Skrivanek v. State

RODOWSKY, Judge. This is an appeal from a drug conviction. The appellant contends that the trial court erred by submitting the case to the jury on lesser included, but not expressly charged, attempt offenses. The appellant also argues that the police violated due process by the manner in which they conducted the reverse sting operation leading to the appellant’s arrest and that the court improperly admitted evidence of other crimes.

For the reasons set forth below, we shall affirm. Corporal Robert Shelley (Shelley) of the Maryland State Police was working in an undercover capacity with the Cecil County Narcotics Taskforce on August 17,1997. At that time, Shelley told confidential informants to give prospective buyers of marijuana his pager number so that he could be contacted to conduct a controlled sale of the drugs. On August 18, 1997, Shelley’s pager was activated with a telephone number with which Shelley was not familiar.

Returning the page, Shelley spoke with a person who identified himself only as “James.” James was the appellant, James Skrivanek III (Skrivanek). The next day, August 19, Shelley telephoned Skrivanek at the same number. The two men agreed to meet to discuss the terms of a transaction. Approximately ten minutes later, Shelley and Skrivanek met at a bank in Perryville, Maryland.

Shelley wore a body wire, and their discussion was recorded. At the meeting, Skrivanek reiterated that “Steve told me that you might be able to help me find some weed.” Skriva ²⁷⁵ nek and Shelley then discussed the price for the drugs and agreed upon $900 per pound, $1,350 for a pound and a half. Portions of the transcript of the recorded conversation are set forth below. “Skrivanek: Uh, instead of dealing in a big amount at first, can [I] just go ahead get like uh half or a pound at a time until I get comfortable. “Shelley: (Sigh) Man, I don’t. “Skrivanek: I could bring you mad business, but you know, if, I’m just as sketchy as you are right now. “Shelley: I, I know that, but no. I, I, it ain’t, it ain’t worth the ... risk. “Skrivanek: Right. “Skrivanek: Can I get one the first time? “Shelley: Yeah that’s not a problem. “Skrivanek: I got the money for, you know as much, but I’m just really nervous. “Shelley: (Laughter) “Skrivanek: You know it’s just like we just met, you know? “Shelley: Yeah.

Yeah. “Skrivanek: I’m probably just as scared as you are. “Shelley: Well, OK. My problem is that you tell me one and a half. “Skrivanek: Right. “Shelley: Then you, then you want a lot less than that and now you want one. “Skrivanek: Well I can, I can get one and a half that‘s not a problem. Uh, I’m just nervous. “Shelley: (Laughter) I, I, I bet you are. “Skrivanek: I deal in LSD and it’s got me sketchy, cause right now four of my friends in the area got busted by somebody I don’t know who they are. “Shelley: Well can you, can you? “Skrivanek: I don’t know. ²⁷⁶ “Shelley: See I, I can move some sheets. Whatcha talkin. “Skrivanek: Uh, for a book probably twelve to a buck twenty a sheet.” There followed a discussion about a possible future course of dealing between the two men in which they would barter LSD and marijuana.

In the conversation, Skrivanek gave a representation of the quality of his product, stating, “[i]t’s got three hundred mic’s on it ... [i]t’s really good ... real clean.” Skrivanek said: “In fact, if you’ve ever heard [of] Timothy Leary designs, that’s what design they are, they’re Timothy Leary’s, they come from California.” Each party indicated that he might be able to effect price reductions in future transactions. The conversation then continued as follows: “Shelley: Yeah. You said some friends of yours have been hurt lately. “Skrivanek: Yeah. Which is scary, I was about to lock down. “Shelley: Yeah. “Skrivanek: Just say fuck it, you know.

But um, I have people in White Marsh that are starving for herb. (Inaudible) that’s where I work, I’m there all day long. “Shelley: It’s, it’s, I’ve got a good supply, it’s a never ending supply, so, and I can, I can go damn near as high as you can possibly imagine. Not [sic ]. “Skrivanek: I don’t need to know anything.” The parties agreed that Skrivanek would beep Shelley’s pager the next day to make arrangements for the consummation of the sale of one and one-half pounds of marijuana. On the next day, August 20, Skrivanek contacted Shelley by pager.

