Ezenwa v. State

ROBERT M. BELL, Judge. Henry Nnaondi Ezenwa, Theophilus Chudi Obi, and Samson Okoroafor, appellants, were convicted by a jury in the Circuit Court for Prince George’s County of conspiracy to import heroin into Maryland and conspiracy to distribute heroin. Each was sentenced to concurrent fifteen year terms of imprisonment. Aggrieved, each has appealed, raising essentially identical issues: 1 ⁴⁹⁴ 1.

Did the trial court err in permitting a police officer to interpret facially innocuous conversations as drug-related in the absence of any foundation establishing that the participants were involved in the importation or sale of drugs? 2. Did the trial court err in permitting the jury to consider and render a verdict upon two separate conspiracy charges when the State served notice upon the defense that it was relying upon a single conspiracy? 3. Did the trial court err in admitting irrelevant and prejudicial evidence? 4. Did the trial court err in denying appellants’ motions to suppress the fruits of the wiretaps? 5.

Did the trial court err in its admission of specific objectionable conversations? 6. Did the trial court err in admitting evidence that the prosecution’s expert witness had been accepted as an expert by other courts in other cases? 7. Did the trial court impermissibly restrict the defense cross-examination of a State’s witness alleged to have engaged in an improper conversation with a juror? 8. Did the trial court err in denying Appellants’ motion for mistrial predicated upon the injection into the case of evidence of other crimes?

STATEMENT OF FACTS During an investigation of illegal distribution of controlled dangerous substances in the Baltimore metropolitan area, the Maryland State Police Narcotics Division obtained information that a similar conspiracy involving a group of Nigerian nationals might be ongoing in Prince George’s ⁴⁹⁵ County. Thus, an investigation was initiated in Prince George’s County by applying for an Ex Parte Wiretap Order. The order was issued on or about December 1, 1987 and continued, with extensions almost without interruption, until February 17, 1988, when appellants were arrested. The tap was placed on the telephone line in the home of one of the appellants, but registered in the name of that appellant’s relative.

Because most of the conversations, 1,574 of the 2,131, were conducted in a foreign language, the Ibo dialect of the Nigerian language, the police contracted with a private citizen to translate them. Additional facts pertinent to an issue will be set out when that issue is discussed. 1 Appellants contend that the trial court erred in allowing a police officer to interpret facially innocuous telephone conversations translated from a foreign language as drug-related. There was, they maintain, no factual basis for that interpretation. This contention is based upon a three-tiered analysis.

First, appellants assert that the officer assumed that the conversants were speaking in an amorphous code, rather than literally. From that assumption, they continue, he interpreted words such as “things” and “pencils” as code references to drugs. Finally, they observe that, although never mentioned during the conversations, the officer concluded that the specific drug under discussion was heroin. Because none of these assumptions was supported by a factual basis and, indeed, the later ones are premised only upon the earlier, appellants argue that the court erred in admitting the opinion. 2 Appellants rely on Brisker v. State, 80 Md.App. 532 , 565 A.2d 340 (1989). ⁴⁹⁶ In Brisker , this Court addressed a very narrow issue, whether an unlicensed psychologist is qualified to testify that an accused is mentally retarded and the causal relationship between that mental retardation and the crime charged. 80 Md.App. at 540 , 565 A.2d 340 .

To resolve that issue, we addressed the general admissibility of expert testimony, indicating that, as an initial matter, a trial judge had to determine, as a matter of law, 80 Md.App. at 547 , 565 A.2d 340 , “whether the jury will receive appreciable help from the expert testimony in resolving issues presented in the case.” 80 Md.App. at 539 , 565 A.2d 340 , quoting Simmons v. State, 313 Md. 33, 41 , 542 A.2d 1258 (1988). Of course, “the proposed expert testimony must be competent, that is, the expert’s conclusion must be based upon a legally sufficient factual foundation.” 80 Md.App. at 545 , 565 A.2d 340 , quoting Simmons, 313 Md. at 41-42 , 542 A.2d 1258 . The admissibility of expert testimony was also at issue in Bohnert v. State, 312 Md. 266 , 539 A.2d 657 (1988). The Court of Appeals there stated the criteria for its admission as follows: An expert opinion derives its probative force from the facts on which it is predicated, and these must be legally sufficient to sustain the opinion of the expert.

