Stone v. State

DEBORAH S. EYLER, Judge. In the Circuit Court for Frederick County, Donald Leroy Stone, the appellant, was charged with first degree burglary, second degree assault, possession of a controlled dangerous substance (CDS), possession of drug paraphernalia, and two counts of felony theft. He filed a pretrial motion to suppress tangible evidence and statements he made to the police, ⁴³⁵ alleging that they were obtained in violation of his Fourth Amendment rights. The court held a suppression hearing and denied the motion.

The case was tried to a jury for two days. The appellant was convicted of second-degree assault, possession of a CDS, possession of drug paraphernalia, and one count of felony theft. He was acquitted of first-degree burglary and the State entered a nolle prosequi on the second count of felony theft. The court imposed sentence of 15 years’ imprisonment for felony theft, to be served concurrent with two years’ imprisonment for second-degree assault and three years’ imprisonment for possession of CDS.

The appellant noted a timely appeal. We have combined and rephrased his questions presented as follows: I. Did the suppression court err in ruling that the police had probable cause to arrest the appellant for burglary and felony theft?

II

Did the suppression court err in ruling that the appellant’s arrest was not illegal after it disallowed evidence about the police’s electronic surveillance of the appellant?

III

Did the prosecutor improperly vouch for a witness in closing argument so as to require reversal of the second degree assault conviction?

IV

Did the sentencing court err in denying the appellant’s request to proceed with counsel of his own choosing? For the following reasons, we shall affirm the judgments of the circuit court. FACTS AND PROCEEDINGS On October 17, 2005, Maryland State Trooper Richard Bachtell stopped a green Ford pickup truck in which the appellant was seated as a passenger and Joanne Stone, the appellant’s wife, was driving. Corporal Jason West of the Frederick County Sheriffs Office and Maryland State Trooper ⁴³⁶ Martin Speak joined Trooper Bachtell in the stop shortly after it commenced.

The three officers arrested the appellant and his wife in connection with the October 6, 2005 burglary of Judith Reisman’s house, located at 1840 Mt. Ephraim Road, in Adamstown. In a search of the appellant incident to arrest, Corporal West recovered a glass pipe. Subsequent testing revealed trace amounts of cocaine in the pipe.

Ultimately, the appellant was charged with crimes stemming from the Reisman burglary and with possession of a CDS. After placing the appellant under arrest, Corporal West transported him to the Sheriffs Department headquarters and advised him of his Miranda rights. 1 The appellant waived those rights and his right to prompt presentment. Under interrogation by Corporal West, the appellant made certain incriminating statements about the Reisman burglary. As noted above, he eventually filed a motion to suppress evidence, namely the glass pipe, the trace amounts of cocaine, and his incriminating statements.

We shall include additional facts as necessary to our discussion of the issues. I. The following facts, set forth in a light most favorable to the State as the prevailing party, were adduced at the suppression hearing. On October 6, 2005, Judith Reisman called the Frederick County Sheriffs Office and reported that her house had been broken into. Detective Joseph Rowe investigated Reisman’s complaint.

Reisman told Detective Rowe that the burglary had to have been carried out that day, sometime between 7:30 a.m. and 2:30 p.m. She described several cameras that had been stolen, including a Nikon. In investigating the burglary, Detective Rowe checked the Sheriff Office’s list of items recently pawned at local pawn shops. He discovered that a Nikon camera similar in descrip ⁴³⁷ tion to the one missing from Reisman’s house had been pawned at Famous Pawn at 12:33 p.m., on October 6, 2005, the same day as the Reisman burglary.

On October 14, 2005, at Detective Rowe’s request, Reisman met him at Famous Pawn. Corporal West was present as well. The three reviewed the store’s surveillance videotape for October 6. It showed a man and a woman entering the store together.

The woman was carrying a Nikon camera. Reisman identified the camera as one that had been stolen from her house. She told Detective Rowe that the camera was worth about $1,000. From prior encounters, Detective Rowe recognized the man on the videotape as the appellant.

