Jones v. State

ALPERT, Judge. Appellant, Kenneth Wayne Jones, was convicted of various violations of the controlled dangerous substances laws in three separate jury trials in the Circuit Court for Cecil County. In Criminal Case 6182 he was convicted of possession with intent to distribute cocaine, for which he received a 20-year sentence, and possession of marijuana, for which he received a one-year consecutive sentence. Having been convicted of distribution of cocaine in Criminal Case No. 6028, he received a sentence of 20 years to run concurrent with the sentence in No. 6182.

In Criminal Case No. 6094 he was convicted of maintaining a common nuisance (automobile) and received a sentence of 5 years consecutive to the sentences in Criminal Nos. 6182 and 6028. Feeling aggrieved at the prospect of serving 26 years imprisonment, he has appealed and contends that: ¹⁰⁷ I. The trial court erred in denying the Motion to compel production or disclosure of the whereabouts of the informer, Clyde Costello Wilson, in No. 6028.

II

The trial court erred in denying the Motion to suppress evidence seized in a search of the Cadillac in No. 6094.

III

The evidence was not sufficient to sustain the conviction of common nuisance of the vehicle in No. 6094.

IV

The trial court erred in denying the Motion to suppress the statements allegedly made by Appellant and the evidence seized at the scene of the arrest in No. 6182. V. The evidence presented was not sufficient to sustain the conviction of possession with intent to distribute cocaine in No. 6182.

VI

Appellant was not properly sentenced in Nos. 6028 and 6182. Perceiving no reversible error in case No. 6182, we affirm. We shall reverse in case numbers 6028 and 6094 for the reasons stated in Part I infra. However, we shall address certain issues raised in those cases for the guidance of the trial judge at the new trial.

FACTS Trooper Roland Rose, a criminal investigator for the Maryland State Police, had been working undercover for the purpose of investigating illicit drug traffic in Cecil County in the summer and early fall of 1981. Approximately a week before June 5, 1981, appellant had been brought to his attention and on two or three occasions Rose had observed him operating a silver Cadillac Coupe de Ville with Delaware tags. According to Trooper Rose, on June 5, 1981 he met with appellant inside a residence on Booth Street in Elkton and asked him if he had any “girl” (the street name for cocaine). Present at that time was one Clyde Costello Wilson, referred to by appellant as the state’s informant.

In response, the appellant walked out of the residence to the ¹⁰⁸ Cadillac and came back with a zip-lock glassine bag containing 2 tinfoil packets and a glassine bag containing 5 grams of marijuana. Trooper Rose paid $100 for the packet of cocaine. Rose again observed the appellant in the Cadillac on June 9, 1981. On June 18 they met again on Booth Street to discuss an opium deal.

After transacting the sale of the alleged opium for the sum of $100, appellant left and said he was on his way to Aberdeen to dispose of the cocaine. He was observed outside of the Booth Street residence, getting into the Cadillac. Surveillance was maintained all the way to Route 40 past the North East Barracks, which was in the general direction of Aberdeen. Rose observed appellant operating the Cadillac in the Booth Street vicinity a number of times between June 18 and August 27, 1981.

Sometime during the last week of August, appellant was seen driving a small blue car near Booth Street. On September 7,1981, Trooper Rose discovered the Cadillac parked in the area of 500 Booth Street. Concluding that he had enough information to seize the car under the forfeiture laws 1 Rose had the Cadillac towed to the State Police Barracks. A search of the Cadillac disclosed a syringe and needle, two empty foil wrappers, cigarette papers, glassine envelopes in the glove compartment, partially burned marijuana roaches in the ashtray, and a paper with a list of names and numbers.

I. Disclosure Of Whereabouts Of The Informant At a preliminary hearing prior to Criminal Case No. 6028, appellant sought by motion to compel the State to produce the informant, Clyde C. Wilson, as a witness or to supply his address so that a subpoena could be issued to compel his testimony. Wilson was present when appellant sold cocaine to Trooper Rose on June 5, 1981 and had also been charged with distribution of controlled dangerous substances. However, these arrest warrants were never acted upon and were admittedly for the purpose of protecting Wilson by making ¹⁰⁹ it appear that he was a co-defendant with appellant. Appellant proffered that the State had provided Wilson protection and knew his present whereabouts.

