Whack v. State

ALPERT, Judge. Appellant, Larry Eugene Whack, was convicted by a Cecil County jury of (1) possession with intent to distribute cocaine, (2) conspiracy to possess with intent to distribute cocaine, and (3) conspiracy to smuggle 28 grams (or greater) ¹¹⁰ of cocaine. From judgments entered thereon, he appeals, asking us to resolve five issues: I. Whether the trial court’s denial of a request for a continuance was an abuse of discretion.

II

Whether the trial court improperly denied a motion to suppress.

III

Whether Whack was deprived of a fair trial because of the improper admission of hearsay evidence.

IV

Whether Whack was deprived of a fair trial because of the admission of unintelligible tape recordings. V. Whether the trial court improperly denied Whack’s Motion for Judgment of Acquittal. We answer each of these questions in the negative, and therefore affirm. BACKGROUND On May 15, 1991, Larry Eugene Whack was arrested.

He was subsequently indicted — and convicted — on several drug-related crimes. The relevant circumstances surrounding his conviction follow. On the morning of May 15, 1991, Keith Watkins and Joey Sampson were driving a 1985 blue Pontiac Sunbird south on Interstate 95 from New York City through Maryland, allegedly in excess of the posted speed limit. Accordingly, Maryland State Trooper First Class John Appleby effected a traffic stop of the vehicle.

Appleby testified at trial that, following the stop, Sampson voluntarily admitted to Apple-by that (1) there was cocaine in the car, (2) this cocaine was located in the side panel of the front passenger door 1 , and (3) they (Watkins and Sampson) had traveled to New York City specifically to buy the cocaine for Whack. At the scene, Watkins also admitted to Appleby that the purpose of the New York trip was to obtain the cocaine for Whack. ¹¹¹ Watkins and Sampson were both arrested and transported to the state police barracks. At the barracks, Deputy Timothy McDonald of the Cecil County Sheriffs Department interviewed Watkins. McDonald testified at trial that, during this interview, Watkins reiterated the reason for his and Sampson’s excursion: “[Watkins said that he and Sampson] were coming from New York with a quantity of cocaine for Larry Whack, and [that] the sole purpose of the trip was to purchase cocaine for Larry Whack in New York City and to bring it back to him in Prince George’s County.” Also at the barracks, the police solicited and received Sampson’s consent (both orally and in writing) to permit the police to record a telephone call that he would make to Whack 2 ; during the call, Sampson would tell Whack that the car transporting Sampson and Watkins had broken down, that it was currently being serviced on the Chesapeake House property 3 , and that the men needed a ride back to Prince George’s County.

Sampson made the telephone call as agreed, and Whack assented to meet Sampson and Watkins at the Chesapeake House Texaco station. Moreover, Sampson agreed to wear a body wire so that, upon Whack’s arrival at the Texaco station, the police could record and monitor Sampson’s and Whack’s in-person conversation. 4 Whack appeared at the Texaco station at approximately noon that day (May 15, 1991). Police observed Whack entering the garage; once inside, Whack spoke briefly with Sampson and Watkins. Shortly thereafter, and pursuant to ¹¹² a mechanic’s request, the men (Whack, Sampson, and Watkins) pushed the Sunbird out of the garage.

Police then watched as Whack began tampering with the passenger side car door, as though (according to Appleby) Whack was trying to get inside it. Whack then kneeled down and, as he pulled the upholstery away from the metal part of the door, he commenced reaching down inside the door panel. It was at this point that Whack was arrested. A four count indictment was sent down on June 19, 1991, and correspondingly Whack was charged as follows: I. Possession with intent to distribute cocaine.

II

Possession of cocaine.

III

Conspiracy to possess with intent to distribute cocaine.

