Campbell v. State

• Decision Date: 18 November 2015
• Docket Number: No. 2774,2774
• Court: Court of Special Appeals of Maryland
• Parties: LEVAR KINTE CAMPBELL v. STATE OF MARYLAND

LEVAR KINTE CAMPBELL v. STATE OF MARYLAND

No. 2774

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

November 18, 2015

UNREPORTED

Meredith, Nazarian, Alpert, Paul E.(Retired, Specially Assigned), JJ.

Opinion by Alpert, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority.Md. Rule 1-104.

Appellant, Levar Kinte Campbell, was charged by criminal information in the Circuit Court for Wicomico County, Maryland, with possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, and related counts.After he was convicted by a jury on all counts, appellant was sentenced to 25 years without possibility of parole.Appellant timely appealed and presents the following questions for our review:

1.Did the circuit court abuse its discretion in not considering appellant's untimely motion to suppress, where, inter alia, the motion was untimely through no fault of Mr. Campbell's, the State did not oppose the request to litigate the motion belatedly, the motion could have been litigated without changing the trial date, and the interest of justice demanded hearing the motion?

2.Did the trial court err in permitting the State to play a portion of Appellant's interview with police in which he invoked his right to remain silent?

For the following reasons, we shall affirm.

BACKGROUND

Because appellant's first question presented concerns the timeliness of a motion to suppress evidence, we shall set forth a chronology of pertinent events.

Chronology

April 5, 2014 - Appellant arrested by Wicomico County Sheriff's Deputy.

April 6, 2014 - Charges filed in District Court of Maryland for Wicomico County, Maryland.

April 6, 2014 - Initial Appearance of Appellant in District Court.

April 9, 2014 - Appearance of Public Defender, Demand for Chemist, Demand for Speedy Trial, and Request for Discovery filed in District Court.¹

August 29, 2014 - Preliminary Hearing in District Court.Probable cause found.

September 4, 2014 - Criminal Information filed in Circuit Court.Copy mailed to Appellant.Record transmitted from District Court.

September 4, 2014 - State's Disclosure and Request for Discovery filed in Circuit Court and sent to Appellant.²

September 26, 2014 - Appellant's initial appearance in Circuit Court, without counsel.

October 14, 2014 - David Moore files Request for Discovery and Motion to Produce Documents.³

October 16, 2014 - State files Answer to Defendant's Request for Discovery, indicating that discovery was provided to Moore on October 15, 2014.

November 19, 2014 - Sandra Fried enters appearance on behalf of Appellant, and files Request for Discovery, Motion to Produce Documents, and Motion to Suppress.⁴

November 24, 2014 - David Moore formally enters appearance on behalf of Appellant.Motion to Suppress filed.⁵

November 24, 2014 - Moore files Joint Motion with State to Schedule Hearing for Motion to Suppress.

November 26, 2014 - Order filed on Joint Motion to Schedule Hearing, stating "Counsel, 4-252 Motions are untimely filed as initial appearance was 9/26/14."

December 2, 2014 - State's Motion for Hearing to Clarify Counsel.

December 22, 2014 - Motions Hearing(seeinfra).Moore's motion to strike appearance granted.Court denies Motion to Suppress.

December 23, 2014 - Written Order denying Motion to Suppress filed.

January 13, 2015 - Jury trial.Appellant convicted on all counts.Sentenced as subsequent offender to 25 years without parole.

February 10, 2015 - Notice of appeal filed.

Motion Hearing

At the start of the motions hearing, Defense Counsel Moore moved to strike his appearance, in favor of Defense Counsel Fried.Simultaneously, Moore gave Fried the discovery materials that were given to him by the State on or around October 15, 2014.Pertinent to the issue on appeal, the court then noted that the appellant's initial appearance in the circuit court was September 26, 2014, and that the first filing of a motion to suppress was beyond thirty days later, or on November 19, 2014.When asked for an explanation of the late filing, the State proffered that appellant's first counsel, Moore, had informed him "that it was largely a scheduling error with a new secretary, and accidental."After noting that it had not filed a motion to set aside the suppression motion due to an untimely filing, the State informed the court that it would "not be opposed to the motions hearing if the Court felt that it was appropriate."The court then clarified:

THE COURT: All right.There was a joint motion to schedule a hearing for a motion to suppress on November 24, 2014, and it recites that defense counsel entered his appearance simultaneously and the motion to suppress with the filing of this motion, Assistant State's Attorney . . . joins in the filing of the belated motion and consents to the scheduling of a motion to suppress.Counsel requests that this hearing be scheduled before December 18, 2014, and trial in this matter is scheduled for January 13^th, 2015.And it was at the bottom of that that I indicated that they're not timely.

