. If you appear for trial on the date of trial,—look at that again—September 23rd, 1992, without an attorney, the Court could deem that you waived your rights to one and proceed and try you that day without an attorney. DAVIS: I understand that. ****** The court asked Davis whether she understood the offenses with which she had been charged.

Upon her affirmative ³⁷⁶ answer, the judge released her until the scheduled 23 September 1992 trial date. No further explanation or information was provided to Davis by the court concerning her right to seek court-appointed counsel, her right to judicial review of any refusal of the Public Defender to represent her, or the thirty-day period within which to file any mandatory motions. Appellant applied for representation by the Public Defender. By letter dated 18 September 1992, however, the Public Defender notified Davis that her “financial status exceed[ed] the standard of eligibility for representation by this office.” Apparently, the information shared by Ms. Davis with the court during her 30 July appearance was gained from preliminary conversations with the Public Defender’s office.

On 21 September 1992, the trial originally scheduled for 23 September was postponed. By letter dated 22 September 1992, Davis requested the court to consider an oral motion to suppress the evidence obtained during the 7 May 1992 search of her residence. The court denied her motion and directed her to Maryland Rule 4-252 governing the thirty-day filing period for mandatory motions. On 23 September 1992, appellant responded by filing a Request for Waiver of Thirty Day Mandatory [sic] Filing Period & Request for Hearing.” On 21 October 1992, the court summarily denied the request without deciding whether she had shown good cause to waive the statutorily imposed period.

On 19 November 1992, Davis filed a Motion for Reconsideration and a Motion for Recusal of the trial judge .who had considered her prior motions. Appellant’s trial had been re-scheduled for 24 November 1992. On that date, however, a commercial enterprise owned and operated by appellant was searched, and she was arrested for the display and possession of sterilized hemp seeds. Although Davis subsequently was acquitted of this additional charge, she was incarcerated when trial on the original charges was to begin.

At the request of the judge reviewing Davis’s bail for the charges against her resulting from the 24 November 1992 search, the trial court convened a hearing to ³⁷⁷ determine whether Davis was in a condition to represent herself in a jury trial that morning. During the 24 November 1992 hearing, appellant re-emphasized to the court that she had no money to pay for an attorney. The court, for the first time, explained to appellant that she was entitled to make a motion for a court-appointed counsel in the event she could find no other representation. Over the objections of the State, and based on appellant’s statements concerning her desire for counsel, the court postponed the trial.

Despite the trial continuance, Davis requested that the court consider her Motion for Reconsideration of the court’s denial of her former motion to suppress. She agreed to a postponement of the motion’s consideration, however, when the court advised appellant that it would be more appropriate for her counsel to argue it. On 30 November 1992, Davis filed a pro se Motion to Suppress and Motion to Dismiss. In its Answer to that motion, the State asserted, inter alia, that appellant’s “delay of 93 days in the filing of this Motion is due to her own inaction.. .. ” The State also moved to strike the motion, arguing that all of appellant’s motions to suppress, including the current one, should be considered untimely under Maryland Rule 4-252.

Private counsel entered their appearance on behalf of appellant two days before her jury trial was scheduled to begin. Immediately prior to the commencement of trial on 24 March 1993, appellant’s counsel renewed the motion to suppress. Counsel for Davis asserted that although Davis had been informed of her constitutional right to counsel during the 30 July 1992 appearance, the court failed to advise her of the thirty day rule for filing mandatory motions. In addition, appellant’s counsel argued that the circuit court improperly denied appellant’s request for a hearing concerning the previously-filed motion based on the factual disputes presented by appellant, demonstrating good cause to excuse her from the constraints of the mandatory motion filing period. ³⁷⁸ In contrast, the State argued that the trial court was required to presume that the judge who considered Davis’s motion reviewed appellant’s arguments prior to his denial of Davis’s motion and request for a hearing.

