Trusty v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. Heroin, cocaine, marijuana and drug paraphernalia were seized from Tyrone Trusty incident to a warrantless arrest. He was charged with various violations of the controlled dangerous substances laws. His conduct during the course of the arrest prompted additional charges of resisting arrest and assault on the arresting officer.

The charges against him were filed in the Circuit Court for Baltimore City. He called upon the constitutional prohibitions against unreasonable searches and seizures. 1 He filed ⁶⁶¹ a pretrial motion to suppress the evidence recovered from him on the ground that his arrest was illegal as lacking probable cause. Rule 4-252(a)(3). Therefore, he claimed, the seizure of the contraband was unlawful as in violation of his constitutional rights against unreasonable searches and seizures, and the exclusionary rule applied to suppress the evidence.

He placed the burden on the State to prove that his constitutional rights had not been denied. 2 After a plenary hearing the trial court denied the motion. It found that there was “ample probable cause to support the search that followed.” At the ensuing trial on the merits the challenged evidence was placed before the jury. As there was no renewal of the motion and grant of a hearing de novo thereon, the previous ruling of the court was binding. Rule 4-252(g)(2).

The jury convicted Trusty of all of the charges submitted to it — possession of heroin, cocaine, marijuana and drug para ⁶⁶² phemalia, resisting arrest and the assault and battery of the arresting officer. Sentences were imposed. I On direct appeal the Court of Special Appeals reversed the judgments entered on the convictions of the controlled dangerous substances laws. Upon its independent constitutional appraisal of the record of the hearing on the motion to suppress, it was unable to share the belief of the hearing court that the State had met its burden of establishing that the police had probable cause for the arrest. 3 After carefully reviewing the evidence produced at the hearing, the intermediate appellate court concluded: “[T]he State simply failed to prove affirmatively the foundation for [the arresting officer’s] belief that he was witnessing a drug transaction.” Trusty v. State, 67 Md.App. 620, 629 , 508 A.2d 1018 (1986).

It thought that the narcotic convictions “were clearly based on the introduction of the evidence, which we hold should have been suppressed____” Id. at 630 , 508 A.2d 1018 . Therefore, it reversed the judgments on those convictions. Id. In the proceedings before us on Trusty’s petition for a writ of certiorari to the Court of Special Appeals, the State does not challenge the reversal of the judgments on the narcotic charges.

It concedes: [T]he Court of Special Appeals was entirely correct in ruling that the State had not met its burden of proving the existence of probable cause at the suppression hearing below. That court also properly reversed the drug convictions, finding that they were based upon the physi ⁶⁶³ cal evidence which should have been suppressed, (footnote omitted) Thus, the propriety of the judgment of the Court of Special Appeals with respect to the narcotics offenses is not before us and that judgment stands as rendered. We, therefore, affirm the judgment of the Court of Special Appeals which reversed the “judgments [entered by the Circuit Court for Baltimore City] of conviction of possession of heroin, cocaine, marijuana and paraphernalia____” Rule 813 a. II (A) On direct appeal the Court of Special Appeals affirmed the trial court’s “judgments for conviction of assault and resisting arrest____” Trusty sought to have the intermediate appellate court review the sufficiency of the evidence to sustain these convictions.

He presented the question: “Did the lower court err by denying [his] motion for judgments of acquittal because the evidence was insufficient?” See Brooks v. State, 299 Md. 146, 156-157 , 472 A.2d 981 (1984); Gray v. State, 254 Md. 385 , 387-388 and 393, 255 A.2d 5 (1969), cert. denied, 397 U.S. 944 , 90 S.Ct. 961 , 25 L.Ed.2d 126 (1970). He contended that his warrantless arrest was unlawful as not based on probable cause and that “a person may legally resist an unlawful arrest even with force.” Absent a valid arrest, he argued, the evidence was insufficient to sustain the convictions of resisting arrest and assault on the arresting officer. The Court of Special Appeals found no error in the denial of the motion for judgment of acquittal, but it did so on procedural grounds. It refused to address the matter of the sufficiency of the evidence.

