Vandegrift v. State

WENNER, Judge. Appellant, Richard Vandegrift, Sr., was convicted by a jury in the Circuit Court for Cecil County (Rollins, E.D.E., Jr., J. presiding) of numerous narcotics offenses. The court sentenced him to a total of forty-five years imprisonment, plus fines totaling $40,000. Upon appeal, appellant raises a plethora of issues.

He urges us to hold that: I. The circuit court erred by denying his motion to suppress the evidence that was obtained pursuant to an order authorizing a wiretap.

II

The circuit court erred by denying his motion to suppress evidence that was obtained pursuant to several search and seizure warrants. ⁶²⁵ III. Judge Rollins should have recused himself from deciding all motions and from presiding at trial.

IV

The circuit court erred by failing to require the State to disclose the identity of a confidential informant or, in the alternative, having an in camera disclosure. V. The circuit court abused its discretion by admitting certain opinion evidence.

VI

The circuit court erred by permitting several handguns seized from Roy Reeps in Pennsylvania to be displayed to the jury.

VII

He was unfairly prejudiced by certain hearsay evidence.

VIII

The circuit court improperly admitted a chemist’s report without a proper chain of custody.

IX

The circuit court erred in admitting into evidence certain telephone records. X. The circuit court erred by requiring him to read to the jury from a transcript of [an] electronically recorded interception.

XI

The evidence was insufficient to support his convictions.

XII

The circuit court erred by failing to grant a mistrial due to the State’s improper argument to the jury.

XIII

His convictions for conspiracy to distribute should merge with his conviction for conspiracy to import. We agree that there was not sufficient evidence to sustain appellant’s conviction for the distribution of marijuana. We also agree with appellant’s argument with regard to the issue of merger. Otherwise, we shall affirm the judgments of the Circuit Court.

To set the stage for the discussion that follows, we shall, at the outset, introduce the principle characters. Maryland State Police Corporal Sandra M. Kestner and Trooper First ⁶²⁶ Class Charlie P. Alvear were the chief investigating officers. Lieutenant Richard G. Mobley of the Cecil County Sheriff’s Department prompted the investigation by relaying to Kestner and Alvear information furnished by a confidential informant. Lieutenant Mobley also assisted in the investigation.

Appellant, his son, Richard Vandegrift, Jr., his daughter, Irene Vandegrift, and appellant’s girlfriend, Brenda Wheatley, were the subjects of an ongoing investigation into what the police believed to be a complex drug distribution network. Roy Reeps, a Pennsylvania resident, was also a target of the investigation. James Tibbett “Tippy” Poore was the State’s chief witness. Early in the investigation, Poore was arrested for, and subsequently convicted, of possession of cocaine with intent to distribute.

Prior to his arrest, Poore had been a key player in the drug distribution network. Further facts will be developed as necessary for the disposition of the issues presented by appellant. I. The circuit court granted an ex parte order authorizing the interception of telephone communications at the residence of appellant and that of appellant’s son. Appellant and his co-defendants moved to suppress all evidence secured by electronic surveillance.

After a lengthy pre-trial hearing, Judge Rollins denied the motion. Upon appeal, appellant asserts that this ruling is incorrect for two reasons. First, he contends that the police failed to show in the application for electronic surveillance and the supporting affidavits that other investigative procedures had been exhausted before they sought the order. Second, appellant contends that the interception lasted five days longer than it should have.

We reject both contentions. Exhaustion An application for an order authorizing the interception of electronic communications must contain, in part, a full and complete statement of other investigative procedures that had been tried and had failed, or why such procedures reasonably appear to be unlikely to succeed or would be too ⁶²⁷ dangerous if tried. Md.Cts. & Jud.Proc.Code Ann. § 10-408(a)(3) (1989 Repl.Vol.). The underlying purpose of this requirement is to guard against the use of electronic surveillance as an initial investigative tool.

