Donati v. State

• Decision Date: 29 January 2014
• Docket Number: No. 1538,Sept. Term, 2012.,1538
• Citation: 215 Md.App. 686,84 A.3d 156
• Parties: Michael E. DONATI v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

215 Md.App. 686

84 A.3d 156

Michael E. DONATI

v.STATE of Maryland.

No. 1538, Sept. Term, 2012.

Court of Special Appeals of Maryland.

Jan. 29, 2014.

Michael T. Torres (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Cathleen C. Brockmeyer (Douglas F. Gansler, Attorney General, on the brief), Baltimore, MD, for Appellee.

Panel: MATRICCIANI, GRAEFF, and CHARLES E. MOYLAN JR. (Retired, Specially Assigned), JJ.

GRAEFF, J.

A jury sitting in the Circuit Court for Montgomery County convicted appellant, Michael Donati, of one count of distribution of marijuana, two counts of obstruction of justice, two counts of making a false statement to a police officer, two counts of intimidating a witness, i.e., Jason Allen and Alex Zeppos, and fifteen counts of electronic mail harassment of Mr. Zeppos. The court sentenced appellant to a total of thirty-two years imprisonment. ¹

On appeal, appellant presents eight questions for our review, which we have rephrased slightly, as follows:

1. Did the trial court abuse its discretion in admitting into evidence emails that were not properly authenticated?

2. Was the evidence sufficient to support appellant's convictions for e-mail harassment?

3. Do the convictions for e-mail harassment merge?

4. Did the trial court abuse its discretion in restricting defense counsel's closing argument?

5. Did the trial court err in admitting a letter seized during the execution of a search warrant on appellant's residence?

6. Did the trial court err in permitting witnesses to identify appellant's voice on a 911 call?

7. Did the trial court abuse its discretion in accepting Detective Heverly as an expert in digital forensic examinations?

8. Did the trial court err in denying appellant's motion for a new trial?

For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves appellant's sustained attempts to harass and intimidate Mr. Zeppos, one of the owners of Growlers Pub (“Growlers”) in Olde Towne Gaithersburg, and Mr. Allen, owner of the security company that had a contract with Growlers, after an incident that occurred at Growlers on April 10, 2011. Appellant had approached one of Mr. Allen's employees, Daniel Duncans, and offered to sell him marijuana. Mr. Allen removed appellant from the bar with the help of Mr. Duncans, Mr. Zeppos, and Growlers' chef, and Mr. Zeppos called the police. Mr. Allen alleged that, while he attempted to restrain appellant, appellant punched, bit, and pushed him.

Rodney Campbell, an officer with the Montgomery County Police Department, received a dispatch to respond to Growlers. When he arrived, he arrested appellant for CDS violations. Officer Campbell recovered, from the ground next to appellant, a large sandwich bag, which contained 10 smaller bags of marijuana, as well as three hand-rolled marijuana cigarettes. Appellant subsequently was charged with various offenses relating to this incident. Trial was set in the Circuit Court for Montgomery County for October 19, 2011, and Mr. Zeppos was scheduled to be a witness.

On April 20, 2011, Marcus Jones, a lieutenant with the Montgomery County Police Department,² received an e-mail forwarded from Commander Willie Parker–Loan, a captain with the Montgomery County Police. The e-mail was from Robert Fox, at “bar security 123@ gmail. com” and it alleged that someone in the Gaithersburg area was involved in growing and selling marijuana.

That same day, Darien Manley, Chief of the Maryland–National Capital Park Police (“MNCPP”), received an e-mail tip from Robert Fox, at “bar security 123@ gmail. com,” regarding marijuana grow operations in Seneca Creek State Park and Black Hills Regional Park. He responded to the e-mail, stating that he would pass the information to an MNCPP investigator.

Chief Manley forwarded the e-mail to Detective Greg Worsey, a detective in the MNCPP Marijuana Eradication Unit. Detective Worsey and his partner, Detective Price, began an investigation. They walked through the parks, investigated locations where they had discovered grow operations in the past, and requested flight time with a National Guard helicopter that does flyovers to find suspected grow operations, but they did not find anything.

On April 23, 2011, at 2:25 a.m., a man who declined to identify himself called 911, stating that he would “like to report a drug dealer.” The man reported that his neighbor on Sioux Lane, Mr. Allen, was selling drugs to individuals who drove to his house. The caller stated that Mr. Allen had “ marijuana plants growing on the outside of his house on the steps ... in gray pots,” and Mr. Allen had put a bag on “the outside of his house on the steps, [into] black shoes.” The caller further stated that Mr. Allen was growing marijuana in Seneca Creek State Park and Black Hills Regional Park, and there was fencing in Mr. Allen's yard that he used around plants.

