Shelton v. State

WRIGHT, J. On October 27, 2010, Daniel William Shelton, appellant, was arrested as a result of an undercover drug investigation. On November 18, 2010, Shelton was indicted in the Circuit Court for Montgomery County on one count of distributing a controlled dangerous substance, one count of conspiring to distribute a controlled dangerous substance, and one count of first-degree assault. Shelton’s jury trial began on February 16, 2011. At the close of the State’s case on February 17, 2011, Shelton moved for a judgment of acquittal.

The motion was denied. On February 18, 2011, the jury acquitted Shelton of the first-degree assault charge but found him guilty of the lesser-included second degree assault charge and the remaining distribution and conspiracy offenses. On June 22, 2011, the ³⁶⁸ trial court sentenced Shelton to eight years imprisonment for distribution of a controlled substance, eight years for conspiracy, and five years for second-degree assault, with all sentences to run concurrently. On July 5, 2011, Shelton timely filed this appeal.

Questions Presented Shelton presents two issues for our review, which we have rephrased as follows: 1 I. Did the trial court err in admitting a hearsay statement under Maryland Rule 5-803(a)(5), the co-conspirator exception, because the statements of the accomplice were not made in furtherance of the conspiracy?

II

Did the trial court err in allowing the State, during its closing argument, to make statements that presented facts not in evidence and that misrepresented the State’s relationship with a key witness? For the reasons that follow, we affirm. Facts On October 26, 2010, detectives from the Montgomery County Police Department’s Tactical Narcotics Unit organized an undercover investigation, in which they sought to purchase crack cocaine from suspected drug dealers. Sergeant Charles Carafano tried to call a man named Scoop to set up the deal, but Sgt.

Carafano reached a woman named Nicole Hosley instead. Hosley told Sgt. Carafano that although Scoop had been “locked up” and was unavailable, she would be willing to supply him with drugs. The two communicated back and ³⁶⁹ forth until they arranged to meet the next day at a grocery store in Rockville, Maryland.

On October 27, 2010, Sgt. Carafano arrived at the grocery store at 5:00 p.m. Hosley and a man named Darrin Duffin arrived shortly thereafter and entered Sgt. Carafano’s truck.

Once inside, Duffin made a brief telephone call. After hanging up, Duffin directed Sgt. Carafano to drive to the nearby Maryvale Market. At that point, Sgt.

Carafano suspected that Duffin was not in possession of the drugs, and, when asked, Duffin confirmed that he did not have the drugs on him. As they drove to the market, Sgt. Carafano and Duffin discussed the details of their transaction. Duffin insisted that Sgt.

Carafano pay for the drugs and then wait in the car while Duffin retrieved them. Sgt. Carafano indicated that he was uncomfortable with this arrangement, but, when Duffin again insisted, Sgt. Carafano agreed to pay in advance, if Duffin agreed to leave his wallet with Sgt.

Carafano as collateral. After agreeing to this arrangement, Sgt. Carafano gave Duffin one hundred and sixty dollars in marked bills: a one hundred dollar bill and three twenty dollar bills all of which Sgt. Carafano had photocopied.

Upon arriving at the market, Duffin left the car to meet with the drug supplier, and Hosley stayed in the car with Sgt. Carafano. While in the car, Hosley and Sgt. Carafano spoke, among other things, about Duffin’s supplier, Hosley’s decision to quit using cocaine, and Duffin’s outfit.

A few minutes later, a white Jeep Cherokee pulled into the market’s parking lot. Sgt. Carafano’s view was partially obstructed by the Jeep, but he observed Shelton step out of the vehicle and begin interacting with Duffin. Duffin and Shelton entered the market where no officer could see or hear them.

When they eventually emerged, Detective Timothy Spelman, who was assisting with the investigation, noticed that Duffin was carrying a small paper sack. None of the officers involved in the investigation witnessed the exchange between Shelton and Duffin. After the exchange, Duffin walked back to Sgt. Carafano’s car.

As Puffin got back into the car, Hosley got out of the car and began walking down the ³⁷⁰ street. Duffin produced a substance that, to Sgt. Carafano, appeared to be crack cocaine. Sgt.

