Mora v. State

ADKINS, Judge. Oscar Mora, appellant, was convicted by a jury in the Circuit Court for Anne Arundel County (Lerner, J.), of two counts of maintaining a common nuisance. Judge Lerner sentenced Mora to two concurrent twenty year sentences with all but fifteen years suspended, followed by five years of probation. In addition, the court imposed fines totaling $50,-000.00 on Mora.

Mora filed an appeal, and by an order dated December 11, 1997, a three-judge sentence review panel struck one of the concurrent twenty year sentences with all but fifteen years suspended and also struck one of the $25,-000.00 fines. Mora asks us to decide whether the lower court erred in denying his related motions to dismiss the case and to exclude evidence on grounds that he had obtained judicial expungement of the records in three prior criminal cases against him involving the same facts. In addition, Mora presents us with the question of whether the lower court erred by denying his motion for a mistrial and other relief because the State refused to provide current addresses and telephone numbers of key prosecution witnesses. Last, Mora asks us to examine whether the evidence was sufficient to support the convictions.

We find no reversible error and affirm the judgment of the circuit court. FACTS AND LEGAL BACKGROUND Mora was charged with two counts of maintaining a common nuisance pursuant to Md.Code (1957, 1996 Repl.Vol.), Art. 27 § 286(a)(5), in Anne Arundel County, Maryland. Mora filed ⁷⁰⁴ pre-trial motions for dismissal and exclusion of evidence, including a motion in limine for the exclusion from evidence of certain documents and papers that he contended were subject to expungement orders previously granted by a Maryland district court judge pursuant to Md.Code (1957, 1996 Repl.Vol. & 1997 Supp.), Art. 27 § 737. The court denied the motion as to a substantial portion of the records at issue.

All of the events involving the sale or possession of CDS, which formed the basis for the charge of maintaining a common nuisance in this case, were also the subject of previous charges against Mora in the District Court of Maryland for Anne Arundel County, that were dismissed, and subsequently expunged pursuant to Md.Code (1957, 1996 Repl.Vol. & 1997 Supp.), Art. 27 §§ 735-741. Although the record and briefs are unclear, it appears that these dismissals were by entry of nolle prosequi. 1 The specific evidence will be detailed below. At trial, the prosecution presented testimony from witnesses who sold cocaine for Mora on a property known as “the compound” at which Mora resided. The compound was owned by Mora’s father-in-law, and several buildings were located on this property.

These included the house in which Mora and his wife lived, a shop, a garage, and a game room. The witnesses explained that they would usually sit at the gate of the compound, and various persons would arrive, seeking to purchase cocaine. The witnesses testified that they would then go back to Mora’s office in the compound and give him money or goods 2 offered by the purchaser in trade. Mora ⁷⁰⁵ would then give the witness cocaine for the customer, which the witness would take to the compound gate and deliver to the customer.

Customers would come to the gate both in cars and on foot. One witness, Ms. Romano, estimated that she collected anywhere from $300 to $1,000 during a “shift” at the gate. Another witness, Mr. Woods, estimated he collected $300 to $5,000 per day while at the gate. These witnesses testified that between fifteen and forty customers a day would come to the gate to make a purchase.

The witnesses who sold CDS for Mora were generally paid for their services with cocaine, but some of them were occasionally paid in cash. They were paid by Mora. In addition to the witnesses who sold CDS for Mora, another witness, Ms. Moore, testified that she purchased cocaine from the compound, and one time, directly from Mora. Police personnel also testified about their knowledge of drug activity by Mora, including the execution of several search warrants described below.

Detective McAndrew testified that during April and May of 1993, he initiated an investigation into the illegal drug activities of Mora. As a result of the investigation, he obtained a search warrant on May 3, 1993. He testified that during the execution of that search warrant on May 16, 1993, he located Mora and searched him. McAndrew explained that he seized $1,440 from Mora and the serial numbers of that money matched the serial numbers of money the detective had given an informant earlier that day to purchase cocaine from Mora.

He testified that no drugs or guns were found on the premises. Sergeant McCullen testified that on April 15, 1994, he responded to the Amtrak train station in Linthicum, Maryland, and located two males carrying a bag. He approached them, identified himself, and obtained consent to search their bags and belongings. McCullen testified that he searched them and found a card with Oscar and Lora Mora’s names and address on it and $9,860 in a brown paper bag. ⁷⁰⁶ Detective McLaughlin testified that investigations were continuing on February 23, 1995, when he met two individuals at a bar in Severn, from whom he had arranged, through a confidential informant, to purchase cocaine.