Yes, my understanding, and you'll correct me if I'm wrong is that Mr. Moore's [Defense Counsel's] representation was that he filed discovery on behalf of his client, his belief was that his office had filed both the entry of appearance, request for discovery, and the mandatory motions.

MR. BRUECKNER [PROSECUTOR]: Correct.

THE COURT: But due to his clerical staff not filing everything that he expected to be done, those were not filed.And that when Ms. Fried [Defense Counsel] entered her appearance and filed a motion is when it became apparent that there was a problem for the first time.

Is that everybody's understanding of what happened?

MR. BRUECKNER: That is, Your Honor.

Mr. MOORE: Yes, Your Honor.

THE COURT: Sir, is that your understanding as well?

THE DEFENDANT: Yes, sir.I mean yes, ma'am.

After considering Pugh v. State, 103 Md. App. 624, cert. denied, 339 Md. 355(1995), the court framed the issue before it as follows:

So at this point I would have to find good cause.And the good cause would have to be that there was an oversight in the Defendant's representation, or in counsel, that they failed to file the motions and that they failed to notice the fact that the motions were not filed in the timeframe allotted, and that the State doesn't object.

The State then contended that the deadline for filing mandatory motions was actually November 15, 2014, and that the first motion to suppress was only filed four days later, on November 19, 2014.When the court reminded the State that the deadline for filing mandatory motions was based on "the first appearance of the Defendantor his counsel,"the State maintained that the starting date for purposes of calculating the thirty days was October 13, 2014.(emphasis added).After the State suggested that this case involved a narrow time frame, the court then inquired as follows:

THE COURT: Yes, we have.I suppose that the question also goes to whether the reason given is something that I'm prepared to recognize as good cause from this point forward and whether your failure to object will be relevant to that consideration, because, you know, the State's failure to object in this case, are you willing to waive your right to ever object to such a claim in every case in the future?

MR. BRUECKNER: No, Your Honor.The State would not couch it as a failure to object but a reasoned -

THE COURT: Or a consent, however you want to put it.

MR. BRUECKNER: - right, that the State has looked at the totality of the chain of events in this case and made that decision not to object, which the State believed to be in the interest of fairness to Mr. Campbell in this specific set of facts as they transpired.Certainly not in every case.

The court then inquired, if it were to "grant the motion, what effect would that have on the process of the trial date?"The State responded that the parties could go to the Assignment Office to pick a new motions date.However, the State was concerned because there was a codefendant in this case, and the codefendant's trial was set to be held after appellant's trial date.The court indicated that trials are not scheduled in order to "please the State's order of preference," and the question was whether trial could proceed as scheduled.The prosecutor then stated that it was "adamantly opposed to moving the trial date, if we can hear motions prior to the trial date."

After the court again suggested that the parties go speak to the Assignment Office, Defense Counsel Fried suggested that motions could be held before the scheduled trial date.Counsel then informed the court that the motion to suppress concerned the lawfulness of a traffic stop of a vehicle in which appellant was a passenger.The vehicle was stopped because the occupants and the vehicle allegedly matched the description of a similar vehicle that was involved in a robbery.Counsel contended, briefly, that the stop was unlawful.

The court then indicated it would take a short recess but first asked if there was anything else that Defense Counsel wanted to add to the consideration of good cause to excuse the untimely motion.Counsel informed the court that, for purposes of judicial economy, she had a similar situation involving a different client and a motion that was improperly filed, and that client received a subsequent motions hearing after postconviction.It was her argument that, ultimately, appellant would also prevail in a postconviction proceeding.The court responded:

THE COURT: Well, that assumes that he would be found guilty.And part of why we don't try a post-conviction matter as part of a trial is that the Defendant is presumed innocent.If he is not convicted, it's all moot.

MS. FRIED: I understand that and -

THE COURT: Otherwise, we just do post-conviction hearings pre-trial all the time, and

...