Best v. State

• Decision Date: 01 September 1988
• Docket Number: No. 916,916
• Citation: 79 Md.App. 241,556 A.2d 701
• Parties: Tony Cornelius BEST v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 241

79 Md.App. 241

556 A.2d 701

Tony Cornelius BEST v. STATE of Maryland.

No. 916, Sept. Term, 1988.

Court of Special Appeals of Maryland.

April 27, 1989.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Alexander Williams, Jr., State's Atty. for Prince George's County of Upper Marlboro, on the brief), for appellee.

Submitted before MOYLAN, GARRITY and BLOOM, JJ.

MOYLAN, Judge.

The appellant, Tony Cornelius Best, was convicted by a Prince George's County jury, presided over by Judge Jacob S. Levin, of 1) possession of cocaine with intent to distribute and 2) possession of marijuana with intent to distribute. Upon this appeal, he raises the following contentions:

1. that Judge Levin erroneously failed to suppress the physical evidence 2. that Judge Levin erroneously admitted evidence notwithstanding the failure of the State to establish an ostensibly critical link in the legally mandated chain of custody;

3. that Judge Levin erroneously admitted expert testimony regarding the characteristic use of automobile telephones by narcotics dealers;

4. that Judge Levin erroneously failed to instruct the jury fully with respect to the chemical characteristics of contraband cocaine; and

5. that the sentence imposed was illegal.

Traffic Law: Signalling a Turn

Commendably, counsel for the appellant has simplified the suppression issue for us. His attack is narrowly focused. Our response will be correspondingly narrow.

At about 5:30 p.m. on September 27, 1987, the police stopped a BMW driven by the appellant and occupied by two passengers. We are mercifully spared the minute dissection of an escalating series of events progressing from the failure of the appellant to have his driver's license with him to his use of a wrong name to the discovery of outstanding arrest warrants for one of the passengers to the subsequent discovery of an open container of an alcoholic beverage to the recovery of marijuana from the passenger compartment followed by the appellant's attempted flight and subjugation leading in turn to an inventory search of the vehicle which ultimately yielded cocaine from the car trunk. Bursting forth from every seam of the appellant's brief is the allusive contention, lurking behind the formal contention, that the traffic stop was but a subterfuge for the search for narcotics. Appellant's counsel, however, with a sure sense of the juridical limits, recognizes the inherent difficulty with any such complaint. Carefully crafted fact finding, with some supporting evidence, is virtually invulnerable to disciplined appellate review. Legal decisions, unlike factual decisions, are, on the other hand, classic grist for the appellate mill. The appellant focuses, therefore, upon one such legal decision.

The single issue is whether the initial stop for a routine traffic violation was, even granting it surface credibility, legitimate. It is agreed by all that the appellant made a right-hand turn from 55th Avenue onto Quincy Street without giving any directional signal. There is, moreover, some evidence that the police car was travelling on 55th Avenue behind the appellant's vehicle at the time the appellant made the turn. At the very least, the police car had been behind the turning vehicle and was still in the immediate area. Md. Transp. Code Ann. § 21-604(c) (1987) provides:

"(c) Required signals.--A person may not, if any other vehicle might be affected by the movement, turn a vehicle until he gives an appropriate signal in the manner required by this subtitle." (Emphasis supplied).

The appellant argues that the State failed to show that the police car might have been affected by the movement. The argument is that unless the State has affirmatively proved that another vehicle is actually following the turning vehicle and following closely enough to be adversely affected by the absence of the signal, the State has failed to prove the condition precedent for the requirement that the warning be given. Such is far too narrow a reading of the traffic law, which deals with left-hand turns and right-hand turns alike and which is intended to alert other vehicles in the vicinity coming in from all points of the compass. Judge Levin ruled, quite properly we hold, that the requirement to signal a turn is intended to benefit all other vehicles in the area, whether such vehicles are following the turning vehicle, approaching the turning vehicle from the front, or moving in upon the turning vehicle from an intersecting highway. Judge Levin ruled:

"The Court: All right, fine. My interpretation of the statute, after I have thought about it over lunch time, is that to adopt your theory, you have eliminated anybody behind you, and fine, there is no point in telling me anything else. Your interpretation of the statute is that you have got to have somebody come in and say, I have to be affected by that failure for him to give a right turn. That is not the intent of this statute.