The State countered that Rose had testified that he did not know the informant’s whereabouts, but that he believed he could locate Wilson through inquiries to other law enforcement officers. The motion was denied. Appellant renewed the motion at the beginning of the trial and this motion was also denied. Appellant submits that he was entitled to disclosure of Wilson’s address under our ruling in Hardiman v. State, 50 Md.App. 98 , 436 A.2d 923 (1981), because this information was necessary and relevant to the preparation of his defense.

Before addressing this contention, we review the State’s (government’s) privilege to withhold information concerning its informants and the role of the trial judge when confronted with a motion for a disclosure of an informant’s identity or whereabouts. The State is privileged to withhold disclosure of an informant’s identity to further and protect the public’s interest in effective law enforcement. However, disclosure must be made where the informant’s knowledge and communications are relevant and useful to the defendant, or necessary to a fair adjudgment of the case. Roviaro v. United States, 353 U.S. 53, 59-61 , 77 S.Ct. 623, 627-28 , 1 L.Ed.2d 639 (1957).

See also Nutter v. State, 8 Md.App. 635, 636 , 262 A.2d 80 (1970). The burden rests with the defendant to demand disclosure and establish by a preponderance of the evidence that information about an informant is necessary to the proper preparation of his defense. The burden then shifts to the State to rebut this showing by clear and convincing evidence. Whittington v. State, 8 Md.App. 676, 678-79 , 262 A.2d 75 (1970).

Mere conjecture about the relevancy of an informant’s testimony is insufficient to compel disclosure. United States v. Gonzales, 606 F.2d 70, 75 (5th Cir.1979). The trial judge determines whether disclosure is proper by balancing the public interest in protecting the free flow of information against the defendant’s right to prepare ¹¹⁰ his defense. In reaching this decision, the judge should consider the crime charged, possible defenses, possible significance of the informant’s testimony and other relevant factors such as the informant’s role in the case.

Roviaro v. United States, 353 U.S. at 62 , 77 S.Ct. at 628 ; Nutter v. State, 8 Md.App. at 643, 262 A.2d 80 . In many instances, the informant’s role will determine whether disclosure is warranted. Disclosure is generally required to ensure a fair trial when an informant plays an active role in the events underlying the crime. Nutter v. State, 8 Md.App. at 639-40, 262 A.2d 80 .

On the other hand, disclosure is not usually necessary when the informant is a mere “tipster” and not an active participant in the illegal activity. Dorsey v. State, 34 Md.App. 525, 530-31 , 368 A.2d 1036 , cert. denied, 280 Md. 730 (1977). Usually, however, an informant’s actions will fall somewhere between these two extremes. In these situations particularly, the trial court must carefully balance the importance of the informant’s testimony in preparing a defense against the government’s obvious need to protect its informants.

Suarez v. United States, 582 F.2d 1007, 1011-12 (5th Cir.1978). In Hardiman v. State, supra, a remarkably similar case, the appellant raised an entrapment 2 defense and moved for disclosure of an informant’s identity, arguing that the informant was the only witness who could support his defense. No formal evidentiary hearing was held, the State was not required to respond to the motion and the motion was denied for reasons of security and the personal safety of the informant. On appeal, the trial judge’s decision was reversed because the proffer of an entrapment defense met the defendant’s burden to show the necessity and relevance of the informant’s identity to the preparation of his defense.

Since the State had not rebutted the proffer, the trial judge, having nothing to balance, should have granted the motion ¹¹¹ to compel disclosure. Id. 50 Md.App. at 105-08 , 436 A.2d 923 . In the case at bar, appellant alleges that disclosure of Wilson’s address is mandated by Hardiman since he proffered that this disclosure was necessary and relevant to a fair defense. The State replies that the trial judge held a hearing and that appellant did not produce sufficient evidence to prove the necessity to disclose Wilson’s address.