Carafano then gave the signal for the other detectives to make the arrest, and three detectives from a nearby van apprehended Duffin and Hosley. By the time the officers arrested Duffin and Hosley, Shelton had already driven out of the parking lot. Detectives Fernando Jaramillo, Donnie Oaks, and Spelman followed Shelton’s white Jeep while trying to maintain their cover. When Shelton realized that he was being followed, he attempted to evade the officers.

Det. Oaks radioed for help and gave a description of both the driver and the vehicle he was driving. Detectives Jaramillo and Spelman were located one block south of the market. They testified that, as the Jeep passed by, the driver looked over at Det.

Jaramillo, who was sitting in his unmarked Chevrolet Trailblazer. Even though Det. Jaramillo was dressed in plain clothes, both Det. Jaramillo and Det.

Spelman believed that the driver realized that Det. Jaramillo was a police officer. As the Jeep continued south, it passed the intersection where Det. Oaks was waiting in his unmarked Toyota 4Runner.

Det. Oaks was wearing a police-marked vest, a neon arm band, and his police badge around his neck. He also wore a black jacket that covered his front so that it was not apparent that he was a police officer. As the driver of the Jeep passed Det.

Oaks, he saw the driver look at him and believed that the driver had identified him as a police officer. Det. Oaks testified that he began surreptitiously following the Jeep but did not attempt to stop it. Det.

Jaramillo also pursued the Jeep, following several car lengths behind Det. Oaks. According to Det. Oaks, the driver continued operating the Jeep normally.

After driving a short distance, Det. Oaks and Det. Jaramillo observed the Jeep turn left onto a narrow street, pass a “No Outlet” sign, and then pull over to the side of the road at an intersection. Det.

Oaks then attempted to apprehend the driver by pulling his 4Runner diagonally in front of the Jeep. Prior to exiting his vehicle, Det. Oaks removed his jacket so that his ³⁷¹ police-marked vest, neon arm band, and police badge were visible. Det.

Oaks advanced toward the Jeep with his gun drawn and yelled “police.” Det. Oaks testified that he saw Shelton initially put his hands up, but then Shelton put the Jeep in gear and accelerated forward. Det. Oaks had to jump out of the way to avoid being hit.

The Jeep clipped the front of the 4Runner and continued down a hill towards a circle at the end of the street. Det. Oaks went back to his SUV while Det. Jaramillo pursued the Jeep towards the circle.

After following the Jeep to the circle, Det. Jaramillo and Det. Oaks maneuvered their SUVs and blocked the Jeep between them. Det.

Oaks testified that he opened his door and, while still partially inside, began shouting “police.” According to the detectives, the Jeep then began moving in reverse, hitting the front of Det. Oaks’s 4Runner. The Jeep then began driving forward again and broke two wooden posts at the end of the circle. In an effort to prevent the Jeep from driving away, Det.

Oaks drove his vehicle forward, colliding with the side of the Jeep. One of the wooden posts became lodged under Det. Oaks’s 4Runner, disabling the vehicle. Det.

Oaks exited his SUV and attempted to run beside the Jeep, which gained speed and pulled away when it reached the street running adjacent to the circle. Det. Jaramillo attempted to follow the Jeep through the posts, but he was unable to get through in time to continue the pursuit. After the Jeep left the circle, Det.

Oaks radioed for assistance and gave a description of both the Jeep and its driver. Sgt. Ronald Merritt, a patrol supervisor with the Rockville City Police Department, responded to the area and spotted Shelton walking down the sidewalk. Sgt.

Merritt, who was in uniform and driving a marked police vehicle, pulled up next to Shelton and, from his car, commanded that Shelton get on the ground. Shelton was arrested without resistance. Officer Mark Broadus, a Rockville City Police Officer who assisted Sgt. Merritt, searched Shelton and seized a cellular phone and $132 in cash, but no drugs. ³⁷² Corporal Troy Brenner examined the $132 found on Shelton, but the bills did not match the marked currency Sgt.

Carafano had given Duffin. However, Cpl. Brenner found the three twenty dollar bills that Sgt. Carafano gave to Duffin in Puffin’s possession.

