Jamsa v. State

Michael Geoffrey Jamsa v. State of Maryland, No. 1012, September Term, 2019. Opinion by Salmon, James P., J. CRIMINAL PROCEDURE — QUANTITATIVE TESTING — MARYLAND RULE 4-263(d)(9): The opportunity to inspect, copy and photograph all . . . tangible things that the State’s Attorney intends to use at a hearing or at trial, implies the defendant’s right to have independent testing performed on the item to be used as evidence against him. Circuit Court for Montgomery County Case No. 133877C REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1012 September Term, 2019 ______________________________________ MICHAEL GEOFFREY JAMSA v. STATE OF MARYLAND ______________________________________ Berger, Wells, Salmon, James P. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Salmon, J. ______________________________________ Filed: October 28, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-10-28 11:11-04:00 Suzanne C. Johnson, Clerk This case had its origin on March 27, 2018, when Montgomery County police officers charged Michael Geoffrey Jamsa (“Jamsa” or “appellant”) with second-degree assault, altering evidence, and possession of a controlled substance (cocaine) with intent to distribute. After Jamsa’s arrest, the Montgomery County police laboratory examined 5.93 grams of a white powdery substance that had been found, at the time of his arrest, in the back seat of Jamsa’s vehicle. The laboratory concluded that the white powdery substance contained cocaine. The laboratory, however, did not make a quantitative analysis to determine the percentage of cocaine in the white powdery substance.

Jamsa, by counsel, filed a motion to suppress all evidence seized by the Montgomery County police at the time of his arrest. After a hearing, that motion was denied. On December 4, 2018, Jamsa entered a plea of guilty to Count Three of the indictment, which charged him with possession with intent to distribute cocaine. Subsequently, however, the circuit court allowed Jamsa to withdraw that guilty plea.

On February 21, 2019, which was approximately two months before the assigned trial date, Jamsa’s counsel filed a motion for appropriate relief. Movant asked the circuit court to order the State to allow Jamsa, at his own expense, to have the white powdery substance analyzed at a Pennsylvania laboratory to determine the percentage of cocaine in the substance (quantitative testing) that was seized. Counsel asserted that Jamsa had “a good faith basis to believe” that the majority of the substance in question was not cocaine. A hearing on that motion was held on March 1, 2019, but the motions judge denied Jamsa’s motion for appropriate relief.

The case was tried before a jury, in a trial that commenced on April 24, 2019. At the conclusion of the State’s case, the court granted Jamsa’s motion for judgment of acquittal as to second-degree assault. The jury convicted Jamsa, however, of the remaining two charges, namely, altering evidence and possession of a controlled dangerous substance (cocaine) with intent to distribute. Jamsa was sentenced to three years for destruction of evidence, and a concurrent term of thirty years, all but ten years suspended, in favor of a five-year period of probation for possession with intent to distribute cocaine.

In this timely appeal, appellant raises three questions, which we have slightly rephrased: 1. Did the circuit court abuse its discretion when it refused appellant’s request to independently test the alleged narcotics that formed the basis of appellant’s conviction? 2. Did the circuit court abuse its discretion when it permitted the State to introduce evidence that appellant invoked his right to counsel during an interrogation? 3. Did the circuit court err when it denied appellant’s Motion to Suppress?

We shall answer the first two questions presented in the affirmative and the third question in the negative, vacate Jamsa’s convictions and remand the case to the Circuit Court for Montgomery County for a new trial. 2 I. BACKGROUND FACTS A. The Suppression Hearing 1. Testimony of Montgomery County Police Officers On March 27, 2018, Detective (“Det.”) Kevin Morris, with the Montgomery County Police Department, was conducting undercover surveillance of the parking lot of a shopping center located at the intersection of Layhill Road and Bel Pre Road in Montgomery County. The parking lot that was under surveillance was in a high crime area where Det. Morris had conducted multiple narcotic investigations in the past.

In the early evening hours of March 27, 2018, Det. Morris saw a truck (“the truck”) pull into the “drive through area” of a BB&T bank; the truck parked there for several minutes. At one point, the driver of the truck briefly got out of the vehicle but never used the ATM machine. Detective Morris next saw a man (“the pedestrian”) walk from the shopping center toward the truck.