Famous Pawn’s written record of the videotaped transaction showed that Joanne Stone signed a receipt for an outright sale of the Nikon camera for $75. There was some discrepancy between the testimonies of Detective Rowe and Corporal West as to whether the videotape showed the appellant physically touching the stolen Nikon camera. According to Detective Rowe, the appellant actually handled the camera. According to Corporal West, the appellant was not actually “in possession of th[e] camera.” 2 On the same day that he viewed the videotape, Corporal West told Trooper Bachtell that the Sheriffs Office was investigating the appellant and his wife in connection with the Reisman burglary.

Trooper Bachtell had been investigating the appellant and his wife for another residential burglary in Frederick County, in which a shotgun was stolen. Later that same day, Trooper Bachtell obtained the appellant’s cell phone number and contacted his cell phone service provider. At Trooper Bachtell’s request, the service provider conducted a “ping” of the appellant’s cell phone, which revealed that the phone was “within a two mile radius of the Frederick County Detention Center.” Using that information, Trooper Bachtell drove the roads in the vicinity of the detention center. He located a pickup truck ⁴³⁸ registered to the Stones parked at a motel. 3 He, Detective Rowe, and Corporal West believed at that point “that there may be another burglary that had been planned.” The three decided to attach a global positioning system (“GPS”) tracking device to the pickup truck parked at the motel. 4 On October 17, 2005, Trooper Bachtell received transmissions through his cell phone from the GPS device.

Using the transmission, he tracked and located the pickup truck. Joanne Stone was at the wheel. 5 Trooper Bachtell lost sight of the vehicle near Woodsboro. Forty minutes later, he saw Joanne Stone driving another vehicle, a green Ford pickup truck. (In an earlier interview of Joanne Stone’s sister, Trooper Bachtell had learned that someone in the Stone family, probably her mother, owned a blue-green Ford pickup truck.) The appellant was a passenger in the green Ford pickup truck.

Trooper Bachtell stopped the green Ford pickup truck and, together with Trooper Speak and Corporal West, arrested the appellant and his wife for the Reisman burglary and for felony theft of the Nikon camera. The suppression court ruled on the evidence before it that the officers had “probable cause to arrest [the appellant] for the felony theft of the Nikon camera based upon the testimony of Deputy Rowe as, again as well as the burglary of the Reisman residence.” (a) The appellant contends the suppression court erred in ruling that there was probable cause to support his arrest for ⁴³⁹ the Reisman burglary because the only evidence linking him to that crime was the “conflicting testimony of two police officers regarding the contents of a surveillance video.” He argues that the pipe and his incriminating statements to the police were fruits of his illegal arrest and therefore should have been suppressed from evidence. In reviewing the denial of a motion to suppress evidence, we are limited to the record before the suppression court. In re Calvin S., 175 Md.App. 516, 524-525 , 930 A.2d 1099 (2007); Carter v. State, 367 Md. 447, 457 , 788 A.2d 646 (2002). “We consider the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the prevailing party.” Myers v. State, 395 Md. 261, 274 , 909 A.2d 1048 (2006). “ “We extend great deference to the findings of the hearing court with respect to first-level findings of fact and the credibility of witnesses unless it is shown that the court’s findings are clearly erroneous.’ ” In re Calvin S., supra, 175 Md.App. at 525 , 930 A.2d 1099 (quoting Daniels v. State, 172 Md.App. 75, 87 , 913 A.2d 617 (2006)).

We review de novo the suppression court’s application of the law to the facts, and the determination of whether the evidence should be suppressed. See Swift v. State, 393 Md. 139, 155 , 899 A.2d 867 (2006). The Fourth Amendment permits a government agent to effect a warrantless arrest of a person in a public place for a felony if the arrest is supported by probable cause. Massey v. State, 173 Md.App. 94, 103 , 917 A.2d 1175 (2007) (citing Maryland v. Pringle, 540 U.S. 366, 370 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003)).

Probable cause is a “practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Pringle, supra, 540 U.S. at 370 , 124 S.Ct. 795 (citation omitted). Probable cause exists when the police possess reasonably trustworthy information, drawn from the totality of the facts and circumstances of each case, which supports the fair probability that contraband or evidence of a crime will be ⁴⁴⁰ found in a particular place or that the suspect has committed a crime. Massey, supra, 173 Md.App. at 104 , 917 A.2d 1175 . When evaluating whether a police officer had probable cause to arrest without a warrant, “we examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Pringle, supra, 540 U.S. at 371 , 124 S.Ct. 795 , (quoting Ornelas v. United States, 517 U.S. 690, 696 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996)).