He testified that he received crack cocaine from one of them. Officer Birdsell and Sergeant Wilson both testified that they accompanied the detective as a backup unit and provided surveillance. Detective McLaughlin then testified that on March 10, 1995, he purchased another eighth ounce of crack cocaine from the same individual and detailed numerous periods of surveillance conducted outside Mora’s residence. Based on these investigations, he obtained a search warrant for Mora’s residence that he and Officer Burns executed on August 6, 1995.

Inside the residence, Detective McLaughlin found suspected narcotics and paraphernalia. Officer Burns testified that he was part of the entry team and had secured Mora upon entering the residence. He also testified that he searched Mora prior to transporting him for processing and found $405.69 in his left front pants pocket. 3 On September 26, 1996, a second search warrant was executed for Mora’s premises, this time by Detective Russell. He testified that during the execution of that warrant, he located three individuals in an automobile and found narcotics paraphernalia on them. 4 He executed a third search warrant at Mora’s residence on November 16, 1996, where he located several types of narcotics paraphernalia.

Officer Mangold assisted in this search and testified that the forty dollars she had given to a confidential informant for the purpose of ⁷⁰⁷ purchasing cocaine earlier that day was recovered from Mora’s pocket. 5 After this evidence, the prosecution rested its case and defendant’s motion for judgment of acquittal was denied. The defense called one witness, Mora’s wife, Lora Mora, who testified that she controlled the property. She testified that the property belonged to her father. The defense rested its case and moved, once again, for a judgment of acquittal.

The motion was denied. Additional facts will be added as they are necessary to our discussion of the questions presented. DISCUSSION I. EXPUNGEMENT Appellant contends that the lower court erred in denying his pre-trial motion to dismiss and his motion in limine. Both motions were based upon Mora’s contention that the police reports, search warrants, affidavits, and inventory reports, relied upon by the police in the investigations of this case, were all developed by the police in connection with the three district court cases that had been expunged pursuant to Md.Code (1957, 1996 Repl.Vol. & 1997 Supp.), Art. 27 §§ 735-741.

Mora contends that any testimony about these records or the searches to which they pertain, and any evidence seized during such searches was inadmissible. Mora further asserts that a prosecution based upon these records was highly prejudicial and deprived him of a fair trial. Specifically, Mora criticizes the prosecution for not going forward with the dismissed cases at the time charges were brought, and con ⁷⁰⁸ tends it is an “abuse of process” for the State to seek an indictment after those cases were expunged. The State counters that Maryland’s expungement statute only requires expungement of “court records” and “police records,” and expressly exempts from expungement all police “investigatory files” and “police work-product records used solely for police investigation purposes.... ” Id. at § 735(e).

The State contends that the materials that were developed by the police in connection with the previously dismissed district court cases constitute police “investigatory files” or “work-product” under section 735(e), and are thus not subject to expungement. 6 Neither this Court nor the Court of Appeals has had occasion to examine this specific exemption provided in section 735(e). Our first step in examining this exemption is to look to the definitions of “expungement,” “court records,” and “police records” provided in section 735. “Expungement” is defined, with respect to court records or police records, [as] the effective removal of these records from public inspection: (1) By obliteration; (2) By removal to a separate secure area to which the public and other persons having no legitimate reason for being there are denied access; or (3) If effective access to a record can be obtained only by reference to other records, by the expungement of the other records, or the part of them providing access. Md.Code (1957, 1996 Repl.Vol.), Art. 27 § 735(c). The term “court records” is defined as: all official records maintained by the clerk of a court or other court personnel pertaining to a criminal proceeding.

It includes indices, docket entries, charging documents, ⁷⁰⁹ pleadings, memoranda, transcriptions of proceedings, electronic recordings, orders, judgments, and decrees. Id. at § 735(b). 7 The term “police records” is defined as: all official records maintained by a law enforcement agency or the Central Repository pertaining to the arrest and detention of or further proceeding against a person on a criminal charge or for a suspected violation of a criminal law. It does not include investigatory files, police work-product records used solely for police investigation purposes .... Id. at § 735(e) (emphasis added).

