Shemondy v. State

KENNEY, Judge. A jury sitting in the Circuit Court for Montgomery County convicted Philimon N. Shemondy, appellant, of possession of cocaine with the intent to distribute. The court sentenced him to fifteen years of imprisonment. Appellant presents the following questions for our consideration, which we have rephrased as follows: 1 I. Did the trial court err by permitting a police officer to render an expert opinion about the meaning of numerical data that were retrieved from appellant’s pager?

II

Did the trial court err by admitting into evidence the numerical data that were obtained from appellant’s pager?

III

Did the trial court err by permitting the State to offer rebuttal evidence? For the reasons stated below, we find no error and affirm the decision of the trial court. Factual and Procedural Background In the evening hours of August 16, 2000, police officers from the Special Investigations Division of the Montgomery County ⁶⁰⁶ Police Department conducted surveillance of a three level, garden-style apartment building located at 17116 Queen Victoria Court in Gaithersburg. The purpose of the surveillance was to serve appellant with an arrest' warrant.

While waiting for appellant, the police officers used radios to communicate with each other. Shortly before 9:00 p.m., Detective John St. Louis observed appellant and Purnell Smoot walking towards the front of the apartment building. By radio, Detective St. Louis alerted the other officers of appellant’s arrival and, then, all at once, the officers approached the men, shouting “county police, county police” and “get down.” By this time, appellant and Mr. Smoot had entered the open stairwell of the apartment building. Upon hearing the officers’ oral commands, appellant ran up the stairwell of the building and Mr. Smoot hesitated for a moment and then followed appellant.

The officers caught Mr. Smoot, but appellant continued running up the stairwell. When appellant reached the top level of the building, Detective Mark Janney observed him remove an object from the waist of his pants and then bend towards the floor as if to conceal the object. Detective Janney made this observation while standing on the sidewalk in front of the building. After appellant discarded the object, he walked down the stairwell where he encountered Detective Charles Carafano.

As Detective Carafano approached, he observed appellant throw a napkin on the floor of the stairwell. Detective Carafano then placed appellant under arrest. Thereafter, Detectives Carafano and Janney walked to the top level of the building where they observed a large bulge under a floor mat in the area where Detective Janney had observed appellant bend over. The officers lifted the mat and discovered 25.95 grams of crack cocaine and 13.97 grams of powder cocaine.

Detective Carafano also seized the napkin, which contained .26 grams of crack cocaine. The police searched appellant and seized the following items from his pants: one Samsung cellular telephone and $70 from ⁶⁰⁷ the right front pocket, $104 from the right front zipper pocket, $20 from the left front pocket, and one Motorola pager from the waistband. Detective St. Louis turned off the pager two days after appellant’s arrest. On September 8, 2000, Detective St. Louis obtained a search warrant, which authorized him to retrieve numerical data from appellant’s pager.

Initially, defendant was charged in the District Court of Maryland for Montgomery County with possession of cocaine with the intent to distribute and possession of cocaine. In October 2000, however, a grand jury returned a single-count indictment that charged appellant with possession of cocaine with the intent to distribute. At trial, the State proceeded under the theory that appellant sold cocaine. To support this theory, seven police officers testified about the cocaine, cellular telephone, and pager that were seized on the night of appellant’s arrest.

Detective St. Louis testified about the search warrant he obtained for appellant’s pager and, also, the numerical data that were retrieved from the pager. Finally, Sergeant Marcus Jones testified as an expert in drug usage and drug trafficking. In order to qualify Sergeant Jones as an expert, the State, during voir dire examination, elicited the following information about his knowledge, skill, experience, training, and education. He had been a police officer with the Montgomery County Police Department for fifteen years, working in the Tactical Drug Enforcement Unit of the Special Investigations Division for nine of those years.

In this capacity, he worked undercover as an investigator, participating in “hand to hand purchases with drug dealers” and obtaining information from drug dealers “on how actually they will purchase drugs, how they will cut drugs up to sell, their methods of operation, how they operated.” In addition, he worked with confidential informants, learning the “street” value of drugs and how buyers and sellers used pagers and cellular telephones to communicate with each other. He also participated in the execution of nearly one hundred fifty search warrants. ⁶⁰⁸ Sergeant Jones received a bachelor’s degree in business administration. As a police officer, he attended several schools and seminars where he learned, among other things, how to identify, package, and test drugs. The schools and seminars included a Drug Enforcement Administration school on narcotics, advanced seminars on narcotics investigations, and an Internal Revenue Service sponsored seminar on organized crime, money laundering, and narcotics.