Moreover, the State insisted that appellant’s claimed ignorance of the thirty-day mandatory motions filing period provided her with no excuse, because she chose to proceed pro se during that period. The trial court agreed with the State’s position and denied appellant’s Motion to Suppress. At trial, the State argued, inter alia, that the evidence found by the Task Force during the 7 May 1992 search proved that narcotics offenses of a continuing nature occurred in Davis’s residence. In support of its position, Maryland State Trooper Donald Grimes and Maryland State Police Sergeant John Burton, both Task Force members, were qualified and testified as experts in the area of drug identification and investigations.

Sergeant Burton, due to his previous undercover narcotics work, also qualified as an expert in covert drug operations. Trooper Grimes testified that, in his expert opinion based on the results of the 7 May 1992 search, appellant’s residence had been used as “a party place for a lot of people to come over, sit around and have parties, and—and smoke marijuana.” According to Trooper Grimes, “the quantity [approximately one ounce of marijuana] ..., the numerous rolling papers ..., [and the] large water bong that ... [were] seized” served as indicative evidence that the Davis residence had been used for marijuana parties. Specifically in reference to the recovered bong, Trooper Grimes stated, “it’s basically lit up and passed around, or people will walk up to it as it’s sitting on a table and take what they call a hit off of it.” Sergeant Burton, the Task Force Supervisor, confirmed the conclusions reached by Trooper Grimes concerning the frequency of narcotics offenses occurring at appellant’s residence. He described, in detail, how the recovered items suggested that Davis’s residence had been used for marijuana parties.

Like Trooper Grimes, Sergeant Burton cited the bong as an ³⁷⁹ item “typically used at marijuana smoking parties.” Sergeant Burton concluded that, based on the totality of items recovered from the search, appellant’s residence was a place where the “continuous use of using marijuana” occurred. Appellant elected not to testify in her own defense. No defense witnesses conclusively confirmed or denied the allegations made by Trooper Grimes and Sergeant Burton. Two of appellant’s neighbors, however, did testify, as part of the defense case, that when they had occasion to frequent Davis’s house they had observed no marijuana or marijuana plants.

Moreover, they had observed no marijuana use, even at parties they had attended there. Finally, one of the neighbors, Mr. Doyle, asserted that his dogs would have barked if strangers had visited the Davis home and they did not bark. Following the parties’ closing arguments and denial of appellant’s motion for judgment of acquittal, the trial court turned the case over to the jury for its consideration. Of the four offenses with which appellant was charged, the jury convicted her of maintaining a common nuisance, possession of marijuana, and possession of drug paraphernalia.

The court sentenced Davis to five years incarceration, with all but two years suspended, for maintaining a common nuisance, with one year concurrent for possession of marijuana, together with five years probation and a fine of $2,500.00. For her possession of drug paraphernalia, the court fined appellant $500.00. I. Appellant contends that the trial court committed reversible error by failing to waive the thirty-day limitation for filing a motion to suppress, because she demonstrated the requisite good cause. She argues that the trial court’s failure to inform her of the right to a court-appointed counsel during her initial appearance constituted good cause to waive the limitation period.

According to Davis, this mishap by the trial court left her ignorant as to both the availability of counsel and the limited period during which to file a motion to suppress. ³⁸⁰ A. Maryland Rule 4-215(a) (1994) governs procedures that a court must follow to determine waiver of counsel by a criminal defendant. It states, in pertinent part: First Appearance in Court Without Counsel.—At the defendant’s first appearance in court without counsel, ..., the court shall: (1) Make certain that the defendant has received a copy of the charging document containing notice as to the right to counsel. (2) Inform the defendant of the right to counsel and of the importance of assistance of counsel.... (4) Conduct a waiver inquiry ... if the defendant indicates a desire to waive counsel.

(5) If trial is to be conducted on a subsequent date, advise the defendant that if the defendant appears for trial without counsel, the court could determine that the defendant waived counsel and proceed to trial with the defendant unrepresented by counsel. The requirements of this Rule are mandatory. Argabright v. State, 75 Md.App. 442, 457 , 541 A.2d 1017 (1988). Reversible error is committed when a trial court fails to advise a defendant of his or her right to counsel and the defendant does not indicate a desire to waive counsel.