The driver of the truck then moved his vehicle towards the back of the BB&T bank. The detective reacted by repositioning his vehicle and saw the pedestrian lean into the passenger’s side window of the truck. Detective Morris saw “that there was some kind of exchange” between the pedestrian and the driver of the truck, and also saw that the two were communicating, but he could not see any money, drugs or any other item being exchanged. The pedestrian stayed there approximately fifteen seconds, then walked away.

The truck also left. At that point, Det. Morris believed that he had witnessed a 3 possible drug transaction, which caused him to radio members of his team so that they could assist in making a traffic stop of the truck. One of the members of Det.

Morris’s team was Montgomery County Detective Artemis Goode. He observed the truck travelling north on Georgia Avenue and began following it. Detective Goode saw the truck stop for a red light and then saw it take off “at a high rate of speed” after the light turned green. The detective paced the truck’s speed by positioning his vehicle parallel to the truck in the adjacent lane.

While pacing the truck in this manner, Det. Goode testified that his speedometer showed that his vehicle and the truck next to him were traveling 46 mph in a 40 mph zone. Detective Goode testified that he had been trained in proper pacing techniques but admitted that his vehicle speedometer had not been calibrated or certified for two years. He also admitted that the Montgomery County police department has a regulation that requires speedometers to be calibrated once a year.

After Det. Goode determined that the driver of the truck had committed a traffic violation, Det. Morris and the rest of the team prepared to effectuate a traffic stop of the truck. Montgomery County police officer Daniel Ford, who was positioned behind the truck in an unmarked vehicle, turned on his vehicle’s lights and siren, and Det.

Goode, who had maneuvered his vehicle in front of the truck, turned on the lights and sirens on his vehicle as well. The truck changed lanes as if to pass Det. Goode’s car but instead, struck its rear bumper. Detective Goode and the truck then jockeyed for position momentarily before the truck pulled to the side of the road and stopped. 4 Detectives Goode and Morris approached the truck and issued commands for the driver to roll down the driver’s side window.

The driver of the truck, who was later identified as Jamsa, not only refused to roll down the window but was observed reaching down towards the truck’s console. When Jamsa reached down, Det. Goode drew his service weapon. Both detectives testified that they next saw Jamsa rip open a “brown tannish bag,” and dump the contents into a Dunkin Donuts cup.

Fearing that Jamsa was destroying evidence, Det. Morris attempted to break the truck’s window. While he was doing this, Jamsa pulled out a second “whiteish colored plastic bag” and began “ripping it open and dumping” it into the same cup. Jamsa then placed the white bag into the cup, rolled down the window, and threw the cup and its contents at Det.

Goode. The contents of the cup spilled onto Det. Goode who knocked the cup back into Jamsa’s truck, spilling water on the floor of that vehicle. Jamsa was then yanked from the vehicle and placed under arrest.

After Jamsa had been arrested, he attempted to “stomp” on his cell phone. Jamsa’s truck was searched. In the backseat, the police found a shirt and in a shirt pocket they found a bag containing a white powdery substance, which the police believed to be cocaine. At the suppression hearing, Jamsa’s counsel argued that prior to the stop of appellant’s truck, the police had neither probable cause nor even a reasonable articulable suspicion that Jamsa had committed any crime or traffic violation.

According to defense counsel, because neither probable cause nor a reasonable articulable suspicion was shown, 5 the police had no right to make the traffic stop; and, in the absence of the right to make the stop, the fruits of that stop, namely the cocaine and cell phone, should be suppressed. The State countered that based on what Det. Morris observed in the parking lot of the shopping center, he had probable cause to believe that Jamsa had engaged in a drug transaction with the pedestrian. The State argued in the alternative, that prior to the stop of Jamsa’s truck, the police had probable cause to believe, or at least a reasonable articulable suspicion, that Jamsa had violated the Maryland traffic laws by driving 46 mph in a 40 mph zone.

The motions judge agreed with the State and found that the police, prior to the stop of Jamsa’s truck had: 1) probable cause to believe that he had engaged in the sale of drugs; 2) in the alternative, the police had probable cause, or at least a reasonable articulable suspicion, to justify the stop of his vehicle based on the fact that Jamsa was driving six miles per hour over the speed limit.

