Holt v. State

JAMES S. GETTY, Judge (Retired, Specially Assigned). At the conclusion of a jury trial in the Circuit Court for Baltimore City, Jamal Holt and his brother, John Holt, were convicted of conspiracy to distribute heroin and conspiracy to distribute cocaine. Jamal was sentenced to 20 years with all except twelve years suspended for conspiracy to distribute cocaine, to be followed by five years supervised probation. He also received a concurrent five-year sentence for conspiracy to distribute heroin.

John Holt was sentenced to 20 years imprisonment, the first ten years without parole, on the cocaine conspiracy charge, and to a concurrent ten-year sentence on the heroin conspiracy charge. 1 In this appeal, Jamal and John raise the following issues, which we have rephrased as to form: 1. Were appellants denied the Sixth Amendment right to a public trial? ¹⁹⁸ 2. Were appellants entitled to a severance of the murder charges? 3. Was the evidence sufficient to convict appellants of conspiracy to distribute heroin? 4.

Did the court err in admitting against Jamal incriminating statements, made by him during his cooperation with the police, relating to an agreement between the United States and Raymond Stern? Background On October 4, 1997, at approximately 7:40 p.m., Louis Martinez and Louis Rodriguez, two drug dealers from New York, were shot to death in a yellow Cadillac on a parking lot adjoining an apartment complex at 1408 Odessa Thomas Court in Baltimore. Two female students at the University of Maryland Eastern Shore in Princess Anne testified that on the day of the murders Jamal took them from their homes in Baltimore back to Princess Anne. They began the trip at 5:00 p.m.; the time required for the trip was said to be two and one-half hours.

If that information were true, Jamal could not have been at the scene of the murders at 7:30 p.m. Jamal first came to the attention of the police on the drug charges as a result of his alleged effort to assist his cousin, Raymond Stern, who was awaiting sentencing in a federal prison for cocaine trafficking. Stern offered to persuade Jamal to “set up” a major drug dealer who would be apprehended while selling drugs to Jamal. Upon the success of this venture, Stern would receive a reduced sentence.

In furtherance of this scheme, Jamal was given the pager number of Detective William Nickels, a Baltimore City narcotics officer assigned to a federal task force. Nickels testified that Jamal called him the day before the murders and said that he was a purchaser of cocaine from a supplier named “Jimmy” (an alias for Louis Martinez), who came from New York to Baltimore with kilogram quantities of cocaine. ¹⁹⁹ Nickels stated that Jamal called again on the day of the murders and said he was meeting with “Jimmy’ at 2:00 p.m. at the Northwood Shopping Center and “Jimmy” would have kilos of cocaine. Nickels set up a surveillance, but no one appeared. Jamal did not call thereafter.

Carlos Zapata, a member of the Louis Martinez drug organization, testified that he sold cocaine to Jamal and to John from June 1997 until Martinez was shot on October 4. These sales, five or six in number, usually took place at Odessa Thomas Court and, according to Zapata, he was accompanied by Martinez and Rodriguez. One sale of heroin, allegedly requested by John, was not completed because the delivery agent was arrested while in possession of the heroin. 2 Zapata, Gilberto Reyes, and Jesus Alamanza Delarosa were all members of the drug organization, and all three testified to selling thousands of dollars worth of cocaine to Jamal. All three were impeached due to their use of aliases and the fact that they were not being prosecuted.

Zapata owned the car in which the victims were shot, and his fingerprints were lifted from the exterior of the Cadillac. William Gee lived at the Odessa Court Complex with Lovey Turraine, a cousin of the appellants. He placed both appellants at the residence several times on the day of the murders, but not in the 7:30 p.m. time range. Gee’s brother, Clifton, was also at the residence.

He testified that while he was out on an errand he heard the shots. He said both Jamal and John were at the apartment shortly after the shots were fired. According to Clifton Gee, Jamal was carrying a shoe bag, and John had a handgun wrapped in a gray shirt. Clifton’s testimony was also impeached on the basis of a record for burglary and alcohol abuse. 3 ²⁰⁰ For the defense, a resident of the apartment complex, Antoinette Little, testified that she saw the Cadillac with two occupants enter the parking lot as she was leaving in her car.