The intent of this statute is to warn all traffic, either intersecting traffic or traffic behind you, that you intend to make a right turn or a left turn. The statute doesn't say anything about left turn or right turn, it says, any kind of turn. That you have to give a signal and in my judgment, the purpose of the statute is not only to give a warning to people that are coming at an intersecting highway but also the people that are behind you and accordingly, I find it was a valid stop and accordingly, the motion to suppress is denied."

We hold that Judge Levin was correct. The traffic stop followed a legitimate traffic violation and that is all that is before us on this contention.

The Chain of Custody

The appellant's second contention is that the State failed to prove a sufficient chain of custody as to both the marijuana and the cocaine. Md.Cts. & Jud.Proc.Code Ann. § 10-1003 (1984) provides, in pertinent part:

"In a criminal proceeding, the prosecution shall, upon written demand of a defendant filed in the proceedings at least five days prior to a trial in the proceeding, require the presence of the chemist, analyst, or any person in the chain of custody as a prosecution witness. The provisions of §§ 10-1001 and 10-1002 concerning prima facie evidence do not apply to the testimony of that witness." ¹ (Emphasis supplied).

Four months prior to trial, the appellant filed a written request demanding the presence of all persons in the chain of custody. He now complains that a crime lab technician, Fenton Henson, was not called to the stand and that Fenton Henson was a "person in the chain of custody." We are called upon, inter alia, to determine what the necessary conditions are for one to be deemed "in the chain of custody."

As we begin our analysis, let our approach be clear. We believe that the State in this case carefully touched all of the procedural bases and that there was no failure of compliance, even in the most technical sense, with the even arguable requirements of § 10-1003. Lest the appellant be diverted onto some wasteful quest to prove to the contrary, however, we would emphasize that our ultimate holding as to the admissibility of the evidence does not depend upon such technical compliance. Under the circumstances, we have no intention of haggling or wrangling needlessly over the punctuation, over the grammar, or over some hyper-literal implication of this or any other rule. A rule--any rule--does not exist for its own sake alone but only to serve an undergirding purpose. When in our judgment that undergirding purpose has clearly been served, we are not about to worry over whether there has been blind and literal obedience to the rule in the tradition of a Prussian drillmaster. The purpose of the rule under consideration is to guarantee the integrity of the physical evidence. The service of that larger purpose, and that alone, is our guiding principle.

Resort to that overriding principle is not necessary in this case, however, because we hold that there was no failure of compliance with § 10-1003, even if the section requires what the appellant thinks it requires. The basic rule with respect to the reception of physical or "real" evidence was well summarized by Judge Lowe in Amos v. State, 42 Md.App. 365, 370, 400 A.2d 468 (1979):

"To be admissible ... 'real evidence' must be in substantially the same condition that it was in at the time of the crime and must be properly identified.... Although there is a natural inference or presumption of continuance in the same condition, that inference varies in each case with the nature of the subject matter and the time element....

Whether real evidence is in the same condition as at the time of the crime so as to permit admissibility is not entirely a discretionary matter with the court ...; although the circumstances surrounding its safekeeping in that condition in the interim need only be proven as a reasonable probability.... The proof negating the probability of changed conditions between the crime and the trial, is spoken of as proving the chain of custody, and in most instances is established by accounting for custody of the evidence by responsible parties who can negate a possibility of 'tampering' and thus preclude a likelihood that the thing's condition has changed."

See also Nixon v. State, 204 Md. 475, 105 A.2d 243 (1954); Breeding v. State, 220 Md. 193, 151 A.2d 743 (1959); Moore v. State, 73 Md.App. 36, 50-52, 533 A.2d 1 (1987).

Under those principles, as they have developed at the common law generally and under the common law of Maryland specifically, what is necessary to negate the likelihood of tampering or of change of condition will vary from case to case and from one type of evidence to the next. Arguably, controlled substances are more vulnerable to tampering or to commingling than would be, for instance,...