The one hundred dollars bill was never recovered. The detectives also examined both Shelton’s and Duffin’s phones to match the phone calls made during the investigation. From this, they were able to determine that Duffin had placed an earlier call to Shelton. Additional facts will be provided in the discussion below as necessary.

Discussion I. Admissibility of statements under the hearsay doctrine While waiting for Duffin’s supplier to arrive, Hosley and Sgt. Carafano had a conversation in which they discussed Duffin’s outfit, how Hosley had quit using cocaine, Sgt. Carafano’s purported drug habit, and Duffin’s supplier. During this conversation, Hosley made several statements that tended to identify Shelton as Duffin’s supplier.

Specifically, Hosley stated that Duffin’s supplier was a man named “Butch,” and that he “was an average sized African-American man with short hair and light skin.” She further stated that Duffin’s supplier drove a white Jeep Cherokee and identified Shelton as Duffin’s “contact” when Shelton arrived at the Maryvale Market. 2 ³⁷³ At trial, the State sought to introduce Hosley’s statements; however, because Hosley was unavailable to testify, the State had to do so through the introduction of the wire recording as well as the testimony of Sgt. Carafano and Det. Spelman. Shelton’s attorney objected to the admission of Hosley’s statements on the grounds that they constituted hearsay.

The State responded that the statements were admissible because they fell within the co-conspirator exception to the hearsay rule, Maryland Rule 5—803(a)(5). Shelton’s attorney countered that the exception did not apply because Hosley’s statements to Sgt. Carafano describing the supplier were not made in furtherance of the conspiracy. Rather, Shelton argued that Hosley’s statements were mere idle chatter, which was not intended to advance the aims of the conspiracy.

The circuit court allowed the State to introduce Hosley’s statements contingent upon the State laying a proper foundation for the existence of a conspiracy. On appeal, Shelton argues that the circuit court erred in admitting the statements Hosley made to Sgt. Carafano because Hosley’s statements constituted hearsay, under Maryland Rule 5—801(c) 3 , and did not fall within the co-conspirator exception to the hearsay rule, under Rule 5-803(a)(5) 4 . Shelton avers that the furtherance requirement in Rule 5-803(a)(5) ³⁷⁴ “is to be construed to protect the accused against the idle chatter of criminal partners and inadvertently misreported or deliberately fabricated evidence.” 29A Am.Jur.2d Evidence § 856.

Shelton further contends that the circuit court erred in concluding that Hosley’s statements were admissible under Rule 5-803(a)(5) because they constituted mere idle chatter. Specifically, Shelton asserts that Hosley’s statements were not intended to advance the aims of the conspiracy as evidenced by the fact that Hosley did not need to provide Sgt. Carafano with any assurances as he had already paid for the drugs, that Sgt. Carafano’s questions did not relate to the transaction, and that Hosley only identified Duffin’s supplier in response to Sgt.

Carafano’s questions, which Shelton argues indicates that Hosley did not view the information as being important to the objectives of the conspiracy. The State responds that Hosley’s statements were not hearsay because they were not offered for the truth of the matter asserted. The State further contends that even if the statements were hearsay, they were properly admitted under the co-conspirator exception to the hearsay rule. Specifically, the State asserts that the evidence presented at trial proves that Hosley and Shelton were involved in a conspiracy to distribute a controlled substance and that Hosley’s statements to Sgt.

Carafano were made in the course of the conspiracy and in furtherance of the conspiracy. Regarding the State’s claim that Hosley’s statements were in furtherance of the conspiracy, the State contends that Hosley intended to provide a contemporaneous description of events to assure Sgt. Carafano that everything was going as planned. In Bernadyn v. State, 390 Md. 1 , 887 A.2d 602 (2005), the Court of Appeals reiterated the standard of review for appeals challenging a circuit court’s ruling on the admissibility of hearsay evidence.

There, the Court stated: We review rulings on the admissibility of evidence ordinarily on an abuse of discretion standard. See Hopkins v. State, 352 Md. 146, 158 , 721 A.2d 231, 237 (1998). Review of the admissibility of evidence which is hearsay is different. ³⁷⁵ Hearsay, under our rules, must be excluded as evidence at trial, unless it falls within an exception to the hearsay rule excluding such evidence or is “permitted by applicable constitutional provisions or statutes.” Md. Rule 5-802. Thus, a circuit court has no discretion to admit hearsay in the absence of a provision providing for its admissibility.

