Rivera v. State

Luis Christian Rivera v. State of Maryland, No. 116, September Term, 2019. Opinion by Eyler, James R., J. CRIMINAL PROCEDURE — PRESERVATION — BENCH TRIALS — CONTEMPORANEOUS OBJECTION RULE – MARYLAND RULE 4-323(c): Ordinarily, in a bench trial or jury trial, to preserve an issue for appellate review, a defendant must lodge a contemporaneous objection to the trial court’s adverse ruling. CRIMINAL PROCEDURE — PRESERVATION — BENCH TRIALS — SUFFICIENCY OF THE EVIDENCE - MARYLAND RULE 8-131(c): Ever since the Maryland Rules were amended, in 1950, to provide for appellate review of sufficiency claims in criminal cases tried without a jury, it has been the uniform practice of Maryland appellate courts to review such claims without the necessity of a defendant having made either an objection or motion for judgment of acquittal at trial. CRIMINAL PROCEDURE — PRESERVATION — BENCH TRIALS — MATTERS NOT IN EVIDENCE: A claim that a trial court has considered matters not in evidence is distinguishable from a claim of evidentiary insufficiency.

Historically, the purpose of Maryland Rule 8-131(c), as applicable to criminal cases, has been to mandate appellate review of sufficiency claims in appeals from verdicts rendered in bench trials. The rule does not obviate the requirement of a contemporaneous objection to preserve other claims alleging defects in the verdict. CRIMINAL PROCEDURE — PRESERVATION — BENCH TRIALS — MATTERS NOT IN EVIDENCE: Because Rivera did not object to the trial court’s references, in its pronouncement of the verdict, to facts not in evidence, his claim of error was not preserved for appellate review. Circuit Court for Cecil County Case No. C-07-CR-18-000237 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 116 September Term, 2019 ______________________________________ LUIS CHRISTIAN RIVERA v. STATE OF MARYLAND ______________________________________ *Meredith, Graeff, Eyler, James R.

(Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Eyler, James R., J. ______________________________________ Filed: October 6, 2020 *Meredith, J., now retired, participated in the conference of this case while an active member of the Court; after being recalled pursuant to Pursuant to Maryland Uniform Electronic Legal Materials Act Maryland Constitution, Article IV, Section 3A, (§§ 10-1601 et seq. of the State Government Article) this document is authentic. he also participated in the decision and adoption 2020-10-06 08:34-04:00 of this Opinion. Suzanne C. Johnson, Clerk Appellant, Luis Christian Rivera, was convicted by the Circuit Court for Cecil County, after a bench trial, of the manufacture of crack cocaine, possession of crack cocaine, possession of heroin, possession of Suboxone,1 and possession of paraphernalia (specifically, a digital scale). The court thereafter sentenced appellant to a term of twelve years’ imprisonment,2 prompting this appeal, in which he raises two issues which we have rephrased slightly: I. Whether the trial court erred in basing its verdict on information outside the evidence; and II. Whether the evidence was sufficient to prove beyond a reasonable doubt that appellant possessed the drugs and paraphernalia in the apartment.

With respect to the first issue, the State contends that it was not preserved for appellate review because appellant did not object when the court delivered its verdict. With respect to the second issue, the State contends that the evidence is legally sufficient. We hold that the first issue was unpreserved. We also conclude that the evidence was legally sufficient to sustain the convictions, and therefore, we affirm the judgments.

BACKGROUND A single witness testified at appellant’s bench trial: Maryland State Trooper Michael Dowling. According to Trooper Dowling, he, along with “seven [or] eight” 1 According to the testimony, Suboxone is a controlled substance used in opiate withdrawal. 2 The court sentenced appellant to twelve years’ imprisonment for manufacture of crack cocaine, merged the conviction for simple possession of the same drug, and suspended the sentence on the remaining convictions. other law enforcement officers, executed a no-knock search warrant at an Elkton apartment after confirming that a controlled purchase of crack cocaine had occurred there. When they entered, the officers observed that the apartment contained a common area as well as two bedrooms and a bathroom. Appellant and a sixteen-year-old girl were in one bedroom, and an “adult male” and an “adult female” were in the other.