Maryland law has long held that “the unexplained, exclusive possession of recently stolen goods permits an inference that the possessor is the thief.” Grant v. State, 318 Md. 672, 680-81 , 569 A.2d 1237 (1990) (citing Cross v. State, 282 Md. 468, 480 , 386 A.2d 757 (1978)). “And when it is shown that the property was stolen as a consequence of a breaking, the trier of fact may further infer that the thief was involved in the breaking.” Grant, supra, 318 Md. at 680-81 , 569 A.2d 1237 (citing Brewer v. Mele, 267 Md. 437, 449 , 298 A.2d 156 (1972)). “Exclusive possession” of recently stolen goods “does not necessarily require actual manual possession by an accused as long as he obtains a measure of control or dominion over the stolen goods.” Myers v. State, 165 Md.App. 502, 529-30 , 885 A.2d 920 (2005) (citing Gamble v. State, 2 Md.App. 271, 275 , 234 A.2d 158 (1967)), aff'd, 395 Md. 261 , 909 A.2d 1048 (2006). “Additionally, possession may be joint.” Myers, supra, 165 Md.App. at 529 , 885 A.2d 920 (citing Graham v. State, 6 Md.App. 458, 463 , 251 A.2d 616 (1969)). “In other words, as we have consistently held, ‘joint possession does not negate the notion of exclusive possession.’ ” Myers, supra, 165 Md. App. at 529-30 , 885 A.2d 920 (quoting Offutt v. State, 55 Md.App. 261, 263 , 463 A.2d 876 (1983)). On the evidence adduced at the suppression hearing, the police indeed had probable cause to arrest the appellant for the Reisman burglary. Their investigation revealed that the burglary had taken place between 7:30 a.m. and 2:30 p.m. on October 6, 2005, and that on that same day, at 12:33 p.m., the ⁴⁴¹ appellant and his wife, with the stolen Nikon camera in hand, had gone to the Famous Pawn Shop and sold the camera. Reisman had identified the camera as one of the items taken from her house in the burglary.

These facts supported a reasonable inference that the appellant was exercising “a measure of control or dominion” over the camera and thus was in joint possession of the camera at the same time that it had been taken from the Reisman house. Contrary to the appellant’s argument, for purposes of probable cause, it does not matter whether the appellant actually was handling the camera at the Famous Pawn store. When the officers observed the appellant in joint possession of the Nikon camera on the videotape within hours of the Reisman burglary, it was reasonable for them to infer that he had participated in the burglary. Accordingly, the police officers’ arrest of the appellant for burglary was supported by probable cause.

(b) The appellant also contends that the officers did not have probable cause to arrest him for felony theft of the Nikon camera. He argues that to arrest for felony theft in Maryland, the police must have probable cause to believe the value of the property stolen exceeds $500. Md.Code (1957, 2002 RepLVol.) § 7-104(g)(l) of the Criminal Law Article (“CL”). The appellant maintains that because his wife sold the camera to Famous Pawn for only $75, and “value” under CL section 7-103(a) is defined as “the market value of the property or service at the time and place of the crime,” the suppression court’s implicit finding that the value of the camera exceeded $500 was “clearly erroneous.” Alternatively, acknowledging that Reisman told Detective Rowe that the camera was worth $1,000, the appellant argues that the issue of the camera’s value should be remanded to the suppression court for decision because that court failed, in its ruling, “to specifically determine the value of the camera and resolve the State’s conflicting evidence.” ⁴⁴² Maryland law is well-established that the owner of personal property is presumptively qualified to testify about the value of his goods.

Pitt v. State, 152 Md.App. 442, 465 , 832 A.2d 267 (2003), aff'd, State v. Pitt, 390 Md. 697 , 891 A.2d 312 (2006). See also Cofflin v. State, 230 Md. 139, 142 , 186 A.2d 216 (1962). Reisman’s representation to the officers that the camera’s value was $1,000 was sufficient to give rise to probable cause to believe that a felony theft had been committed. Moreover, it is implicit in the court’s probable cause ruling that it credited the officers’ testimony that they believed the camera had a value of $1,000.

The suppression court did not err in ruling that the appellant’s arrest for felony theft was supported by probable cause.