The premises of fact must disclose that the expert is sufficiently familiar with the subject matter under investigation to elevate his opinion above the realm of conjecture and speculation, for no matter how highly qualified the expert may be in his field, his opinion has no probative force unless a sufficient factual basis to support a rational conclusion is shown. The opinion of an expert, therefore, must be based on facts, proved or assumed, sufficient to form a basis for an opinion, and cannot be invoked to supply the substantial facts necessary to support such conclusion. (Citations omitted) ⁴⁹⁷ 312 Md. at 274-75 , 539 A.2d 657 (quoting State Department of Health v. Walker, 238 Md. 512, 520 , 209 A.2d 555 (1965). In the case sub judice, the conversations conducted in the Nigerian language were recorded in full.

Shortly after their recording, the police would play the tapes for the interpreter. Consistent with his instructions, the interpreter was to listen to only so much of a conversation as to determine whether it was privileged or irrelevant to the investigation. When he determined that the calls were relevant, the interpreter wrote a non verbatim summary of the conversation and gave it to the police. After the wiretap was concluded, the interpreter was given duplicates of the tapes containing the relevant conversations.

He then made a verbatim transcript of those calls. 3 Using these transcripts, the police officer testified that in his “expert” opinion, the conversations were drug related. The determination whether an expert opinion is admissible is a matter entrusted to the sound discretion of the trial court, the exercise of which will be reversed only if it is found to have been an error of law, an evidentiary error, or a clear abuse of discretion. Bricker, 80 Md.App. at 547 , 565 A.2d 340 . We discern no abuse of discretion in this case.

See Yeagy v. State, 63 Md.App. 1, 22-23 , 491 A.2d 1199 (1985). Review of the decision to admit expert testimony may not be undertaken in a vacuum; one must look at the totality of the circumstances to determine whether that decision was a proper exercise of discretion. In this case, the expertise of the police officer in narcotics investigations is not challenged. And while the translator’s neutrality is challenged, there is no real challenge to his competence to ⁴⁹⁸ translate the Nigerian Ibo dialect.

Moreover, it was as a result of a narcotics investigation begun in the Baltimore metropolitan area that the police began to focus upon appellants and their alleged drug-related activities in Prince George’s County. That heroin was seized, albeit in another State, following one of the intercepted conversations in which one of appellants was involved lends support to the proposition that appellants may have been involved in a conspiracy to import and distribute heroin. Considered in their totality, then, the circumstances do not indicate that the court abused its discretion in permitting the police officer, as an expert, to interpret these conversations. 2 Each appellant was charged in separate counts of the indictment filed against him with two distinct conspiracies: (1) to import heroin and (2) to distribute heroin. Maintaining that there was but one conspiracy, appellants filed, inter alia, a motion to dismiss both counts, see Maryland Rule 4-252, and a Bill of Particulars. 4 In response to the Bill of Particulars, and, indeed, throughout the proceedings, the State conceded that a single agreement underlay both conspiracy counts.

It stated, however, that that agreement had two distinct objectives; hence, it maintained that, for that reason, the conspiracy was properly charged in two counts. In the State’s view, both counts had to be submitted to the jury and, in the event that the jury found appellants guilty of both, their remedy lay in their being sentenced on only one. 5 ⁴⁹⁹ Accepting the State’s position, the court submitted both counts to the jury. The jury did return a guilty verdict on each count. Notwithstanding the State’s position that it was only appropriate to punish appellants for one conspiracy, the court imposed separate, but concurrent, 15 year sentences for each.

Appellants allege that the indictments are defective, albeit for somewhat different reasons. In addition, appellants Obi and Okoroafor allege that the indictments failed to place them on proper notice of the allegations upon which the State was proceeding. Each appellant suggests that he was prejudiced by the failure to dismiss one of the two counts of conspiracy and, therefore, that his convictions must be reversed. Focusing on the State’s concession that there was only one conspiracy, appellant Ezenwa relies upon the doctrine of duplicity. 6 He argues: In the case at the bar the State charged two crimes but told the Defendant that he could only be convicted of one.