We disagree with the State’s interpretation of the facts of this case. The trial judge may order disclosure of information regarding the informant only after hearing evidence demonstrating relevancy and necessity, and weighing this evidence against the State’s reasons for non-disclosure. Id. at 99-100 , 436 A.2d 923 . Here, appellant proffered that Wilson was a necessary witness, 3 presented evidence of relevancy and necessity for disclosure of his address, but was denied disclosure when the trial judge summarily denied the motion without the benefit of rebuttal evidence by the State.

MR. DWIN [Defense counsel]: So it’s clear from their own answer that this piece of paper [Wilson’s arrest warrants] wasn’t fabricated by the defense; that it did exist; and its purpose was to get Mr. Jones off track in thinking that Clyde Wilson was an informant. And that’s police work, and I accept it. THE COURT: That’s police work.

MR. DWIN: That’s fine. However, it creates, clearly, the fact that Clyde Costello Wilson becomes a necessary witness for the defense. THE COURT: All right.

MR. DWIN: I think in this particular case that’s as far as I have to go, except I could put Trooper Rose on the stand to testify that Wilson was present when some ¹¹² thing took place on the 5th of June between he and Mr. Jones and Mr. Wilson, and that Mr. Wilson was there and was a witness to some alleged transaction between my client and Trooper Rose. He becomes a person who has evidence to give— THE COURT: Okay. Do you have anything else?

MR. DWIN: That’s all I have, Your Honor. THE COURT: All right. I’m going to deny your request for three separate reasons.

Number one, when you balance the equity and protect the free flow of information, and to protect the informant, the evidence is that if Wilson's address is revealed, he is in clear and present danger. The second reason for denying it is that the State does not know the whereabouts of Mr. Wilson. And the third reason is simply that the mere fact that he was there, the mere fact that he witnessed this thing by itself isn't sufficient to indicate to the Court that disclosure is necessary and relevant to a fair defense on the merits. There’s no evidence at this point that the informant’s testimony could help or hurt the case of the, of really Mr. Jones.

There is no evidence here that there could possibly, before the Court, that it could possibly benefit his defense or aid him in any of these pursuits of his constitutional rights. So, I’m going to deny it. Of course, there’s no requirement that the State produce an informant per se. Denied address and producing of informant, (emphasis added.) Appellant’s proffer detailed Wilson’s integral role in his arrest.

This showing is sufficient to shift the burden to the State to explain why the disclosure was unnecessary to a fair adjudgment of the case. Id. at 109 , 436 A.2d 923 . However, as in Hardiman , the court did not call upon the State to respond. Therefore, without the benefit of any evidence from the State, it is difficult for us to understand how the trial judge could declare that Wilson would be “in clear and present danger” if his address was disclosed to appellant.

The fact that the State did not know the whereabouts of Wilson is hardly dispositive on the question of his ¹¹³ necessity to appellant’s fair defense. The fact that Wilson witnessed Trooper Rose’s purchase of cocaine from appellant could have been sufficient to indicate that the information would be useful in proving appellant’s entrapment defense. For the benefit of those who will be faced with future motions to disclose information about informants, we reiterate this passage from Hardiman : Absent some evidence of danger to the life or lives of the informant (or others) threatened by the revelation of the identity, there is a very small auncel on the State’s side of the scale. The right to produce one’s only defense must predominate over protecting the State’s flow of information — as important as that purpose may be.

Id. at 109 , 436 A.2d 923 (quoting Roviaro v. United States, 353 U.S. 53, 63 , 77 S.Ct. 623, 629 , 1 L.Ed.2d 639 (1957)). The trial court’s failure to require the State to justify its non-disclosure was an abuse of discretion requiring reversal and remand for a new trial. Prior to the new trial, the court shall conduct a new evidentiary hearing on appellant’s motion to disclose the informant’s whereabouts. Although it may appear at first blush that a limited remand should issue for a new evidentiary hearing on the motion, it would be inappropriate in this case.

