Garner v. State

¹²⁵ MOYLAN, J. On December 8, 2005, a fragmented Court of Appeals significantly expanded the coverage of the Rule Against Hearsay in Maryland with its opinions in Stoddard v. State, 389 Md. 681 , 887 A.2d 564 , and Bernadyn v. State, 390 Md. 1 , 887 A.2d 602 . Several categories of verbal conduct that had theretofore been considered non-hearsay were brought within the expanded definition of “implied assertions” and, thereby, came under the potential exclusionary ban of the Rule Against Hearsay. The present case poses the question of whether yet another traditional category of non-hearsay, frequently referred to as “verbal parts of acts” and represented in this case by incoming telephone calls to gambling parlors or to sellers of narcotics, will also be swept away by the strong undertow of Stoddard and Bemadyn, or whether the expansionist tide that produced those opinions is actually on the ebb. The Present Case The appellant, Alphonso Garner, was convicted by a Queen Anne’s County jury, presided over by Judge John W. Sause, Jr., of the possession of cocaine with the intent to distribute, of driving on a revoked license, and of other related offenses that were merged for sentencing.

On this appeal, the appellant raises the three contentions 1. that Judge Sause erroneously failed to comply with Maryland Rule 4-215 before allowing the appellant to waive his right to counsel, 2. that Judge Sause erroneously admitted inadmissible hearsay evidence, and 3. that Judge Sause’s improper comment deprived the appellant of his right to a fair trial. Factual Background The appellant does not challenge the legal sufficiency of the State’s evidence to prove his guilt generally. The only small residuum of controversy was his effort to convince the jury that he was only a user of drugs and not a pusher. ¹²⁶ At 3:45 in the afternoon on June 22, 2006, Trooper Jeremy Gussoni of the Maryland State Police and Scott Myers, a State Police Academy candidate, stopped the appellant, who was driving on U.S. Route 301 in Queen Anne’s County, for no less than three minor traffic infractions. As they approached the appellant’s stopped car, they heard him yell into a cell phone that he had been “profiled.” The appellant immediately handed Trooper Gussoni an identification card and volunteered that his driver’s license had been suspended.

Trooper Gussoni verified the fact that the driver’s license had been revoked. Trooper William Heath arrived on the scene and arrested the appellant for driving on a revoked license. A search incident to the appellant’s arrest revealed 13 individually wrapped baggies containing what turned out to be cocaine “secreted in the vehicle’s glove box, inside a fuse box.” The aggregate weight of the cocaine was 6.9 grams. On the way to the police station, the appellant asked, ‘What’s going to happen next?” Trooper Gussoni replied that the baggies were going to be fingerprinted.

The appellant then said, “You don’t have to do that. That shit is mine.” When Trooper Gussoni said, “I hope you don’t use cocaine; that ... ruins your heart, your brain,” the appellant replied, “I don’t do that stupid stuff, I only do it every now and again.” Taken from the appellant at the police station was his cell phone. At trial, the appellant called his girlfriend as a witness. She testified that the appellant had a cocaine problem and that she had sometimes seen him “eating” cocaine.

Corporal Aaron Michael testified as an expert witness and testified that he had never heard of anyone eating cocaine. He further testified that each of the 13 rocks of cocaine seized from the appellant had a street value of between $40 and $60. Trooper Gussoni had testified that when the appellant’s cell phone rang at the station house, Gussoni answered it and said, “Hello.” The caller asked, “Can I get a 40?” but then hung up when Gussoni asked him for his name. Trooper Michael explained that the term “40” is a “common reference” for four-tenths of a gram of crack cocaine.

It was Trooper Michael’s expert opinion ¹²⁷ that the 13 baggies of cocaine taken from the appellant were intended for sale. The Minefield of Rule 4-215 Before we can take up the evidentiary matter that is the marquee issue of this appeal, we must get across an ugly patch of difficult terrain. For a judge to traverse Rule 4-215 is to walk through a minefield. A miracle might bring one across unscathed.

For mere mortals, the course will seldom be survived. The appellant’s first contention is that Judge Sause failed to comply with the provisions of Rule 4-215(e) when he “allowed [the appellant] to waive his right to counsel” immediately before the trial began. Rule 4-215(e) provides: (e) Discharge of Counsel — Waiver. If a defendant requests permission to discharge an attorney whose appearance has been entered, the court shall permit the defendant to explain the reasons for the request.

