Mora v. State

WILNER, Judge. A jury in the Circuit Court for Anne Arundel County convicted petitioner Mora of maintaining a common nuisance, in violation of Maryland Code, Article 27, § 286(a)(5). The conviction was based on evidence, the sufficiency of which is not challenged, that, between 1988 and 1997, Mora maintained a “compound” at 8200 West Baltimore-Annapolis Road that was (1) resorted to by drug abusers for the purpose of illegally administering controlled dangerous substances, and (2) used for the illegal manufacture, distribution, dispensing, storage, or concealment of such substances. 1 Any place maintained for either purpose constitutes a common nuisance under § 286(a)(5). The county police department had been investigating Mora and his compound since 1988 and, on at least six and possibly eight, prior occasions, including in August, 1995 and in September and November, 1996, had obtained and executed search warrants for the compound and, based on evidence obtained in those searches, filed charges in the district court against Mora.

For whatever reason, the State then declined to prosecute those charges. Upon the dismissal of the 1995 and 1996 charges, Mora proceeded, under Article 27, §§ 735—741, to obtain orders from the district court expunging court and police records pertaining to those charges. The single issue presented to us is whether the State was precluded from using information or evidence allegedly covered by those expungement orders in the prosecution of this case. The Court of Special Appeals, in affirming the judgment of the circuit court, addressed that issue and held that the information and evidence was not precluded.

Mora v. State, 123 Md.App. 699 , ⁶⁴¹ 720 A.2d 984 (1998). We shall affirm the judgment for other reasons. BACKGROUND The law governing the expungement of criminal records is set forth in Article 27, §§ 735-741 and Maryland Rules 4-501—4-512. Two situations are provided for—when a person is arrested or otherwise detained but not formally charged, and when a person is formally charged but, for any of the reasons enumerated in § 737, is not convicted or, if convicted, is pardoned.

Section 736 deals with the first situation and provides, in relevant part, that if a person is arrested, detained, or confined for the violation of any criminal law, other than a motor vehicle or traffic law, and is released without being charged, the person is entitled to have the police records concerning the arrest, detention, or confinement expunged. It sets forth a procedure for requesting the expungement, an investigation by the affected law enforcement agencies, and a court order of expungement. Section 737 deals with the second situation. In relevant part, it provides that if a person is charged with the commission of a crime and the charge is dismissed or nol prossed, the person may file a petition in the court in which the proceeding was commenced or to which the proceeding was transferred or appealed to have all records pertaining to the charge that are maintained by the State or any of its subdivisions expunged.

A petition may not be filed within three years after the dismissal or nol pros unless the petitioner executes a general waiver and release of all claims the petitioner may have against any person for tortious conduct arising from the charge. A copy of the petition must be served on the State’s Attorney. Unless the State’s Attorney, within 30 days after service, files an objection, the court must enter an order requiring the expungement “of police records and court records pertaining to the charge.” § 737(i). If an objection is filed, the court must conduct a hearing and determine whether the person is entitled to expungement. ⁶⁴² Section 735 defines the pertinent terms—court records, police records, and expungement.

With exceptions not relevant here, “court records” means “all official records maintained by [court personnel] pertaining to a criminal proceeding,” including indices, docket entries, charging documents, pleadings, memoranda, transcriptions of proceedings, electronic recordings, orders, judgments, and decrees. § 735(b). Section 735(e) defines “police records” to mean “all official records maintained by a law enforcement agency [or the Criminal Justice Information System 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.” The term does not include, however, “investigatory files, police work-product records used solely for police investigation purposes,” or records pertaining to certain motor vehicle or traffic offenses. Finally, for our purposes, § 735(c) defines “expungement” to mean “the effective removal of these records from public inspection” by obliteration, removal to a separate secure area “to which the public and other persons having no legitimate reason for being there are denied access,” or, if effective access to a record can be obtained only by reference to other records, by the expungement of the other records, or part thereof providing the access. The section most at issue here is § 739, which, in relevant part, makes it unlawful for any person “having or acquiring access to an expunged record to open or review it or disclose to another person any information from it without an order from the court which ordered the record expunged.... ” Ordinarily, a court may not enter such an order without notice to the person to whom the record pertains and a hearing, but, upon a verified petition by the State’s Attorney alleging that the record is needed by a law enforcement agency for purposes of a pending criminal investigation and that the investigation will be jeopardized or that life or property will be endangered without immediate access to the record, the court may enter an ex parte order permitting access.

