State v. Wadlow

²⁶⁵ BLOOM, Judge. Lauren Marie Wadlow was indicted (First Count) for possession of cocaine “in sufficient quantity to reasonably indicate under all circumstances an intent to distribute” the same, “to wit: over 448 grams of cocaine, in violation of Article 27, section 286(a)(1) of the Annotated Code of Maryland” (possession with intent to distribute); (Second Count) for possession of cocaine, in violation of Article 27, section 287(a) of the Annotated Code of Maryland; (Third Count) conspiracy to distribute “a controlled dangerous substance, to wit: cocaine, in excess of 448 grams, in violation of the Common Law”; and (Fourth and Fifth Counts) for distribution of cocaine. A jury in the Circuit Court for Montgomery County convicted Ms. Wadlow on the first three counts; the Fourth and Fifth Counts were nolle prossed. On 9 October 1991, the court, merging the conviction on the Second Count into the conviction on the First Count, imposed consecutive prison sentences of four years on the First Count and one year on the Third Count but suspended the one year sentence in favor of a period of supervised probation to begin upon her release from prison.

The State, contending that the court had imposed an illegal sentence in that a minimum sentence of five years without parole was statutorily mandated, noted an appeal on 10 October 1991. After noting its appeal, the State filed a motion, on 15 October 1991, to correct the “illegal sentence.” Ms. Wadlow noted a cross-appeal on 8 November 1991. On 18 November 1991, the court, accepting the State's assertion, or concession, that the imposition of a separate sentence on the Third Count (conspiracy charge) was illegal because the conviction on the Third Count necessarily merged into the conviction on the First Count, “corrected” the sentence(s) by striking out the one year sentence but imposing a five year sentence on the First Count. When the prosecuting attorney asked whether that sentence was imposed “pursuant to 286(f)” [Art. 27, § 286(f) of the Maryland Code (1957,1992 Repl.Vol.) (which mandates a minimum sentence of five years imprisonment without pa ²⁶⁶ role for distribution or possession with intent to distribute cocaine if the amount of cocaine involved is 448 grams or more), the trial judge responded, prophetically: No, that is it.

That is all I am saying. The Court of Special Appeals will wrestle with this one. Not too hard, but they will wrestle with it. The issue raised by the State on its appeal, taken pursuant to § 12-302(c)(2) of the Courts and Judicial Proceedings Article of the Maryland Code (1989 Repl.Vol.), is whether the trial judge erred in failing to impose a penalty mandated by statute.

In her cross-appeal, Ms. Wadlow contends: 1. That the trial court erred in denying her motion to suppress “because the search warrant was based upon stale and remote ‘information’ and upon an illegal search.” 2. That she was denied a fair trial by the State’s failure to provide adequate discovery and its suppression of fingerprint evidence, and by the admission of prejudicial testimony of Detective Mancuso. 3. That there was insufficient evidence either to connect her and the drugs seized from her co-defendant or to prove an agreement between the two of them to distribute CDS. 4.

That the trial court erred in refusing her requested jury instruction. I We shall dispose of Ms. Wadlow’s contentions prior to addressing the issue raised by the State. Before we reach any of those contentions, however, we must first deal with a challenge to this Court’s jurisdiction. Ms. Wadlow moved to dismiss the State’s appeal as untimely, since it was from the sentence originally imposed and no appeal was taken by the State from the allegedly illegal sentence ultimately imposed.

Ms. Wadlow’s appeal was also filed before the court “corrected” the sentence it had initially imposed and she took no appeal after the court ²⁶⁷ resentenced her. The State moved to dismiss her appeal as untimely filed, while defending her motion to dismiss its appeal by relying on Telak v. State, 315 Md. 568 , 556 A.2d 225 (1989). Ms. Wadlow, on the other hand, maintains that the State’s appeal was premature because it was from a sentence that is no longer effective rather than from the sentence eventually imposed, whereas her appeal was from the convictions, which were not affected by the resentencing. They are both wrong.