Preliminary to our interpretation of these sections of the expungement statute, we refer briefly to the principles of statutory construction. The Court of Appeals in Mazor v. Department of Correction, 279 Md. 355 , 369 A.2d 82 (1977), listed the principal guidelines of statutory interpretation: [T]he cardinal rule of construction of a statute is to ascertain and carry out the real intention of the Legislature. The primary source from which we glean this intention is the language of the statute itself. And in construing a statute we accord the words their ordinary and natural signification.

If reasonably possible, a statute is to be read so that no word, phrase, clause or sentence is rendered surplusage or meaningless. Similarly, wherever possible an interpretation should be given to statutory language which will not lead to absurd consequences. Moreover, if the statute is part of a general statutory scheme or system, the sections must be read together to ascertain the true intention of the Legislature. Id. at 360-61 , 369 A.2d 82 (citations omitted).

The specific language in the expungement statute that draws our focus is the exception to the definition of police records in section 735(e), which excludes from its scope “investigatory files, [and] police work-product records used solely for ⁷¹⁰ police investigation purposes.” The legislature did not offer a more specific definition of “investigatory files.” Nor is the term “police work-product” defined in the statute. Thus, to determine the meaning of these exceptions, it will be necessary to examine the purpose behind the expungement statute, as well as the meaning of other terms contained in the overall statutory scheme. See Barr v. Barberry Bros., 99 Md.App. 33, 38-39 , 635 A.2d 64 (1994). Purpose of Expungement Statute We have found no legislative history pertaining to this statute, which was enacted in 1975.

A Court of Appeals decision, decided in the year prior to the statute’s enactment, is instructive as to the likely legislative intent. In Doe v. Wheaton Police Dept., 273 Md. 262 , 329 A.2d 35 (1974), the Court of Appeals considered a petition for expungement filed after the State entered a nolle prosequi to charges against the petitioner alleging unnatural and perverted sexual acts. As Maryland had no applicable expungement statute at that time, 8 the petitioner sought expungement based on a claimed right of privacy grounded upon constitutional and common law legal decisions. The petitioner claimed that his right of privacy would be violated by the police maintenance of records of his arrest because present day technology and modern police investigatory procedures have combined to produce a situation in which the arrested individual has a criminal record on file in at least one or more law enforcement centers; .... it is widely known that local and state law enforcement agencies forward their data pertaining to arrests to the Federal Bureau of Investigation ...; there is incalculable economic and personal harm to an individual that results if his arrest ⁷¹¹ becomes known to employers, credit agencies or even neighbors; and ... notwithstanding the absence of a conviction, the mere record of arrest often works as a serious impediment and basis of discrimination in the search for employment, in securing professional, occupational or other licenses, and in subsequent relations with the police and the courts.

Id. at 266 , 829 A.2d 35 . The Court of Appeals considered the issue of whether to afford petitioner expungement of his arrest record based on either a constitutional right of privacy similar to that recognized in Griswold v. Connecticut, 381 U.S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965), and Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), or a common law right to privacy. It found the issue to be “complex” and to involve “the balancing of the state’s interest in efficient law enforcement procedures as against a particular citizen’s right to be let alone.” Wheaton, 273 Md. at 271-72 , 329 A.2d 35 (quoting Davidson v. Dill, 180 Colo. 123 , 503 P.2d 157, 162-63 (Colo.1972)). After reviewing cases from other jurisdictions, the Court recognized that the right of privacy is protected by the Constitution.

It cautioned, however, that, ‘the definitions of privacy which the Griswold approach offers are at best descriptions of a widely shared emotional attitude. Analytically, the reasoning of Griswold and Wade offers no guidance for separating what privacy is from what it is not; it offers no generalizable definition of the right it is used to protect.’ Id. at 272, 329 A.2d 35 (quoting Note, Privacy in the First Amendment, 82 Yale L.J. 1462 , 1476 (1973)). Without reaching a definitive conclusion as to whether a common law or constitutional right to expungement existed, the Court of Appeals simply held that the lower court had erred in holding that it did not have subject matter jurisdiction even to consider the issue, and remanded the case to the lower court. See id. at 276, 329 A.2d 35 .

It directed the trial court to conduct further proceedings to allow development of sufficient facts to allow inquiry into the propriety of granting ⁷¹² the petitioner such relief under the particular circumstances of his case. See id. This issue became unnecessary to decide when, in the next session of the legislature in 1975, our current expungement statute was adopted. 9 Our study of Wheaton reveals two important points. First, we learn that it is society’s concern with individual privacy that evokes its recognition of an individual’s need for expungement of a criminal record under certain circumstances.