Section 739(d) makes a violation of § 739 a misdemeanor and subjects the violator to imprisonment and a fine and, if the violator is a ⁶⁴³ State or local government employee, to dismissal for misconduct in office. The expungement issue first arose in this case after the State, in response to a discovery request, advised that it would be using at trial evidence seized pursuant to the execution of search warrants in July, 1988, December, 1991, May, 1992, May, 1993, May, 1995, August, 1995, September, 1996, and November, 1996. Copies of those warrants, along with the applications and returns pertaining to them, were supplied to Mora. The State also informed Mora that members of the county police department had conducted surveillance of the compound on 18 dates in 1995, which were disclosed.

Mora thereupon moved to dismiss the indictment on the ground that “these records,” which were not described in the motion, “were the subject of appropriate expungement orders arising out of charges being placed against this Defendant during the period of time he has been charged with having committed offenses and as set forth in the indictment in this case.” The motion did not describe the expungement orders; nor were they attached to the motion. In a subsequent memorandum filed in support of the motion, Mora seemed to assume that all evidence from 1988 onward pertaining to him and to the compound had been expunged and that “[sjince the material divulged in discovery by the State was used in the expunged cases there should be no evidence to be presented during the period charged in the Indictment.” At a hearing on the motion, Mora claimed that the warrants, affidavits, returns, and other documents supplied to him in discovery were covered by the three expungement orders, at least one of which he gave to the court, but none of which are in the record before us. His initial point was that, by supplying the expunged documents to him in discovery, the State violated the expungement orders and, for that reason, the indictment should be dismissed. The State responded that none of the documents supplied were court records and that, to the extent they were police records, they constituted investigatory and police work-product records and were therefore not included within the expungement orders.

The State also ⁶⁴⁴ urged that, if the disclosure of those documents to the defendant in discovery amounted to a violation of an expungement order, the violation was insignificant and was hardly a basis for dismissing the indictment. The court denied the motion, as argued, on three grounds: (1) the documents in question were investigatory records not subject to expungement; (2) the expungement orders were from the district court and any effort to enforce them had to be in that court; and (3) turning records over to the defendant in discovery did not constitute a violation of the orders. Mora then asserted the argument made in his written motion, that the only evidence that the State had consisted of the expunged material and, for that reason, the indictment should be dismissed. The State again urged that the documents in question were not expunged.

The court confirmed its ruling denying the motion. It concluded that, to the extent that the warrant documents were in the possession of the court and were therefore court records, they were under seal, and the court ordered that they remain so pending trial. They could be produced at trial, under seal, subject to further order of the court at that time. The court added that, to the extent that the police had copies of those documents, they constituted investigative records.

The motion to dismiss was followed by a motion in limine to exclude from evidence any records that were expunged by order of the district court. That motion, argued on the morning of trial, was denied. The court ruled that the State could not use the Statements of Charges that were apparently included within the expungement orders but could use the warrant documents. In fact, although some of the police witnesses referred to some of the warrant documents in their testimony, none of the warrants, applications, returns, or Statements of Charges pertaining to any of the prior cases were admitted into evidence.

The documents pertaining to the 1993, 1995, and 1996 warrants were marked for identification but were not admitted. ⁶⁴⁵ The case against Mora consisted principally of the testimony of persons who actually sold cocaine for Mora at the compound and of police officers who had been involved in investigating the activities at the compound. Antionette Romano said that she sold cocaine for Mora at the gate of the compound for about a year. She sometimes stayed in the compound and had seen Mora cooking crack cocaine and bagging it. Angela Dorsey, Romano’s sister, purchased cocaine at the gate of the compound during 1995 and 1996.

James Wiley gave similar testimony. He worked at the gate selling cocaine and had seen Mora cooking the substance. All three witnesses described the operation—that customers would pull up to the gate, give the gate-keeper $20 and receive cocaine in return. The gate-keeper obtained his or her supply from Mora inside the compound.

Mora compensated the gate-keepers by giving them pieces of cocaine, some of which they used, some of which they sold. The first officer to testify was Sergeant McAndrew. Referring to the application for the 1998 search warrant, which had been issued by the district court but had not been the direct subject of any expungement order, he stated that, in April, 1993, he effected a controlled buy of cocaine