If the court finds that there is a meritorious reason for the defendant’s request, the court shall permit the discharge of counsel; continue the action if necessary; and advise the defendant that if new counsel does not enter an appearance by the next scheduled trial date, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds no meritorious reason for the defendant’s request, the court may not permit the discharge of counsel without first informing the defendant that the trial will proceed as scheduled with the defendant unrepresented by counsel if the defendant discharges counsel and does not have new counsel. If the court permits the defendant to discharge counsel, it shall comply with subsections (a)(1)-(f) of this Rule if the docket or file does not reflect prior compliance. (Emphasis supplied).

Operating on the assumption that the appellant had been permitted to discharge his counsel, the appellant contends that compliance with subsection (a)(3) then requires that the trial judge: ¹²⁸ (3) advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any. In this case, the appellant was charged by a criminal information filed by the State’s Attorney for Queen Anne’s County on August 3, 2006. The flagship count was the possession of cocaine with the intent to distribute. The initial appearance of the appellant was set for August 25, 2006, but the summons was “not served.” Judge Thomas G. Ross issued a bench warrant for the appellant.

It was served on the appellant on September 7, 2006. On September 8, the appellant appeared, without counsel, for a bail review and initial appearance hearing. Judge Ross advised the appellant of the allowable penalties as follows: THE COURT: So you understand that you are charged with possession of a controlled dangerous substance, not marijuana; that carries four years in prison $25,000 fine or both. Charged with possession with intent to distribute controlled dangerous substance, not marijuana; that carries 20 years in prison, $25,000 fine or both.

You’re charged with possession of paraphernalia; that’s a fine only, unless subsequent offender papers are filed. That carries a $500 fine. Charged with distributing paraphernalia. Let me see about that.

That carries a $500 fine. You are charged as well, in Count 5 with driving without a license; carries a $500 fine in this court. You are charged with violation of Transportation Article 16-303(c) driving on a suspended license; that carries a year in jail, $1,000 fine or both. Charged in the seventh count with driving on a revoked license and privilege; carries a year in jail, $1,000 fine or both.

You are charged in Count 8 with a violation of 303(h) of the Transportation Article which is driving a motor vehicle while suspended under certain provisions of the Transportation Article. That carries 60 days in jail, $500 fine or both. You are charged with throwing, dumping, discharge, deposit of refuse on a public highway, carries $500 fine in this court. Charged with driving with an ¹²⁹ obstructed windshield view which carries a $500 fíne in this court.

Okay. I’ve advise you of the nature of the charges, the range of allowable penalties. (Emphasis supplied). The advice as to the allowable sentence for a conviction of possessing cocaine with the intent to distribute was meticulously correct for a first offense on that charge.

The “kicker” was that the appellant was apparently a fourth-time offender and was subject to a sentence, pursuant to Criminal Law Article, § 5-608(d), of “not less than 40 years.” With respect to the required advice under that circumstance, the unforgiving command of Knox v. State, 404 Md. 76, 88 , 945 A.2d 638 , is clear: We hold that “allowable penalties, including mandatory penalties, if any,” as stated in Rule 4-215, includes notice of subsequent offender penalties .... Absent information as to mandatory or enhanced penalties, it could hardly be said that a defendant makes a knowing and voluntary decision to waive [or to discharge] counsel with eyes open or with full knowledge of the ramifications of the choice. (Emphasis supplied). In this case, no advice was given with respect to the “mandatory or enhanced penalties” for a subsequent offender. 1 ¹³⁰ Counsel Was Not Discharged The saving grace is that the triggering event for the imposition of Rule 4-215(a)(3) never came to pass.

The activating clause in subsection (e) is: If this court permits the defendant to discharge counsel, it shall comply with subsections (a)(l)-(4) of this Rule. (Emphasis supplied). In this case, the trigger was never pulled. Counsel was never actually discharged.

The minefield, though it could have been fatal, never actually had to be traversed. Curt Anderson, Esq. was engaged as privately retained counsel on October 10, 2006. A pretrial conference was scheduled for October 20, 2006, but was “vacated” by mutual consent. Also by consent of the parties, the trial was postponed from November 29 to November 30, 2006.

As of the morning of trial, however, trouble was in the air. Apparently Mr. Anderson’s appraisal of the case was that the appellant’s chances of acquittal were virtually non-existent, that the potential sentence the appellant was facing was heavy, and that the appellant’s only feasible strategy was to make the best deal possible for himself. The appellant, on the other hand, was not inclined to deal. Judge Sause assured the appellant that he did not have to agree to a plea.

MR. ANDERSON: Your Honor, as you can imagine, this is a very serious case with the State intending to pull a mandatory 25[on] Mr. Garner is — well— [PROSECUTOR]: Potential. MR. ANDERSON: Potential, the mandatory for Mr. Garner, if proceeded to trial.