Bell v. State, 48 Md.App. 669, 674-675 , 429 A.2d 300 , cert. denied, 291 Md. 771 (1981). However that may be, it is not necessary that the State exhaust every possible investigative technique prior to seeking the order. Salzman v. State, 49 Md.App. 25, 33 , 430 A.2d 847 , cert. denied, 291 Md. 781 (1981). There is sufficient need for electronic surveillance where, in light of the objectives of the investigation, it appears that normal investigative techniques have been unsuccessful and, if continued, would be unlikely to yield the evidence sought.

With these precepts firmly in mind, we have reviewed the application and supporting affidavits and find them to be sufficient to demonstrate the need for electronic surveillance. According to the affiants, the overall objective of their investigation was to ascertain the identity and degree of involvement of any “higher-ups,” co-conspirators, and sources of supply of the illegal drug operation. The affidavits recited in detail that traditional investigative techniques had been employed but had failed to yield those objectives. Intermittent stationary and mobile surveillance at numerous locations had failed to reveal the identity of higher-ups and sources of supply.

Nor did the use of pen registers and toll billing reveal this information. The confidential informant was unable to identify sources of supply and those “higher-ups” other than appellant. Numerous other police agencies contacted by the affiants had no knowledge of the drug distribution network or any of its known participants. Furthermore, the affiants listed various investigative tools which were not used because they either appeared unlikely to succeed or might jeopardize the investigation.

Search and seizure warrants were not initially sought because it was not known whether the participants had in their possession narcotics, records, ledgers, or other incriminating evidence. The confidential informant was not willing to testify, and it was unlikely that other participants would come forward or could be approached without endan ⁶²⁸ gering the investigation. A “blind buy” was thought to be impractical because the participants were known to be reluctant to deal with persons with whom they were not acquainted. Moreover, visual surveillance was terminated once such surveillance began to arouse the suspicion of the suspects.

The affiants were officers experienced in the investigation of violations of narcotics laws. Where, as here, the objective of an investigation is to seek evidence regarding “higher-ups,” co-conspirators and sources of supply in a drug distribution network, we think that the failure of the investigative procedures we have just recounted are more than sufficient to comply with the exhaustion requirement. Duration Authorization to intercept communications over the targeted telephone lines began on July 19, 1988, and ended on August 17, 1988. In his brief appellant posits that the interception should have ended on August 7, 1988.

Why this is so we are not told. We hasten to remind appellant that he is required to support his position with some kind of cognizable argument as well as the facts material to its resolution. Md. Rule 8-504(a)(4) and (5). Notwithstanding this lack of illumination, although we are not required to do so, we have reviewed the record and have located what we believe to be the crux of appellant’s argument.

Appellant asserts that, inasmuch as Corporal Kestner said that she had sufficient information as of August 7 to begin drafting an application for a search and seizure warrant, the interception should have ended on that date. We find this argument to be utterly without merit. In the first place, there is no indication that as of August 7 the objectives of the investigation had been achieved. In the second place, that there was sufficient evidence available on August 7 to support the issuance of a search and seizure warrant does not, in our view, preclude the State from continuing electronic surveillance within the confines of the order.

See United States v. Clerkley, 556 F.2d 709, 714 (4th Cir.1977), cert. denied, Genco v. United States, 436 U.S. 930 , 98 S.Ct. 2830 , 56 L.Ed.2d 775 (1978), London v. United States, 436 U.S. 930 , 98 S.Ct. 2830 , 56 L.Ed.2d 775 . ⁶²⁹ (1978), and Shade v. United States, 436 U.S. 930 , 98 S.Ct. 2830 , 56 L.Ed.2d 775 (1978) (in investigation of gambling operation, fact that the government has ample evidence to arrest known participants does not preclude it from seeking wiretap order to uncover names of bookmakers and other co-conspirators). Moreover, we note that the police did terminate interception five days early, on August 12, because in their judgment further interception would have been fruitless.