Telak is inapposite, and Ms. Wadlow’s argument is based upon her misconception that an appeal in a criminal case is from a conviction. In Telak the District Court struck out the guilty verdicts for driving while intoxicated and negligent driving and in lieu thereof imposed probation before judgment. No appeal was taken within 30 days of that disposition, instead, the State filed a “Motion to Correct an Illegal Sentence,” asserting that the Court could not impose probation before judgment because Telak had previously been given probation for driving under the influence and Md.Code Ann., Art. 27, § 641(a)(2), prohibited placing a person on probation before judgment for a second or subsequent violation of driving while intoxicated or under the influence of alcohol. Md.Code Ann., Art. 27, § 641(a)(2) (1957, 1992 Repl.Vol.).

The motion was denied, and the State appealed to the Circuit Court for Baltimore County — 12 days after the District Court denied its motion but 68 days after the original imposition of probation before judgment. Telak’s motion to dismiss the appeal was denied and the circuit court issued a “mandate” that the “State’s Motion to Correct an Illegal Sentence be granted” and remanded the case to the District Court. The Court of Appeals granted Telak’s petition for a writ of certiorari and reversed on the ground that the State's appeal to the circuit court was untimely. Under § 12-401(a) of the Courts and Judicial Proceedings Article of the Maryland Code, the State may appeal if it contends that the trial court “failed to impose the sentence specifically mandated by the Code.” An appeal must be taken within 30 days after the date of the final ²⁶⁸ judgment appealed.

The appeal was from the order granting probation, not the denial of the motion to correct the sentence; and the appeal from the allegedly illegal sentence was not taken within the time allowed for appeal. Telak does support the State’s position that its appeal was timely when taken; it does not answer the question as to the effect of the appeal on the subsequent motion to correct the allegedly illegal sentence or the question as to the effect of the court’s resentencing, pursuant to that motion, on the prior timely appeal. And Ms. Wadlow’s attempt to distinguish the State’s appeal of the sentence from her appeal of the convictions overlooks the fact that the right of appeal is from a final judgment and that in a criminal case the final judgment “consists of the verdict and, except where there is an acquittal, the sanction imposed, which is normally a fine or sentence of imprisonment or both.” Telak, 315 Md. at 575 , 556 A.2d 225 . Ms. Wadlow’s appeal, therefore, was from the convictions and sentences, not merely the convictions.

As a general rule, the perfecting of an appeal from a final judgment (as distinguished from an interlocutory order) brings the subject matter thereof within the exclusive jurisdiction of the appellate court and suspends the authority of the trial court over it during the pendency of the appeal; ... the trial court lacks jurisdiction to take any further action in the case with respect to the subject matter of, or affecting, the proceeding until the receipt of the mandate of the appellate court after the appeal has been heard and decided. Stewart v. State, 282 Md. 557, 573 , 386 A.2d 1206 (1978). This general rule does not, however, affect the right of a circuit court to modify, reduce, or strike out a sentence, upon a motion timely filed, even while the case is on appeal, Md. Rule 4-345(b), or to correct an illegal sentence at any time (which necessarily includes the time during which the case is on appeal). Md. Rule 4-345(a).

If the appeal is from an allegedly illegal sentence — as is the ²⁶⁹ State’s appeal in this case — correction of the sentence by the circuit court will render the appeal moot. If the appeal raises issues totally unrelated to any alleged illegality in the sentence — as does Ms. Wadlow’s appeal in this case — correction of an illegal sentence will not affect the appeal. In this ease, therefore, the change or modification of Ms. Wadlow’s sentence did not nullify her appeal. And because the State contends that the change in Ms. Wadlow’s sentence did not completely correct the alleged illegality, the modification of the sentence did not render the State’s appeal moot.

II Wadlow contends that the trial court erred in denying her motion to suppress because the search warrant was based upon stale and remote “information,” and upon an illegal search. On 5 September 1990, the Montgomery County Police responded to a hotel employee’s call that an unusual number of telephone calls were being made from and received by room number 831. That information led the police to set up a surveillance of the room and the parking lot of the Holiday Inn in Gaithersburg, Maryland. The room was registered to Bruce Todd, and there was never a change in the registration to reflect an additional guest for that room.

