Sanders v. State

ALPERT, Judge. “The best hid schemes o’mice and men, So oft go awry.” 1 In this case a carefully calculated murder plot would not have gone awry were it not for the chance arrest of Robert Smithson for shoplifting on March 18, 1982. Apparently trying to avoid culpability for that charge, Smithson voluntarily informed the Montgomery County police that Douglas Lornell Sanders, appellant, had offered him a contract to murder an Internal Revenue Service (IRS) agent. Raymond R. Petronchak, an IRS criminal inspector, was summoned to investigate. Smithson related that on March 6, 1982, appellant had approached him and agreed to pay five thousand dollars if Smithson killed a certain IRS agent.

Appellant further agreed to provide a weapon to accomplish this murder. The target of this agreement was ultimately determined to be W. Stewart Connard, whom appellant considered to be an overly aggressive auditor. Connard was engaged in an expansive audit of Joel Davis, a certified public accountant, who had prepared tax returns for appellant and appellant’s ¹⁶² businesses. Davis and appellant were co-owners of Dial-A-Tow, Inc. and appellant was a partial owner in a firm called R & S Construction.

Appellant erroneously believed that Connard’s audit of Davis included him and his businesses and that Connard sought criminal convictions. Appellant told Smithson that if Connard were no longer working on the case, another IRS agent would settle the investigation in exchange for a payment of back taxes. The murder was to take place at Connard’s residence and was to look like a robbery. Petronchak inquired whether Smithson would introduce him to appellant.

Smithson responded negatively. The criminal inspector then queried whether Smithson would allow himself to be “wired” and meet appellant. Smithson agreed to this plan. At the conclusion of this debriefing, Petronchak instructed Smithson to report to his IRS office in Washington, D.C. the following morning.

Smithson dutifully arrived around 7:30 a.m. on the morning of March 19, 1982. Petronchak contacted Connard, verified his auditing of Davis, informed him he was the target of a murder conspiracy and suggested that Connard leave town. Petronchak’s branch chief received approval in accordance with federal administrative procedures for consensual monitoring of a telephone conversation between Smithson, in the IRS’s Washington office, and appellant in Seat Pleasant, Maryland. During the course of this conversation Smithson arranged to meet appellant later that day in Silver Spring, Maryland.

Smithson was “wired” with a recorder and escorted to the agreed meeting place. During the course of this meeting appellant furnished Smithson with a gun and six bullets and a piece of paper with Connard’s address and car license tag number. The two men discussed Connard’s commuting habits. Appellant assured Smithson that if the scheme succeeded, there would be no way for the hired killer to be detected since Smithson was unknown to Davis and appellant planned to have an alibi. ¹⁶³ This entire conversation was recorded by IRS agents in a nearby vehicle.

Appellant was arrested by the agents after Smithson departed the area. Appellant filed several pre-trial motions; only two of these motions, however, are relevant to this appeal. Appellant moved to suppress the electronic surveillance evidence and evidence from his federal income tax returns. Both motions were denied and the evidence was introduced at appellant’s trial.

A jury in the Circuit Court for Montgomery County convicted appellant of solicitation to commit murder and attempt to commit murder. On February 25,1983, appellant was sentenced to a 25 year term of imprisonment for the solicitation conviction. The trial judge did not impose a sentence on the attempt to murder conviction. Before this Court, appellant alleges that the trial judge erred by denying both motions to suppress.

Further, appellant argues that the lower court abused its discretion by denying his motion for mistrial. Additionally, the State has filed a cross-appeal asking us to consider whether the trial court mistakenly declined to impose a mandatory 25 year sentence for appellant’s attempted murder conviction. We shall first address the issues raised by appellant. I. Use of Electronic Surveillance Evidence Appellant’s first contention concerns the electronic surveillance of his March 19,1982 conversations with Smithson.

He claims that any evidence derived from these interceptions should have been inadmissible in any trial or proceeding in Maryland because federal IRS agents are not “investigative or law enforcement officers” within the ambit of Maryland wiretap and electronic surveillance law. Appellant’s argument requires us to focus on the interrelationships of federal and state eavesdropping laws. In 1968, Congress enacted the Omnibus Crime Control and Safe Streets Act, Pub.L. No. 90-351, tit. Ill, §§ 801-804, 82 Stat. 197 , to establish minimum guidelines for wire intercep ¹⁶⁴ tions and interceptions of oral communications.

State v. Bailey, 289 Md. 143, 151 , 422 A.2d 1021 (1980). The federal wiretap provisions, codified in 18 U.S.C. §§ 2510-2520 , permit the states to create standards for interceptions by state officials. 18 U.S.C. § 2516 (2). These state standards may be more protective of citizens’ privacy than the federal minimum requirements. State v. Mayes, 284 Md. 625, 627-28 , 399 A.2d 597 (1979).

