Summers v. State

ADKINS, Judge. James H. Summers, appellant, was convicted by a jury in the Circuit Court for Baltimore City of possession of cocaine and possession of heroin. The jury did not return verdicts on charges of possession with intent to distribute heroin, posses ³⁶⁷ sion with intent to distribute cocaine, and resisting arrest. Appellant presents two questions on appeal: I. Did the trial court err in permitting the State to impeach him with a prior conviction for possession with intent to distribute a controlled dangerous substance?

II

Did the trial court err in denying a defense request for a mistrial because two of the jurors had discussed the case over lunch and because one of the jurors felt “harassed” by the deliberations? We find no error and affirm the judgments. FACTS AND LEGAL PROCEEDINGS On March 2, 2001, at about 5:30 p.m., Baltimore City police officers Jeff Young, Chris Maleki, and Eric Green were in plain clothes, patrolling an area near the 600 block of Cumberland Street and the 2400 block of Stockton Street in an unmarked police vehicle. As they were driving eastbound on Cumberland, they saw 25 to 30 people “running off’ Cumberland onto Stockton.

The officers had received complaints that narcotics were sold in the area, so they pulled onto Stockton Street to investigate. They saw a line of people on the sidewalk, with appellant at the head of the line, facing the other individuals. He was holding a bag of gel capsules, which, according to Young, was what heroin is usually packaged in. Appellant was handing one of the gel caps to the person at the head of the line.

Another individual was collecting money. Someone yelled, “5-0,” meaning that police officers were in the area. The line dispersed. Appellant ran into a vacant yard, but a fence had recently been installed.

Appellant then turned around and tried to run past the officers. Appellant still had the bag of gel caps in his hand. Officer Young tried to bring “him down to the ground to make an arrest.” As Young grabbed appellant, appellant “shot putted” the bag to the ground. ³⁶⁸ Young tried to arrest him but appellant “continued to roll around on the ground.” Maleki recovered the baggie and held it until it was submitted to the Evidence Control Unit for analysis. Green assisted Young in arresting appellant.

After appellant was arrested, Young took him to the police station and the “wagon man” took him to Central Booking. Central Booking would not accept appellant because he had an “abrasion” near his eyebrow. The “wagon man” instead took him to the hospital. According to Young, he met appellant at the hospital, while Maleki and Green remained at the police station.

On cross-examination, defense counsel elicited from the officers that appellant was wearing a reddish-plaid shirt that day. The baggie that appellant threw down contained 43 gel caps and seven white-top vials. Analysis of the gel caps indicated that they contained heroin. The white-top vials contained cocaine.

Appellant testified that he was standing on line waiting to buy heroin. He testified that he was an addict and had been using heroin for 17 years. Someone yelled “5-0,” and everyone started running. One police officer threw him to the ground and another officer kicked him.

Appellant reported that Young was at the hospital and that, while he was there, Maleki came and told appellant that he was being charged with possession of cocaine as well. He told the jury that on the way from the hospital to Central Booking, the officers stopped at a liquor store and bought four six packs of beer. In rebuttal, Green denied that he had kicked appellant and that he stopped at any store when appellant was in the car. DISCUSSION I. Impeachment With A Prior Conviction Before trial, appellant moved in limine to exclude evidence of a prior conviction for possession of a controlled dangerous ³⁶⁹ substance "with intent to distribute.

Defense counsel argued that because of the similarity of the conviction with the current charge, the jury was likely to misuse the prior conviction. She also pointed out that appellant was the only witness for the defense and that his testimony was central. When the trial court suggested that the credibility factor favored allowing use of the prior conviction to impeach, counsel countered that appellant was not going to portray himself as “a stellar defendant,” and would testify that he was waiting to buy drugs. The trial court held the issue sub curia, and returned to the issue after the State rested its case.

The court reviewed the criteria for determining whether to allow’ impeachment with a prior conviction, as set forth in Jackson v. State, 340 Md. 705, 717 , 668 A.2d 8 (1995). The trial court ascertained that the conviction was less than 15 years old and that it was for an impeachable offense. It then considered the remaining factors: The year [was] 2000, so it is very close. That probably weighs against.

Similarity, it is the same sort of offense, which of course weighs against. So what’s left is the importance of the defendant’s testimony and the centrality of the testimony. I’m instructed, of course, by Jackson v. State that where credibility is a central issue[,] the probative value is considered great and weighs heavily against the danger of unfair prejudice, rather than permit the [defendant to [portray] himself to the jury as someone without any criminal conduct in his background, the stellar picture of himself. I will permit the State to impeach with the conviction.

The Parties’ Contentions Appellant contends that the trial court applied the factors set out in Jackson mechanically, rather than “thoughtfully,” and that it gave too much weight to the centrality of appellant’s testimony. Stressing the discrepancy between the officers’ testimony and appellant’s, the State counters that the trial court properly exercised its discretion in permitting the impeachment. ³⁷⁰ Admissibility Of Prior Convictions Md. Rule 5-609 governs admissibility of prior convictions to impeach a witness. That rule provides, in pertinent part: [Ejvidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if ... the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party. In Jackson, 340 Md. at 717 , 668 A.2d 8 , the Court of Appeals identified five factors for trial judges to consider when weighing the probative value of a past conviction against its prejudicial effects: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of defendant’s testimony; and (5) the centrality of the defendant’s credibility.

Similarity between the prior conviction and the crime for which a defendant is being tried does not per se preclude impeachment with that conviction. See Facon v. State, 144 Md.App. 1, 47, 48 , 796 A.2d 101 (2002), rev’d on other grounds, 375 Md. 435 , 825 A.2d 1096 (2003). Whether the probative value of impeachment evidence outweighs its prejudice is a matter within the trial court’s discretion. See Jackson, 340 Md. at 713 , 668 A.2d 8 . “When the trial court exercises its discretion in these matters, we will give great deference to the court’s opinion.” Id. at 719 , 668 A.2d 8 .

