Kosh v. State

²²⁰ HARRELL, Judge. During the trial for alleged controlled dangerous substance (CDS) violations, the prosecutor asked a police officer if the defendant, Petitioner Nathaniel Kosh, after arrest, but prior to being given Miranda 1 advisements, denied his involvement in the underlying drug sales. The defense objected, and a bench conference ensued during which the officer told the judge, outside the jury’s hearing, that he could not remember whether Kosh denied his involvement. After the bench conference, the trial judge, in open court, sustained the objection, but told the jury: “Pm basically telling you what the police officer said.

Number one, he didn’t give any Miranda warnings and two, Mr. Kosh didn’t say anything about his involvement in the case or not his involvement in the case because he wasn’t asked. Okay. So there is no more information on that score. He wasn’t asked whether he was involved and he didn’t respond.” Post-arrest silence is inadmissible as substantive evidence of a criminal defendant’s guilt, regardless of whether that silence precedes the recitation to the defendant of Miranda advisements.

In the present case, the trial judge erred by telling the jury that Kosh remained silent regarding his involvement, both because the judge’s instruction was not supported by the officer’s testimony and because post-arrest silence is inadmissible. The judge’s instruction probably led the jury to believe that Kosh had not denied his involvement, and effectively impeached in advance the testimony of three defense witnesses who testified that Kosh actually denied his involvement. We conclude that the judge abused his discretion by failing to correct the jury’s misapprehension of the testimony and by denying the subsequent defense motion for a mistrial. We reverse the convictions and remand for a new trial. ²²¹ I. On the evening of 4 June 2001, Detective David Jones covertly observed two apparent drug deals from his vantage point on the 1400 block of Pennsylvania Avenue in Baltimore City.

Detective Jones testified that he observed a series of interactions between Kosh and a fifteen-year-old juvenile, later identified as Donnell K., who were loitering in the area and engaging in periodic conversations with one another. Two women separately approached the scene and interacted with Kosh and/or Donnell K. These interactions involved, according to Jones, either Kosh or Donnell K. giving items to the women in return for cash. Detective Jones directed a police team to arrest each woman after she left the area. The first woman was identified as Glenda Watkins; the second as Sharon Miller.

Each woman was found to be carrying several vials containing cocaine. Jones then directed the team to arrest Kosh and Donnell K. During the search incident to his arrest, police found $291 in cash on Kosh, but no drugs. Police found forty-five vials of cocaine and $13 in cash on Donnell K. Kosh was tried in the Circuit Court for Baltimore City on various CDS charges. At trial, Detective Jones, an eighteen-year veteran of the Baltimore City Police Department, was qualified as an expert in “the observation, packaging and street-level distribution of drugs.” He testified that, in his experience, two dealers frequently work together: “[Y]ou would have one person ... acting as the money person and this person will collect the currency from the suspected drug buyers while the other individual ... will actually have the narcotic or the stash ... on their person or stored somewhere, on the ground, maybe in a mail box, and that person will actually distribute the drugs to the suspected buyers. “The benefit from that is that you don’t lose all your proceeds, so if you have a one-person scenario where you ²²² have the dealer with the money and the drugs and if an officer should happen to come in and make an arrest, they have their stash as well as the currency and then you lose all your profit but in a two-person scenario you try to break it up where you don’t lose your stash as well as your currency.

So that’s the benefit of having a two-person or more scenario.” Jones also testified that juveniles are often included in these drug dealing teams because the penalties for juveniles caught with narcotics are less harsh than those for adults. When an adult and a juvenile work together, he said, the adult typically oversees the operation and collects the cash, while the juvenile holds the narcotics. During redirect examination on the second day of trial, Detective Jones was asked if he saw the male suspects again after they were arrested. He responded that he saw them at the Central District Drug Enforcement Unit Office prior to their transfer to the Central Booking Office.

Jones testified that he had not given Miranda advisements to any of the suspects, and that he was not aware whether they had been given Miranda advisements by anyone else. 2 The following exchanges then occurred: [Prosecutor]: Do you recall if the Defendant ever denied his being involved in this case? [Defense counsel]: Jesus, Your Honor. [The Court]: Wait, wait, wait, wait. [Defense counsel]: Objection, Your Honor. May counsel approach? [The Court]: Members of the jury, you are to disregard the last question. There are some rules involved, disregard the question. Counsel, come on up.