IV

Conspiracy to smuggle 28 grams (or greater) of cocaine. A trial on the merits was set for late October, 1991. On October 2, 1991, Whack moved to suppress his May 15, 1991 telephone conversation (as well as the in-person conversation) with Sampson “and any evidence derived [therefrom].” Whack based his motion on a single contention, i.e., “That the said telephone and oral conversations were illegally intercepted without the consent of the parties involvedf.]” In particular, Whack contends that, in violation of Md.Cts and Jud.Proc.Code Ann. [“CJ”] § 10-402(c)(2), Sampson did not actually consent to interception of the conversations 5 . ¹¹³ A hearing on the suppression motion was held on October 16, 1991 (Edward D.E. Rollins, Jr., J.). On the day of the hearing, but before the hearing itself had actually commenced, defense counsel informed the trial court that— despite being properly subpoenaed — Sampson had failed to appear.

From Whack’s perspective, Sampson’s testimony was critical to his motion to suppress; i.e., without Sampson’s own testimony, he could not effectively prove lack of Sampson’s actual consent. The court volunteered: “If you want, I’ll issue a body attachment and have him brought here.” Defense counsel responded: “I would request that your honor.” Next, in deference to defense counsel’s request, the trial court granted an approximate two-hour recess so that Whack might have some time to procure Sampson. Nevertheless, the record does not reflect that defense counsel (or, for that matter, Whack himself) made even the slightest attempt to contact or ascertain the whereabouts of Sampson during that hiatus. Thus, when the trial court reconvened 116 minutes later, Whack was still without his “star” witness.

Accordingly, defense counsel moved the court for a continuance which the court, without much elaboration, denied. Without Sampson’s corroborating testimony, defense counsel was reduced to making an argument by analogy, i.e., since Watkins (according to his own testimony) had been allegedly offered inducements to cooperate with the wire-tapping and body-wiring plan, so too was Sampson probably offered similar inducements. Defense counsel’s argument was supported by the following testimony at the suppression hearing: [WATKINS:] As [Sampson and I] got to the state police barracks, [the officers] told me what charge that I was, I was facing, and they told me how many years that I was facing. Then they asked me, if I help them they’d help me, by telling me that they would give me an alternative of four years and a $2,500 bond, being released on ¹¹⁴ my own recognizance, as opposed to thirty years and a $100,000 bond.

So when they told me that, I cooperated with them so that I could get out. [MR. ARAGONA (defense counsel):] Did [the officers] make similar statements to Joey Sampson in your presence? [WATKINS:] Yes; as far as I know, yes. Toward the conclusion of the hearing, defense counsel summarized his argument: “And I want to suggest to the Court that there’s every reason to believe that Joey Sampson was similarly hit, as Mr. Watkins was, with these threats — and I would construe them as threats — if you don’t cooperate, you’ll get a $100,000 bond.” Nevertheless, the trial court denied Whack’s suppression motion. In so doing, the court stated as follows: I think there’s substantial evidence before the Court that the young Sampson gentleman signed a consent, that he did so willingly, and that he voluntarily took part in the intercept by telephone with this defendant, and I deny the motion of suppress.

Prior to the court’s ruling, defense counsel asked the judge “to reserve ruling until such time as we hear from Mr. Sampson directly.” The motions judge responded: I’m not going to reserve on any ruling. It’s not my responsibility to see that the people are here. It’s the attorneys’ responsibility to summons their own witnesses in. Well, you did, apparently, but you come in today and there was — you say you want a bench warrant, or a body attachment when the thing’s ready for a hearing, and I don’t even see, I don’t believe — September 27th, a subpoena was issued.

I don’t see anything in here whether he was served or not. ¹¹⁵ After the ruling, the court, at the request of defense counsel, did indeed order the issuance of a body attachment for Sampson. At 9:00 p.m. the next day, i.e., October 17,1991, Sampson was murdered in Prince George’s County, and thus he was rendered unavailable for trial. On October 23, 1991, a jury trial on the merits was held. During the trial, the prosecutor elicited as part of his casein-chief the following testimony with regard to statements made by the late Mr. Sampson: [BY MR.