II

THE MOTION FOR APPROPRIATE RELIEF Jamsa’s written motion for appropriate relief made four main assertions, namely: • That the Montgomery County Police Crime Laboratory tested the substance [found in Jamsa’s truck] and indicated that it tested positive for cocaine. The [d]efendant requested [that the] County [p]olice [l]ab test the substance in question to determine the percentage of actual cocaine versus a non-controlled substance. The [p]olice [l]ab indicated they could not perform purity or quantitative testing, but that the substance could be sent to a lab [NMS Laboratories] in Pennsylvania for this type of analysis. • That Assistant State’s Attorney Aaron Ramirez investigated the logistical issues involved in sending the substance to NMS Laboratories in Pennsylvania. On November 14, 2018 Mr. Ramirez proposed an agreement 6 to the [d]efendant’s previous attorney regarding shipping substances to NMS Laboratories.

The agreement covered costs, (to be paid by the [d]efendant), chain of custody issues, use of the test results and stipulations should the substance be lost or damaged during shipping. • That for reasons unknown to [present defense counsel], the [d]efendant’s previous attorney did not pursue the quantitative testing after the State proposed an agreement on November 14, 2018. • That the [d]efendant will agree to all stipulations that the State has proposed in order for the quantitative testing to occur. Defense counsel also stated that the State had changed its position and “would no longer agree to the quantitative testing without a court order.” At the hearing on the motion for appropriate relief, the prosecutor told the court that the chemist who performed the test on the powdery substance found in a pocket of appellant’s shirt was Troy Oliver. He then explained that at the Montgomery County lab, testing for cocaine is done in two phases. The prosecutor continued: They started with what they call a presumptive test which is a color test.

You take a sample and it’s supposed to turn a certain color if it tests positive for cocaine or whatever the chemical composition is. Already in the discovery that I provided which is [in] the bench file - - everything that the chemist should have written down - - shows that that initial test was negative. And so that’s something that the [d]efense is more - - you know can make hay with all day that this initial test came back negative. THE COURT: So even though it’s negative you then go to the assessment? [The Prosecutor]: You go to the GCMS [Gas Chromatography Mass Spectrometry] because the GCMS gets down into the like the atoms if you will.

And I’m obviously not a chemist so I’m not explaining this artfully but gets into the actual chemical compound composition of what’s really in here. So that a sample was submitted into the machine through a mixture that the lab creates using a sample and whatever dilutants they have to ready the substance. And that test[] came back positive. And this is the words of the 7 chemist as I understand them - - Mr. Oliver - - is that [the] first test was weak.

Again[,] that’s something that the [d]efense is free to cross[-]examine him on. There was . . . a second test done injecting more sample into the machine and it came back positive and normal. Now just for the sake of sort of non- scientists I said well what does it mean that you conducted more sample? He . . . injected more microliters.

And I said well, is a microliter that you initially injected into the machine visible to the naked eye? And he said no. There’s no way you can see a microliter that was initially injected into the machine. And I said what about the second sample that was then injected into the machine?

He was like you can’t see that one either. So[,] we’re talking about something that is microscopic[ally] present and the defense has that information available to them. They are free to cross-examine the State’s expert on that. But all of this goes back to what Your Honor said during the first phase of this argument which is okay.

So what if we’re dealing with .001 percent? And the answer is - - the response is yes. So what? Because the jury instructions tell us there is no magic number that we’re looking for.

We’re looking for presence or absence and then all of the surrounding circumstances. THE COURT: Excuse me. Excuse me. I want [defense counsel] to respond to that.

At the hearing, Jamsa’s counsel admitted that if the laboratory test showed only a trace amount of cocaine, that would not mean that the State had insufficient evidence to present a jury issue as to whether his client possessed cocaine with intent to distribute. Instead, defense counsel’s contention was that: 1) his client had a good faith belief that the substance was cornstarch with only a slight amount of cocaine; and 2) that if it could be proven that the substance tested contained only a very small percentage of cocaine, that proof would be relevant inasmuch as it might help persuade a jury that Jamsa did not have an intent to distribute cocaine. 8 The State’s position was simple and categorical: it was irrelevant as to what percentage of cocaine was in the white powdery substance that was examined by the chemist. During the course of the hearing, the motions judge made it clear that he agreed with the State’s view that no matter what the out-of-state quantitative test showed, it would not be relevant. At the hearing, there was a significant amount of discussion concerning the logistics of sending the white powdery substance out-of-state to be tested.

