Bolden v. State
| Decision Date | 07 February 1980 |
| Docket Number | No. 433,433 |
| Citation | 410 A.2d 1085,44 Md.App. 643 |
| Parties | Ellen Pankey BOLDEN and Carey Stuart Taylor v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Arthur A. DeLano, Jr., Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on brief, for appellant, Ellen Pankey Bolden.
Arthur M. Ahalt, College Park, with whom were Goldstein, Ahalt & Bennett, College Park, Chartered on brief, for appellant Carey Stuart Taylor.
Thomas P. Barbera, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Arthur A. Marshall, Jr., State's Atty., for Prince George's County and Thomas A. Blair, Asst. State's Atty., on brief, for appellee.
Argued before LISS, WILNER and MacDANIEL, JJ.
On December 21, 1977, an indictment was returned by the Grand Jury for Prince George's County charging nine defendants with conspiracy to violate the Controlled Dangerous Substances Act of Maryland, conspiracy to distribute cocaine, conspiracy to possess cocaine with intent to distribute, and conspiracy to possess cocaine. Carey Stuart Taylor and Ellen Pankey Bolden, appellants, were two of the indicated co-conspirators.
An important portion of the evidence offered by the State was based on intercepted telephone communications involving a number of the indicted defendants. A motion, timely filed, was offered to suppress evidence obtained by the wire communications intercepted by the State pursuant to court authorized wiretaps, and a hearing was held before Judge Howard S. Chasanow, who denied the motion to suppress.
Appellants Taylor and Bolden were tried by a jury in the Circuit Court for Prince George's County and were convicted of conspiracy to distribute cocaine. Sentences were imposed on each of the defendants, and it is from these judgments that this appeal is filed.
Appellants raise eight issues to be determined by this appeal. They are:
I. Did the trial court err in denying appellant's motion for judgment of acquittal made at the close of the State's case when the indictment charged a single conspiracy and the proof at trial disclosed multiple conspiracies?
II. Did the trial court err in denying appellant's motion for separate trial when the evidence showed multiple conspiracies and not a single overall conspiracy between Carey Stuart Taylor, Ellen Pankey Bolden and others?
III. Did the trial court err in allowing the State, at the close of all the evidence, to amend the indictment, over objection by the appellant, by striking from the indictment the names of indicated co-conspirators?
IV. Did the trial court err in refusing to instruct the jury that the mere distribution of cocaine from Carey Stuart Taylor to Amos Steve Tinker for Mr. Tinker's personal use, on September 27 and October 1, 1977, by itself, was not sufficient evidence to prove a conspiracy between Carey Stuart Taylor and Amos Steve Tinker?
V. Did the trial court err in refusing to instruct the jury that if the jury found multiple conspiracies to exist in the instant case and not a single overall conspiracy, as alleged in the indictment, that the jury must return a verdict of not guilty as to the appellant?
VI. Did the trial court err in granting the State's motion for continuance of trial date, over objection, when the basis for the motion for continuance was to attempt to obtain additional probative evidence against the appellant when the State had not exercised reasonable diligence to secure the evidence prior to trial?
VII. Did the trial court err in refusing to suppress for use as evidence all telephonic communications intercepted between September 30, 1977 and October 3, 1977 when the order of court authorizing the interception of telephonic communications covered telephone number 891-2926 and the evidence reflected that Amos Tinker changed his telephone number to 891-2460 on September, 1977?
VIII. Did the trial court err in failing to suppress all wiretap evidence in light of the State's failure to obtain a sealing order immediately following the expiration of the wiretap orders?
The State contends that the alleged conspiracy to violate the Controlled Dangerous Substances Act began in April of 1977. At that time, Amos Tinker had an eighth of a kilogram of cocaine which was "stashed" in the home of Ellen Pankey Bolden, one of the appellants. This cocaine was to be delivered to certain unspecified individuals. In June, 1977, Ramsey Harris, Jr. (an indicted co-conspirator) was advised by Tanker that Bolden would sell him some cocaine, which Bolden later did. In August of 1977, Harris paid Tinker and Bolden for cocaine which was delivered to him by Tinker. After each of these sales, Harris sold the cocaine obtained from Bolden and Tinker to purchasers unknown to the suppliers. Appellant Taylor became involved in the conspiracy in September of 1977. On September 27, 1977, Tinker asked Taylor to supply him with some cocaine for his personal use. Taylor engaged one Leonard Lee on the phone, and Tinker gave Lee directions to reach his home.