Shelley called him back and was told that Skrivanek had to run an errand and would contact Shelley when he returned. Approximately one-half hour to an hour later, Skrivanek again paged Shelley. Skrivanek said that he would not be able to meet that day because his wife had not gone to the bank to withdraw money for the drugs. Skrivanek prom ²⁷⁷ ised to obtain the money the next day and to page Shelley to make arrangements for purchasing the drugs.

Skrivanek again paged Shelley in the afternoon of August 21. He left a number consisting of the last six digits of Skrivanek’s telephone number followed by 1400. This indicated to Shelley that Skrivanek was going to pay $1,400 for the drugs. When Shelley returned the page, Skrivanek confirmed that he had paged Shelley earlier and that he was going to pay him $1,400.

The men agreed to meet in a half hour at an industrial plant in Perryville. After the half hour expired, Shelley was paged again. This time, Skrivanek left the number, 745 1400, which indicated to the officer that they should meet at 7:45 p.m. The undercover officer arrived early, again wearing a body wire.

When Skrivanek arrived, he parked his car so that their driver side windows faced and were within arm’s reach of each other. Officer Shelley and Skrivanek exchanged the keys to their respective automobiles. Shelley then handed Skrivanek a brown paper bag in which he had placed roughly one and one-half pounds of marijuana. Shelley’s supervisors in the Maryland State Police had authorized this quantity be released to him for the reverse sting operation from the drug locker of the Bureau of Drug and Criminal Enforcement Division.

Skrivanek placed the bag containing marijuana in his lap, beyond the officer’s view, peered into the bag, and said to Shelley that it “[l]ooks good.” According to Officer Shelley, the defendant then “appeared to place it over on the passenger’s seat or on the floor somewhere over there.” Skrivanek gave Shelley a large sum of U.S. currency, which the officer began to count. As Officer Shelley was counting, another state trooper arrived at the parking lot. Skrivanek was arrested. A grand jury indicted Skrivanek on charges of unlawful possession of a controlled dangerous substance with the intent to distribute under Maryland Code (1957, 1996 Bepl.Vol.), Art. 27, § 286, and possession of a controlled dangerous substance under Art. 27, § 287. 1 Before the case was tried, the defendant filed a ²⁷⁸ motion in limine seeking to exclude, inter alia, “any reference to any CDS for which Defendant is not charged.” The court denied Skrivanek’s motion.

The objection was renewed at trial. Appellant was tried to a jury. At the close of the State’s case the trial judge handed the parties copies of Hagans v. State, 316 Md. 429 , 559 A.2d 792 (1989), and raised the possibility of instructing the jury on the lesser included offenses of attempt to possess marijuana with intent to distribute and attempted simple possession. The trial judge apparently did not believe that the State had proved that Skrivanek had gained actual possession of the marijuana as a matter of law. “THE COURT: I think the state is going to have an awful tough time with this thing when you have a person almost in custody.

However, you are probably entitled to a ■lesser included offense instruction. I mean the police did such a good job. I think you have a real tough time with dominion and control. “[PROSECUTOR]: Under the law, as far as I understand the law, there’s no set period of time a person has to have dominion and control. “THE COURT: Shelley testified it was in his custody. You asked the question.

He said the moment he got there, his words, he was in custody. I don’t know how a person like that can actually exercise dominion and control. The one reason I brought that case [Hagans ] out, even if you ²⁷⁹ don’t charge a lesser included offense, you are entitled to an instruction, attempt to distribute. “[PROSECUTOR]: With these cases I am not going to object to the Court offering that to the jury” (Emphasis added). Later, the court again asked the prosecutor if he would agree to an instruction regarding attempts. “THE COURT: ... [A]re you going to want the attempt? “[PROSECUTOR]: I guess if—depending how the Court rules, again, I would still. “THE COURT: You want me to keep attempt alive? “[PROSECUTOR]: I would like to have the Court keep attempt alive.

