Wise v. State

SONNER, Judge. This case comes to us from a conviction after a jury trial in the Circuit Court for Baltimore City of appellant, Marvin D. Wise, Sr., for street level drug dealing. Wise received a sentence for the conviction for possession of cocaine with ¹³² intent to distribute of twenty-eight years, with fourteen years suspended and five years of probation upon release. The court merged a conviction for possession of cocaine.

On appeal, Wise raises three issues: 1. Did the lower court err by denying his motion to suppress the evidence resulting from the illegal stop, arrest, and search? 2. Did the lower court err by overruling his objections to the testimony of an Assistant State’s Attorney and a police fingerprint examiner about the huge number of felony drug cases in Baltimore? 3. Did the lower court err by overruling his objections and mistrial motion to improper jury arguments made by the prosecutor?

We find no error on the first issue; on the second issue we find the court committed harmless error in admitting the Assistant State’s Attorney’s testimony, and on the third issue hold that the prosecutor’s remarks in closing argument were proper. The events leading up to Wise’s arrest and trial began on the afternoon of September 23, 1998, when six plainclothes detectives from the Baltimore City Police Department’s Drug Enforcement Division were driving in three unmarked vehicles in the Sandtown neighborhood of Baltimore. Both appellant and appellee agree on appeal about how the police arrested Wise and discovered the drugs that formed the basis for his conviction. The essence of Wise’s defense at trial was that the drugs the police discovered did not belong to him.

Detective Bryant Moore, who was driving the first of the three vehicles, and Detective Todd Williams, who was driving the last of the vehicles, observed Wise walk into an alley in a neighborhood known for its drug dealing. Wise’s walking into the alley raised their suspicions that he might be a drug dealer. Detective Moore testified that he stopped for about five seconds at the stop sign at the corner of Riggs Avenue and North Calhoun Street, then drove through the intersection and pulled up to the alley to see more clearly what Wise ¹³³ was doing. What he testified he saw was Wise balling up a brown paper bag and placing it under a telephone book in a grassy area in the alley.

At that point, according to Detective Moore’s testimony, Wise looked at Detective Moore’s vehicle, made eye contact with Moore, after which Wise’s “eyes widened,” and he took a few steps backwards. When Detective Moore got out of his vehicle, Wise ran past him to Riggs Street and then onto North Calhoun Street, where Detective Anthony Barksdale, who was in the second vehicle, intercepted him and, with the help of other detectives, placed him face down on the street and handcuffed him. Meanwhile, Detectives Moore and Williams entered the alley, where Detective Moore lifted up the telephone book in the grassy area and pulled out a brown paper bag with two plastic bags inside, one with 67 vials and the other contained 36 vials of what was later determined to be cocaine. The officers then searched Wise and found forty dollars in one-dollar and five-dollar bills.

Although there was a Police Department General Order in existence that requires an officer who seizes a package of suspected narcotics in a felony case to submit the package for fingerprint analysis, the detectives who arrested Wise did not submit the bags and vials they found in the alley. The failure of the police to submit the packages became central to Wise’s defense at trial as he attempted, through his attorney, to show that, because of the incomplete investigation, the evidence was insufficient to connect him with the drugs. The Assistant State’s Attorney, in anticipation of the defense, had told the jury about the failure to follow the General Order in his opening statement, as did Wise’s attorney. Wise offered no evidence on the issue, or any other issue, during the defense case and, instead, cross-examined the State’s witnesses, those who participated in the arrest, and those called to explain the failure of the police to comply with the Order.

The fingerprint examiner for the Baltimore City Police Department, Roy Michael Jones, testified as an expert that it was difficult, although possible, to obtain latent fingerprints from paper bags, plastic bags, gel caps, and vials. He also testified that his fingerprint examination unit had a backlog of ¹³⁴ about 1,150 cases, but that if the bags had been submitted to his unit, he could have completed the analysis in time for Wise’s trial. The State also called Salvatore Fili, an Assistant State’s Attorney and Chief of the Narcotics Investigation Unit of the State’s Attorney’s Office for the City of Baltimore, to testify that 4,423 defendants were charged with narcotics felonies in Baltimore City in 1997. Over defense counsel’s objection and, after a lengthy hearing, the court permitted Fili to testify as to the number of defendants charged.