For the last couple of days, I’ve explained to Mr. Gamer the nature of the case, the evidence against him. In other words, things that a lawyer does prior to trial and I had recommended to Mr. Gamer a certain disposition in this case, as opposed to going to trial and I have, apparently, done too consistently because Mr. Garner has indicated to me that he doesn’t think that I have his best interests at heart with regard to this case. He doesn’t think I’m going to try the case wholeheartedly ¹³¹ became of my continued assertions that he take a, plea in the case. Again, the only reason why I have suggested that to him — not the only reason — it’s sometimes what I do prior to cases when I think the State — after my assessment of the State’s case.

So I thought I ought to bring that to the Court’s attention because I think he was going to stand up and say it, but I thought, perhaps, at a bench conference it might be better. THE COURT: Oh, yeah, I quite agree with that. Mr. Garner, you heard what Mr. Anderson said, do you want to add anything to that? THE DEFENDANT: Yes, sir.

I feel like he’s not going to represent me in my best interest. THE COURT: Why didn’t you do something about it before now? THE DEFENDANT: Because I thought he was going to try to represent me in my best interests, but after a couple days, I done seen that he’s not trying to— MR. ANDERSON: But I told you, I showed you— THE DEFENDANT: — and I’m not trying to take a plea.

He is trying to force a plea, make me take a plea that I don’t want to take. THE COURT: Well, you don’t have to take a plea. I’m not going to make you take a plea. THE DEFENDANT: I don’t feel that he don’t want to represent me with my best interests with the case that’s at hand.

THE COURT: Well, then you should have done something about it before. (Emphasis supplied). The attorney-client relationship that at one point was perilously hanging on the ropes then appeared to catch a second wind. THE COURT: [Y]ou chose the attorney.

If you had problems, you had to work it out with him. Mr. Anderson is a member of the bar, I’m sure if you told him what your ¹³² feelings were, I’m sure he would have done something about it. THE DEFENDANT: I have told him. THE COURT: What?

THE DEFENDANT: He can sit there. THE COURT: What? THE DEFENDANT: He can sit there. THE COURT: Okay.

Thank you. Go ahead. (Emphasis supplied). At that point, to be sure, the status of the attorney-client relationship was still perilously ambiguous, but it gathered strength as the trial progressed.

The appellant’s only expressed dissatisfaction with Anderson initially had been over the issue of whether to proceed with a full-blown trial on the merits or to enter a guilty plea. Once that question was resolved as the appellant wished it to be, there was no indication of any further strategic disagreement between attorney and client. The bottom line is that Anderson was never discharged as counsel for the appellant and that the provisions of Rule 4-215(a)(3), therefore, never came into play. Our concern, and the concern of Rule 4-215, is with the fundamental right of a defendant to have the effective assistance of counsel when going to trial in a criminal case.

That basic purpose was well expressed by Judge Orth in Parren v. State, 309 Md. 260, 281-82 , 523 A.2d 597 (1987): It is perfectly clear that the purpose of Rule k-215 is to protect that most important fundamental right to the effective assistance of counsel, which is basic to our adversary system of criminal justice, and which is guaranteed by the federal and Maryland constitutions to every defendant in all criminal prosecutions. (Emphasis supplied). As we assess whether the appellant received that constitutionally guaranteed effective assistance of counsel, we will look to what actually took place at the appellant’s trial and not at what looked as if it might take place in the waning moments ¹³³ before the trial began. Although the colloquy at that time was a bit vague, there loomed at least the possibility that Anderson might be discharged and might remain available only in a stand-by capacity by way of giving legal advice if such advice were to be sought by the pro se defendant.

In fact, no such watered down relationship ever asserted itself. Mr. Anderson professionally and ably conducted the complete defense of this case from start to finish. He conducted the voir dire examination of the prospective jurors and then selected the jury. He made a motion in limine.

He delivered the opening statement. He cross-examined the State’s witnesses and made objections. He called the appellant’s girlfriend as a defense witness. He made motions, at the end of the State’s case and at the end of the entire case, for a judgment of acquittal.

He delivered a closing argument. He referred to the appellant as “my client.” The State referred to him as “counsel”: “Your Honor, I’m going to file the additional penalties 1 previously served on counsel, subsequent offender notice.” He represented the appellant at sentencing. He filed and argued a new trial motion. Indeed, at that hearing on the motion for a new trial, Judge Sause noted: I’m delighted to see that there has apparently been a rapprochement.