In other words, our society accepts that persons formally accused, but not convicted, of a crime should not be tainted with that arrest record in the pursuit of employment, education, licensing, financial transactions, or the like. Second, the individual’s interest in privacy regarding such matters must be balanced against the State’s interest in efficient and effective law enforcement procedures. We believe that it is these considerations that caused the legislature to enact Maryland’s current expungement statute in 1975. Two federal courts, one reviewing Maryland’s statute and another examining a similar federal statute, reached comparable conclusions about the underlying.purpose of expungement statutes.

In 1993, the Fourth Circuit, in United States v. Bagheri, 999 F.2d 80 , had occasion to comment briefly upon the purpose of Maryland’s expungement statute. It observed that the primary evil sought to be avoided by this and similar statutes is to “prevent consideration of expunged records by parties other than the State of Maryland. ” 10 Id. at 84 (emphasis added). The United States Court of Appeals for the District of Columbia, in Doe v. Webster, 606 F.2d 1226 (D.C.Cir.1979), analyzed in more depth the Federal Youth Corrections Act, which provides that “[w]here a youth offender has been placed on probation by the court, the court may ⁷¹³ ... unconditionally discharge [the youth] from probation ... which discharge shall automatically set aside the conviction. ...” Id. at 1229 n. 5 (citing 18 U.S.C. § 5021 (b) (emphasis added)). 11 The plaintiff in that suit had been previously convicted and his conviction was set aside pursuant to the Youth Corrections Act. The plaintiff in Webster was not satisfied with the relief that he had previously been given, i.e., a certificate that his conviction was set aside, entitling him to removal of the “so-called ‘legal’ disabilities which attach to a criminal conviction ... [such as] loss of the right to vote, to hold public office, ... to serve as a juror” and others.

Id. at 1233-34 . Rather he sought a court order requiring physical destruction of all records pertaining to his crime, contending that the existing records had a “chilling effect on his employment, travel, bar admission, and career opportunities.” Id. at 1229 . The government, on the other hand, considered the certificate, and the restoration of those rights falling within the “legal disabilities” to be sufficient, and asked the court to hold that no records need be hidden or destroyed. The Webster Court considered both parties’ positions overreaching and adopted a middle ground.

The court in Webster first examined the legislative history of the statute and quoted one of the drafters of the legislation, who testified that the Act does provide for the wiping out of the conviction if the youth is discharged, rehabilitated, and behaves himself well after his period of supervision. The purpose of that is to help him get a job and keep him from having to be turned down by a prospective employer because of the fact that he has a conviction. Id. at 1236 (quoting Chief Judge Orie L. Phillips of the United States Court of Appeals for the Tenth Circuit during Hearings ⁷¹⁴ on S. 1114 and S. 2609 Before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st Sess. 7 (1949)). Given this goal, the court considered it “unrealistic” to suppose that a “youthful ex-offender can be made sufficiently whole by means of a simple notation in his official records that the [official] conviction has been set aside and issuance of a certificate to that effect.” Id. at 1238 .

It stated: [U]nless the slate is wiped clean in such a way that the FBI will not disclose, and the youthful ex-offender whose conviction was set aside may legally deny, the existence of that previous conviction, he will almost inevitably and forever bear its stigma in terms of both social relationships and economic opportunities. Id. at 1239 . The court simultaneously recognized, however, that the government has “a legitimate need for maintaining criminal records in order to efficiently conduct future criminal investigations.” Id. at 1243 . It observed that “police investigators will be greatly assisted if they are able to check whether persons residing or having been observed at the situs of an offense involving a particular modus operandi had previously been arrested or convicted of an offense involving the same modus operandi.” Id. at 1243.

Underlying its holding was the court’s recognition that “[l]aw enforcement authorities have an interest in knowing, for example, that a definite suspect in a crime under investigation had previously been arrested or convicted, especially if for a similar offense.” Id. The solution of the Webster Court was to deal with the set aside or expunged record as follows: [They] must be physically removed from the central criminal files and placed in a separate storage facility not to be opened other than in the course of a bona fide criminal investigation by law enforcement authorities and where necessary for such an investigation. These records may not be used by [the government] for any other purpose, nor may they be disseminated to anyone, public or private, for any other purpose. ⁷¹⁵ Id. at 1244 . Thus, Webster balanced the interests of the individual in privacy and the interests of society in law enforcement.