Evans v. State, 84 Md.App. 573, 580 , 581 A.2d 435 (1990). In Maryland, there are two options available to defendants in criminal cases who are financially unable to retain their own counsel. The first option is representation by the Public Defender’s Office as authorized by Maryland Annotated Code, Article 27A, § 4 (1993 Repl.Vol.). If the Public Defender’s Office determines it is unable to represent a defendant due to his or her income, the court must conduct its own inquiry as to whether the defendant qualifies for a court-appointed counsel.

Md.Code Ann. Art. 27A, § 6(f) (1993 Repl.Vol.); Baldwin v. State, 51 Md.App. 538, 553 , 444 A.2d 1058 (1982), cert. denied 299 Md. 425 , 474 A.2d 218 (1984). The necessity for this independent court evaluation stems from the judiciary’s role ³⁸¹ as the “ultimate protector” of the rights awarded under the Constitution, including the right to counsel. Baldwin, 51 Md.App. at 552 , 444 A.2d 1058 . The court must employ the same statutory criteria used by the Public Defender to assess indigency eligibility for court-appointed counsel.

The criteria are set forth in Article 27A § 7 of the Annotated Code of Maryland which states: Need shall be measured according to the financial ability of the person to engage and compensate competent private counsel and to provide all other necessary expenses of representation. Such ability shall be recognized to be a variable depending on the nature, extent and liquidity of assets; the disposable net income of the defendant; the nature of the offense; the effort and skill required to gather pertinent information; the length and complexity of the proceedings; and any other foreseeable expenses. While it must use the same statutory standards in making its decision to award court-appointed counsel, we have held that the court “is not restricted to the information relied upon by the Public Defender, or the Public Defender’s evaluation of such information.” Baldwin, 51 Md.App. at 553 , 444 A.2d 1058 . Indeed, the court “should consider any information offered by the parties which may reasonably bear upon the defendant’s ability to afford private counsel and make its own evaluation of the relevance and credibility of such information and the weight to be accorded it.” 2 Id.

The record clearly demonstrates that Davis did not waive her right to counsel. During her 30 July 1992 initial appearance, Davis unequivocally stated to the court that she could not afford a private attorney and that her income and assets precluded representation by the Office of the Public ³⁸² Defender. 3 In response, the judge merely stated, “The Court ³⁸³ strongly urges that you be represented by an attorney, but that’s a decision that you’ll have to make in either event.” The court did not conduct the required inquiry, despite appellant’s indication that the Public Defender’s Office would not represent her. 4 In contrast, on 24 November 1992, a different judge thoroughly explained to Davis the appropriate inquiry it was required to conduct to determine whether she qualified for court-appointed counsel. Her later appearance before the trial court illustrates the error committed by the judge during her initial appearance. It is no surprise that this record is virtually devoid of any facts regarding appellant’s financial condition vis-a-vis her eligibility for representation by the Public Defender’s Office or court-appointed counsel.

The court conducted no inquiry. The basis for the Public Defender’s decision remains unexplained, as well as unexamined. Ms. Davis, at that time, may have been an otherwise well-to-do person whose liquid assets were simply frozen. On the other hand, she may have been functionally impecunious.

We simply do not know. For present purposes, though, it does not matter what the answer may ³⁸⁴ have been. What is germane is that, under the circumstances present here, the court erroneously failed to conduct a timely review of the Public Defender’s declination to provide representation and to determine her eligibility for court-appointed counsel before the expiration of the mandatory motion filing deadline. 5 The prejudice worked upon appellant by this error will next be addressed. B. Alternately, the State acknowledges the trial court’s mistake, but maintains that the error was harmless because appellant was represented at trial.