II

At the suppression hearing, Trooper Bachtell testified on direct examination about using the cell phone “ping” and the GPS device to locate the appellant. On cross-examination, defense counsel questioned Trooper Bachtell about the functioning of the cell phone “ping” and the GPS device. Trooper Bachtell described how the “ping” and the GPS device communicated the location of the appellant’s cell phone and the Stones’ vehicle. The following colloquy ensued: [DEFENSE COUNSEL]: ...

Now who authorized you to put the GPS on? Who decided to put the GPS on? TROOPER BACHTELL: It was a joint decision.... TROOPER BACHTELL: Primarily between Rowe, West, and I, I would say, ah, the decision to do that [attach the GPS device].

Ah, manpower was a, a factor in that and the number of hours that we had already worked was a, was a factor that, that day. [PROSECUTOR]: Your Honor, I’m gonna object to this line of questioning. THE COURT: Sustained. ⁴⁴³ [DEFENSE COUNSEL]: Now ... how you, you asked, let’s go back to the telephone. You did a ping. That’s basically how you found the vehicle in the first place....

TROOPER BACHTELL: That’s definitely correct. [DEFENSE COUNSEL]: Explain what, to us what this ping is. [PROSECUTOR]: Again, Your Honor, objection for purpose of this motion to suppress. [DEFENSE COUNSEL]: Your Honor, I, I don’t know whether what they’ve done is legal or not until I ask these questions and that’s the purpose of a motion to suppress is to find out the legality of it. [PROSECUTOR]: But [defense counsel] clearly delineated the basis for that and that was that the stop, the arrest of [the appellant] was what was at issue here today. We’re going far afield and allowing it as a, at additional discovery if you will. I contend this information has been provided in the discovery. THE COURT: Well, that’s a separate issue, but sustained.

I think you’ve gone far afield on the issues for suppression. [DEFENSE COUNSEL]: So, well, actually, this all ... has to deal with the illegality of the stop, Your Honor. The information that they used and used as the basis for the stop, all of this information is based upon how they collected information. [DEFENSE COUNSEL]: The goings and comings of the Stones when such a device has not been approved without a court order than [sic] that goes to their illegal—they would not know where they were in order to stop ‘em and arrest ‘em okay? That’s number one. So that’s information that’s necessary.

It goes, it’s cumulative towards the issue of the illegal stop, the illegal, ah, arrest in this case. ⁴⁴⁴ [PROSECUTOR]: I believe [defense counsel] is trying to bootstrap what he’s trying to portray to the Court as an illegal activity by the investigative agencies of Frederick County and the Maryland State Police, arguing to this Court [sic] Trooper Bachtell has testified that other than the location, obtaining the original location of so that he began to pursue the individuals, that that information, put him, if you will, in a position to pursue them. There was various surveillance. There’s no indication that stated that as a result of the GPS or the ping location that they obtained information related to the burglaries and the basis for the probable cause for him stopping that vehicle. So I don’t see how that squares with what he said, [defense counsel] has laid out as the basis for the motion to suppress. [DEFENSE COUNSEL]: I disagree one hundred percent with that____ THE COURT: I understand you do.

I sustained the objection. In ruling from the bench, the suppression judge commented that, “[fit’s interesting concerning the placing of the, what’s it called, GPS device on the vehicle. But that doesn’t make the stop illegal.” The appellant contends that the suppression court abused its discretion by limiting his cross-examination of Trooper Bachtell about the cell phone “ping” and the GPS device. He maintains that if the suppression court had allowed further cross-examination, he may have elicited additional facts to show that the police officers’ use of the cell phone “ping” and the GPS device violated his rights under the Fourth Amendment and also violated the Maryland Wiretapping and Electronic Surveillance Act (the “Wiretapping Act”).

Md.Code (1977, 2006 RepLVol.) § § 10-401 to 10-414 of the Courts and Judicial Proceedings Article (“CJ”). He argues that the cross-examination about the cell phone “ping” and the GPS device were within the scope of direct examination and therefore the court’s ruling that the cross-examination was “far afield on the issues of suppression” was in error. ⁴⁴⁵ The State responds initially that this issue is not preserved for review. Specifically, the State argues that, at the suppression hearing, defense counsel never argued that the officers’ use of the