As I pointed out before, Mr. Anderson participated to his usual able way throughout the trial. (Emphasis supplied). From the opening gavel through the conclusion of the motion for a new trial, there was never the remotest indication that Mr. Anderson was not full-fledged counsel for the defense. The appellant himself did not actively participate in the conduct of his trial in any way nor did he protest his passive role.

This was in no respect the “hybrid representation” described by Parren v. State, 309 Md. at 264 , 523 A.2d 597 : Hybrid representation is apparently considered to encompass both the participation of the defendant in the conduct of his trial when he had not effectively waived the assistance of an attorney to defend him, and the participation by an ¹³⁴ attorney in the conduct of the trial when the defendant was defending pro se. In this case, it was Mr. Anderson and not the appellant who “called the shots” from start to finish. Judge Orth described the difference in roles. When a defendant appears pro se, it is he who calls the shots, albeit, perhaps, with the aid, advice and allocution of counsel in the discretion of the trial judge.

When a defendant is represented by counsel, it is counsel who is in charge of the defense and his say as to strategy and tactics is generally controlling, but again with such participation by the defendant as the trial judge deems appropriate. 309 Md. at 265 , 523 A.2d 597 (emphasis supplied). In the last analysis, the potential Rule 4-215 problem turns out to have been a non-starter. The minefield was finessed. When Is an Out-of-Court Utterance Non-Hearsay?

That brings us to the fascinating evidentiary issue which is the main feature of this appeal. At the police station following his arrest, the appellant was relieved of his cell phone. When the cell phone rang, Trooper Gussoni answered it by saying, “Hello.” A male caller inquired, “Can I get a 40?” but then hung up when Trooper Gussoni asked him his name. Trooper Gussoni actually described the phone as “ringing non-stop.” “Again, it was just continually ringing, ringing.” Although this brief telephone exchange added little, if anything, to the proof of the appellant’s guilt as a possessor, it clearly helped to characterize that possession as commercial in nature and not as simple possession for personal use.

The defense moved in limine to have the content of the call excluded from evidence. Obviously, it’s an anonymous call. We don’t know who it was from, we don’t know if they got the right number and I’m not able, obviously, to cross-examine. I think the reliability of whatever was said on the other end is subject to suspicion and I think the probative value of that would certainly not outweigh the prejudice that it would weigh on ¹³⁵ my client in this particular case.

The person on the other end said something about do you have — do you have a 40. (Emphasis supplied). The motion in limine was denied and the State did not hesitate, in opening statement, to characterize the call as precisely the thing it was. He [had] a cell phone that he was actually talking on immediately when Trooper Gussoni stopped him and his phone kept ringing at the barrack.

Eventually, Trooper Gussoni picked it up and the person on the other end of the phone asked him — said he needed a 40. I think you’ll hear from Corporal Michael a 40 is slang for a $40 piece of cocaine. (Emphasis supplied). In closing argument, the State again referred to the phone call as proving precisely the thing that it validly served to prove, to wit, that the appellant was a pusher and not a mere user.

There are lots of factors for distribution. Very few factors for possession in this case. I mean, not possession — personal, mere use. Very little actually, nothing for mere use because there’s nothing to use it with.

But I keep coming back, I know I said this before, you do not, you do not ca[ll] a user a mere user of cocaine and ask him for a 40. As Corporal Michael tells you, crack cocaine, the language on it is a 20, a 40, a 60, a 80, 100. A 40 is a $40 piece of crack cocaine. Once you do the math, which I did. 6.9 divided by 12, is .53.

I don’t know if they’re all .53. Some could be .4, some could be .6, but we’re in that range, between a 40 and a 60, on the average. That’s what he’s got. Call this guy’s phone, the phone is blowing up.

Phone is going crazy, Trooper Gussoni probably answers it, maybe it’s his girlfriend, yes, I need a 40. That’s a pretty big factor. (Emphasis supplied). To be admissible, evidence must be competent, relevant, and material.

The evidence of the phone call in this case was self-evidently relevant and material. What remains to be ¹³⁶ tested is its competence. That will depend upon whether it is or is not hearsay. The basic rule, most aptly described as the Rule Against Hearsay, 2 is set out in Maryland Rule of Procedure 5-802.

Except as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible. (Emphasis supplied). Rule 5-801, in turn, gives us the necessary definitions to go to work on the problem. (a) Statement.

A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant. A “declarant” is a person who makes a statement. (c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(Emphasis supplied). Federal Rule of Evidence 801(c), from which the Maryland Rule was derived, is absolutely verbatim with the Maryland definition. The Advisory Committee note to Federal Rule 801(c) states: The effect of the definition of “statement” is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.