There was no concern expressed about the reliability of the lab located in Pennsylvania. In fact, NMS Laboratories had been used by the Montgomery County State’s Attorney’s office on previous occasions. The concern was about what would happen if the material sent to the lab was lost or for some reason could not be returned. Defense counsel’s position was that the logistical aspects had been worked out when the prosecutor sent Jamsa’s first attorney a list of proposed stipulations.

Jamsa’s first attorney did not reply to the proposed stipulations but when Jamsa’s new counsel contacted the prosecutor, defense counsel said that he would agree to all the proposed stipulations. According to defense counsel, once he agreed to all the proposed stipulations, the prosecutor said that he would talk to his supervisor because of “all the logistical problems[.]” The prosecutor later advised defense counsel that he would not consent to any out-of-state testing. According to the prosecutor, his logistical concerns were as follows: 9 [W]e’re talking about sending a controlled dangerous substance through the postal system which could be interdicted by federal, postal, local, state in Pennsylvania. So[,] we can’t guarantee that the substance through that method will arrive or return to us in a satisfactory manner for presentation at trial.

In reply, Jamsa’s attorney argued that it was the State that located the laboratory in Pennsylvania and that: [A]ll of these things that he’s talking about logistically have already been stipulated to. We’ve talked about what happens if the drugs get damaged, if they get lost. Those stipulations won’t be affected if the case goes to trial. So logistically [the prosecutor] did a boatload of back work on this already. . . .

So that already exists. . . . So essentially what I’m hearing is [members of the State’s Attorney’s office] just don’t feel like doing it. Defense counsel added that if the State was genuinely concerned about material going through the post office or evidence getting lost or damaged, those matters had already been agreed upon by stipulation. The motions judge then asked defense counsel if one of his stipulations was that if the package containing the evidence was “completely lost” that the defendant would concede that it contained cocaine and that he wouldn’t be able to make the argument that there had been a failure to test.

Jamsa’s counsel answered that question in the affirmative. The motions judge ruled in favor of the State saying: [Defense Counsel], you make it interesting. I enjoyed the discussion[,] but I have too many concerns about evidence leaving the control of the State at this time. It’s not an element of the offense as I understand it.

And I hear what you’re saying but I’m concerned how it would benefit the defendant as well but that’s your call. That’s not my call. I just find that interesting. So given those concerns and the State not agreeing[,] the motion for appropriate relief is denied. 10 III.

THE TRIAL At trial, the evidence as to how Jamsa came to be stopped by the police was in all material respects the same as that presented at the suppression hearing. The State called Montgomery County Police Sergeant (“Sgt.”) Gregory Chmiel to testify concerning his interview with Jamsa that occurred approximately two and one-half hours after Jamsa’s arrest. That interview was recorded in its entirety. Prior to Sgt.

Chmiel’s testimony, the court was advised that the State intended to introduce “clips” of pertinent parts of the interview with Jamsa while Sgt. Chmiel was on the stand. After Sgt. Chmiel was sworn in and had commenced his testimony, defense counsel approached the bench and made a motion in limine.

The subject of the motion concerned the last “clip” that recorded what was said just before the termination of the interview when Jamsa said, “I’m not talking. You’re not listening to me. I’m asserting my right to counsel.” The “clip” also showed that after Jamsa invoked his right to counsel and to remain silent, Sgt. Chmiel said: “well, okay, now that you’ve invoked the right to counsel[,] I’m going to terminate the interview and you can stop answering any questions.” Defense counsel objected to any statement by his client or Sgt.

Chmiel indicating that appellant had invoked his right to counsel. Defense counsel argued that it was inappropriate for the jury to hear Jamsa’s invocation of the right to counsel because that could be interpreted by the jury as an indication that his client was going to get a lawyer because he was guilty. Defense counsel also objected to introduction of the part of the statement where Jamsa said in essence, “I’m not talking.” 11 The prosecutor contended that it was “permissible” and “also necessary” for the jury to hear the part of the tape to which Jamsa objected because the prosecutor “didn’t want the jury to get the impression that the defendant asserted a right that wasn’t respected.” The trial judge overruled the objection. Immediately thereafter, the prosecutor and Sgt.

