Williams v. State

THEODORE G. BLOOM, Judge, Retired, Specially Assigned. Appellant, Orville Williams, was convicted by a jury in the Circuit Court for Baltimore City of possession of a controlled dangerous substance (cocaine), possession of drug paraphernalia (a glass pipe with cocaine residue in it), and loitering in violation of Baltimore City’s loitering ordinance, Baltimore City Code, Art. 19, § 25-1. The court sentenced appellant to six months’ incarceration on the cocaine possession count, fined him $500 on the paraphernalia possession count, and ⁴⁶⁶ imposed a term of ten days’ incarceration and a fine of $500 for loitering, concurrent with the other sentences. In this appeal from those judgments, appellant asserts that: (1) his arrest for loitering, and the search incident to that arrest, which yielded the glass pipe with cocaine residue (constituting both controlled dangerous substance and paraphernalia), violated the protection afforded him by the Fourth Amendment; (2) the evidence was legally insufficient to support the conviction for loitering; and (3) the trial court erred in permitting the prosecuting attorney to withdraw her nolle prosequi of the cocaine possession charge.

For the reasons set forth below, we shall reverse the judgments of the circuit court. FACTS Appellant filed a pre-trial motion to suppress evidence (the glass pipe with cocaine residue) seized from his person following his arrest for allegedly violating Baltimore City’s loitering ordinance. The arresting officer, Eric Fabian, testified, in pertinent part, as follows: Direct Examination by Ms. Leatherwood (Assistant State’s Attorney): Q. Officer, may I direct your attention to July 4th of this year around 10:45 a.m. Were you on duty?

A. Yes, I was. Q. Where were you on duty? A. In the 27 hundred block of West Lanvail Street, where I observed the Defendant — sitting to the left side of defense counsel at the table, wearing the blue shirt— identified as Mr. Orville Williams. I observed Mr. Williams standing with a group of males and females who appeared to impede the free flow of pedestrian traffic where the citizens had to literally walk in the street to get to their destination.

At that, I advised the defendant, along with the other individuals, that they were loitering in a public place and if they didn’t move on, they would all ⁴⁶⁷ be arrested. I left the area and returned approximately 15 minutes later and observed the defendant at the same location committing the same offense. Because of his blatant disregard of the law and his failure to stop his violation after being forewarned, I arrested the defendant and a search incident to arrest disclosed a firearm. I have to refer to my notes.

THE COURT: You may refresh your recollection. THE WITNESS: One glass non-conventional smoking device containing white powder substance of suspected cocaine, one, 1 hundred dollar bill found in defendant’s right back pocket. Property list in my statement of probable cause was submitted to the evidence control section for analysis and defendant was taken to C.B.I. and charged accordingly. Q. The area that Mr. Williams was in, was he blocking pedestrians?

Was he on the sidewalk or in the middle of the street? A. On the sidewalk. Q. So, he was blocking pedestrian traffic? A. Yes, ma’am.

CROSS EXAMINATION by Ms. Nurmi (Defense counsel): Q. Officer, is there a bus stop at that location? A. I don’t remember? Q. You don’t remember? A. No. Q. Is it possible Mr. Williams could have been waiting for a bus?

A. I don’t know. THE COURT: Doesn’t matter if he is waiting for a bus or not if he is blocking traffic, right sir? If he is blocking traffic, it doesn’t matter if he is waiting for a bus or waiting for somebody to bring him a world series ticket. THE WITNESS: Doesn’t matter, sir.

THE COURT: Or waiting for the arrival of the Messiah, correct? ⁴⁶⁸ THE WITNESS: Right. THE COURT: If he is blocking, he has to move under the law, correct? THE WITNESS: Yes. THE COURT: Any further cross?

BY MS. NURMI: Q. Officer, he did move when you asked him the first time, is that correct? A. He was still there when I left. He gave me the impression he wasn’t going to move.

I left the area and he was still there. I came back approximately six minutes later and he was still there at the location, at which time I placed him under arrest. Q. Did you ask him to move a second time? A. I asked him the first time.

I left, came back, he was still there. No, I didn’t ask him the second time. I asked him the first time. Q. The second time when you came back, how many people had to walk around Mr. Williams?

A. I don’t remember. Q. So, the second time you don’t remember if he was blocking traffic or not? A. There was a group of individuals still at the location. Q. Officer Fabian, the second time you came back you didn’t see him blocking traffic?

A. He was still impeding the free flow of pedestrian traffic. Q. Officer Fabian, I just— MS. LEATHERWOOD: Objection, asked and answered. THE COURT: Overruled.

BY MS. NURMI: Q. Officer Fabian, a moment ago you said you don’t remember that people had to walk around him or not the second time? A. You asked me how many people were there and I said I didn’t remember. ⁴⁶⁹ Q. No, Officer Fabian, I asked you if people had to walk around him the second time you came back. A. They had to walk around a second time.

Q. How many people had to walk around? A. I don’t remember. Q. Why is it you don’t remember? A. I don’t remember how many people.

Q. One? A. I don’t remember. Q. Two? A. I don’t remember.

MS. LEATHERWOOD: Objection, Your Honor. THE COURT: Overruled. Was there at least one person who was inconvenienced by Williams standing there at that time?