Although Trooper Dowling was “unsure” whether the other couple “were sleeping or not,” he testified that appellant and the juvenile were awake. The officers recovered $778 in United States currency, in a wallet, which was on a television stand in appellant’s bedroom. Appellant acknowledged that the currency belonged to him but maintained that it “came from his music proceeds.” On that same television stand, officers recovered mail that was addressed to appellant at the residence where the search warrant was executed. “[A]long with the wallet” was a “suboxone sublingual strip.” Three additional strips were found “underneath [appellant’s] bed in a bag with other CDS.” Appellant did not have a prescription for the Suboxone strips. In addition to the Suboxone strips, the “clear bag” found beneath appellant’s bed contained eighteen smaller “bags of blue wax folds containing” heroin and a “bag of [crack] cocaine.” A bag of marijuana was found on a “futon in plain view right beside the bed[.]” In a microwave oven in appellant’s bedroom, police officers found a Pyrex “measuring cup containing white residue,” which was determined to be crack cocaine.

On top of the microwave were “two measuring cups,” a spoon, and baking soda, which, according to Trooper Dowling, were used to manufacture crack cocaine. 2 In addition to the aforementioned physical evidence seized from appellant’s bedroom, to which Trooper Dowling testified, two digital scales also were recovered. Although Trooper Dowling was never asked about them, and he did not mention them during his testimony, a forensic laboratory report, prepared by a Maryland State Police forensic scientist, was admitted into evidence. That report noted that two scales had been submitted along with the other physical evidence seized from appellant’s bedroom. Trooper Dowling testified that all the physical evidence seized had been recovered from appellant’s bedroom.

After Trooper Dowling finished testifying, the State rested. After the defense moved for judgment of acquittal, and the court denied its motion as to all counts except Count 1 (possession of crack cocaine with intent to distribute), the defense called the juvenile girl as a witness. Because the court was concerned that she might have grounds, under the Fifth Amendment, to refuse to testify, the court recessed so that it could appoint counsel to represent her. She ultimately exercised her right not to testify.

Nine days after trial had commenced, the court rendered its verdict: THE COURT: All right. Well, with regard to the testimony -- and again, we’re looking at constructive possession here -- you know, the factors that the Court looks at, the proximity of the defendant and the contraband. And again, based on the testimony of Trooper Dowling, he executed a search warrant at 859 East Old Philadelphia Road on January 30th of 2018, and found Mr. Rivera in the second bedroom undressed in bed. And then from there he described what was seized.

Underneath the mattress they found two bundles of suspected heroin, and this is all from the same bedroom. On top of the microwave was a digital scale. On the TV stand was currency in the amount of $778. They found documents, mail, other items with the defendant’s name.

Another digital scale. 3 They found measuring cups containing white residue, spoons, baking soda and plastic bags. Suboxone strips were found under the mattress. No prescription was found. And again, a bag of cocaine and marijuana were underneath the bed.

There was crack cocaine found inside the microwave in that Pyrex cup. And then based -- and he gave testimony with regard to how you make crack cocaine and what items are used and how it’s made using the microwave. So again, based on -- and I recall the officer testifying that, again, a lot of these items, obviously not the items found underneath the mattress, but the other items found on the nightstand and on the TV stand were all in plain view. Again, if you take that in light of the fact that the defendant was there, he was sleeping, there was mail and items with his identification on it in that residence.

So based on the Court’s consideration of all of these factors and the testimony of Trooper Dowling, the Court is convinced beyond a reasonable doubt that the defendant is guilty of Counts 2 through 6. (Emphasis added.) The matters in bold font were not in evidence. Appellant did not object. After the court imposed sentence, this timely appeal followed.

DISCUSSION I. Appellant claims that the circuit court’s judgments must be reversed because, in its verdict, the court relied, in part, upon facts not in evidence; therefore, the court clearly erred. The State does not address the merits of this claim, instead countering that it was not preserved for our review because no objection was lodged below. We have not located a reported Maryland appellate opinion in which the holding is on point. The precise issue before us is whether, after a bench trial, assuming the 4 evidence is legally sufficient to sustain the convictions, a defendant has to object when the court, in its verdict, relies on matters not in evidence.