II

The circuit court denied appellant's motion to suppress certain evidence seized pursuant to the execution of numerous search and seizure warrants. This, according to appellant, constitutes reversible error. Appellant mounts a three-pronged attack on the validity of those warrants: (1) the affidavits are deficient in that they failed to establish the veracity and basis of knowledge of the confidential informant; (2) the affidavits are deficient because they provide only a summary of the content of the intercepted telephone communications rather than a recitation of the conversations in their entirety; and (3) Judge Rollins, having earlier issued the order authorizing electronic surveillance, was not a neutral and detached magistrate. Appellant’s contention that the warrants failed to set forth the veracity and basis of knowledge of the confidential information is without merit.

The application and affidavits for the earlier order authorizing electronic surveillance were, for the purpose of establishing probable cause, attached to and incorporated in the application for the search and seizure warrants. There, it was averred that Lieutenant Mobley had used information furnished by the informant on previous occasions to obtain the successful prosecution of numerous criminal cases. Lieutenant Mobley had never found information supplied by the informant to have been false or misleading. The affiants independently confirmed the accuracy of much of the information given to them by the informant.

See Comi v. State, 26 Md.App. 511 , 338 A.2d 918 , cert. denied, 276 Md. 740 (1975) (that informant had given truthful and accurate information regarding other criminal cases to affiant and other officers, ⁶³⁰ and affiant had independently verified information furnished by informant, sufficiently established informant’s credibility). Moreover, while it is clear that not all of the informant’s knowledge was based upon personal observation, that the informant provided other information regarding the operation of the distribution network in such detail was enough to have led the officers to conclude that he spoke from personal knowledge. Id. at 515-516, 338 A.2d 918 . We think that the veracity and basis of knowledge of the confidential informant were sufficiently shown.

We see no basis for appellant’s assertion that the affidavits are deficient because they do not recite verbatim the contents of the telephone interceptions. The affiants averred their expertise and familiarity with the actions, habits, traits and terminology commonly used by drug traffickers. There is nothing objectionable, for the purpose of establishing probable cause, in the affiants having summarized the information gained through electronic surveillance. Appellant does not refer us to any cases or other authority indicating otherwise.

Finally, we find no merit to the contention that Judge Rollins, having earlier issued the order authorizing electronic surveillance, somehow was no longer a neutral and detached magistrate. The purpose of the requirement that the magistrate issuing a warrant be a neutral and detached judicial officer is to ensure that the determination of probable cause be made by someone other than the “law enforcement officer engaged in the often competitive enterprise of ferreting out crime.” Tamburello v. State, 67 Md.App. 180, 186 , 506 A.2d 1202 (1986) (quoting Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 , 99 S.Ct. 2319 , 60 L.Ed.2d 920 (1979), and United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977), and Johnson v. United States, 333 U.S. 10 , 68 S.Ct. 367 , 92 L.Ed. 436 (1948)). There is no indication in the record that Judge Rollins was a player in this investigation, nor is there any indication that he had a stake in its outcome. Moreover, a finding by a judicial officer of probable cause that particular communications regarding narcotics offenses will be obtained through electronic surveillance is different from, ⁶³¹ and does not guarantee, a subsequent finding by that same judicial officer of probable cause that the targeted premises and persons are concealing certain physical evidence.

And, as we see it, the totality of the circumstances supports a finding that there was sufficient probable cause to believe that evidence of narcotics offenses would be found on the premises and persons named in the warrants. Best v. State, 71 Md.App. 422, 426 , 526 A.2d 75 , cert. denied, 311 Md. 20 , 532 A.2d 167 (1987), cert. denied, 485 U.S. 978 , 108 S.Ct. 1274 , 99 L.Ed.2d 485 (1988) (citing Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), and Potts v. State, 300 Md. 567 , 479 A.2d 1335 (1984)).

III

Appellant asserts that Judge Rollins, having earlier issued the order authorizing electronic surveillance and the issuance of search warrants, should have recused himself from presiding over the suppression hearing and the trial. We decline to address the propriety of Judge Rollins having presided over the trial inasmuch as that question was neither raised in nor decided by the circuit court. Md.Rule 8-131(a). As to his having ruled on appellant’s motions to suppress, we think that Trussell v. State, 67 Md.App. 23 , 506 A.2d 255 , cert. denied, 306 Md. 514 , 510 A.2d 260 (1986), is dispositive.