THE SEIZURE Wise first argues that the lower court erred in denying his pretrial motion to suppress the forty dollars found on his person because it was seized as a result of an unlawful stop, arrest, and search. Wise did not move to suppress the cocaine. The United States Supreme Court recently removed any doubt as to whether Wise’s flight, under these circumstances, justified the police chase and his subsequent detention in a decision holding that a person’s unprovoked flight in a high crime area upon observing police creates reasonable suspicion, enough to justify detention to determine whether criminal activity is afoot and to conduct a limited search. Illinois v. Wardlow, — U.S. —, 120 S.Ct. 673 , 145 L.Ed.2d 570 (2000).

That case, like this one, grew out of police patrolling with a multi-car caravan in an area known for its high narcotics traffic. Id. Wardlow, whom the police saw in possession of glassine bags, looked in the direction of the officers and then fled. Id. at 675 .

The officers managed to corner him after a chase and conducted a pat down search, which revealed a weapon that led to his prosecution and conviction for the possession of it. Id. Applying Wardlow to the facts in this case, we find that the search was proper. By making eye contact after balling up a paper bag and placing it under a telephone book and then reacting with a look that the officers could conclude indicated his subsequent flight was a reaction to them, Wise ¹³⁵ created a situation that entitled the officers to stop and detain him for a brief period.

The immediate discovery of the brown paper bag with the incriminating evidence at the location where they had just observed Wise gave them the probable cause to support the arrest. After making the arrest, they discovered the forty dollars in Wise’s pocket. The search was proper, and we affirm the court below on this issue. THE FINGERPRINT TESTIMONY Wise next argues that Roy Michael Jones and Salvatore Fili should not have been permitted to testify about the large number of felony drug cases in Baltimore because their testimony was irrelevant and highly prejudicial.

The State contends that both witnesses were properly permitted to testify in order to rebut defense counsel’s argument that the police had not acted properly when they did not comply with the General Order. Jones testified as an expert witness, and so we review the propriety of his testimony accordingly. The admissibility of expert testimony is governed by Maryland Rule 5-702, which states: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, expertise, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

Md. Rule 5-702 (2000). A trial court has broad discretion to rule on the admissibility of expert testimony and its decision to admit or exclude such testimony is rarely reversed. Oken v. State, 327 Md. 628, 659 , 612 A.2d 258 (1992), cert. denied, 507 U.S. 931 , 113 S.Ct. 1312 , 122 L.Ed.2d 700 (1993); Simmons v. State, 313 Md. 33, 43 , 542 A.2d 1258 (1988). Whether ¹³⁶ an expert witness’s testimony is relevant depends on whether the jury will find the testimony helpful in resolving the issues in the case.

Simmons, 313 Md. at 41 , 542 A.2d 1258 . The record shows that Jones testified at length about fingerprinting and the difficulties of obtaining suitable fingerprints from gel capsules and vials. For instance, he testified that, after processing about seven hundred gel capsules, he developed only one suitable latent print, and he has never found a suitable print after processing over a thousand vials. He estimated that, in narcotics cases, suitable latent fingerprints are recovered from only five percent of all evidence.

Jones also testified that he was familiar with the Police Department’s General Order and that one aspect of the order was that police officers could try to lift fingerprints themselves and then submit the items to Jones’s office for further analysis. He next stated that there are three latent fingerprint examiners and three trainees employed by the Baltimore City Police Department and that there are more than 1,150 cases backed up, each of which could require a hundred lifts to check for fingerprints. Finally, Jones stated that, to the best of his knowledge, the General Order was not generally followed. The failure of the police to follow protocol or, even without a General Order, to refuse to look for fingerprints is a proper and legitimate defense tactic for attempting to create reasonable doubt, Eley v. State, 288 Md. 548 , 419 A.2d 384 (1980), but it is somewhat disingenuous for Wise to raise the issue of police misconduct and then argue that the testimony of the State to counter his allegation was not relevant.

We find no abuse of discretion in admitting Jones’s expert testimony and explanation about the backlog of 1,150 cases. This expert testimony could help a jury to understand why the police officers may not have complied with the General Order and controverts the implication that, had they done so, Wise would have been shown not to have been the one in control of the cocaine. ¹³⁷ However, we agree that Assistant State’s Attorney Fili’s testimony was irrelevant. During trial, the entirety of Fili’s testimony over objection went as follows: THE WITNESS: My name is Salvatore Fili. I’m an Assistant State’s Attorney and Chief of the Narcotics Investigation [U]nit of the State’s Attorney’s Office for the City of Baltimore.

Q Mr. Fili, what are the responsibilities of the Narcotics Investigation Division of the State’s Attorney’s Office? A We try all of the cases that are charged as felony narcotics in the Circuit Court for Baltimore City. Q And does the division keep annual statistics of the numbers of felonies charge[d] and prosecuted by our unit in Baltimore City? A We keep statistics of the number of defendants charged.

