Berry v. State

• Decision Date: 26 February 2004
• Docket Number: No. 2094,2094
• Citation: 155 Md. App. 144,843 A.2d 93
• Parties: Derrick BERRY, et al. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

843 A.2d 93

155 Md. App. 144

Derrick BERRY, et al. v. STATE of Maryland.

No. 2094, Sept. Term, 2001.

Court of Special Appeals of Maryland.

February 26, 2004.

Michael R. Braudes (Stephen E. Harris, Public Defender on the brief), Baltimore, for appellant.

Devy Patterson Russell (J. Joseph Curran, Jr., Attorney General on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., KRAUSER, and BARBERA, JJ. BARBERA, Judge.

In the summer and fall of 2000, Baltimore City police were investigating a narcotics distribution organization that appeared to be centered at 915 North Patterson Park Avenue. The investigators used wiretaps on numerous telephone lines, including cellular telephones, some of which were registered to fictitious persons, at non-existent addresses. The investigators used the information garnered from thousands of telephone conversations as a basis for surveillance, traffic stops, and, ultimately, a series of raids on various locations. The investigation led to the arrest of appellants Derrick Berry, Eric Berry, Eric Buckson, William Downing, and Raul Varela.

Appellants were tried jointly and all were convicted of multiple counts of conspiracy: to distribute cocaine, to possess cocaine with the intent to distribute it, and to possess cocaine. Appellant Varela was also convicted of being a drug kingpin in the conspiracy, two counts of possession of cocaine, importing cocaine into Maryland, and possession of 448 grams or more of cocaine with the intent to distribute it.¹

In this appeal, all five appellants raise the following issues:

I. Did the trial court err in refusing to instruct the jury that a relationship of buyer and seller of a controlled substance does not establish a conspiracy?

II. Did the trial court err in reseating a prospective juror who had been the subject of a peremptory challenge by the defense?

III. Did the trial court err in excluding evidence that a judge had previously found two police witnesses not to be credible?

IV. Did the trial court err in admitting evidence of the arrests of individuals alleged to be part of the conspiracy but not joined for trial with appellants?

V. Were appellants deprived of a fair trial by the admission into evidence of a gun seized from a car allegedly driven by appellant Buckson, and by the accompanying comments of the prosecutor?

VI. Was the evidence legally insufficient to sustain more than one count of conspiracy for each appellant?

Appellant Derrick Berry also asks:

VII. Did the trial court err in denying a motion to suppress currency seized from him?

And appellant Varela asks:

VIII. Was the evidence insufficient to justify his conviction and sentence as a "drug kingpin"?

FACTS

The evidence at the nearly-month-long trial included wiretapped telephone conversations between appellants Buckson and Downing, Buckson and Derrick Berry, Buckson and Eric Berry, Downing and Derrick Berry, Derrick Berry and his twin brother, Eric, and Derrick Berry and Keith Demley, the last of whom testified that he was the middleman between the Baltimore organization and Varela, a New York supplier. Some conversations involved more than two appellants.

In addition to the wiretapped conversations, police observed meetings between and among some of the appellants. For example, on August 17, 2000, the Berry brothers were seen with Buckson in the 900 block of North Patterson Park Avenue. On September 1, Downing was seen leaving 915 North Patterson Park Avenue, as was Eric Berry, who stood on the steps of that house with Buckson. The next day, the same group was seen at that house.

Detective William Bristol was accepted as an expert in the identification, packaging, and distribution of controlled dangerous substances, particularly in Baltimore City, as well as the structure of drug organizations, and the terminology of the trade. Detective Bristol testified that many seemingly innocent references in the wiretapped conversations actually referred to drug transactions. For example, Detective Bristol described the tendency of drug dealers to use a middleman to negotiate with several sources for the best price for a large amount of cocaine. In this context, he interpreted a telephone call between appellant Buckson and a man named Donnell Booker as follows: "Powder or ready" referred to whether the substance would be supplied in the form of hydrochloric cocaine or cocaine base; "yeah, straight" referred to cocaine that was not cooked; and "thirteen and a half" ounces was the amount for which he was asking the price. Thirteen and a half ounces was worth approximately $10,400.00. Ending a conversation with the phrase, "Let me call my man," indicated that the speaker was working in conjunction with others.