In Ali v. State, 314 Md. 295, 304 , 550 A.2d 925 (1988), Judge McAuliffe gave the classic common law definition of hearsay: ¹³⁷ Hearsay is generally defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Thus, when a statement is offered for some purpose other than to prove the truth of the matter asserted therein, it is not hearsay. (Emphasis supplied). Before moving out to the disputed borderland 3 of hearsay and non-hearsay, it is helpful to have a firm grasp of the hearsay center.

In Stoddard v. State, 157 Md.App. 247, 257 , 850 A.2d 406 (2004), reversed on other grounds, 389 Md. 681 , 887 A.2d 564 (2005), this Court described the starting point for analyzing what is an assertion. At the most basic level, under both the common law and the new Federal and Maryland Rules, a hearsay statement consisted routinely of the speaking of a declarative sentence in the indicative mood, which sentence stated the very fact which the proponent of the statement sought to prove by its use. Early on, however, it was recognized that a hearsay statement could be a writing of an assertion as well as a speaking of it. It was also universally recognized, virtually ab origine, that a hearsay statement could consist of a nonverbal action if the action were intended by the actor to be an assertion.

The pointing of a finger at Suspect # 4 is just as assertive as are the words, “The man who robbed me is Suspect #4.” Just as surely assertive, in response to a question, is a vertical shaking of the head (“Yes”), a horizontal shaking of the head (“No”), or a shrug of the shoulders (“I don’t know”). (Emphasis supplied). In Holland v. State, 122 Md.App. 532, 543-44 , 713 A.2d 364 (1998), we further explored how an assertion ordinarily does not embrace questions and commands. ¹³⁸ To qualify as hearsay, the words recounted in court must, for starters, constitute an assertion or statement of a fact. Many out-of-court utterances are self-evidently not assertions.

If a witness testifies to the out-of-court inquiry, “What time is it”, that inquiry is obviously not an assertion of anything. For an out-of-court utterance to qualify as an assertion, it generally must be in the indicative or declarative mood, rather than in the interrogative mood, the imperative mood, or the subjunctive mood. An out-of-court assertion of a fact may be true or untrue. For that reason, its admissibility in evidence is problematic if offered to prove that fact.

An out-of-court inquiry, “What time is it?” can be, by its very nature, neither true nor untrue and there is, therefore, no such credibility problem. The out-of-court command, “Stop!” can be, by its very nature, neither true nor untrue and there is, therefore, no such credibility problem. (Emphasis supplied). In Burgess v. State, 89 Md.App. 522, 537-38 , 598 A.2d 830 (1991), Judge Alpert quoted with approval from D. Binder, Hearsay Handbook (3d ed.1991) 18: Many out-of-court utterances fall within such categories as greetings, pleasantries, expressions of gratitude, courtesies, questions, offers, instructions, warnings, exclamations, expressions of joy, annoyance, or other emotion, etc. Such utterances are not intended expressions of fact or opinion.

They are not assertions, at least for purposes of the hearsay rule. Thus they are not hearsay. “Hello.” “How are you?” “Have a nice day.” “Would you like to have lunch?” “I hope it doesn’t rain tomorrow.” “I wonder what he paid for that car.” “Thank you.” “Can you join me for a drink?” ¹³⁹ “Don’t do that, or else.” “Watch your step.” None of the above utterances is an intended expression of fact or opinion. None is hearsay. (Emphasis supplied).

And see United States v. Oguns, 921 F.2d 442, 448-49 (2d Cir.1990) (an inquiry is not an assertion); United States v. Long, 905 F.2d 1572, 1579-80 (D.C.Cir.1990) (questions are non-assertive). In Carlton v. State, 111 Md.App. 436, 443 , 681 A.2d 1181 (1996), Judge Salmon explained how even a question can sometimes qualify as an assertion within the contemplation of the Rule Against Hearsay, although, generally speaking, it would not so qualify. Many questions asked by an out-of-court declarant can be implied assertions. For example, the question, “Do you need change?” impliedly asserts that the questioner has change.

State v. Saunders, 23 Ohio App.3d 69 , 491 N.E.2d 313 (1984). The question, “Why did you stab me, Brutus?” impliedly asserts that the questioner was stabbed by Brutus. On the other hand, many, if not most, questions make no assertion; the questioner simply seeks answers. Burgess v. State, 89 Md.App. 522, 537-38 , 598 A.2d 830 (1991).

(Emphasis supplied). In Carlton , the defendant was convicted of felony murder and armed robbery. In issue was the admissibility of several questions addressed by a co-defendant to a neighbor of the victim. One was whether the victim had an alarm.

Another was at what time would the