In Trussell , we held that a warrant-issuing judge is not disqualified from presiding over a later suppression hearing involving the validity of that warrant absent a showing of bias or prejudice on the part of the judge. Id. at 28-29 , 506 A.2d 255 . We see little, if any, distinction between Trussell and circumstances where, as here, a judge is also called upon to review the propriety of his previous decision to issue an order authorizing electronic surveillance. In both instances, “[t]he action in issuing the warrant [or order] is ex parte and merely appraises the prima facie showing of probable cause.

The motion proceeding is adversarial, and the judge adjudicates all questions of law and fact posed on the challenge of the validity of the warrant [or order].” Id. at 27 , 506 A.2d 255 (quoting State v. Smith, 113 N.J.Super. 120 , 273 A.2d 68 , cert. denied, 59 N.J. 293 , 281 ⁶³² A.2d 806 (1971)). There has been no showing in the case sub judice that Judge Rollins’ ruling on the motions to suppress was tainted by personal bias or prejudice. The fact that a judge complies with the statutory requirement periodically to review progress reports regarding electronic surveillance does not, in our view, per se render that judge biased or prejudiced. See Md.Cts. & Jud.Proc.Code Ann. § 10-408(f) (1989 Repl.Vol.).

IV

Appellant next argues that the circuit court should have compelled the State to disclose the identity of the confidential informant. We disagree. Where the informant is neither a participant, accessory, nor a witness to the offense, there is no requirement that the informant’s identity be disclosed. Howard v. State, 66 Md.App. 273, 286 , 503 A.2d 739 , cert. denied, 306 Md. 288 , 508 A.2d 488 (1986).

At the suppression hearing, appellant proffered that the information furnished by the informant was “so detailed and specific that it’s hard for [defense counsel] to fathom any situation where that person would not have been involved in this illegality at one stage or another.” That an informant provides detailed information is not, by itself, sufficient to support the conclusion that the informant participated in the criminal activity. Id. at 288-289, 503 A.2d 739 . Furthermore, the circuit court specifically asked the State if the informant was “in any way involved with any of the alleged illegal actions,” to which the State replied in the negative. Moreover, none of the information furnished by the informant was utilized by the trier of fact in deciding the case.

Id. at 286 , 503 A.2d 739 . The State averred that the informant’s role in the investigation was for the limited purpose of establishing probable cause for the issuance of the electronic surveillance order and search warrants, and in no way involved the guilt or innocence phase of the trial. On the other hand, where an informant is a participant in the alleged illegality, such participation becomes a ⁶³³ factor to be considered in determining whether disclosure is necessary and relevant to a fair defense. DeLuca v. State, 78 Md.App. 395, 406 , 553 A.2d 730 , cert. denied, 316 Md. 549 , 560 A.2d 1118 (1989) (quoting Nutter v. State, 8 Md.App. 635 , 262 A.2d 80 (1970)).

Even if we were to assume, for the sake of argument, that the informant may well have been involved in the illegal activity, appellant has failed to show that the identity of the informant was necessary and relevant to a fair defense. Howard, supra, 66 Md.App. at 285 , 503 A.2d 739 . Appellant at no time articulated why non-disclosure would impair his defense. As we see it, appellant’s bald allegation that the informant was at some time involved in the drug distribution network is not enough for us to conclude that the informant’s identity was vital to a fair defense.

There was no error in permitting the State to withhold the identity of the confidential informant. V. Appellant argues that Lieutenant Mobley and Corporal Kestner improperly invaded the province of the jury when Judge Rollins permitted them to give expert opinions. For a number of reasons, we find no error. At the outset, we reject appellant’s invitation to engage in an unguided journey through the entire record to address “each and every instance” of objectionable opinion evidence.