According to Detective Bristol, high quality cocaine was designated by nicknames such as "love" or "lake trout"; "put it into work" or "put it together" referred to packaging the drug; "wrapped up tight" meant an entire kilogram, or approximately 36 ounces. And "take 5 and put it in the refrigerator" referred to the practice of hiding drugs among ordinary refrigerated items.

Detective Bristol also interpreted terms relating to the business aspects of the operation. For example, in conversations between appellants Buckson and Derrick Berry, "like 450 or something" related to the then-current price for a half-ounce of cocaine, $450.00 to $500.00; and Berry's direction that Buckson "start doing those halfs [sic] for five if they don't get the whole thing" meant that he should start selling half-ounce quantities for $500.00 if the buyers did not purchase a whole ounce. The profit on half-ounce quantities was greater, and a discount was given on sales of whole ounces.

In mid-July 2000, the police intercepted a series of communications between Demley and appellant Derrick Berry, leading the police to think that a major drug transaction was about to occur. Demley lived in New York, but came to Baltimore regularly on drug business, staying at an apartment on Washington Street. That summer, he came to Baltimore to sell drugs for appellant Varela to pay off a debt from a previous drug transaction.

Appellant Varela picked up Demley's wife and children in New York and drove them to Maryland. Demley saw this as an effort to intimidate him. Varela booked three rooms at the Best Inn, one for himself, one for another man, and one for Demley's family. He gave Demley a Buick equipped with a hidden compartment containing four kilograms of cocaine, and showed him how to operate the trap door.

Demley arranged a meeting with Derrick Berry and sold him the first of the four kilograms of cocaine. Demley took $21,000.00 in cash back to Varela, who was waiting at the motel. Demley and Derrick Berry engaged in two more transactions. Demley had turned over $50,000.00 to $58,000.00 by the time he was arrested on July 21, 2000.

Demley consented to a search of the car at the time of arrest, relying on the trap door to deceive police. But after a drug-sniffing dog alerted, he showed the police how to operate the trap door. A search of the car revealed approximately one and a half kilograms of cocaine and approximately $60,000.00 in cash.

Demley agreed to assist the police in their investigation.² In their presence, he made a series of calls to Derrick Berry and arranged to sell him $21,000.00 worth of cocaine on July 21, 2000, at the Moravia Road McDonald's. Police watched the meeting in the McDonald's parking lot, and approached when Derrick Berry held up a bag and displayed it to Demley. Demley was taken back into custody, but Derrick Berry was allowed to leave after police seized the bag, which contained $26,320.00 in cash.

Meanwhile, other officers were involved in conducting surveillance of the motel where Demley's family and Varela were staying. Detective Keith Gladstone located a car with New York license plates outside of the motel and followed the two men who drove it away. The car was stopped on Moravia Road, at Sinclair Lane. The driver was Andre Nalan and the passenger was appellant Varela. Varela gave his name as "Darelb." Detective Gladstone obtained consent to search the car and found motel receipts for room 402 in the name of Paul Darelb, room 412 in the name of Andres Edwardo, and room 426 in the name of Martinez Marita.

Detective Gladstone and Detective Sergeant Tracy Geho went back to the motel. There, Varela's wife or girlfriend, Martha Consales, let them enter and search room 402. A plastic bag containing papers in Varela's name and approximately $59,000.00 in cash were found in that room.

On July 24, 2000, police intercepted a call between appellant Buckson and a man named Harvey Bruer, and observed their subsequent meeting and what they believed to be a drug transaction. When Buckson drove away, the police attempted to stop him for a traffic violation. Buckson fled, hitting several cars before he abandoned his vehicle and escaped on foot. His own car caught fire. After the fire was extinguished, police searched the car and found a .38 caliber Derringer handgun and a bag of empty gel caps.

In early September 2000, the investigation concluded with nearly simultaneous raids on numerous properties that had been mentioned in the wiretapped conversations, or were places where appellants and their associates had been seen. We summarize below some of the most significant raids.

Late in the evening of September 1, police began a raid on 915 North Patterson Park Avenue, where they recovered drug paraphernalia, packaging materials and equipment, and papers in the name of appellant Eric Berry. Earlier that evening, police had seen appellants Downing and Buckson at that address. The two men were together in Downing's car for two blocks, then Buckson exited the vehicle. Downing's car was followed and stopped. After a struggle, Downing was subdued, and police recovered a bag of suspected cocaine from his waistband.

On September 6, police raided 3525 Pelham...