Ordinarily, an objection or other appropriate action is required to preserve an issue for appellate review. See Md. Rule 4-323(c); Bryant v. State, 436 Md. 653, 669 (2014). The preservation issue before us is governed by Md. Rule 8-131(c). It provides: (c) Action Tried Without a Jury.

When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. To provide context to interpret Rule 8-131(c), we briefly set out the history of appellate review of evidentiary sufficiency. Prior to 1950, appellate review of evidentiary sufficiency in Maryland criminal cases was not permitted.

Williams v. State, 5 Md. App. 450, 453 (1968) (citations omitted), cert. denied sub nom. McClelland v. State, 252 Md. 731 (1969), cert. denied sub nom. McClelland v. State, 252 Md. 731 , cert. denied, 252 Md. 734 . In the case of jury trials, such review was deemed to be barred by Article XV, section 5,3 of the Constitution of Maryland, which then provided: “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact.” Id.

(footnote omitted) (citations omitted). As for bench trials, 3 Article XV, section 5, was later re-codified as the first paragraph of Article 23 of the Maryland Declaration of Rights. It is the same constitutional provision that was the subject of Unger v. State, 427 Md. 383 (2012), and its progeny. Prior to the decision of the Court of Appeals in Stevenson v. State, 289 Md. 167 (1980), that provision was interpreted quite literally, with only two court-created exceptions: whether a statute enacted by Congress or the General Assembly was constitutional; and whether evidence was admissible.

Unger, 427 Md. at 412 . 5 by analogy to the constitutional provision, it was repeatedly held by the Court of Appeals that it would not pass on the legal sufficiency of the evidence to convict where the case was tried by the court sitting as a jury. Id. (citations omitted). In 1949, the General Assembly enacted an amendment to Article XV, section 5, expressly permitting a court to rule on the sufficiency of the evidence in a criminal case tried by a jury.4 1949 Md. Laws, ch. 407.

That amendment was ratified by the electorate in 1950 and became effective December 1, 1950, upon gubernatorial proclamation. Williams, 5 Md. App. at 454 n.7. At the same time, the General Assembly enacted an enabling statute, contingent on the passage of the constitutional amendment, providing for demurrers in criminal trials, the antecedent to what is now a motion for judgment of acquittal.5 1949 Md. Laws, ch. 596, § 655A. Subsequently, the Court of Appeals held that in a criminal case tried by a jury, appellate review of evidentiary sufficiency is predicated upon a trial court’s denial of a motion for judgment of acquittal. 6 See, e.g., 4 As amended, the constitutional provision stated (and still states): “In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.” 5 The modern-day version of that statute is Criminal Procedure Article, § 6-104.

The Court of Appeals has adopted Rule 4-324, which implements the statutory provision. 6 Every version of the enabling statute has contained language expressly providing for appeal upon denial of a defendant’s motion for judgment of acquittal (or, in the case of the original statute, his request for a jury instruction). See Md. Code (2001, 2018 Repl. Vol.), Criminal Procedure Article (“CP”), § 6-104(b)(2); Md. Code (1957, 1967 Repl. Vol., 1968 Cum.

Supp.), Art. 27, § 593; Md. Code (1957, 1963 Cum. Supp.), Art. 27, § 593; Md. Code (1957), Art. 27, § 593; Md. Code (1951), Art. 27, § 700. 6 Lotharp v. State, 231 Md. 239, 240 (1963) (per curiam). That remains true today. Starr v. State, 405 Md. 293, 302 (2008) (citing Lotharp).

Meanwhile, the Court of Appeals adopted the General Rules of Practice and Procedure (“G.R.P.P.”), effective January 1, 1950. Williams, 5 Md. App. at 453 . Rule 7(c) of Part Four, relating to Criminal Rules, thereafter provided, in the case of bench trials: When a criminal charge has been so tried by the Court [i.e., sitting without a jury], an appeal may be taken as provided by law. Upon appeal the Court of Appeals may review upon both the law and the evidence to determine whether in law the evidence is sufficient to sustain the conviction, but the verdict of the trial court shall not be set aside on the evidence, unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

(Emphasis added.) As of 1957, a similar rule appeared as Rule 886 a: When an action has been tried by the lower court without a jury, this Court [i.e., the Court of Appeals] will review the case upon both the law and the evidence, but