(Counsel approached the bench and the following ensued:) ²²³ [Defense counsel]: Your Honor, I move for a mistrial. [The Court]: No, no, I understand. You need to, do you know what the witness is going to say? Did he talk to him? [Prosecutor]: I believe, I don’t know what he’s going to say, no. [The Court]: You can’t ask a question like that. Did you deny your involvement?

He would have to have been advised about his Miranda rights and have had to sign a Miranda form. In any event, so you have to have a preamble of all those questions before, which you didn’t have. Do you know what he’s going to testify to? [Prosecutor]: I don’t believe the Defendant — I’m not going to say — I don’t know what he’s going to [testify] to. [The Court]: Officer, come on up for just a minute. Did the Defendant say anything to you about if you were asked that question about the facts of this case? [Detective Jones]: Did he ask me? [The Court]: Did he deny or— [Detective Jones]: He may have.

I just don’t recall what he said. [The Court]: You don’t recall anything. I’m sorry, and you didn’t give him a Miranda warning or— [Detective Jones]: No, sir I did not give him a Miranda warning. [The Court]: All right. Okay. [ (Detective Jones returned to his seat.) ] He * * [Defense counsel]: At this time, Your Honor, I move for a mistrial. The State has now brought into this case possible testimony in violation of the Fifth Amendment to the Constitution— [The Court]: I’m going to clarify right now. [Defense counsel]: All right.

Just for the record, Your Honor, and I’ll certainly shut up after— ²²⁴ [The Court]: I’ll protect your client. [Defense counsel]: I understand, but I just want to make the motion. [The Court]: Why don’t you make the objection after I— [Defense counsel]: Very well. (Counsel returned to the trial tables and the following ensued:) [The Court]: Now, members of the jury, everyone who is charged with a crime, including the Defendant in this case, has constitutional rights so that if the person is asked any questions, the person first has to be advised of his rights, it’s called a Miranda — given certain warnings that anything you might say could be used against you. Now, we wanted to make certain that if there had been any statement by Mr. Kosh, at all, that he had been given the Miranda warnings and when I asked the police officer up here I’m basically telling you what the police officer said. Number one, he didn’t give any Miranda warnings and two, Mr. Kosh didn’t say anything about his involvement in the case or not his involvement in the case because he wasn’t asked.

Okay. So there is no more information on that score. He wasn’t asked whether he was involved and he didn’t respond. Okay, counsel, come on back. * * 4s (Counsel approached the bench and the following ensued:) [The Court]: Now [Defense counsel]: I would object and make an exception and renew my motion for a mistrial, Your Honor, for the following reasons: I believe I heard the proffer not that my client[ ] refused to make any statements but that this Detective simply— [The Court]: He wasn’t asked. [Defense counsel]: — did not remember any conversations taking place. [The Court]: I may have overstated, but I think I overstated in the— ²²⁵ [Defense counsel]: And Your Honor, and I understand, and my final reason is, Your Honor, I think the fact that the State even went there in front of this jury is grounds for the mistrial. [The Court]: I don’t agree so overruled.

Kosh’s defense was premised on the contention that, although he was present at the scene, he was not involved in the drug deals. The defense called Donnell K., Sharon Minor, and Glenda Watkins as witnesses. Minor and Watkins denied purchasing cocaine from Kosh or Donnell K., claiming instead that they bought the drugs in a nearby apartment building. Donnell K. testified that he was working alone that day and that he never worked with anyone else when selling drugs.

Donnell K., Minor, and Watkins each testified that Kosh protested when the police arrested him and further that he denied knowing any of them. Kosh was convicted of distribution of cocaine, possession of cocaine with intent to distribute, possession of cocaine with intent to distribute within 1,000 feet of a school, 3 and simple possession of cocaine. He was sentenced, after merger, to three concurrent sentences of ten years imprisonment without the possibility of parole. On direct appeal, the Court of Special Appeals, in an unreported opinion, vacated two of the three ten year sentences (possession of cocaine with intent to distribute within 1,000 feet of a school and possession of cocaine with intent to distribute) and remanded for re-sentencing on those counts.