Where a state legislature has adopted stricter privacy protections than those guaranteed by federal law, the stricter state standards shall apply to determine admissibility. United States v. Curreri, 388 F.Supp. 607, 613 (D.Md.1974). Maryland’s present Wiretapping and Electronic Surveillance Act was enacted in 1977 and is codified in Md.Code Cts. & Jud.Proc.Ann. §§ 10-401 et seq. It is modeled after its federal counterpart and extensively tracks its provisions.

Wood v. State, 290 Md. 579, 583 , 431 A.2d 93 (1981). The General Assembly has made certain provisions of Maryland’s law more restrictive than federal law. Id. 2 The relevant Maryland statute in the case sub judice is § 10-402(c)(2) which governs the interception of oral communications where one party consents to the interception. It is lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire or oral communication in order to provide evidence of the commission of the offenses of murder, kidnapping, gambling, robbery, and felony punishable under the ‘Arson and Burning’ subheading of Article 27, bribery, extortion, or dealing in controlled dangerous substances, or any conspiracy to commit any of these offenses, where the person is a party to the commu ¹⁶⁵ nication or one of the parties to the communication has given prior consent to the interception.

The Act requires that interceptions be conducted by or under the supervision of an investigative or law enforcement officer, a term defined in § 10-401(6) as: [A]ny officer of this State or a political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this subtitle, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses; ... Interceptions by federal officers where one party consents to the interception are regulated by 18 U.S.C. § 2511 (2)(c) which provides: It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. (Emphasis supplied.) “Person” is defined as “any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation; ...” 18 U.S.C. § 2510 (6). A comparison of the aforequoted Maryland and federal statutes reveals a certain similarity.

Both allow legally authorized personnel to intercept wire or oral communications where one party to the communications consents. On the other hand, Maryland law limits authorized personnel through definition of the term “investigative or law enforcement officer” in that it apparently permits only Maryland personnel to make this sort of interception. Moreover, Maryland limits the authority to intercept to investigations of certain offenses, one of which is an offense evidenced in this case — conspiracy to commit murder. 3 ¹⁶⁶ Appellant does not contest that Smithson consented to having the conversations monitored. Further, at trial, Agent Petronchak elaborated on how IRS Manual procedures were precisely followed to obtain approval for the consensual monitoring.

Approval for the telephone monitoring was received from the Assistant Regional Inspector in Philadelphia. Approval for the body wire was authorized by the national IRS office upon Agent Petronchak’s written application to the Attorney General of the United States. 4 Therefore, the IRS agents acted in full compliance with federal law. 18 U.S.C. § 2511 (2)(c), supra. See also 26 U.S.C. § 7608 which sets out the powers and authorities of internal revenue enforcement officers. We observe that the IRS agents’ actions conformed to Maryland’s stricter interception laws because the conversation was monitored during an investigation of one of the crimes specified in Md.Code Cts. & Jud.Proc.Ann. § 10-402(c)(2), supra.

We further observe that this interception could not arguably be illegal under Maryland law had Maryland authorities participated in the eavesdropping. Mindful that “no part of the contents of the communication and no evidence derived therefrom may be received in evidence ... if the disclosure of that information would be in violation of ...” the Maryland “Wiretapping and Electronic Surveillance” laws, Md.Code Cts. & Jud.Proc.Ann. § 10-405, we are left to decide whether Maryland’s narrower definition of investigative or law enforcement officer should result in suppression of the lawfully obtained interception by federal officials. Stated more succinctly: Did federal agents violate Maryland law by “disclosing” the contents of the conversations? We are acutely aware that the wiretap law procedures must be strictly followed.

State v. Siegel, 266 Md. ¹⁶⁷ 256, 274, 292 A.2d 86 (1972). We are equally cognizant that the purpose behind wiretap exclusionary rules is to deter law enforcement officers from violating personal privacy rights by ensuring that the courts do not become partners in illegal police conduct. See, People v. Fidler, 72 Ill.App.3d 924 , 29 Ill.Dec. 51, 52 , 391 N.E.2d 210, 211 (1979). With this objective in mind, we shall reach the determination that suppression of the conversations recorded by federal IRS agents was not required in this case.

It is pellucid that appellant was accorded every privacy protection guaranteed to Maryland citizens by Maryland’s stricter wiretap and electronic surveillance law. Accordingly, we need not fear placing our imprimatur on the lawful conduct of the federal IRS agents. We are loathe to reverse appellant’s conviction solely because the officials who lawfully intercepted his communications with Smithson were not Maryland investigative or law enforcement officers. To accept the legal argument espoused by appellant, we would be holding that Maryland’s wiretap and electronic surveillance law pre-empts federal law and that no evidence lawfully obtained by federal law enforcement officers could ever be admissible in a Maryland judicial proceeding.