The net effect of this was to afford the State the opportunity to adduce evidence in support of an allegation for which the Defendant presumably could not be convicted. The State by broadening the scope of the allegation was permitted to present evidence which went beyond the scope of the allegation. By analogy, therefore, appellant relies on Timney v. State, 80 Md.App. 356 , 563 A.2d 1121 (1989). In that case, the Court rejected the argument that a charging document which charged two separate conspiracies, in two separate counts, was duplicitous.

We opined that “the jury could have and apparently did find a separate conspiracy to ⁵⁰⁰ escape independent of the alleged conspiracy to use kidnapping as a means of effecting an escape.” Id., 80 Md.App. at 368, 563 A.2d 1121 . The Court in Timney , therefore, pointed out that the accused there had not been convicted and sentenced on two counts. Using this as the distinguishing feature, appellant argues that, because the State conceded that there was but one conspiracy and yet two counts were submitted to the jury, resulting in his conviction and sentencing for both, the opposite result should be reached in the case sub judice. Appellants Obi and Okoroafor perceive the defect to be multiplicity. 7 They, too, rely upon the State’s concession that there was but one conspiracy to support their argument that they were prejudiced.

And the prejudice they allege is that the criminal allegations against them were doubled in the eyes of the jury and, echoing appellant Ezenwa, that they were never placed on notice as to the precise charges against them. Like Ezenwa, appellants Obi and Okoroafor seek reversal of their convictions or, alternatively, reversal of one conviction and remand for resentencing on the other. While reiterating its concession, the State maintains that the court properly submitted both conspiracy counts to the jury for its consideration. It insists that, because each count contained a different element, i.e., the different object of the conspiracy, they are not the same offense.

Furthermore, it continues, relying upon United States v. Maryland State Licensed Beverage Association, 240 F.2d 420, 421 (4th Cir.1957), “a single conspiracy may be charged as a crime in several counts to meet different interpretations that might be placed upon the evidence by the jury.” In Maryland State Licensed Beverage Association , the Court stated: [Braverman v. United States, 317 U.S. 49 , 63 S.Ct. 99 , 87 L.Ed. 23 (1942) ] holds merely that there may not be more ⁵⁰¹ than one punishment for a single conspiracy, not that a single conspiracy may not be charged as a crime in several counts to meet different interpretations that might be placed upon the evidence by the jury. Upon the government’s evidence, which has not yet been produced, the jury might conceivably conclude that the accused were guilty of conspiracy to restrain trade by fixing prices but not of conspiracy to monopolize, or they might conclude that they were guilty of conspiracy to monopolize but not to fix prices or they might conclude that they were guilty of conspiracy to do both. If the evidence showed that there was only one conspiracy, the judge would impose only one punishment; but this is no reason for requiring dismissal of one of the counts in the early stages of the case; and parties should not be allowed thus to try their case in advance and by piecemeal. See also 16 Am.Jur.2d p. 226-27.

The issue in this case is multiplicity rather than duplicity. If two counts charging conspiracy are the same, the defect in the indictment is that it contains multiplicitous counts. Brown, supra. Such a defect is a pleading defect and, consequently, not fatal to the indictment.

See Brown, 311 Md. at 432, n. 5, 535 A.2d 485 . Since, however, appellants were convicted of, and sentenced for, each of the two counts, they were inappropriately punished. Hence, as the State concedes, one of the conspiracy sentences must be vacated. Appellants’ argument that by charging two separate conspiracies the State “doubled the criminal allegations brought against the defendants, effectively causing the same harm as would be caused by permitting the jurors to consider a ‘dead count’ or charge which had already been dismissed” is without merit.

Concededly, that is one of the criticisms of multiplicitous charging documents. See C. Wright, Federal Practice and Procedure: Criminal 2d § 142 (1982 Supp.). The circumstances of this case do not demonstrate, however, that that was the effect in the case sub judice. ⁵⁰² Appellants’ argument that they were never properly put on notice of the precise charges they were facing also lacks merit. Throughout these proceedings, the State candidly acknowledged that there was but one agreement but that there were two objects, represented by the two counts in the indictment, of the conspiracy.