The intermediate appellate court affirmed each of Kosh’s convictions and the remaining ten-year sentence for distribution of cocaine. We granted Kosh’s petition for a writ of certiorari, 379 Md. 225 , 841 A.2d 339 (2004), in order to consider the following questions: 1. Should the trial court have declared a mistrial where the State, in its case in chief, asked a detective, “Do you ²²⁶ recall if the Defendant ever denied his being involved in this case?” and the trial court then exacerbated the problem by informing the jury that the defendant had remained silent after his arrest, notwithstanding the detective’s remark at the bench that the defendant may have denied his involvement? 2. Did the Court of Special Appeals err by holding that possession of cocaine with intent to distribute did not merge into distribution of cocaine where the jury was never instructed that the charge of possession of cocaine with intent to distribute related specifically to the quantity of cocaine that was seized from another person? [ 4 ] II.

Denial of a motion for a mistrial will be overturned on appeal when a trial judge has abused his or her discretion. See Carter v. State, 366 Md. 574, 589 , 785 A.2d 348, 356 (2001). The determining factor as to whether a mistrial is necessary is whether “the prejudice to the defendant was so substantial that he was deprived of a fair trial.” Kosmas v. State, 316 Md. 587, 594-95 , 560 A.2d 1137, 1141 (1989). In assessing the prejudice to the defendant, the trial judge first determines whether the prejudice can be cured by instruction.

See Carter, 366 Md. at 589-90 , 785 A.2d at 356-57 . Such an instruction must be “timely, accurate, and effective.” Id. Unless the curative effect of the instruction ameliorates the prejudice to the defendant, the trial judge must grant the motion for a mistrial. See Kosmas, 316 Md. at 594 , 560 A.2d at 1141 .

III

The testimonial “fact” the trial judge recounted to the jury in his instruction was clearly erroneous. There was nothing in the record to support the trial judge’s assertion ²²⁷ that Kosh remained silent or failed to deny his involvement. Detective Jones testified rather that he could not remember what, if anything, Kosh said. It was error for the judge to instruct the jury that Kosh had remained silent when even at that point there was no testimony to support such an instruction.

Even if the trial judge’s instruction were correct as a matter of fact, however, it was error nonetheless to tell the jury that Kosh kept silent. Evidence of a defendant’s post-arrest silence is inadmissible as substantive evidence of his guilt. In general, silence is evidence of dubious value that is usually inadmissible under either Maryland Rule 5-402 or 5-403. 5 See Grier v. State, 351 Md. 241, 252 , 718 A.2d 211, 217 (1998) (“Evidence of a person’s silence is generally inadmissible because in most circumstances silence is so ambiguous that it is of little probative force.”) (citation omitted). A suspect’s silence outside of police custody occasionally may be admissible as substantive evidence of guilt when it represents a tacit admission of wrongdoing.

Key-El v. State, 349 Md. 811, 818-19 , 709 A.2d 1305, 1308 (1998). See also Jenkins v. Anderson, 447 U.S. 231 , 100 S.Ct. 2124 , 65 L.Ed.2d 86 (1980) (The use of pre-arrest silence for impeachment purposes does not violate the U.S. Constitution.). A suspect’s silence while in police custody, however, may not be used against him or her as substantive evidence of guilt. 6 See Miller v. State, 231 Md. 215, 218-19 , 189 A.2d 635, 636 (1963). ²²⁸ Silence while in the custody of the police long has been treated differently under the Maryland law of evidence from silence during pre-arrest questioning. By the time the U.S. Supreme Court held in Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976), evidence of post-Miranda silence inadmissible for any purpose as a matter of federal constitutional law, it long had been settled as a matter of Maryland evidentiary law that evidence of post-arrest silence was inadmissible.

In Miller , we reversed a conviction because the trial judge admitted testimony that the defendant failed to deny an accusation during a custodial interrogation. In doing so, we described the “tacit admission” rule and explained why it does not apply to a defendant in police custody. It is generally held that if a statement is made by another person in the presence of a party to the action, be it civil or criminal, containing assertions of facts which, if untrue, the party would under all the circumstances naturally be expected to deny, his failure to speak is circumstantial evidence that he believes the statements to be true, and his conduct is thus receivable against him as an admission of such belief. Ewell v. State, [ 228 Md. 615, 618 , 180 A.2d 857, 859 (1962) ]; [Further citations omitted].[ 7 ] But ‘it may be stated as a general rule that statements made to or in the presence of