We are, of course, precluded from reaching such a result. Whenever conflicts arise between enactments of Congress and the States, the Supremacy Clause to the United States Constitution, art. VI, cl. 2, mandates that enactments by the national government shall govern. See also Md.Declaration of Rights, art. 2.

Where state law is in conflict with federal law, the state law is “void to the extent it conflicts with a federal statute.” Maryland v. Louisiana, 451 U.S. 725, 747 , 101 S.Ct. 2114, 2129 , 68 L.Ed.2d 576 (1981) (and cases cited therein). Consequently, any state law which “stands as an obstacle to the accomplishment and objectives of Congress” is unenforceable. Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 , 61 S.Ct. 399, 404 , 85 L.Ed. 581 (1941)). ¹⁶⁸ We have previously recognized that federal law, specifically 18 U.S.C. § 2516 (2) authorizes the States to promulgate laws permitting interceptions by state officials.

While the standards for state law enforcement officers may be more restrictive of personal privacy rights than the federal provisions, such state standards may not supersede federal law. United States v. Hall, 543 F.2d 1229, 1232 (9th Cir.1976) (en banc), cert. denied, 429 U.S. 1075 , 97 S.Ct. 814 , 50 L.Ed.2d 793 (1977). Section 2516(2) does not empower the states to create stricter standards for federal law enforcement officials operating in their state. Id.

The Maryland General Assembly was presumably well aware of this limitation when it enacted Maryland’s first law regarding the interception of oral communications, Md. Ann.Code, art. 35, §§ 92-99 (1957), repealed and recodified in Md.Code Cts. & Jud.Proc.Ann. §§ 10-401 et seq. (1973) (interceptions of oral communications) and Md.Ann.Code, art. 27, §§ 125A-125C (1957) (interception through use of electronic devices). The legislature specifically provided in then § 10-407(a) (1973) that “[t]his subtitle does not apply to the Federal Bureau of Investigation or to any other federal investigating agency.” We note that no similar provision is found in the sections pertaining to electronic devices. In 1977, Md.Code Cts. & Jud.Proc.Ann. §§ 10-401 et seq. and Md.Ann.Code, art. 27, § 125A-125C were repealed and replaced by Maryland’s present Wiretapping and Electronic Surveillance Act, Md.Code Cts. & Jud.Proc.Ann. §§ 10-401 et seq.

(1977, 1980 Repl.Vol., 1982 Cum.Supp.). The aforequoted § 10-407(a) (non-applicability to federal agents) was not included in the newly enacted law. Such inclusion was unnecessary, however, as the Legislature, presumptively aware of the supremacy of federal law regulat ¹⁶⁹ ing the activities of federal officials, 5 would not attempt to promulgate a restriction which would be unenforceable. Additionally, it is inconceivable that the Legislature intended to subject federal law enforcement officers to Maryland civil and criminal sanctions for violations of state law, Md.Code Cts. & Jud.Proc.Ann. §§ 10-402(b) and 10-410, simply because the lawful interception was achieved without the participation of a Maryland investigative or law enforcement officer.

Appellant’s assertions would require us to violate a cardinal principle of statutory construction that statutes are not to be construed in a manner which would lead to an absurd result. See, Curtis v. State, 284 Md. 132, 149 , 395 A.2d 464 (1978) (and cases cited therein). The General Assembly was not blind to the reality that federal law enforcement officials are authorized to act within each of the fifty states. Nor were Maryland’s legislators unaware that inevitably, there would be occasions where investigations which were originally entirely federal in nature would result in prosecutions by State authorities.

Appellant points out that the Legislature has changed the law as of July 1,1983 to allow evidence lawfully obtained by federal agents to be admissible in Maryland courts. Md.Code Cts. & Jud.Proc.Ann. § 10-407(f) (1980 Repl.Vol., 1983 Cum.Supp.) provides: Any law enforcement officer of the United States, who has lawfully received any information concerning a wire or oral communication or evidence lawfully derived therefrom, which would have been lawful for a law enforcement officer of this State pursuant to § 10-402(c)(2) of this subtitle to receive, may disclose the contents of that communication or the derivative evidence while giving ¹⁷⁰ testimony under oath or affirmation in any proceeding held under the authority of this State. At argument, counsel for both appellant and the State seemed to believe that this new provision was spawned by the situation presented at appellant’s trial. After an exhaustive search for legislative history, however, we were unable to locate documentary evidence as to why § 10-407(f) became law.

Rather than view this new provision to be a change in Maryland law, we conclude that § 10-407(f) was enacted out of an abundance