I sense the Court is not ruling in my favor here.” (Emphasis added). The prosecutor continued to maintain that possession had been proven and to oppose the defendant’s motion for judgment of acquittal. In the following passage, Skrivanek submitted that the court could not force the prosecutor to accept the lesser included attempt charges. “[DEFENSE]: The other thing in Hagans , and it sounds to me like Your Honor is taking [the prosecutor], dragging him with his heels six inches into the ground. “THE COURT: Well, he said if I was going to knock out the other charge— “[PROSECUTOR]: We have no objection to the court— “THE COURT: He didn’t want to get knocked out. “[PROSECUTOR]: We disagree— “THE COURT: If I did it over his objection the case is going to go out the door. He made it clear. “[DEFENSE]: Let the record though be clear that basically Your Honor produced the case, and that was the court’s decision.

It was not on request of the state. “THE COURT: No. But its acquiesce—the state, they don’t want me to knock out the other case. They still believe he had dominion and control. The Court of Appeals could rule that he did. If I thought that was the case I’d ²⁸⁰ have left it in; then we’d end up with the jury—there is no law on that, with the jury making that decision. “[PROSECUTOR]: It is a factual issue. “THE COURT: Well, it is, and it may very well be a legal issue.

Does dominion and control apply. “[PROSECUTOR]: I’d also ask Your Honor because of the circumstances that ... there be no comments during closing arguments regarding the changes in the charge. We just argue on the charge.” The court entered judgment for the defendant on the two possession charges, but sent the case to the jury on the lesser included charges. The jury convicted Skrivanek of attempted possession with intent to distribute. He was sentenced to five years, of which two were suspended.

Skrivanek appealed to the Court of Special Appeals. We issued the writ of certiorari on our own motion prior to consideration of the matter by the intermediate appellate court. Appellant’s brief raises four issues which we have reordered. They are: , " 1. “Did the Court err in allowing the case to go forward on uncharged attempted charges after granting defendant’s motion for judgment of acquittal on both indicted charges?” 2. “Can a defendant be convicted of an attempted unlawful possession of a controlled dangerous substance in sufficient quantity to reasonably indicate under the circumstances an intent to distribute where the actual possession of the contraband has not been established?” 3. “Did law enforcement’s conduct in the reverse-sting undercover operation violate the principles of due process by being so outrageous and shocking that it exceeded the bounds of fundamental fairness to the appellant and should the Judge as a matter of law have dismissed or acquitted appellant of the attempted distribution charge because of this and the fact that appellant was not predisposed to distribute?” 4. “Did the Court improperly deny appellant’s Motion in Limine to exclude statements made by the defendant to the ²⁸¹ undercover officer on August 19, 1997 concerning lysergic acid?” I This Court has held, consistent with “virtually every jurisdiction in the United States which has passed upon the issue,” that “a defendant, charged with a greater offense, can be convicted of an uncharged lesser included offense.” Hagans, 316 Md. at 447 , 559 A.2d at 800 .

We placed a number of restrictions on the operation of the rule, which are not relevant here, and noted a division among courts as to whether a trial court should, sua sponte, give a jury instruction on an uncharged, lesser included offense. Id. at 454 , 559 A.2d at 804 . On that issue we stated: “The better view, we believe, is that the trial court ordinarily should not give a jury an instruction on an uncharged lesser included offense where neither side requests or affirmatively agrees to such instruction. It is a matter of prosecution and defense strategy which is best left to the parties. ...

When counsel for both sides consider it to be in the best interests of their clients not to have an instruction, the court should not override their judgment and instruct on the lesser included offense.” Id. at 455 , 559 A.2d at 804 (emphasis added). In Hagans , the prosecutor had sought the instruction on the lesser included offense. “While the initial suggestion! ] for submitting to the jur[y] the lesser included offense! ] may have come from the trial judge! ] • ■., the prosecuting attorney! ] ... argued for the submission! ].” Id. at 455 , 559 A.2d at 805 . We affirmed Hagans’s conviction on the uncharged, lesser included offense. Id.

Relying on the above-quoted passage from Hagans , Skrivanek argues that the trial judge should not have instructed the jury on attempted possession. According to the defendant, this is because the prosecutor repeatedly argued that the evidence showed a consummated and not an attempted crime, ²⁸² and because the prosecutor did not affirmatively request the court to instruct on attempt. It is clear that the prosecutor believed that the trial court took too restrictive a view of the law of possession and of the State’s proof of Skrivanek’s possession. Nevertheless, when faced with an apparently impending dismissal of the charged offenses, the State affirmatively agreed to the attempt instructions.