Following this testimony, the trial court accepted Sergeant' Jones as an expert in drug usage and drug trafficking. Thereafter, Sergeant Jones opined that appellant sold cocaine. In arriving at this conclusion, he relied on three factors. The first factor was the large amount of cocaine that was seized.

He testified that drug users generally purchase cocaine in small quantities on a daily basis. In his experience, “[n]o user ha[d] ever told me .. that they [would] buy this much for their own personal use.” The second factor was the money that was discovered in different pockets of appellant’s pants. Sergeant Jones testified that some drug dealers “will separate their monies from what they actually make.” In other words, dealers would keep money that was earned from drug sales separated from money that would be used to purchase additional drugs. Also, dealers separated money in the event of a robbery so that an “individual may not find it after going through one pocket, just grab the money and think that is all that they have.” The third factor was the numerical data that were retrieved from appellant’s pager.

Sergeant Jones testified that buyers and sellers of crack cocaine often use pagers to communicate with each other. A buyer will call a dealer’s pager and input a telephone number followed by certain “codes.” For example, if “[the buyers] were looking for ... $50 worth [of drugs], they would put in a code [that would] say 50.” Also, a buyer might use a code to identify himself or use a code like 911, “which means hurry up call me back.” ⁶⁰⁹ Sergeant Jones then examined the numerical data that Detective St. Louis had retrieved from appellant’s pager. The data were as follows: 528-5818 40 330-1109 711 528-5818 50 528-5818 50 869-9814 60 7589 240-632-2693 40 911 240-632-2693 911 990-1819 40 911 444-0788 869-9814 80 7589 240-632-2693 40 911 Sergeant Jones explained that the data included telephone numbers that were followed by the same “codes” that he had discussed earlier. In his opinion, the data indicated that persons were contacting appellant in order to purchase crack cocaine.

The defense’s theory of the case was that appellant was a drug user and that the cocaine was for his personal use. In support, Herbert Howard testified as an expert in drug addiction and drug usage. Mr. Howard, a former drug addict, was a certified chemical dependency counselor who worked for two separate substance abuse programs. He testified that the amount of cocaine that was seized could have been for personal use or for distribution.

He explained that approximately five to ten percent of addicts would use a large quantity of cocaine but “it usually ha[d] to do with the amount of wealth they ha[d].” As examples, he referred to a professional football player or a person who received a tax refund or an inheritance. ⁶¹⁰ DISCUSSION I — Expert Testimony Appellant argues that the trial court erred by permitting Sergeant Jones to render an expert opinion about the meaning of the numerical data that were retrieved from appellant’s pager. He contends that Sergeant Jones could not render this opinion because he did not have any “specialized training or knowledge.” We disagree. During direct examination, Sergeant Jones reviewed the numerical data retrieved from appellant’s pager and provided the following explanation: [THE STATE]: Okay. Can you tell the jurors whether or not there is any significance to this [sic] data and if so, what significance is there? [SGT.

JONES]: The significance that I see in that particular data is the numbers that come directly behind the 7 digit numbers appear to be phone numbers. [APPELLANT’S COUNSEL]: I would object [to] him interpreting that. THE COURT: Overruled. * * * [SGT. JONES]: This will be, [for] example, 7 digit phone number, and the numbers here that are described here are numbers that are consistent with codes that we put in for the amounts of drugs that we want. If I was to contact a specific person or dealer stating that this is exactly how much I want.

So I will put this number, put the phone number which I was calling from and I wanted that dealer to return the call to me, then I will put 40, which will be my request for how much I will want to purchase. And in this instance here is a specific code. ⁶¹¹ [SGT. JONES]: And this line here behind the 869 number and the 60 is an example of a typical code that we would utilize just to identify me as that particular caller. And in this particular situation again is the phone number.

It will be an area code which is consistent in this area 240, a 7 digit number again. Here is a code specifically for