In the parking lot, Officer Robert Utter observed a white male leave the hotel room and remove a small suitcase from the cab of a 1986 Chevrolet pickup truck with Arkansas tag number RAR 723. The truck was later identified as being registered to Bruce M. Todd at an address in Little Rock, Arkansas. After Todd was identified as the individual who approached the truck earlier and removed the suitcase, a trained police dog was called in to inspect the vehicle for drugs. Officer Donald Schubert of the Montgomery County K-9 Section testified that he responded to the Holiday Inn parking lot with his dog, which was trained in narcotics ²⁷⁰ detection, on 5 September 1990.

Officer Schubert unhooked the dog from its leash and it walked around the perimeter of the truck without giving any positive reaction. The dog was then directed onto the bed of the truck and again gave no indication that it had found any contraband. Finally, the dog entered the cab of the truck through an open window. Officer Schubert looked into the rear window and observed the dog on the floor scratching underneath the passenger side seat, signifying that it had detected the scent of drugs.

Upon Officer Schubert’s command, the dog exited the truck through the window. All of the foregoing information, together with other information (much of which was several years old) contained in the Montgomery County Police Special Investigations Division’s file on Bruce Todd, was the basis for an application for search warrants for both Room 831 at the Holiday Inn and Bruce Todd’s truck. Before the search warrants were issued, Todd and Ms. Wadlow left the hotel room and drove off in Todd’s truck. At 10:52 p.m., Sergeant Fuhs decided to stop Todd’s vehicle.

The occupants were detained until the warrants were signed, which was at approximately 11:00 p.m. At that time the truck was searched and a black bag that contained more than one pound of cocaine was found in the rear of the truck, exactly where police had observed Todd place it. There was no evidence that either the bag or its contents were ever touched by Ms. Wadlow, and none of the items contained within the bag were ever shown to belong to her or to have any connection to her. Thereafter, the hotel room was also searched.

Recovered from the hotel room were several items of drug paraphernalia and other evidence. At the suppression hearing, Ms. Wadlow did not produce any evidence to the effect that she had any interest in the bag or its contents. Accordingly, the trial court held that Ms. Wadlow had no standing to object to the introduction into evidence of the bag and its contents as she had no interest or expectation of privacy in either. We agree. ²⁷¹ The proponent of a motion to suppress has the burden of establishing that her Fourth Amendment rights have been violated by the challenged search and seizure.

Ricks v. State, 312 Md. 11, 26 , 537 A.2d 612 , cert. denied, 488 U.S. 832 , 109 S.Ct. 90 , 102 L.Ed.2d 66 (1988). “It is not sufficient to establish standing, where challenged, merely to show that one was on the premises where a search occurs.” Id. Here, all of the evidence produced showed that Ms. Wadlow had no expectation of privacy in the truck; she was merely a passenger in a vehicle titled in Todd’s name. Ms. Wadlow presented no argument at the suppression hearing or in her brief that she had any interest in the bag that contained a substantial quantity of cocaine. Ms. Wadlow has no Fourth Amendment standing to challenge the search and seizure in this case.

III Ms. Wadlow next contends that she was denied a fair trial by the State’s failure to provide adequate discovery and its suppression of fingerprint evidence and by the admission of prejudicial testimony by Detective Mancuso. Richard Gervasoni, Chief Chemist of the Montgomery County Police Crime Laboratory, testified at trial that he turned over “the plastic bags that contained the powder in this case so [Officer Ridgely] could use the bags or have the bags taken and tested for fingerprints and those bags were turned over to Officer Ridgely on September 24.” It was not until the second day of trial, however, that defense counsel learned that fingerprint testing had been performed on the bag. Defense counsel was unable to locate a report on those fingerprints, and neither Officer Ridgely nor the Office of the State’s Attorney had any knowledge of those results. Ms. Wadlow contends that, because that information was potentially exculpatory, withholding it from the defense was a violation of her constitutional due process rights. ²⁷² “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194, 1196-97 , 10 L.Ed.2d 215, 218 (1963).

In order for the evidence to be “material,” there must be a “reasonable probability” that Wadlow would have been found not guilty on some of the charges had the “suppressed” evidence been disclosed timely: See United States v. Bagley, 473 U.S. 667, 682 , 105 S.Ct. 3375, 3383 , 87 L.Ed.2d 481, 494 (1985). The State’s theory at trial was that Ms. Wadlow and Todd jointly and constructively possessed the cocaine; there was no contention or suggestion that Ms. Wadlow had personally handled the cocaine. Further, Ms. Wadlow was apprised at trial that the plastic “zip-lock” baggies in question had been submitted for fingerprint analysis and that none of Ms. Wadlow’s prints had been identified thereon. She was clearly afforded ample time to present that information to the jury.