Consequently, it is clear, that appellants were, at all times on notice that the State alleged that they conspired both to import heroin into the State of Maryland and to distribute that heroin. Turning to the sentencing issue, we must determine which of the two counts should be vacated. Ordinarily this would not be a problem; however, here the two counts carry different penalties. Pursuant to Maryland Code Ann. Art. 27, § 38, 8 punishment for conspiracy shall not exceed the maximum punishment provided for the substantive offense which was the object of the conspiracy.

Appellants were charged with conspiracy to import heroin, see Maryland Code Ann. Art. 27, § 286A, and with conspiracy to distribute heroin, see Maryland Code Ann. Art. 27, § 286. The maximum penalty for the former is 25 years imprisonment, while the maximum for the latter is 20 years imprisonment. The question thus becomes, which of the two conspiracy counts should be vacated? State v. Jenkins, 307 Md. 501 , 515 A.2d 465 (1986) is instructive on this issue.

There, the defendant was charged with assault with intent to murder and assault with intent to maim. He was convicted of both. The court imposed separate, but concurrent, sentences and appellant appealed. Among the grounds for appeal was his contention that he should not have received separate sentences for both assault with intent to murder and assault with intent to maim.

The Court of Appeals agreed, concluding that, “where there ⁵⁰³ is merger by legislative intent, the offense carrying the lesser maximum penalty merges into the offense carrying the greater penalty.” 307 Md. at 521 , 515 A.2d 465 . The Court reasoned that, although some aggravated assaults do not merge when the required evidence test is applied, see Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306 (1932); Newton v. State, 280 Md. 260, 266-68 , 373 A.2d 262 (1977), aggravated assaults arising out of the same criminal incident nevertheless are not entirely separate crimes for purposes of conviction and sentence and, therefore, generally should merge. Id. In support of this rationale the Court referred to Manigault v. State, 61 Md.App. 271 , 285 n. 2, 486 A.2d 240 (1985).

There, this Court said: Indeed, an assault with intent to rob and an assault with intent to murder arising out of the same attack are not separate crimes at all, but rather separate modes of aggravating a common crime. A defendant who has assaulted his victim with the concomitant specific intents to rape her, to rob her, and to kill her, has committed not three crimes, but one. That one has simply been aggravated upward to the felony plateau in three different ways. An uncritical application of the Blockburger test, simply comparing elements, might make it appear that assault with intent to rob, assault with intent to murder, and assault with intent to rape are all separate crimes because each possesses a distinct element.

It is not a proper occasion to apply the Blockburger test, however, because these are but various forms of aggravating a common undergirding offense. By the same token an uncritical application of the Blockburger test would indicate that premeditated murder and felony-murder are separate crimes, but we know that they are but alternative modes of aggravating a single crime. A murder aggravated up to the first degree level two separate ways does not become two murders. Neither does an assault aggravated up to the felonious level in two separate ways become two assaults. ⁵⁰⁴ It might facilitate our ability to conceptualize the relationship if we thought of common law assault as “assault in the second degree” and of the various aggravated assaults as forms of “assault in the first degree.” It is clear from the foregoing that one count in an indictment charging conspiracy to import heroin and another charging conspiracy to distribute heroin are not necessarily two separate conspiracies; they may very well be alternative modes of committing the single crime of conspiracy.

In such circumstance, the application of the required evidence test would indicate that the offenses are not the same, each having an element different than the other. Such is the case here. Although charged separately and in proper circumstances, they may be separate crimes, nevertheless, they ought to merge: the State concedes that there is but one conspiracy with two objects. Accordingly only one penalty should be assessed.

That penalty should be determined by reference to the substantive offense having the greater maximum penalty. Jenkins, supra. Ordinarily we would remand the case to the trial court for resentencing; however, under the circumstances, that is not necessary. As we have seen, the court imposed concurrent 15 year sentences.

Since the maximum penalty was not imposed for either offense and, indeed, the same penalty was assessed for both, we may vacate one of the convictions and allow the other to stand. Consistent with our view that conspiracy to distribute merges into conspiracy to import, we will vacate the former conviction. 3 Each appellant challenges the propriety of the court’s ruling admitting into evidence heroin seized in New York. Each of them argues that the State failed to prove that the heroin was related to the conspiracies with which they were charged or that appellant Okoroafor, who was in the house prior to the seizure of the drugs, knew that the drugs were in the house. Thus, they conclude, the evidence ⁵⁰⁵ was irrelevant and, because it was also prejudicial, reversal of the convictions is mandated.