It said that Trusty, in moving for judgment of acquittal, had failed to comply with Rule 4-324(a) in that he did not state with particularity the reasons why the motion should be granted. 67 Md.App. at 630 , 508 A.2d 1018 . As “such articulation” is expressly required, the intermediate appellate court declared, “we ⁶⁶⁴ may not consider this issue on appeal.” Id. See State v. Lyles, 308 Md. 129, 135 , 517 A.2d 761 (1986). In Trusty’s petition for the writ of certiorari granted by us, 4 the main thrust of his attack on the challenged judgments bypassed the question whether the evidence before the jury met the test for sufficiency to sustain the convictions.

He asked: Was the affirmance of the Court of Special Appeals of [the] convictions for assault and resisting arrest erroneous in light of that court’s ruling that the trial court had erred in finding that [his] arrest was legal? As we have seen, the Court of Special Appeals ruled, and the State acknowledges, that the trial court erred in denying the motion to suppress the evidence seized from Trusty incident to his arrest. Had the trial court granted the motion as the Court of Special Appeals determined it should have done, the judicial sanction of exclusion of the evidence and our Rule which implements that sanction would have barred the use of the challenged evidence in the prosecution of Trusty. 5 As we have also seen, under the authority of its erroneous pretrial ruling, the trial court permitted the evidence to be submitted to the jury in the State’s case in chief. Given the error, the question is what are the consequences?

From opening statement to closing argument the prosecution took full advantage of the denial of the motion to suppress. In the opening statement the State stressed that it would prove that heroin, cocaine and marijuana were found on Trusty’s person. It told the jury that it would “see pictures of everything that was recovered from the person of Tyrone Trusty.” It emphasized that chemical ⁶⁶⁵ analysis established that the substances seized were the named narcotic drugs. This was all in the light of assertions that the arresting officer would testify that he observed Trusty passing to another person what the officer believed from his experience and training — “he’s had 600 narcotic arrests, 300 involving marijuana” — were narcotics.

The State then proceeded to prove what it had told the jury it would prove. The arresting officer testified that after observing Trusty on the street make what the officer believed was a deal for narcotics, he approached Trusty, identified himself as a police officer, and told Trusty that he was under arrest. Trusty fled. The officer pursued him, finally caught him, and after a struggle, subdued him with the assistance of fellow officers.

Trusty was taken into custody and searched, although still resisting. The officer told the jury: [In his] left hand he had six glassine bags containing a white powder which was analyzed and found to be heroin. Also after recovering those items, Mr. Trusty had another glassine bag which was inside of his wallet. That, too having a white powder substance, suspected heroin and he had gelatin capsules with white powder substances in it, which was suspected to be cocaine, in his pants pocket.

The officer said that a common packaging method for cocaine was gelatin capsules and for heroin, clear little plastic bags. In brown manila bags, which had fallen to the ground from Trusty’s hand, were green-brown leaves suspected to be marijuana. A spoon, commonly used in connection with certain narcotics, was also found. Photographs of all the contraband seized were handed to the jury.

An officer who had assisted in the apprehension of Trusty also described in fine detail what had been seized from Trusty. At the request of the prosecutor, he identified to the jury each item he described through its photograph. There was evidence by way of stipulation that a chemist who was “an expert in laboratory analysis of suspected drugs” had analyzed the substances seized and that they were heroin, cocaine and marijuana. ⁶⁶⁶ In the charge to the jury the court said that “possession of heroin, possession of cocaine, possession of marijuana, possession of paraphernalia ... is an offense, criminal offense____” He continued, “I instruct you that they are designated by law as controlled dangerous substances, and, two, that [Trusty’s] possession was not authorized by law.” He described “possession” as “the act or condition of having on one’s person or taking into one’s control.” He told the jury that paraphernalia included “items of personal property which are used in connection with drugs” and that such items “[c]ould be, in our case ... the little ... glassine bags, the brown paper bags ..., the five manila envelopes and various of the measuring spoon____ These items are considered paraphernalia to be used in either administering or the packaging of the controlled dangerous substances.” He concluded: “Now, as I told you, it is an offense, criminal offense to possess these items in a manner in which I have just described to you.” All of this led to an instruction on assault, which the judge noted was on the officer who was involved in the arrest, and to an instruction on resisting arrest. As to the latter, he explained that “resistance to a lawful arrest is a criminal offense.” He observed: [T]he State must prove beyond a reasonable doubt, one, that there was an arrest of the Defendant, the arrest was lawful, there was a refusal to submit to the arrest by the Defendant, there was resistance to an officer of the law in the performance of his duties, and the officer had identified himself as such.