Furthermore, any prejudice to Ms. Wadlow was overcome by the court’s “missing evidence” instruction on the State’s failure to produce fingerprint evidence. Ms. Wadlow contends that the State proffered only limited anticipated “expert” testimony by Detective Mancuso, then was permitted to elicit extensive testimony that far exceeded the State’s proffer, in violation of Maryland Rule 4-263. 1 Under that heading, Ms. Wadlow’s brief sets forth several generalized complaints about Detective Mancuso’s ²⁷³ testimony, but the only specific complaint that translates into an assertion of judicial error involves a certain light-colored piece of paper containing numbers (fractions) written in dark ink. Detective Mancuso, over objection, was permitted to state, based on his training and experience in drug cases, that the paper, which was found in Ms. Wad-low’s wallet, was a “tally sheet” used in the drug trade to keep track of sales. The Assistant State’s Attorney had sent a one-page letter to defense counsel, informing counsel that Officer Mancuso would testify that: “Lauren Marie Wadlow and Bruce Michael Todd jointly possessed the cocaine found in the truck, on them and in the hotel room on September 5, 1990, indicating an intent to distribute.” Ms. Wadlow complains that Mancuso’s testimony concerning the “tally sheet” was overly prejudicial expert testimony on a matter that the defense was not apprised of as required by Rule 4-263.

Detective Mancuso was not testifying as an expert within the contemplation of Rule 4-263 in regard to the tally sheet, but was testifying as a non-expert allowed to express an opinion based on his special observations and expertise, his training and experience as a police officer who had been involved in undercover work dealing with drug traffickers. “Whether to allow such testimony lies within the sound discretion of the trial court.” Yeagy v. State, 63 Md.App. 1, 22 , 491 A.2d 1199 (1985). We find no abuse of discretion in allowing this non-expert opinion testimony. Even if Detective Mancuso’s testimony were deemed to constitute “expert” opinion evidence, there would be no violation of Rule 4-263. Under § (b)(4) of the rule, the only disclosure that Ms. Wadlow was entitled to receive was any previously rendered oral or written reports by Mancuso to the State’s Attorney, not the sum and substance of Mancuso’s proposed trial testimony.

IV Ms. Wadlow contends that the evidence was insufficient either to connect her with the drugs seized from Todd or to ²⁷⁴ prove an agreement between the two of them to distribute cocaine. The standard for our review of the sufficiency of the evidence is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Barnhard v. State, 86 Md. App. 518, 532 (1991), aff'd, 325 Md. 602 , 602 A.2d 701 (1992), citing Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979) (emphasis in original). See also In re: Antoine H.,, 319 Md. 101, 107 , 570 A.2d 1239 (1990). Circumstantial evidence is entirely sufficient to support a conviction, provided the circumstances support rational inferences from which the trier of fact could be convinced beyond a reasonable doubt of the guilt of the accused.

Finke v. State, 56 Md.App. 450, 468-78 , 468 A.2d 353 (1982), cert. denied, 299 Md. 425 , 474 A.2d 218 cert. denied, 469 U.S. 1043 , 105 S.Ct 529 , 83 L.Ed.2d 416 (1984). Although courts have repeatedly stated, usually by way of dictum, that “a conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence,” see West v. State, 312 Md. 197, 211-12 , 539 A.2d 231 (1988) (emphasis in original), the meaning of that “rule” is obscure. What would constitute a conviction based on circumstantial evidence alone? One in which every element of the crime, including the corpus delicti, is proved by circumstantial evidence?

One in which any element of the crime is established by circumstantial evidence? Or one in which the defendant’s connection with the crime can only be shown through circumstantial evidence? And what constitutes a “reasonable” hypothesis of innocence? One that is merely plausible?

Or one that is at least as probable as the hypothesis of guilt? Fortunately, it is a rare case indeed that would call for the application of such a rule. This is not one of