Whether evidence is hearsay is an issue of law reviewed de novo. Bernadyn, 390 Md. at 7-8 , 887 A.2d 602 (emphasis in original). Because Shelton challenges the circuit court’s ruling that Hosley’s statements fall within the co-conspirator exception to the hearsay rule, we review the circuit court’s ruling for legal error. First, we conclude that Hosley’s statements constitute hearsay, and therefore were inadmissible unless they fell within an exception to the hearsay rule.

Pursuant to Maryland Rule 5-801(c), hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 5-802 5 requires that courts exclude hearsay statements unless “otherwise provided by [the Maryland Rules] or permitted by applicable constitutional provisions or statutes.” See also Bernadyn, 390 Md. at 8 , 887 A.2d 602 (stating that hearsay “must be excluded as evidence at trial, unless it falls within an exception to the hearsay rule ... or is permitted by applicable constitutional provisions or statutes.”). See also Ashford v. State, 147 Md.App. 1, 75 , 807 A.2d 732 (2002); Watson v. State, 92 Md.App. 494, 500 , 608 A.2d 1285 (1992). The State argues that Hosley’s statements were not hearsay because they were not offered for the truth of the matter asserted; however, the State’s contention is undermined by the fact that, during its closing argument, the State argued that Hosley’s statements corroborated Duffin’s testimony. Specifically, the State said: ³⁷⁶ And on that wire Nicole Hosley corroborates what Mr. Duffin told you.

They were going to go to the Maryvale Market. She describes the white Jeep Cherokee that Mr. Duffin met up with, that Mr. Shelton drove there. Ms. Hosley confirmed the tags on that Cherokee, the handicapped tags, and I think the—in fact, the conversation from Carafano was, “is he handicapped?” and she says, “No, no, that’s his girl’s car.” She said “the dealer is going to be almost 40, he’s light-skinned,” and then she said, “That’s him, that’s him, wearing the red shirt.” Second, we hold that, although Hosley’s statements constituted hearsay, the circuit court correctly admitted them as they fell within the co-conspirator exception to the hearsay rule. Rule 5—803(a)(5) permits the introduction of a statement by a co-conspirator of a party even if the statement is hearsay where the co-conspirator made the statement “during the course and in furtherance of the conspiracy.” Under this rule, “declarations of one conspirator, made during the pendency and in furtherance of the conspiratorial purpose, are admissible against the other co-conspirators.” Manuel v. State, 85 Md.App. 1, 16, 581 A.2d 1287 (1990) (citations omitted).

In Manuel , we further explained: [A] conspirator is, in effect, the agent of each of the other co-conspirators during the life of the conspiracy. As such, any statement made or act done by him in furtherance of the general plan and during the life of the conspiracy is admissible against his associates and such declarations may be testified to by third parties as an exception to the hearsay rule. Id. at 16 , 608 A.2d 1285 (citation omitted). Thus, for the State to introduce Hosley’s statements under the co-conspirator exception to the hearsay rule, the State must present evidence that the defendant and the declarant were part of a conspiracy, that the statement was made during the course of the conspiracy, and that the statement was made in furtherance of the conspiracy.

See United States v. Mason, 658 F.2d 1263, 1269 (9th Cir.1981). ³⁷⁷ Our review of the record before the circuit court leads us to conclude that the State presented sufficient evidence that the court could reasonably find that Shelton, Hosley, and Duffin were engaged in a conspiracy to distribute a controlled dangerous substance. In Walker v. State, 144 Md.App. 505 , 798 A.2d 1219 (2002), rev’d on other grounds, 873 Md. 360 , 818 A.2d 1078 (2003), we reviewed the requirements to establish the existence of a criminal conspiracy. There, we stated as follows: A criminal conspiracy consists of the combination of two or more persons to accomplish some unlawful purpose, or to accomplish a lawful purpose by unlawful means. The essence of a criminal conspiracy is an unlawful agreement.