Chmiel engaged in an exchange concerning what transpired during the interview. Sergeant Chmiel testified that he advised Jamsa of his Miranda rights and Jamsa waived them. This was confirmed by the introduction into evidence of a Miranda waiver form, which Jamsa signed. In the interview, Jamsa denied throwing any liquid at Det.

Goode. Also, Jamsa said that the white powdery substance found in his shirt in the back of his truck was cornstarch. When Sgt. Chmiel asked Jamsa if he would be surprised if he learned that the substance on the cup found in the vehicle contained cocaine residue, Jamsa said he would be surprised because he didn’t have any cocaine.

Jamsa also denied destroying evidence. When Sgt. Chmiel got to the segment of the tape where Jamsa invoked his right to counsel and to remain silent, defense counsel did not repeat his objection. Montgomery County Det.

James Walsh was accepted by the court as an expert in the field of “drug trafficking and distribution.” He identified for the jury several features of the case that he found significant. Regarding a text message recovered from Jamsa’s phone, Det. Walsh noted an exchange between Jamsa and a contact who was listed as “Quiet George.” According to Det. Walsh, that conversation was consistent with the interpretation that appellant and Quiet George were engaged in drug activity. 12 Detective Walsh also testified that drug users often purchased two to three grams of cocaine at the most, but low-level cocaine dealers may sell 3.5 to 4 grams of substance at a time.

He further testified that cocaine is often packaged in plastic baggies or ripped baggies that are tied in knots and are about a thumbnail in size. The detective found “significant” that the bags found in appellant’s jacket contained 5.93 grams of a substance that tested positive for cocaine. According to Det. Walsh, typically cocaine is sold in tenths of a gram and therefore “nearly six grams is in [his] opinion, training, and experience[,] consistent with distribution rather than just possessing it for use.” He further opined that the “purity” of the sample would not affect his opinion because “it’s either an illicit substance or it’s not” and the drug trafficker’s decision to “adulterate a product” might affect the drug dealer’s retention rate, but was not something he considered as a police officer.

At trial, Tony Oliver, the police chemist, testified that the two torn baggies and the cup confiscated from appellant’s truck all tested positive for the presence of cocaine residue. Mr. Oliver said that he could not visually determine whether the 5.93 grams was cocaine and he admitted that his initial presumptive tests were negative for the presence of cocaine or heroin. But, when Mr. Oliver utilized the laboratory’s gas chromatography mass spectrometry, he determined the presence of cocaine. He explained that he conducted only “qualitative” testing and could only “determine the presence or absence of a substance” but not the “amount” of the substance present.

He said that the gas chromatography mass spectrometry device is “incredibly sensitive” and that a particle of cocaine smaller than a grain of sand could result in a positive test. Because of the sensitivity of the test, Mr. Oliver 13 admitted that a positive result could occur simply because someone touched cocaine and then touched another substance or surface. He also admitted that the substance he examined could contain less than 1% cocaine.

IV

DISCUSSION A. The Right to Quantitative Testing Maryland Rule 4-263 obligates the State’s Attorney to provide a defendant with “[t]he opportunity to inspect, copy, and photograph all documents . . . or other tangible things that the State’s Attorney intends to use at a hearing or at trial[.]” Maryland Rule 4- 263(d)(9). Implicit in this rule “is the right of a defendant, subject to an appropriate protective order, to have independent testing performed on the [item] that is to be used as evidence against him.” Mangum v. State, 342 Md. 392, 401 (1996) (interpreting Md. Rule 4-263(b)(5), an earlier version of Md. Rule 4-263(d)(9)). The State and the appellant appear to be in agreement that a defendant has a right to have independent testing of evidence to be used against the defendant so long as the testing is relevant to some issue in the case. In the words of the State, “[w]hile a defendant may seek independent testing to determine, for instance, whether cocaine is present in a substance, he is not automatically entitled to conduct additional testing (not done by the State) regarding matters that are not germane to the charges against him.” Thus, the main issue that separates the parties, is whether the proposed out-of-state testing was germane to the