She returned shortly thereafter and saw four persons in the car. She left a second time and looked at the man seated behind the driver. According to Little, that man was neither Jamal nor John Holt. She observed this man run off after the shots were fired.

Initially, Little withheld most of this information from the police who interviewed her. Other facts will be supplied as they relate to the issues. Discussion I. On the first issue, denial of a public trial, the record shows that four individuals were present in the courtroom throughout the trial. Two men and a young woman were not identified; the fourth person, known as “Bill,” was a frequent spectator at criminal trials.

Prior to Clifton Gee’s testimony, the State proffered that Gee was in protective custody. The State requested that members of the public be excluded during Gee’s testimony because he was afraid of appellants, who had “people on the street.” The State added that Lovey Turraine, who was at the apartment the day of the murders, could not be located for trial. Sometime after the murders, two men allegedly came to the Gee apartment and threatened her. Clifton Gee, the State claimed, was present and heard the threats.

The discussion was as follows: MS. HANKIN: Your Honor, I’m going to ask you if you would please to clear the courtroom of spectators this witness is in protective custody. He is afraid because John and Jamal Holt have people out on the street that he is being viewed and carefully, with an eye of what he looks like and to what is being said. I am afraid that if he sits on that ²⁰¹ stand that he will not testify truthfully, he will be afraid because there are people in the audience who belong to the family and he would be afraid to testify.

They were not here yesterday. They haven’t been here. I’m asking only for one witness. MR.

RAVENELL: First of all Your Honor that’s not true, the people that were in this courtroom were here. THE COURT: Well, they’ve already seen him. MR. RAVENELL: Right.

Exactly. I know what this is about. MS. HANKIN: They don’t know what he’s going to testify to.

MR. RAVENELL: So what. THE COURT: Well, I don’t have any - MR. RAVENELL: Your Honor, this is an open public forum.

MS. HANKIN: Your Honor, there is a very quiet - MR. RAVENELL: There is no basis that the State has put forward to do that and I do not want this jury coming in here thinking that somehow this courtroom emptied - THE COURT: Hold it. I don’t want them coming and then seeing it empty.

Hold them please. MS. HANKIN: Hold up for a minute please. I thought there was a Clerk.

THE COURT: The Clerk is out here. I only have one Clerk. MS. HANKIN: Your Honor, it’s a very fine line. [I]t’s a fine intimidation point.

Life on the street is very difficult. It is hard for these people to come in and testify. We’ve tried to tell you repeatedly. We have considerable problems.

We have people incarcerated. We have people in protective custody. I’m begging for - THE COURT: I’m not going to do this with every witness. MR.

CARDIN: Your Honor. ²⁰² MS. HANKIN: I’m not asking for any other witness. You know we don’t have Lovey. You can see why we don’t have Lovey.

Our cards are out on the damn table, excuse me, I’m asking you for this witness to have them not to be present during the testimony. MR. CARDIN: Your Honor, this witness is in protective custody we know that, that’s number one. I don’t know how long he’s been in protective custody but he’s been in protective custody.

That’s number one. Number two part of the test of any witnesses [sic] credibility is to have to testify under oath and before the public. That’s always been part of our system of justice. MS.

HANKIN: That’s not true. THE COURT: He didn’t interrupt you. MR. CARDIN: That is why a Defendant is insured and assured of a public trial and these Defendants are entitled to that and for the State to say that these people have not been here before is not true.

And many things that the State has said to this Court have not been true. MS. HANKIN: Mr. Cardin, really. MR.

CARDIN: And number two. And number two. Nobody had any idea that Mr. Clifton Gee was going to be testifying this afternoon. You know that as well as we do because we were surprised when we came in we expected Mr. Stern to be testifying.

MR. RAVENELL: So how is it that they would come here with intent to threatening Mr. Gee when no one knew? MS. MYERS: Mr. Gee— THE COURT: Excuse me, I’ve heard.