THE WITNESS: Yes, sir. THE COURT: Next question. BY MS. NURMI: Q. Was that a man or a woman?

A. I don’t remember. Q. Then how do you remember it was a person? A. He was arrested. I remember it was people there.

Q. How big is the sidewalk, officer? A. I don’t know the measurements. Q. Sorry? A. I don’t know the measurements.

Q. Can you give me an approximate measurement? A. The sidewalk outside in front of this court building. Q. It wasn’t just Mr. Williams standing on the sidewalk that people had to walk around, actually it was a group of people, is that correct? A. Say that again? ⁴⁷⁰ Q. Okay.

Because if Mr. Williams had been standing on the sidewalk by himself, he would not have been impeding traffic, is that correct? MS. LEATHERWOOD: Objection. THE COURT: Overruled.

THE WITNESS: No. THE COURT: How many people did you arrest, sir? THE WITNESS: Your Honor, I can’t remember. THE COURT: What’s a safe number? THE WITNESS: At least three.

THE COURT: At least three? THE WITNESS: Yes. THE COURT: Thank you. BY MS.

NURMI: Q. Office Fabian, do you often see people waiting by a bus stop on your patrol? A. Yes. Q. You see them standing in groups on the sidewalk? A. Yes.

Q. Do you make it your business to arrest those people as they are waiting for the bus? A. I make it my business to arrest individuals if they are out there on the comer selling C.D.S. and this person gave me a reasonable suspicion that’s what he was involved in. He had no bus pass according to the property I had gotten form him. At the conclusion of the hearing, the court denied appellant’s motion to suppress.

In response to defense counsel’s comment that the court’s interpretation of the ordinance was unreasonable, the court advised her, “Take it up to the Court of Appeals.” After appellant’s suppression motion was denied, the prosecuting attorney brought to the court’s attention a problem concerning the availability of a witness to appear on the scheduled trial date. Because that witness was the chemist ⁴⁷¹ who had tested the residue in the glass pipe seized from appellant after he was arrested, the prosecuting attorney nol prossed the charge of possession of cocaine. The colloquy between the court and counsel was as follows: MS. LEATHERWOOD: The State has a preliminary.

The Chemist in this case, Ms. Stewart, will not be available until Monday and so, in an effort to further this case and not hold this case up, the State would not request a postponement, but nol pros Count 1, which is the C.D.S. possession. THE COURT: There is an easier way of proceeding than nol prossing it. Why don’t we just take her deposition now and we can play that back to the jury tomorrow? MS.

LEATHERWOOD: Okay, Your Honor. THE COURT: Ms. Nurmi? MS. NURMI: I would respectfully— THE COURT: You will have an opportunity to cross-examine the witness live here.

What difference would it make to delay it if the jury can see it on videotape? MS. NURMI: I would rather have the jury have her testify live. THE COURT: All right.

Ms. Stewart, what is the reason that you are unavailable between now and Monday? MS. STEWART: I will have surgery tomorrow. THE COURT: Because the witness will have surgery, I find she is unavailable on that date pursuant to Maryland Rule 4-261.

Which says, under subsection B: “In the circuit court, the parties may agree without an order of the court to take a deposition of a witness subject to the right of the witness to move for protective order under subsection G of this rule. Without agreement, the court, on motion of a party, may order the testimony to be taken by deposition if satisfied the witness may be unable to attend the trial or hearing that the testimony may be material and taking the deposition is necessary to prevent a failure of justice.” Of course the defendant, under Subsection F, has to be present. ⁴⁷² H, use, 1, Substantive Evidence: “At a hearing or trial, all or part of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the court finds that the witness, a, is dead or b, is unable to attend or testify because of age. Mental incapacity, sickness or infirmity or c, if present but refuses to testify and cannot be compelled to testify or d, is absent from hearing or trial and that the party offered in deposition has been unable to secure the witness’s attendance by subpoena or other reasonable means unless the attendance is procured by the parties offering the deposition.” Then they talk about impeachment, [partial use] and then 4: “Objection to admissibility. Subject to Rules 4-2-412E, 2-415G and H, 2-416G and 2-417C, an objection may be made at the hearing or trial of receiving the evidence, all or part of a deposition for any reason that can require the exclusion of the evidence and the witness who was then present and testifying.” And then the case law under — basically, the issue is unable to attend because of — attend the trial in b.

(WHEREUPON, THERE WAS A PAUSE IN THE PROCEEDINGS). THE COURT: And unable to attend because of age, mental capacity, sickness and infirmity under H-l. In Earp versus State, 76 Maryland App., 433 1988[ 76 Md. App. 433 , 545 A.2d 698 (1988)], affirmed, 319 Maryland 156, 1990 [ 319 Md. 156 , 571 A.2d 1227 (1990)], the Court of Appeals said: “The determination of whether the testimony of a witness who had viewed copies of a videotape deposition has been rehearsed, thereby creating artificial harm as a matter of credibility subject to attack on cross-examination not subject to admissibility, showing a taped deposition by prosecutor of a witness prior to trial did not violate Rule 4-321. “Now Rule 5-316 which deals with the exclusion of witnesses from a court proceeding and it’s not applicable.” Had the defendant wished to limit the showing of deposition by court order, he could have sought a protective order pursuant to Section G5 of this rule. ⁴⁷³ MS. NURMI: Your