Garrison v. State

DAVIS, Judge. Antoin L. Garrison, appellant, was convicted by a jury in the Circuit Court of Baltimore City of distribution of cocaine. He was sentenced to a term of ten years, dating from April 26, 1990. The appellant raises two contentions on this appeal: 1.

Was the evidence sufficient to support appellant’s conviction for distribution of cocaine? 2. Did the prosecutor’s closing argument improperly shift the burden of proof to appellant? FACTUAL BACKGROUND On April 26, 1990, at approximately 6:20 a.m., the Baltimore City Police Department dispatched Officer Darryl DeSousa to a covert position in the vicinity of Greenmount Avenue and the 400 block of Woreley Street. DeSousa observed Thomas Shuron standing on the corner with a female companion.

The testimony indicated that Officer ⁴⁷⁷ DeSousa’s vantage point was approximately 45 feet away from the pair. According to DeSousa’s testimony, appellant approached Shuron, whereupon the two engaged in a short conversation. The officer then saw Shuron hand the appellant an unknown amount of currency, after which appellant disappeared into the house at 406 Woreley Street for a minute. The appellant thereafter came out of the house and handed Shuron several small white objects, which Officer DeSousa suspected to be cocaine.

The officer then radioed two of his partners who were around the corner, and another officer detained Shuron as appellant walked out of the view of DeSousa. Officer Fitzgerald recovered seven postage stamp-size ziploc bags containing a white powder from Shuron while Officer Sewell simultaneously arrested appellant at the corner of Lafayette Avenue and Greenmount Avenue. According to the testimony, $39 was seized from the appellant although no drugs or paraphernalia were found on his person. Officer Calvin Sewell testified that, upon receiving a call from Officer DeSousa, he went to the corner of North and Greenmount Avenues and placed the appellant under arrest.

The seven small ziploc bags containing a white powder had been retrieved from Shuron by Officer Fitzgerald. The white powder contained in the bags was analyzed and found to be cocaine. Appellant testified that he worked with his father in the home improvement business and that, on the day in question, he was en route to the place of employment when he was approached by Thomas Shuron who offered to sell him drugs. According to appellant, he refused to purchase the drugs and continued walking, whereupon he was arrested a short time later.

He denied selling drugs or having entered 406 Woreley Street. ⁴⁷⁸ LAW I. The Sufficiency of the Evidence The short answer to appellant’s first contention is that, under State v. Lyles, 308 Md. 129, 134-36 , 517 A.2d 761 (1986), [a] motion which merely asserts that evidence is insufficient to support a conviction, without specifying the deficiency, does not comply with the rule [4-324] and thus does not preserve the issue for sufficiency of appellate review. Appellant, when afforded an opportunity to present argument on his motions for judgment of acquittal at the close of the State’s case-in-chief and again at the close of all of the evidence, chose to “submit” without articulating the particularized reasons which would justify acquittal. Accordingly, he has waived, any complaint with respect to the sufficiency of the evidence. Had appellant properly preserved the sufficiency argument for our review, we would nonetheless be constrained to find that the evidence was indeed sufficient to sustain the conviction.

His argument regarding the sufficiency of the evidence is, in fact, an attack on the weight of the evidence and the credibility of the witnesses. He insists that no drugs or.paraphernalia were found on him; that the distance from which the police had to observe the transaction was too far to make their observations reliable; that the police documentation indicated that $39 had been recovered from Shuron rather than the appellant; and that there was produced no “photographic, videotape, or audiotape evidence of the alleged distribution of cocaine.” Finally, he suggests that the lack of fingerprint evidence or other physical proof to link appellant to the baggies of cocaine warrants a finding of insufficiency of the evidence. Where any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt, ⁴⁷⁹ the evidence is sufficient to sustain the conviction. See Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979); Tichnell v. State, 287 Md. 695, 717 , 415 A.2d 830 (1980).

Appellant admitted speaking with Shuron at the time the alleged transaction was to have taken place. He was observed approaching Shuron, receiving currency from him, and delivering to Shuron several small white objects ostensibly after obtaining same from 406 Woreley Street. It is beyond cavil that these observations made by one offered as an expert in the field of drug enforcement give rise to circumstances from which one could conclude that the small white objects handed to Shuron by the appellant were the same ziploc bags containing what proved to be cocaine which were retrieved from the person of Thomas Shuron. The evidence was clearly sufficient to sustain appellant’s conviction.

II

THE LOWER COURT DID NOT ERR BY OVERRULING APPELLANT’S OBJECTION TO THE CLOSING ARGUMENT BY THE PROSECUTOR Appellant contends that, by emphasizing the defendant’s failure to call his own father and Thomas Shuron, the State was permitted improperly to shift the burden of production to the defense and thus relieve the State of the burden of production and persuasion as to every critical element of the crime charged. 1 The principal authority relied upon by ⁴⁸⁰ appellant is a footnote contained in Eley v. State, 288 Md. 548, 555 , 419 A.2d 384 (1980): Our decision today must not be interpreted as an invitation to the prosecution in a criminal case to comment upon the defendant’s failure to produce evidence to refute the State’s evidence. Such comment might well amount to an impermissible reference to the defendant’s failure to take the stand. Moreover, even if such a comment were not held tantamount to one that the defendant failed to take the stand it might in some cases be held to constitute an improper shifting of the burden of proof to the defendant. The State acknowledges — as it must — that the burden remains on the State throughout to prove the defendant guilty beyond a reasonable doubt and that a criminal defendant is under no obligation to prove his innocence.