We remind appellant that we are not required to ferret out from the record factual support favorable to his argument. Md.Rule 8-504(4). Consequently, we will confine our discussion to the admissibility of the opinion testimony enumerated by appellant in his brief. Two of appellant’s complaints need not long detain us.

Lieutenant Mobley opined that the white powdery substance he found in the ammunition box at Wapiti Farms was cocaine. 1 Appellant objected to that testimony on the grounds that during pre-trial discovery Lieutenant Mobley had not been named by the State as an expert witness ⁶³⁴ whom it intended to call at trial. Later, appellant objected to a question propounded by the State to Corporal Kestner on the grounds that the question was leading. Consequently, having voluntarily offered those specific grounds for his objections, appellant has effectively waived his right to argue that this evidence should have been excluded because it invaded the province of the jury, von Lusch v. State, 279 Md. 255, 263 , 368 A.2d 468 (1977). The balance of the opinion evidence objected to by appellant involves Corporal Kestner’s explanation of the significance of some of the intercepted telephone communications and her opinion as to appellant’s role in the drug distribution network.

The admissibility of expert testimony is left largely to the discretion of the trial judge, whose decision will not be disturbed on appeal absent an abuse of that discretion. Simmons v. State, 313 Md. 33, 41 , 542 A.2d 1258 (1988). An expert opinion is admissible even if it relates to an issue of ultimate fact, provided the opinion is of some aid to the trier of fact. White v. State, 66 Md.App. 100, 114 , 502 A.2d 1084 (1986).

And, “when the subject under investigation requires special skill and knowledge, [the jurors] may be aided by the opinion of persons whose pursuits or studies or experience, have given them a familiarity with the matter in hand.” Simmons, supra [313 Md.] at 42, 542 A.2d 1258 (quoting Baltimore & Yorktown Turnpike Road Co. v. Leonhardt, 66 Md. 70 , 5 A. 346 (1886)). Corporal Kestner’s qualifications and experience in investigating narcotics offenses are set forth at length in the record. And, as we have said, Corporal Kestner is familiar with the actions, habits, traits, and terminology commonly used by drug traffickers. Where, as here, the distribution network was complex, and the intercepted communications were vague, fragmented, and interspersed with street slang, we think Corporal Kestner’s opinion testimony aided the jury rather than usurped their role as factfinder.

Moreover, the jurors listened to and were provided with transcripts of recordings of the intercepted telephone communications from which they were free to draw their own conclusions. There was no abuse of discretion. ⁶³⁵ VI. and XII. Appellant asserts that the circuit court erred by failing to grant two separate motions for mistrial. We disagree.

The circuit court is given broad discretion in determining whether a motion for mistrial should be granted. Wilhelm v. State, 272 Md. 404, 429 , 326 A.2d 707 (1974). See also Johnson v. State, 303 Md. 487, 516 , 495 A.2d 1 (1985), cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986). In the exercise of that discretion, the trial judge’s decision denying a mistrial will not be disturbed on appeal unless there has been a clear showing of prejudice to defendant.

See Wilhelm, supra [272 Md.] at 429, 326 A.2d 707 . See also Hickman v. State, 76 Md.App. 111, 120 , 543 A.2d 870 (1988). Moreover, we have reaffirmed that a mistrial should be declared only under “extraordinary circumstances” and where “manifest necessity” requires it. Id.

See also Cornish v. State, 272 Md. 312, 320-322 , 322 A.2d 880 (1974) (discussing the requirement of “manifest necessity” to declare a mistrial). With this standard of review firmly in mind, we shall address separately appellant’s motions for mistrial. Handguns Appellant contends that the circuit court erred by permitting handguns seized from Roy Reep’s residence in Pennsylvania to be displayed to the jury. Appellant asserts that because of that error a mistrial should have been granted.

We disagree. Appellant argues that the display of the handguns in close proximity to the jurors was inflammatory. However that may be, Judge Rollins gave an extensive curative instruction to the jury. Judge Rollins concluded his instruction by explaining to the jury that: There was no reason why the man can’t have guns or