What the State neglects to account for was that Davis was without the benefit of counsel during the entire mandatory motion filing period. We are unwilling to assume, as the State argues we should, that as a criminal defendant involuntarily proceeding pro se appellant “reasonably might have learned within the thirty-day time period that she would have to file a motion to suppress.” We have recognized that Maryland Rule 4-252 is directed specifically at suppression motions in criminal cases. Jackson v. State, 52 Md.App. 327, 331 , 449 A.2d 438 (1982). The Rule dictates that a defendant’s opposition to the admission of evidence resulting from an unlawful search and seizure “shall be raised by motion in conformity with this Rule and if not so raised [is] waived unless the court, for good cause shown orders otherwise.... ” Md.Rule 4-252(a) (1994).

The Rule further requires that such motions “shall be filed within ³⁸⁵ 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court....” Md. Rule 4-252(b). Failure to make a mandatory motion within the prescribed time limits, absent good cause to forgive the dereliction, bars all claims, even those full of constitutional merit. Carbaugh v. State, 49 Md.App. 706, 709 , 435 A.2d 116 (1981), aff'd, 294 Md. 323 , 449 A.2d 1153 (1982), quoting Pulley v. State, 43 Md.App. 89, 97 , 403 A.2d 1272 (1979). Thus, in order to waive the thirty-day period, defendants must show good cause for failure to comply with the time requirements for filing mandatory motions under Rule 4-252.

Jones v. State, 42 Md.App. 209, 214 , 400 A.2d 1 , rev’d on other grounds, 286 Md. 540 , 410 A.2d 16 (1979). We have held in the past that absence of counsel will not constitute good cause where the failure to obtain it and file the mandatory motion was due to nothing more than the defendant’s own inaction. Id. (Emphasis added) (appellant not entitled to argue motion to suppress where the court advised him “of his right to counsel and of the availability of the Public Defender or other court appointed counsel in the event that he was unable to afford private counsel”).

Had the court, in the instant case, after due inquiry and consideration, determined before the expiration of the mandatory motion filing period, or even before it refused to consider on its merits her late-filed motion to suppress, that appellant was not entitled to an attorney at the taxpayers’ expense, we would have been presented with a much different scenario, more akin to non-representation through a defendant’s own inaction. In the instant case, the record is devoid of any in-depth consideration by the court of Davis’s requests for waiver of the thirty-day mandatory filing period. On 21 October 1992, the circuit court summarily denied appellant’s request without explanation. The request for waiver was not reconsidered until the date of trial when the court, in denying appellant’s request, stated that if an individual chooses to “sail the stormy seas of circuit practice ... without the benefit of the navigational guides ... [such as] the Maryland Rules of Procedure, they do so at their own peril.” ³⁸⁶ While we do not disagree with the trial court’s statement per se, we do not advocate the position that a criminal defendant must “sail the stormy seas of circuit practice” without the benefit of an “able captain” if the defendant did not so intend.

The peril should only apply to those criminal defendants who knowingly and voluntarily waive their rights to counsel or who, able to retain private counsel, decline to do so. 6 We have concluded already in the instant case that no waiver occurred and the hearing court erred in failing to conduct the necessary inquiry. The trial court had the opportunity to alleviate the effect of the hearing court’s earlier error through a proper appraisal of appellant’s request to waive the mandatory filing period for a motion to suppress. We hold that, under the facts of this case, the trial court’s failure or refusal to consider the hearing court’s earlier mistake in not obtaining a timely closure of the issue of appellant’s entitlement to court-appointed counsel constituted prejudicial error. Therefore, we remand the case to the circuit court for its proper consideration of Davis’s Motion to Suppress consistent with our determination that good cause existed to excuse Davis from the time constraints imposed by Rule 4-252. 7 II.

Although we are remanding this case to the circuit court, we also need to address the sufficiency of the evidence claim ³⁸⁷ presented by Davis on appeal. The test we apply in our review of such a claim is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all the elements of the offense beyond a reasonable doubt. Wiggins v. State, 324 Md. 551, 567 , 597 A.2d 1359 (1991). The evidence must directly establish or support “a rational inference of the facts to be proved, from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.”