Thomas v. State

WILNER, Chief Judge. Appellant was convicted in the Circuit Court for Wicomico County of possession of cocaine, distribution of cocaine, and possession of cocaine within 1000 feet of a school. The court merged the simple possession count into the distribution count and, treating him as a second offender, sentenced appellant to ten years imprisonment without the possibility of parole under Md.Code, art. 27, § 286(c). The court imposed no sentence on the remaining count.

Appellant presents four questions in this appeal: “1. Did the trial court err in denying the motion for mistrial? 2. Did the trial court err in allowing evidence of prior crimes? 3. Did . the trial court impose an illegal sentence? 4.

Did the trial court err in concluding that the statute involved required a consecutive sentence?” We find no error with respect to the first two questions and shall therefore affirm appellant’s convictions; we hold, however, that the trial court erred in imposing a ten-year no-parole sentence and, accordingly, shall vacate the sentence and remand for resentencing. We do not reach the fourth question. FACTUAL BACKGROUND State Trooper Darren Whitehead testified that at about 3:30 p.m. on July 20, 1993, while working undercover, he drove to appellant’s house. Whitehead said that he had met appellant on June 17,1993 and had observed him on June 23.

He stated that appellant got into the car, that Whitehead gave him $20, and that, in exchange, appellant gave him a piece of crack cocaine. ⁴⁶⁴ Appellant was arrested at about 3:35 p.m. and was found to be in possession of crack cocaine at that time. DISCUSSION Mistrial On direct examination, appellant admitted that he was in possession of cocaine when he was arrested but denied ever meeting Whitehead or selling him cocaine. On cross-examination, the prosecutor, having elicited the fact that appellant had seen the trooper in court on one occasion, began to ask about appellant’s prior convictions. During this colloquy, amid several objections, defense counsel uttered the word “mistrial.” The word apparently left her lips as counsel approached the bench, before the court reporter was able to record the words preceding it.

The context in which the word was uttered is therefore unclear. The court did not respond to the word and thus did not regard counsel as having actually made a motion for mistrial, and counsel did not pursue the matter. 1 If counsel in fact intended to move for a mistrial, she certainly did not make that intent clear. In any event, even if we were to assume that such a motion was made and, by the court’s silence, it was effectively denied, we would find no abuse of discretion: The prosecutor’s attempt to show prior convictions was, to some extent, a fumbling one, requiring some guidance by the court, but there was clearly insufficient prejudice to warrant a mistrial. ⁴⁶⁵ The Photograph Trooper Whitehead testified that the day before he met appellant for the first time, he received a photograph of appellant from the Wicomico County Sheriffs Department. Over objection on grounds of relevance, the court permitted a copy of the photograph to be admitted into evidence, ruling that “[i]dentification, as I understand, is the issue here.” Appellant argues that, because of the stated source of the photograph, it amounted to evidence of a prior arrest whose probative value was clearly outweighed by the potential for prejudice.

He argues that “given the fact that Trooper Whitehead had very recently seen Appellant, twice, before,” the photograph had relatively little probative value on the question of identification, and that that little probative value was outweighed by the potential for prejudice. That issue is not properly before us because it was not raised in the circuit court. The basis of appellant’s objection below was that the photograph was not relevant; no claim was made that it constituted improper evidence of “other crimes.” The court ruled that the photograph was relevant to the issue of identification. Appellant had denied ever meeting Whitehead, and thus the photograph was relevant to establish that Whitehead correctly identified the man he met on June 17, the day after receiving the photograph, and the man from whom he purchased cocaine on July 20, as appellant.

The court did not err in overruling the objection, the grounds for which were limited to relevance. Even if the “other crimes” argument had been preserved for our review, we would find no error. There was no testimony as to how the sheriffs department had obtained the photograph—nothing directly indicating it was taken pursuant to an arrest. As the photograph is not in the record before us, we are unable to determine whether it is in the nature of a “mug” shot, but, even if it were clearly recognizable as such, “the decision of a trial court to admit mug shots of a defendant as substantive evidence will not be reversed absent a showing of clear abuse of discretion.” Straughn v. State, 297 Md. 329, ⁴⁶⁶ 334 , 465 A.2d 1166 (1983).

Given the clear relevance of the photograph to a disputed issue, we would not find that the court had abused its discretion in admitting it if the issue had been preserved. The Enhanced Sentence The issue here is whether the word “second,” as used in the enhanced punishment provision of Md.Code, art. 27, § 286(c)(2), really means only “second,” ie., “next in order after the first in time or place; the ordinal of two” (Webster’s ' New Universal Unabridged Dictionary), or whether it means anything more than “first” and thus includes “third.” Prior to 1988, art. 27, § 286(b)(1) required, in relevant part, that a person convicted of distributing certain specified drugs who had “previously been convicted under this paragraph” be sentenced to prison for not less than 10 years, that no part of that sentence be suspended, and that the defendant not be subject to parole except through Patuxent Institution. A similar provision appeared in § 286(b)(2) with respect to a subsequent conviction of distributing certain other drugs. Under that statute, the 10-year non-suspendable, essentially non-parolable sentence was mandated for each and every conviction after the first, provided that at least one prior conviction occurred before the later offense was committed.

In 1988, the Legislature repealed those parts of subsection (b) and substituted in their place a more structured enhanced punishment provision, which it added as new subsections (c), (d), and (e). Subsection (c)(1) provided that a person who had previously been convicted under subsection (b)(1) or (b)(2) “shall be sentenced, on being convicted a second time under either subsection (b)(1) or subsection (b)(2) of this section, to imprisonment for not less than 10 years.” (Emphasis added.) Subsection (c)(2) stated that the sentence of a person sentenced under subsection (b)(1) or (b)(2) “as a second offender ” could not be suspended to less than 10 years and that the person could be paroled during that period only through Patuxent ⁴⁶⁷ Institution. (Emphasis added.) The penalty mandated in subsections (c)(1) and (2) was thus comparable to that required by the deleted provisions formerly contained in subsections (b)(1) and (2), except that the new subsections applied only to persons convicted “a second time,” to a “second offender.” Subsection (d), a more complex provision, mandated a sentence of 25 years for a person “convicted a third time” under subsection (b)(1) or (b)(2), but only if (i) the person had previously been convicted on two separate occasions under subsection (b)(1) or (b)(2), (ii) the convictions did not arise from a single incident, and (iii) the person served at least one term of confinement of at least 180 days in a correctional institution as a result of a previous conviction under § 286 or § 286A. (Emphasis added.) That sentence was not subject to suspension and the defendant could not be paroled