KEMP, prosecutor:] And specifically with regard to Mr. Sampson, did he make a statement to you [at the scene of the arrest]? [APPLEBY, on direct examination:] Yes, he did. Q: And what was that statement? A: I asked Mr. Sampson— ****** MR. ARAGONA: I would object on the basis that [this] calls for hearsay, Your Honor.

THE COURT: I’m going to overrule the objection. Go ahead. MR. ARAGONA: Your Honor, I would just ask for a continuing objection to any statements made.

THE COURT: Understand. For the record, you’re protecting your client, rightly so. ****** Q: Now, Trooper Appleby, at that time what, if anything, did Mr. Sampson relate to you? A: Mr. Sampson advised that [he and Watkins] went to New York to pick up this cocaine and bring it back and deliver it to a subject by the name of Larry Whack who lives in P.G. County. Q: And at that time, did he relate to you anything more than that?

A: No, he did not. ¹¹⁶ Also during the trial, and consistent with the previous denial of Whack’s motion to suppress, the prosecutor successfully moved into evidence the tapes and transcripts of the Whack-Sampson telephone and in-person conversations. Although Whack has failed to make either the tapes or the transcripts available to us as a part of the record on appeal, we may nevertheless glean part of the Sampson-Whack conversations from the few direct references made to them in that portion of the record which we do have, to wit: [From the transcript of the Whack-Sampson telephone conversation:] WHACK: You guys got it? SAMPSON: Yeah, we got the shit. ****** [From the transcript of the Whack-Sampson in-person conversation:] WHACK: You all left it [in the car]? * * * * I don’t know why you did, if the window fell down they might have tried to go up there and fix it and that would have been fucked up, and they would have called, and someone would of kept it * * * * [S]omeone might have called the fucking man on your ass. 6 At the close of the State’s case, defense counsel moved for a judgment of acquittal, which was denied. On October 24, 1991, the jury convicted Whack of counts I, III, and IV of the indictment, which are more fully set out above.

Following a sentencing hearing held on February 20, 1992 (wherein counts III and IV were merged), Whack was sentenced to (with respect to Count I) fifteen years, the last five years of which were suspended, probation upon release, and (with respect to Count III) fifteen years, the last five years of which were suspended, concurrent to Count I. ¹¹⁷ I. Continuance Whack contends that Sampson’s testimony was “critical” to support his motion to suppress the tapes and transcripts of the Whack-Sampson conversations. Thus, when Sampson failed to appear at the hearing on the motion, defense counsel moved for a continuance, which was denied. Whack now challenges that denial as being improper. We disagree.

We begin with the basic proposition, recently reiterated in Burgess v. State, 89 Md.App. 522 , 598 A.2d 830 (1991), cert. denied, 325 Md. 619 , 602 A.2d 710 (1992), that “[r]ulings on requests for continuances are within the sound discretion of the judge and will not be disturbed on appeal absent an abuse of that discretion.” 89 Md.App. at 534 , 598 A.2d 830 (citing Beachem v. State, 71 Md.App. 39, 55 , 523 A.2d 1033 (1987)). In Wright v. State, 70 Md.App. 616 , 522 A.2d 401 (1987), we held To show such an abuse of discretion, the party who requests the continuance must show: “(1) that he had a reasonable expectation of securing the evidence of the absent witness or witnesses within some reasonable time; (2) that the evidence was competent and material, and he believed that the case could not be fairly tried without it; and (3) that he had made diligent and proper efforts to secure the evidence.” 70 Md.App. at 623 , 522 A.2d 401 (quoting Jackson v. State, 288 Md. 191, 194 , 416 A.2d 278 (1980) (quoting an earlier Jackson v. State, 214 Md. 454, 459 , 135 A.2d 638 (1957), cert. denied, 356 U.S. 940 , 78 S.Ct. 784 , 2 L.Ed.2d 816 (1958))). We hold that Whack has failed to satisfy each element of the three-prong test set forth in Wright . First, Whack failed to demonstrate that he had a reasonable expectation of securing the evidence of the absent witness within some reasonable time.