Q And do we have — do you have statistics showing the number of defendants charged in 1997? A Yes, I do. Q And are those statistics kept in the regular course of business of the State’s Attorney’s Office? A Yes.

Q And how many defendants were charged with narcotics felonies in the calendar year 1997? A 4,423. Maryland Rule 5-401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401 (2000). “Evidence of collateral facts, or of [facts] which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, should be excluded, for the reason that such evidence tends to divert the minds of the jury from the real point in issue, and may arouse their prejudices.” Dorsey v. State, 276 ¹³⁸ Md. 638, 643, 350 A.2d 665 (1976) (quoting Pearson v. State, 182 Md. 1, 13 , 31 A.2d 624 (1943)). In this case, Fili’s testimony about the number of defendants charged with narcotics felonies in 1997 lacked any probative value and tended to divert the jury.

It did not assist the jury in determining whether Wise was guilty of the crimes with which he was charged. We completely reject the State’s argument that it tended to prove why police officers may violate the General Order. Fili’s testimony did not even mention the Order. At most, he sought merely to establish a collateral fact that the State’s Attorney’s Office is busy combating the city’s drug problems.

However, even this collateral fact contains no probative value to assist the jury in deciding whether the police are justified in ignoring the General Order, much less whether Wise was guilty of possession of cocaine and possession of cocaine with intent to distribute. Rather, Fili’s testimony tended to shift the jury’s attention away from the real issue in the case, and ran the risk of arousing the jurors’ prejudices, just as if the State had called an Assistant State’s Attorney to enumerate the office case load of child abuse or murder cases in a trial of a defendant for one of those offenses and justify the testimony as explication for the police misconduct in gathering or properly preserving evidence. We are, however, persuaded beyond a reasonable doubt that Fili’s testimony did not contribute to Wise’s guilty verdict; it was harmless error, the error of admitting such testimony did not rise to the level so as to require reversal. Dorsey, 276 Md. at 659-60 , 350 A.2d 665 .

As the court below said in admitting the evidence, “I don’t think there’s any citizen of Baltimore who doesn’t know that there’s a huge drug problem in the city.” The fact that the State’s Attorney’s Office has a large load of drug cases was hardly a surprising revelation. Prosecutors would be well advised to foreswear the use of similar evidence. The State runs the real risk of dooming a successful prosecution when it offers evidence that ¹³⁹ stirs the jury’s fears and concerns about the prevalence of crime or of a particular crime and does not assist in the determination of a material fact. Indeed, it is improper conduct for a prosecutor to attempt to enlist the members of the jury in the drug war or ask them to confront crime in the streets by convicting the accused on trial.

Hill v. State, 355 Md. 206, 225-26 , 734 A.2d 199 (1999); Couser v. State, 36 Md.App. 485, 501 , 374 A.2d 399 (1977), aff'd, 282 Md. 125 , 383 A.2d 389 , cert. denied, 439 U.S. 852 , 99 S.Ct. 158 , 58 L.Ed.2d 156 (1978).

III

Wise’s final argument is that the lower court erred in overruling his objections to the State’s closing argument and in denying his motion for a mistrial. Specifically, Wise argues that the State improperly shifted the burden of proof to Wise by asking the jurors to consider Wise’s failure to call witnesses in his defense or to testify in his own defense. The State’s closing argument went as follows: [PROSECUTOR.]: .. . I’m going to ask you not to speculate, not to speculate because that’s what he’s going to ask you, because the defense didn’t produce a witness.

There’s no evidence that the defendant was waiting for a bus. Where did you hear that? You heard that in his opening statement which the judge just told you is not any more evidence than mine. Nobody got on the stand and testified to that. [DEFENSE COUNSEL]: Objection.

THE COURT: Overruled. [PROSECUTOR]: There’s no evidence that the police found the stash in an alley and grabbed an innocent man and charged him with it. No witness got on the stand to tell you that, not even the defendant’s sister. [DEFENSE COUNSEL]: Objection, Your Honor. THE COURT: Overruled. ¹⁴⁰ [PROSECUTOR]: Whose name was read to you as a potential witness during voir dire. [DEFENSE COUNSEL]: Objection. THE COURT: Well, the jury understands that the defense has no burden to produce witnesses because the burden is always on the State to prove the defendant’s guilt. [PROSECUTOR]:.

The next — that’s the next thing in my notes. The defendant has no obligation to produce any evidence. Right there. But, when a defense counsel stands in front of a jury, and makes accusations like he’s going to make against Detective Moore — he’s going to accuse him of what he’s