The State responds that appellants read the transcript of the proceedings too narrowly. In support of its position, the State points to a proffer made by the prosecutor as to why the admission of the seized heroin was relevant in this case: Look at wiretap 3 where Daniel Immanuel and Sampson are talking. He says do you know how much they buy that thing and Sampson says what. Immanuel says the black one.

I would note for the Court’s attention that the heroin that was seized is at least wrapped in some black thread. Sampson said if it’s tested, then you can determine how much it will sell for. Immanuel, don’t you know how much it is' selling for. Then they go on.

Sampson, at least if we test it we know how much it will sell for, and it’s several conversations after that in which Sampson talks about going up and getting a sample or testing it and I think Sergeant Rineker is going to testify, I would allege at this point that he is going to testify that they’re referring to getting a sample of heroin. The State also noted that one of the appellants took a train to New York and entered the residence at issue prior to the seizure of the heroin. The State maintains, therefore, that the evidence not only is relevant to the conspiracies at issue here but that it was also sufficiently tied to appellants. We agree.

The cases relied upon by appellants to establish that the heroin seized in New York was not sufficiently linked to them, see Livingston v. State, 317 Md. 408 , 564 A.2d 414 (1989); Dawkins v. State, 313 Md. 638 , 547 A.2d 1041 (1988); State v. Leach, 296 Md. 591 , 463 A.2d 872 (1983); and Garrison v. State, 272 Md. 123 , 321 A.2d 767 (1974), are inapposite. Each involves the situation in which a defendant was charged with, and convicted of, possession of a controlled dangerous substance. In such cases, it is, of course, necessary to establish at least constructive possession of the CDS, which, in turn, requires knowledge suffi ⁵⁰⁶ dent to support the conviction. In the case sub judice, the charge is conspiracy; consequently, the proof of possession, constructive or otherwise, is not prerequisite.

Appellants Obi and Okoroafor also maintain that the court erred in admitting evidence of collateral offenses for which appellants were not on trial. Specifically, they complain about the admission of a conversation “from which the jury could infer that appellants had conspired to acquire and distribute cocaine,” when appellants were only on trial for conspiracy to import and distribute heroin. Moreover, they suggest that the court erred in admitting evidence of a separate narcotics related conspiracy with a woman named Vicky. Concerning the cocaine conversation, the record reflects that only counsel for Ezenwa objected to it.

Since Ezenwa is not raising the issue on appeal and appellants Obi and Okoroafor did not raise it below, the issue is not before us and we will not consider it. Appellant Obi did object to the admission of the telephone call involving “Vicky”. The basis of the objection was that “it was a completely separate transaction.” The court disagreed and ruled that it was admissible to show the scope of the conspiracies with which appellants are charged. We have reviewed the record and determined that that ruling is not erroneous.

See Maryland Rule 8-131(c). That appellant Obi contends that it was a separate conspiracy, of course, does not make it so. 4 The next focus of appellants’ challenge is the integrity of the wiretap. The issues they raise in that regard relate to whether the State sufficiently minimized the interception and recording of their private conversations and whether it inappropriately, unnecessarily, and illegally disclosed the fruits of the wiretap. The remedy they seek for ⁵⁰⁷ the perceived violations is suppression of the fruits of the wiretap. 9 A. MINIMIZATION Appellants’ contentions concerning the State’s failure to minimize the intrusiveness of the wiretap focus primarily upon the disparity between the number of calls recorded and the number of calls introduced into evidence.

In the words of appellants Obi and Okoroafor, “This is a case where in large measure, numbers tell the story. The police recorded over 2,000 conversations, and introduced into evidence fewer than 60.” They also question the propriety of the police reporting in the early progress reports of all foreign language calls as “pertinent” to the investigation when, in fact, it was not known that that was so. In appellants’ view, this created the false impression that “far more minimizing was going on than was actually the case, and that continuation of the tap was more justified than was in fact true.” 10 ⁵⁰⁸ Appellant Ezenwa makes the additional claim that the police failed accurately to report the wiretap’s progress to the monitoring judge. He chiefly focuses upon the fact that the police