Indeed, in his brief before this court, Whack’s entire argument (vis-a-vis his compliance with this first prong) is the allegation that ¹¹⁸ “Defense counsel served Sampson with a subpoena [, ... and] it would have been a simple matter to dispatch a sheriffs deputy to bring him to court.” Whack did not state that he knew or had reason to know of Sampson’s whereabouts on the date of the suppression hearing, nor did Whack state that he knew or had reason to know the reason for Sampson’s absence. Thus, the bald assertion that bringing Sampson to court would be a “simple” task for a sheriff’s deputy, is insufficient to produce the requisite reasonable expectation that Whack could secure Sampson’s testimony within a reasonable time. Second, Whack failed to demonstrate that Sampson’s testimony was competent and material. At the suppression hearing, defense counsel proffered that, had Sampson testified, he would state that the officers “coerced” or “threatened” him into consenting to the recordation of his conversations with Whack (thereby vitiating the voluntariness of Sampson’s consent).

In the context of the case sub judice, defense counsel described the scope of the alleged threats as follows: there’s every reason to believe that Joey Sampson was similarly hit, as Mr. Watkins was, with these threats— and I would construe them as threats — if you don’t cooperate, you’ll get a $100,000 bond. As will be more fully discussed below in Section II of this opinion (re: Whack’s motion to suppress), these contentions — even if believed by the trial court to be true 7 — are insufficient under Maryland law to vitiate consent. We point out, however, to the motions judge that the appellant, upon issuing a subpoena, was not “responsible for [his] own witness____” and it is the responsibility of the court to issue ¹¹⁹ a body attachment (upon request) where a duly summoned witness fails to appear. Appellant had a constitutional right to compulsory process.

See Washington v. Texas, 388 U.S. 14, 19 , 87 S.Ct. 1920, 1923 , 18 L.Ed.2d 1019 (1967). Finally, Whack failed to demonstrate of record that he made diligent and proper efforts to secure Sampson’s testimony. The hearing did not commence until 11:06 a.m. Shortly thereafter, and in deference to defense counsel’s request, the trial court granted an approximate two-hour recess so that Whack might have some time to procure Sampson.

Nevertheless, the record does not reflect that defense counsel (or, for that matter, Whack himself) made even the slightest attempt to call, locate, or contact Sampson during that hiatus. Whack’s request for the court to “initiate judicial compulsory process,” while relevant, fails under the circumstances of this case to demonstrate or establish the requisite diligence necessary to reverse the trial court. We therefore hold that the trial court did not abuse its discretion in denying Whack’s motion for a continuance.

II

Motion to suppress The primary issue at the hearing on the motion to suppress was whether, in light of the totality of circumstances, Sampson had voluntarily consented to permit the police to intercept and record the Sampson-Whack conversations. After considering the evidence properly before it, the trial court found that Sampson had indeed voluntarily consented to the interception. Whack now challenges that finding, essentially contending that the promises and inducements (alleged by Whack to have been made to Sampson), per se vitiate Sampson’s permission to be taped. We disagree.

We begin our analysis by making a necessary, yet subtle, distinction: Maryland law differentiates between two standards of “voluntariness.” On the one hand, Maryland recognizes a standard of voluntariness with respect to crimi ¹²⁰ nal confessions. As the Court of Appeals held in Hillard v. State, 286 Md. 145 , 406 A.2d 415 (1979), [F]or more than one hundred years [the Court of Appeals] has adhered to the tenet that, with regard to fairness in the conduct of a trial, Maryland criminal law requires no confession or other significantly incriminating remark allegedly made by an accused be used as evidence against him, unless it first be shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary. * * * * *. # While any decision concerning the voluntariness of a statement necessarily must rest on the facts of the case involved, we nonetheless find that, with regard to promises and other similar forms of inducement designed to elicit a defendant’s confession, this Court, in a series of cases that stretch back into the last century, has established certain boundaries within which