The prosecutor not only stated that he was “not going to object to the Court offering [the attempt theory] to the jury,” but he also affirmatively said that he “would like to have the Court keep attempt alive.” Like the trial judge in Hagans , the trial judge in the present case initiated the discussion of the lesser included offense instruction. That, under Hagans , is not determinative. A prosecutor may be said to “request or affirmatively agree to such an instruction” even though the judge initially raises the possibility of giving the instruction. The rationale behind the holding in Hagans is that trial judges should not interfere with defense and prosecution strategies by deciding, sua sponte, to instruct on lesser included offenses.

Id. at 455 , 559 A.2d at 804 . See also Walker v. United States, 418 F.2d 1116, 1119 (D.C.Cir.1969) (“In general the trial judge should withhold charging on lesser included offense[s] unless one of the parties requests it, since that charge is not inevitably required in our trials, but is an issue best resolved, in our adversary system, by permitting counsel to decide on tactics.”); State v. Dexter, 954 S.W.2d 332, 344 (Mo.1997) (“When the failure to request a lesser-included instruction is a matter of strategy, the court should not second guess the defendant’s counsel.”); State v. Gunderson, 282 Mont. 183 , 936 P.2d 804, 806 (1997) (holding that trial courts are not required to instruct, sua sponte, on lesser included offenses because “ ‘under our adversarial system of justice, the prosecution and defense must have the option of foregoing a lesser charge instruction for strategic reasons. Lawyers, not judges, should try cases.’ ”), overruled on other grounds by State v. Montoya, 983 P.2d 937 , 1999 MT 180 (1999). ²⁸³ Here, the instructions given on the lesser included offenses supported the State’s stated strategy. The prosecutor’s adherence to the viability of the charges of actual possession did not reflect an “all or nothing” strategy in favor of those charges.

Faced with the trial court’s view that the State’s case on the greater charged offenses was legally insufficient, and anticipating the grant of a motion for acquittal, the prosecutor enlarged his theory of the case and adopted a fallback position. In other words, the State’s modified strategy included the alternative of a lesser included offense instruction. Thus, the court’s submission of the attempt instruction to the jury cannot be viewed as a decision by the trial judge acting without the affirmative agreement of at least one party. Skrivanek argues that he was prejudiced by this change in the case in that he was required in mid-trial to research and prepare requested instructions on the law of attempts.

There was no error. When this argument was presented to the trial court it offered Skrivanek a continuance. The defendant, however, declined the offer and elected to proceed. The appellant argues further that “upon granting the defendant’s motion for judgment of acquittal on the only charges in the indictment, the Court summarily acquitted and disposed of all charges, including any lesser uncharged offenses such as attempted crimes.” In support of this argument, Skrivanek cites several opinions of this Court wherein we said that “[t]he crime of attempt is an adjunct crime, it cannot exist by itself, but only in connection with another crime.” Cox v. State, 311 Md. 326, 330 , 534 A.2d 1333, 1335 (1988); Hardy v. State, 301 Md. 124, 139 , 482 A.2d 474, 482 (1984).

What is meant by this statement is simply that the elements of attempt cannot be considered without considering the elements of the consummated crime. See Hardy, 301 Md. at 139 , 482 A.2d at 482 (“The crime of attempt by definition expands and contracts and is redefined commensurate with the substantive offense.”). ²⁸⁴ Courts in other jurisdictions have rejected Skrivanek’s position, stating that a trial judge is permitted to grant judgment for the defendant on the “flagship” charge of an indictment and submit the case to the jury on an uncharged, lesser included offense. Howard v. United States, 237 F.2d 216, 217 (D.C.Cir.1956) (per curiam) (finding no error where trial judge granted judgment on first-degree murder charges, but instructed the jury on unindicted second-degree murder and manslaughter counts, and jury convicted defendant of manslaughter), cer t. denied, 359 U.S. 917 , 79 S.Ct. 595 , 3 L.Ed.2d 579 (1959); State v. Null, 247 Neb. 192, 201 , 526 N.W.2d 220, 228 (1995) (“[Wjhere the State fails to demonstrate a prima facie case on the crime charged, but does so on a lesser-included offense, the trial court in its discretion may direct a verdict on the crime charged and submit