I’ve heard it all. You finished? MR. RAVENELL: Yes, Your Honor.

THE COURT: We live in trying times, difficult times. I make no implications but I’m going to air [sic] and I’m going to air [sic] on the side of caution. I’m going to grant the motion. Mr. Sheriff?

THE SHERIFF: Yes, sir. ²⁰³ THE COURT: Ask those people who are here to leave the courtroom unless they are— THE SHERIFF: A witness. Unless they are a witness? THE COURT: Yes. I don’t know if there is an objection from the Defense.

MR. RAVENELL: There is an objection. MR. CARDIN: Absolutely.

MR. RAVENELL: Absolutely. I’d like to make the record clear. THE COURT: Fine.

Okay. I’ve made my ruling. MR. RAVENELL: I’d like to make the record clear, Your Honor.

THE COURT: Your record is clear. MR. RAVENELL: No, no this record. Which is there are two individuals, one male and one female and a gentlem[a]n by the ballplayer Bill who have been in this courtroom.

THE COURT: Let Bill stay. MR. CARDIN: No, no, no. MR.

RAVENELL: No, no, no. THE COURT: Okay. Hold it, Mr. Cardin. I’m the Judge, you’re Counsel.

I make the rulings, you don’t make the rulings. MR. RAVENELL: Fine Your Honor, if you want to let Bill stay. He can stay.

THE COURT: He can— MR. RAVENELL: Let me make my position is this the Court has selectively, taken over the courtroom, leaving law enforcement officers in the courtroom and now— THE COURT: Make your record. MR. RAVENELL: I am.

There are four individuals. All four of those persons who were just escorted out of the courtroom have been here all during this trial. The two young men who were asked to leave and the person Bill and we all know him around the courthouse and the young female who has been in this courtroom have been here all ²⁰⁴ trial long. And for the jury to now come out and see that they are, at least two jurors walked out here a moment when the Court asked them not to come out.

At least two jurors saw people in here I suppose. THE COURT: You don’t know what anybody saw. MR. RAVENELL: You didn’t let me finish, I said I suppose.

You stopped me before I finished. I suppose. There were two jurors that actually exited. They I would suppose saw the same people who have been here all along and now all of the sudden they come out again and now the courtroom is cleared of those four people.

I suggest that the Defendants are not getting a fair trial when they are not getting this public trial. I don’t think it’s going to matter any way what-so-ever. But I do think that it’s important that the perception not be that there is something going on with this witness. That’s what, I want to make that record and I am objecting to the Court clearing the courtroom.

THE COURT: Okay. Thank you. Several recent appellate decisions have addressed the issue of a defendant’s constitutional right to a public jury trial. In Walker v. State, 125 Md.App. 48 , 723 A.2d 922 (1999), a partial closure edict by the trial court was vacated.

In that case, during a suppression hearing, a State’s witness assaulted the defendant, who was seated at the trial table. Defendant’s mother, sister, and girlfriend, who were seated behind a rail, began screaming and moving toward the rail. Other court personnel, meanwhile, were busy separating the witness and the defendant. The jury was not present, although several jurors heard loud voices and movement coming from the courtroom.

The trial judge informed defense counsel that she made eye contact with the three women and repeatedly told them to “get out” but they did not comply. Whether the women defied the order to leave or they did not know the remarks were directed to them was never established, because the trial court barred all three from the remainder of the motions hearing and from the trial. ²⁰⁵ The entire fracas was recorded on videotape which this Court reviewed on appeal. The video established that only four members of the public were present in the courtroom. The visitors were the three women and an unidentified male.

The closure, therefore, was not absolute; any member of the public other than appellant’s three alleged family members could have attended. This Court held that the trial court did not consider any reasonable alternatives to closing the proceedings. Additionally, the Court (Hollander, J.) decided that the breadth of the order far exceeded what was necessary to maintain proper decorum for the remainder of the trial. The fact that one individual was allowed to remain in the courtroom does