A limited remand “may be suitable to correct procedures subsidiary to the criminal trial” but it “can never be utilized to rectify prejudicial errors committed during the trial itself.” Gill v. State, 265 Md. 350, 357 , 289 A.2d 575 (1972). In Gill , the trial court made an erroneous ruling on the voluntariness of a confession. Since this error occurred in the course of the trial and impacted on both the evidentiary admissibility as well as the evidentiary weight, a limited remand was improper. Id. at 357—60, 289 A.2d 575 .

Compare with Wiener v. State, 290 Md. 425 , 430 A.2d 588 (1981) (erroneous ruling on appellant’s motion to dismiss curable by limited remand because evidence supporting or opposing motion was collateral to the criminal trial). See also Butler v. State, 55 Md.App. 409, 433-34 , 462 A.2d 1230 (1983) (limited remand appropriate to determine whether claimed violation of an ¹¹⁴ agreement by police not to prosecute should result in dismissal of action). As the trial court’s failure to require the State to justify its non-disclosure could have produced “prejudicial errors committed during the trial itself,” such error could not be characterized as collateral to the trial. This determination has a domino effect on case number 6094 wherein the appellant was convicted of maintaining his Cadillac automobile as a common nuisance in violation of Md.Code Art. 27, Sec. 286(a)(5) (see part III infra).

If appellant’s entrapment defense is successful with respect to the distribution charge in number 6028, then the use of the Cadillac on June 5, 1981 would be inadmissible as proof of common nuisance in number 6094. Although there was other evidence of the unlawful use of the automobile, we cannot say the evidence of its usage on June 5, 1981 was harmless beyond a reasonable doubt.

II

Suppression of Evidence Seized in Search of Cadillac — Staleness Under Fourth Amendment And Maryland’s Forfeiture Statute In a two-pronged “staleness” attack on the trial court’s denial of his motion to suppress evidence seized from the Cadillac automobile, 4 appellant argues that given the lapse of time from June 5 to September 7, 1981, there was clearly no probable cause to believe the car contained contraband on September 7. Relying on traditional 4th Amendment notions of staleness, he argues in effect that the probable cause that may have existed on June 5,1981 had completely dissipated by September 7, 1981. Similarly, he obliquely contends that even under the forfeiture statute the fatal lapse of time destroyed the viability of probable cause. Because we hold that the seizure was proper under Mary ¹¹⁵ land’s forfeiture statute, we need not address appellant’s 4th Amendment “staleness” argument.

Maryland’s relevant forfeiture provisions are set out in Article 27, § 297(b): Any property subject to forfeiture under this subheading may be seized upon process issued by any court having jurisdiction over the property, except that seizure without such process may be made when: (4) There is probable cause to believe that the property has been used or intended to be used in violation of this subheading. The statute does not, as appellant argues, require that the automobile constitute a common nuisance the day it was seized. The traditional 4th Amendment concept of staleness is not applicable to the seizure of property under Maryland’s forfeiture laws. The statute succinctly provides for seizure without judicial process where there is probable cause to believe the property has been used in violation of the controlled dangerous substances law.

The use of the past tense in the statute contemplates that the property has previously been used to violate the law and does not require evidence of present illegal use. The United States Court of Appeals for the Fourth Circuit has recently discussed whether seizure of property under the federal forfeiture statute must be contemporaneous with violations of federal narcotics laws. United States v. Kemp, 690 F.2d 397 (4th Cir.1982). On November 2, 1978, DEA agents first learned through an informant that Kemp used his Cadillac to distribute drugs on August 19, 1977.

This information was not acted upon until the informant’s information led to 49 indictments in May, 1979. The government unsuccessfully attempted to locate the vehicle in June and July of 1979. The vehicle was eventually seized on September 20, 1979. Kemp surrendered the keys to the Cadillac