At approximately that same time, Mark Norris, a detective with the Montgomery County Police Department who was off-duty at the time, drove down Sioux Lane in his unmarked car. He observed a dark colored, older model minivan sitting on Sioux Lane “partially blocking the roadway.” Detective Norris was very familiar with the area, and he found the presence of the van unusual because people generally were not out in that area at that time of night. Detective Norris was aware that there had been increasing crime in the neighborhood, and in his experience, older model minivans often were used by burglars. Based on his concerns, he pulled up behind the van.

The driver of the van then pulled out and began to drive down Sioux Lane, going approximately 10 miles per hour. Detective Norris followed behind and then pulled over and turned his lights off. A few minutes later, he observed the van drive back down Sioux Lane at a slow rate of speed.

At that point, Officer Nicholas Jerman, who was training a rookie police officer, Gregory Hollis, drove down Sioux Lane in a marked police car. Detective Norris signaled him, told Officer Jerman about the van, and indicated that they should pull the driver over to investigate. Officer Jerman stopped the vehicle, and Detective Norris pulled up three car lengths away.

Officer Hollis made contact with the driver of the van and asked him to step out of his vehicle. Both he and Officer Jerman identified appellant at trial as the driver of the van.

Officer Hollis asked appellant for his identification, and he asked appellant why he was in the neighborhood. Appellant responded that he was looking for something to eat. Officer Jerman noted that, “being in a neighborhood, you're not going to find a place to eat, unless you know somebody's house to go to.” Officer Hollis observed a police scanner in appellant's car, which was tuned to the Sixth District channel for police radios.

After completing a field interview report and obtaining appellant's contact information, Officers Jerman and Hollis responded to the address on Sioux Lane referenced in the 911 call. Two other officers, John Ceresini and Rick Goodale, who had heard the detailed dispatch regarding the alleged activity at the house, also responded.

Officer Goodale observed a plastic bag in the driveway containing “a green leafy substance.” Based on his training, he recognized the substance as marijuana. He also observed, consistent with the information from the 911 call, a pair of work boots on the front steps that contained a bag of marijuana. Officer Goodale then looked in the garden area by the front door and found two small live marijuana plants and a roll of green fencing.

Officer Goodale approached the front door to make contact with the homeowner. Based on the 911 call, he believed that the suspect was a white man, 5'7? to 5' 8?, named Jason. The man who opened the door was a large black male; he stated that he was not Jason, but Jason was at home. As soon as the front door opened, Officer Goodale smelled a strong odor of marijuana coming from inside the house. The man who opened the door admitted that he had just smoked a joint. A man who identified himself as Jason Allen then came to the door, and Officer Goodale asked him to step outside.

Officer Goodale and the other police officers told Mr. Allen that they had received an anonymous call regarding his residence, and Officer Goodale showed him what they had observed in front of the house. Officer Goodale asked Mr. Allen if he would consent to a search of the residence, which Mr. Allen did. Officers Goodale and Hollis searched the residence and found no evidence of a marijuana grow operation or distribution. Officer Goodale explained that the police did not arrest Mr. Allen because, “based on what we found at the house, we did not believe that he was involved in any narcotics distribution or possession.”

Before leaving the house, the officers asked Mr. Allen whether he had any ongoingdisputes or issues with anyone, and Mr. Allen answered in the negative. They asked him whether he knew appellant. Mr. Allen expressed surprise at hearing appellant's name, stating that he did know him and explaining how.

After leaving Sioux Lane, Officers Jerman and Hollis went to the Emergency Communications Center (“ECC”), where the 911 dispatchers are located, and they listened to the tape of the earlier 911 call. They listened to the tape twice, a little more than an hour after stopping appellant and speaking to him. At appellant's trial, Officer Hollis testified that appellant's voice was on the 911 call.

Officer Ceresini called ECC to determine the phone number used to make the 911 call. He subsequently determined that the call came from a pay phone in front of a Giant store. Officer Hollis reviewed the security footage from the Giant store parking lot and recognized the dark van as the one driven by appellant that he and Officer Jerman had stopped on Sioux Lane.

On April 23, 2011, Mr. Zeppos received an e-mail through...