In the prosecutor’s opening argument to the jury he characterized heroin, cocaine and marijuana as “poison” and asserted: “We all know the misery that narcotics cause in our City and our nation.” He declared: Now the first three charges, possession of heroin, cocaine and marijuana, is a proven, given fact because you will be able to take this piece of paper up with you to the jury room and this will describe the items in these photographs and it will describe the analysis by an expert in ⁶⁶⁷ that field in the Baltimore City Police Department. You will see that item one right here, these six packages that Tyrone Trusty had on his person, was heroin. You will see that item two, one glassine bag which was found in Tyrone Trusty’s wallet, was heroin. Item number three, one clear capsule containing a residue, cocaine.

He referred the jury to other photographs of capsules containing cocaine. He emphasized: Tyrone Trusty had marijuana. He had cocaine. He had heroin on his person.

He was running a drug store. He suggested: “You may use your common sense to figure out why Mr. Trusty ran with the paper bag containing all of this poison.” He stressed that when Trusty was apprehended the police found “even more drugs, more narcotics” on his person. He pounded on the fact that Trusty had in his possession heroin, cocaine, marijuana and paraphernalia. He exclaimed: Tyrone Trusty had three types of poison on him that day____ He resisted arrest and assaulted a police officer of the Baltimore City Police Department.

It is clear that the prosecutor was attempting to convey to the jury that the seized contraband and the resisting arrest and assault crimes were directly connected. In closing argument he made it plain. He asked the jury to “use [your] common sense as to why Tyrone Trusty fled,” and he suggested that the answer was: “It’s because he had all these substances on him.” He summed it up: The law is if someone possesses these three substances and paraphernalia, if they in fact initiated bodily contact like an assault as Tyrone Trusty did on a police officer and, in fact, he did resist arrest, he is guilty of these crimes. He concluded by declaring that “the evidence the State has given you has been overwhelming.” He asked the jury to do its duty and “that is to return a verdict of guilty to all six charges.” The jury did so in less than an hour and a ⁶⁶⁸ half, including time to return to the courtroom during its deliberations to ask a question.

(B) The Supreme Court of the United States has recognized that “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Chapman v. California, 386 U.S. 18, 22 , 87 S.Ct. 824, 827 , 17 L.Ed.2d 705 (1967). 6 In light of this we fashioned a test for the determination of a harmless error: [W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated. Such reviewing court must thus be satisfied that there is na reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict. Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976). We explained in Ross v. State, 276 Md. 664, 674 , 350 A.2d 680 (1976): The essence of this test is the determination whether the cumulative effect of the properly admitted evidence so outweighs the prejudicial nature of the evidence erroneously admitted that there is no reasonable possibility that ⁶⁶⁹ the decision of the finder of fact would have been different had the tainted evidence been excluded. “[T]he burden of demonstrating the innocuous nature of an erroneous ruling is upon the State as the beneficiary of the transgression.” Hillard v. State, 286 Md. 145, 155 , 406 A.2d 415 (1979).

(C) The erroneously admitted evidence in this case permeated the entire proceedings. It was the heart of the prosecution and from it flowed the lifeblood of the State’s case. It gave credence to the officer’s belief that he observed Trusty in the course of a drug transaction. It provided an explanation why Trusty fled when the officer approached and