In Jackson , the Court of Appeals noted that, “[w]here credibility is the central issue, the probative value of the impeachment is great, and thus weighs heavily against the danger of unfair prejudice.” Id. at 721 , 668 A.2d 8 (emphasis in original). In Facón, we concluded that the trial court did not abuse its discretion in admitting evidence of two prior convictions for armed robbery in Facon’s trial on the same offense. See Facon, 144 Md.App. at 48 , 796 A.2d 101 . In ³⁷¹ doing so, we stressed the importance of the appellant’s credibility: [Ajppellant’s credibility was of particular importance to this case.

He wanted the jury to believe his version of the incident, i.e., that he was high on drugs at the time of the robbery, did not use a real handgun, and did not intend to steal cigarettes. The State obviously had a different theory. Id. In this case, defense counsel similarly challenged the officers’ credibility by noting that they had been waiting together outside the courtroom, by asking whether they had spoken to each other about the case, and by pointing out that all used the same phrase in describing how appellant discarded the baggie.

Defense counsel had the officers describe what appellant was wearing, then introduced the property log to impeach that testimony. Appellant testified that he was waiting to buy drugs, not selling them. In addition, he testified that Green kicked him in the face and that the officers stopped to buy liquor while taking him from the hospital to Central Booking. Appellant denied that he had been wearing a plaid jacket, shoving the property sheet as evidence that he had not had one when he was arrested.

He told the jury that the officers “fibbed” about him talking to someone at the police station, and that they made a mistake in arresting him. We cannot say that the trial court abused its discretion in determining that appellant’s prior conviction for distribution of a controlled dangerous substance was relevant to his credibility as a witness in this case. It is undisputed that appellant’s credibility was central to the case, and that the jury’s verdict would depend on whether it believed appellant or the police officers. Moreover, as the State points out, the jury was instructed that the conviction was to be used only to decide whether appellant was telling the truth, not “as any evidence that the Defendant committed the crime that’s charged in this case.” ³⁷² In these circumstances, the trial court properly exercised its discretion in concluding that “the probative value of the impeachment is great, and thus weighs heavily against the danger of unfair prejudice.” Jackson, 340 Md. at 721 , 668 A.2d 8 (emphasis in original).

We find no error in the court’s ruling that the probative value of admitting the evidence outweighed the danger of unfair prejudice.

II

Jury Deliberations Appellant’s second contention is that the trial court erred in denying his motion for a mistrial based on a discussion that occurred between two jurors during deliberations, because one of the jurors may have been coerced into reaching a verdict. The jury retired to deliberate at 10:29 a.m. on the second day of trial. At 11:56 a.m., the trial court told counsel that they had two notes from the jury. One read: “Clarify options if we can’t agree.” The other read, “Please provide me with further explanation of the difference between the actual and indirect possession.” The trial court responded to the notes and the jury resumed deliberation.

At 2:32 p.m., the trial court told counsel that it had two more notes. One asked whether, if the jury was deadlocked on one question but agreed as to others, the jury could return a verdict as to that count. The second note, from an “unidentified juror,” read, “I feel harassed. I want off this jury because I disagree.” With counsels’ concurrence, the trial court conducted a voir dire of the jury. .

It asked each juror whether anything happened during the course of deliberations that raised concerns about the juror’s ability to reach an impartial verdict, and whether anything created a concern about the jury’s ability to reach a fair and impartial verdict. Ten of the jurors informed the trial court that one of the jurors was not participating in the deliberations or had a closed mind. They told the trial court, however, that they could reach a fair and ³⁷³ impartial verdict on some of the charges. Jurors 1 and 11 also told the trial court that the jury had agreed on two counts.

The “unidentified juror” turned out to be Juror No. 4. The following exchange is relevant: THE COURT: Has anything happened during the course of the deliberations that have raised a concern in your mind about your ability to reach a fair and impartial verdict at this trial? JUROR NO. 4: Yes, I think so. THE COURT: Okay, what has happened?

Without identifying any particular person and do not identify for me in any way which way the jury is leaning or which way any particular member of the jury is leaning, tell me, generally, what has raised the concerns with you? JUROR NO. 4: I think the distrust between the police and the citizens of Baltimore have— THE COURT: Okay. Well, I’m looking more along the lines of anything happening in your deliberations that raised a concern about your ability to be fair. JUROR NO. 4: Well, like, one of the jurors discussed the case for 20 minutes at lunchtime with me.

You’re not supposed to do that. THE COURT: Okay. Again, don’t identify that person. Notwithstanding the fact that you’ve had that discussion, do you believe the jury can reach a fair and impartial verdict on any of the counts?

JUROR NO. 4: No. THE COURT: On any of the counts? JUROR NO. 4: Some of them, yes. We’ve already reached— THE COURT: Okay. And you think that, notwithstanding the discussions, that the verdict you’ve reached so far would be fair and impartial?

JUROR NO. 4: What do you mean by so far? THE COURT: Well, I understand you say you’ve got agreement on some of the counts or one of the counts— ³⁷⁴ JUROR NO. 4: Right. THE COURT:—that you have reached agreement. JUROR NO. 4: Right.

THE COURT: Okay. Do you believe that to be a fair and impartial verdict? JUROR NO. 4: Yes. After the trial court completed questioning the jurors, defense counsel moved for a mistrial, setting forth two reasons.

First,' counsel argued, Juror No. 4 said she had discussions with another juror during lunchtime. Second, almost all of the jury members