In late September of 1977, Tinker was awaiting a shipment of drugs from a supplier in Miami, Florida later identified as Jorge Puga. On September 28, Tinker told Harris he had been unable to contact his supplier. On September 30, Tinker advised Taylor he still had not reached his source and that he needed more drugs for his own use. The police set up surveillance of Tinker's home and observed Tinker and Taylor walk to Taylor's car where he handed a lunch-sized paper bag to Tinker. In early October, Tinker told Bolden that he had not heard from his supplier at that time. Sometime between October 9, 1977 and October 13, 1977, Tinker finally reached his supplier.
The State's theory of the case was that Taylor was the "money man" who supplied the funds to purchase the illegal narcotics. Tinker advised Taylor he had finally been able to contact "his other brother" and asked Taylor "how far do you want me to go?" Taylor told Tinker he could purchase two kilograms. Tinker then called Bolden and told her he would call his "other brother" that night at about 9:00 p. m. At about 8:00 p. m., Tinker left his own home and drove to the home of Jane Busch (indicted as Jane Busch Johnson) and made two phone calls from her home to a number for Puga in Miami. Later that evening, a collect phone call was made and accepted from a Miami number to the phone in Busch's home. At 6:30 p. m. on October 13, Tinker drove to Bolden's home and gave her $100 for receiving his phone calls. The evidence indicated that Tinker had paid Bolden $600 over a period of time for accepting his phone calls.
The following day, Tinker called Taylor and told him he had ordered "it." Tinker then began his arrangements to pick up the two kilograms of cocaine. On October 14, 1977, he told Denise Hackett (another indicted co-conspirator) to make travel arrangements to Florida for Daniel Tinker (brother of Amos Tinker and an indicted co-conspirator) and herself. Amos Tinker also instructed her how to dress for the trip to and from Florida. In the course of the conversation between them, he told Denise that Taylor was bringing him some money. Tinker's arrangement with his brother, Daniel, was that he was to be paid $1,000 for picking up the drugs in Miami and returning with them to Washington. On October 14, Amos Tinker got cold feet and notified Hackett and Bolden that he "might go talk to the man and postpone the trip" and after advising Denise he "had his man sitting with him," aborted the trip to Miami.
At this point in the evidence the State introduced testimony which showed Bolden's further involvement in Tinker's drug activities. The witnesses testified that Bolden was employed as a police officer in the Metropolitan Police Department and that during the period of time pertinent to this case was assigned as a dispatcher for the Department. One of the State's witnesses testified that the Department had access to a Naddis computer which stored information about past and present narcotic distributors. On October 14, 1977, during a telephone conversation Tinker asked Bolden to "find out if there's something on me." The following day Tinker was advised by Bolden that there was nothing there. Two hours later Bolden assured Tinker she could not have been mistaken in the information she gave him because she had used the computer. On October 16, Tinker again asked Bolden to check before he committed himself to the drug venture. Several additional conversations ensued between Bolden and Tinker in which she assured Tinker there was nothing on him in the computer. Tinker, in the latter part of October, began to reschedule the trip to Florida. He set up the plan with Daniel Tinker and Denise Hackett and called Taylor to "get my belongings that you brought me by mistake last week." Taylor agreed to supply Tinker with $44,000 toward the purchase of a quantity of cocaine.
On October 31, 1977, Daniel and Amos Tinker and Denise Hackett traveled by air to Miami, Florida where they were met by an unidentified male at the airport who drove them to his house. There Denise and Daniel changed into other clothes for the return bus trip. Prior to their departure from the house, Amos gave Daniel a zippered travel bag containing cocaine. Daniel and Denise then boarded a bus for the return trip to Washington, D. C.
On November 1, 1977, Amos Tinker called Ramsey Harris, Jr. and advised him he had a quantity of drugs ready for distribution and suggested Harris come to his home to complete a deal. Tinker then called Taylor and advised that "he was all right" and that the deal had been made in Florida. Later that evening, Denise called Amos to advise him that she and Daniel were home. Daniel was advised to pick up the cocaine and take it to Daniel's apartment. At about 2:00 a. m. on November 2, Daniel, Amos and Denise met at Daniel's apartment. Amos took four large bags, each containing one kilogram of cocaine, out of the...
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