The agreement need not be formal or spoken, provided there is a meeting of the minds reflecting a unity of purpose and design. In Maryland, the crime is complete when the unlawful agreement is reached, and no overt act in furtherance of the agreement need be shown. Id. at 542, 798 A.2d 1219 (quoting Townes v. State, 314 Md. 71, 75 , 548 A.2d 832 (1988)). Here, the State presented evidence that Sgt.

Carafano arranged to purchase crack cocaine from Hosley, that Sgt. Carafano met with Hosley and Duffin and drove with them to the Maryvale Market, that Sgt. Carafano gave Duffin $160, that Duffin met with Shelton at the Mary-vale Market, and that, after meeting with Shelton, Duffin returned to Sgt. Carafano’s vehicle and gave Sgt.

Carafano crack cocaine. These facts sufficiently establish the existence of a conspiracy involving Shelton, Hosley, and Duffin. Moreover, the facts set forth by the parties sufficiently establish that Hosley’s statements were made during the course of the conspiracy. Specifically, the record indicates that Hosley made the statements at issue during a transaction for the sale of drugs.

Additionally, at the end of the transaction, Hosley told Sgt. Carafano that he should contact her to purchase drugs in the future indicating an intent that the conspiracy continue beyond the transaction at issue. Furthermore, Shelton does not challenge the circuit court’s ruling on the grounds that the statements were not made during the ³⁷⁸ course of the conspiracy; rather Shelton challenges the court’s ruling on the grounds that the statements were not in furtherance of the conspiracy. With respect to the furtherance requirement of Rule 5-803(a)(5), we conclude that Hosley’s statements were in furtherance of the conspiracy because they assured Sgt.

Carafano that the transaction was going as planned and were intended to assuage any concerns that Sgt. Carafano may have had about dealing with Duffin and Hosley. As we stated in Walker, 144 Md.App. at 542-43 , 798 A.2d 1219 , “the requirement that the statement be made in furtherance of the conspiracy is interpreted broadly.” (Citation omitted). Thus, “[i]f some connection is established between the declaration and the conspiracy[,] then the declaration is taken as in furtherance of the conspiracy.” Irvin v. State, 23 Md.App. 457, 472 , 328 A.2d 329 (1974) (citation and emphasis omitted).

Here, Hosley’s statements regarding DufSn’s supplier are directly related to the conspiracy, and therefore, under a broad reading of the requirement, would be in furtherance of the conspiracy. A number of federal court decisions provide further guidance regarding the proper interpretation of the furtherance requirement through their construction of the analogous federal rule, Fed.R.Evid. 801(d)(2)(E). In United States v. Warman, 578 F.3d 320, 338 (6th Cir.2009), the Sixth Circuit stated that “[a] statement is in furtherance of a conspiracy if it is intended to promote the objectives of the conspiracy.” (Citation omitted). Additionally, in Mason, 658 F.2d at 1270 , and North Carolina v. Collins, 81 N.C.App. 346 , 344 S.E.2d 310, 315 (1986), both the Ninth Circuit and the Court of Appeals of North Carolina concluded that statements of reassurance are in furtherance of a conspiracy.

See also United States v. Sandoval-Villalvazo, 620 F.2d 744, 747 (9th Cir.1980); Salazar v. United States, 405 F.2d 74 (9th Cir.1968); United States v. Valencia, 609 F.2d 603, 632 (2nd Cir.1979). Moreover, in United States v. Shores, 33 F.3d 438 (4th Cir.1994), the Fourth Circuit stated: ³⁷⁹ A particular statement may be found to be in furtherance of the conspiracy even though it is susceptible of alternative interpretations and was not exclusively, or even primarily, made to further the conspiracy, so long as there is some reasonable basis for concluding that it was designed to further the conspiracy. Id. at 444 (citations omitted). See also United States v. Martinez-Medina, 279 F.3d 105 , 117 (1st Cir.2002) (“[A] statement need not be necessary or even important to the conspiracy, or even made to a co-conspirator, as long as it can be said to advance the goals of the conspiracy in some way.”) (Citation omitted).

In Warman,