The strong interest possessed by law enforcement agencies in maintaining records of prior criminal conduct was well expressed by the Illinois intermediate appellate court, in a case cited by the Court of Appeals in Wheaton . The Illinois court explained: ‘In considering the right of the public we must take into consideration the increasing incidence of crime, particularly crimes of violence and crimes involving sex.... Interposed against this is the right of the individual to privacy.... It is true that under our system of jurisprudence no person is guilty of a crime until he has been convicted thereof.

However, ... “[t]he extent of the actual harm which may befall the injured citizen, is at most, conjectural. On the other hand, the extent of the possible danger to an effective system of law enforcement is considerable. The innocent person of today, unfortunately, may be tomorrow’s criminal. The day before some poor soul kills his fellow man, he is an innocent person.

The minute possibility that his previously obtained identification records may help to apprehend him and prevent further tragedy is ... substantial enough to outweigh the alleged invasion of his right of privacy.” ’ Wheaton, 273 Md. at 267-68 , 329 A.2d 35 (quoting Kolb v. O’Connor, 14 Ill.App.2d 81 , 142 N.E.2d 818, 822 (Ill.App.Ct. 1957), in turn quoting Sidney M. DeAngelis, 27 Temp. L.Q. 441). The cases discussed above make it clear that an individual’s need for expungement of a criminal arrest record is founded upon a societal sense that individuals should not suffer in their employment or advancement in society as a result of 1) criminal prosecutions in which no crime was ever proven, or 2) certain limited criminal convictions from which they have been rehabilitated. The individual’s need for expungement, however, does not extend to protecting against future criminal ⁷¹⁶ prosecution, and the individual’s privacy interest must be balanced against society’s need for efficient law enforcement.

The Maryland Legislature took into account this balance when enacting the current expungement statute. In framing the statute, it did not define “expungement” as total destruction of court records or police records, but rather as “the effective removal of these records from public inspection.” Md.Code (1957, 1996 Repl.Vol.), Art. 27 § 735(c) (emphasis added). The statute provides three methods by which such removal from public inspection can be achieved: (1) By obliteration; (2) By removal to a separate secure area to which the public and other persons having no legitimate reason for being there are denied access; or (3) If effective access to a record can be obtained only by reference to other records, by the expungement of the other records, or the part of them providing the access. Id.

There is no suggestion that the legislature had any intent to preclude law enforcement officials from legitimate access or use of records to investigate and prosecute criminal conduct. Consideration of “Investigatory files” and “Work-product” Exceptions in Light of Statutory Goals Keeping the goals of the expungement statute in mind, we now return to the specific language creating the exception for “investigatory files” and “police work-product records used solely for police investigation purposes.” We interpret this language in a manner which maintains consistency with the overall purpose of the statute and the statutory definition of “expungement.” We conclude that inclusion of these statutory exceptions was intended to make clear that police are allowed to maintain, away from public view, files that contain documents facilitating ongoing police efforts to identify and gather evidence of suspected criminal conduct. The ultimate purpose of such tasks, obviously, is the prosecution of the person suspected of criminal conduct through our criminal justice ⁷¹⁷ system. The limitation that “police work-product records be used solely for police investigatory purposes” tells us that the police cannot maintain or utilize expunged records for purposes other than law enforcement, such as to interfere with or reduce the prospect that an individual who was the subject of such records might gain future employment, educational opportunities, or other advancement in society.

This principle has been long recognized at common law as well. The Court of Appeals, in Downs v. Swann, 111 Md. 53 , 73 A. 653 (1909), cautioned that the Court would not countenance the placing in the ‘rogues gallery’ of the photograph of any person, not a habitual criminal, who has been arrested but not convicted on a criminal charge .... Police officers have no right to needlessly or wantonly injure in any respect persons whom they are called upon in the course of their duty to arrest or detain .... Id. at 64 , 73 A. 653 (quoted in Wheaton, 273 Md. at 274-75 , 329 A.2d 35 ).

Application of the Statutory Exceptions to the Present Case Having examined the purposes of the statute, and in particular, the investigatory files and work-product exceptions, let us turn back to Mora’s contentions about how expunged records were used illegally in this case. Mora does not detail specific files or documents that he contends were introduced into evidence contrary to the expungement order. Rather, he objects to the testimony of several police officers because they were testifying about, and making reference to, their prior application for and execution of search warrants, and to inventories of evidence prepared by police during certain searches. Mora contends that the