The State correctly asserts, however, that there is a distinction between the allocation of the burdens of persuasion and production as opposed to inferences to be drawn from the failure of a party to produce relevant evidence. The State takes the position that the arguments by the prosecutor “simply represented a specific application of the well-established ‘missing witness’ inference.” At one point in the prosecutor’s closing argument to the jury, he said: [Assistant State’s Attorney Gregory Gaskins]: And I say to you do you think Officer Calvin Sewell was lying when he took the stand? Do you think Officer Darryl DeSousa was lying when he took the stand or do you think that Officer Fitzgerald was lying when he took the stand, and we never did hear from the defendant’s parents. They were never here to say, yes, he was going to work with me. ⁴⁸¹ And I ask you, let that question rule in your mind.

Why wasn’t the father here to say, yes, he was going to work with me because it is a concocted story and it is concocted on that stand. If that were the truth, you would have anybody in here including Thomas Shuron who he says— [Defense Counsel Marcia Stephenson]: Objection. MR. GASKINS: They would be here.

MS. STEPHENSON: Objection. THE COURT: Overruled. MR.

GASKINS: So it is only one truth here and don’t let him destroy that truth because the truth cannot be destroyed. Officer DeSousa was telling the truth when he observed this man distributing the drugs. Thank you. The defense counsel countered in her closing argument: [Ms. Stephenson]: Now, what is interesting about this case is that you have the State’s Attorney talking about Mr. Thomas Shuron and Mr. Thomas Shuron.

The State’s Attorney’s Office in this case they locked up Mr. Shuron and it is unfair because we have no burden of proof of bringing anybody in. If they wanted to bring Mr. Thomas Shuron in, they could have brought Mr. Thomas Shuron into this courtroom. They could have. They didn’t.

Finally, the rebuttal closing argument of the prosecutor included the following: [Mr. Gaskins]: And while it is true the State has the burden of proof, and I don’t have any problem with that, but the State and defense are allowed the privilege of summoning witnesses, just as the State can summons the police officers the defense— MS. STEPHENSON: Objection. THE COURT: I am going to overrule the objection. MR.

GASKINS: Just as the State can summons the witnesses, the defense can summons witnesses and it can summons anybody, anybody in 406 \i.e., the residence that Garrison was seen to enter before selling the drugs] who could say I have never seen this man before in my ⁴⁸² life, but they didn’t do that. The defense did not bring anybody in and they could have summonsed Thomas Shuron. The State does not frequently summons in defendants. MS.

STEPHENSON: Objection. THE COURT: Overruled. MR. GASKINS: Thomas Shuron’s credibility is nothing, just like his credibility is nothing, and I would not ask you to believe the testimony of Thomas Shuron anymore than I would ask you to believe the testimony of this armed robber here.

MS. STEPHENSON: Objection. May we approach now if Your Honor please? THE COURT: You may.

(Whereupon, counsel and the Defendant approached the bench and the following conference ensued:) THE COURT: Yes. MS. STEPHENSON: Just as a matter of record, the State’s Attorney was arguing about believing Mr. Shuron. I attempted yesterday to bring in Mr. Shuron.

Let me say for the record Mr. Shuron’s case was steted [sic] so he could testify for the State. Of course, he was not brought in, but I don’t think the State should be talking about the credible nature of Mr. Shuron’s testimony. MR. GASKINS: First of all, her objection as to what I said about Mr. Shuron is not true.

She did not object— THE COURT: You are just arguing about the defendant’s credibility? MR. GASKINS: That is correct. THE COURT: So I don’t know where your objection is coming from.

His statement in closing argument went to the defendant’s credibility, not Mr. Shuron’s. So I don’t understand the objection as to Mr. Shuron. The only statement he made was that he could have brought him in which is true. He could have or you could have, but on credibility he is talking about the defendant, not Mr. Shuron. ⁴⁸³ MS.

STEPHENSON: I believe I heard him say Mr. Shuron. He wouldn’t believe the credibility of Mr. Shuron. THE COURT: I heard he wouldn’t believe the testimony of this defendant. What did you say or I will ask Ms. Walker to read it back.

MR. GASKINS: I believe what I said was I wouldn’t ask you to believe. THE COURT: You obviously can’t talk about the credibility of a witness who is not here. I didn’t hear such a thing if you did.

MR. GASKINS: I talked about him. THE COURT: The only thing he talked about was the credibility of this defendant which he is free to argue. MS.

STEPHENSON: I heard otherwise, judge. I heard him mention— THE COURT: You want to check Ms. Walker. The inference sought to be raised by the State in its closing argument was that the testimony of Thomas Shuron, the residents of 406 Woreley Street, and appellant’s father would have been unfavorable by reason of his failure not to call those witnesses. The missing witness rule as stated in 1 Wharton, Criminal Evidence 5 148 (13th ed.

C. Torcía 1972), is [t]hus, the missing witness rule applies where (1) there is a witness, (2) who is peculiarly available to one side and not the other, (3) whose testimony is important and noncumulative and will elucidate the transaction, and (4) who is not called to testify. The inference to be drawn from the failure to call a witness will arise only if the relationship between the defendant and the witness is one of interest or affection. 1 Wharton’s Criminal Evidence, supra, 5 149. The inference will not arise if the relationship is that of an accomplice/defendant, Christensen v. State, 274 Md. 133 , 333 A.2d 45 (1975), although the defendant’s conviction will not be set aside if the prosecution argues the rule and ⁴⁸⁴ no request for a reverse missing witness instruction is made. Pierce v. State, 34 Md.App. 654, 658 , 369 A.2d 140 (1977).

Pierce and Christensen address the issue of the trial judge’s failure to give an instruction that the defendant