Chase v. State

• Citation: 309 Md. 224,522 A.2d 1348
• Decision Date: 01 September 1986
• Docket Number: No. 114,114
• Parties: Jerome Edwin CHASE v. STATE of Maryland. ,
• Court: Court of Appeals of Maryland

Page 224

309 Md. 224

522 A.2d 1348

Jerome Edwin CHASE v. STATE of Maryland.

No. 114, Sept. Term, 1986.

Court of Appeals of Maryland.

April 3, 1987.

John L. Kopolow, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Ronald M. Levitan, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

ORTH, Judge.

The saga of the current travails of Jerome Edwin Chase began when he pled guilty to robbery in the Circuit Court for Prince George's County. He was sentenced to imprisonment for a term of 10 years. The execution of all but 55 days of the sentence was suspended, and he was placed upon conditional probation for a period of five years.

Apparently Chase was not impressed by his good fortune in escaping a lengthy incarceration. A year later he was found to have violated certain conditions of his probation. The court "reimposed" the 10 year sentence, gave credit for 250 days served, and again suspended execution of the balance in favor of probation for five years. One of the conditions of this grant of probation was that he "obey all laws." Chase was still not convinced that he should abide by the conditions upon which he was permitted to stay out of jail nor did he attempt to become a respectable member of society. Less than a year later, he tempted fate again. He was observed by two police officers in an area of considerable narcotic trafficking engaged in what they believed to be a drug transaction. They arrested him and searched him incident to the arrest. Their belief proved to be correct. They seized from his person marijuana, drug paraphernalia and a substantial amount of cash. He was charged with violations of the Controlled Dangerous Substances Act. Chase filed a motion in the criminal cause against him to suppress the evidence seized from him. The court conducted a plenary hearing and granted the motion. It found that the officers did not have probable cause to arrest Chase. Therefore, the warrantless arrest was illegal and the search and seizure incident thereto was repugnant to the Fourth Amendment to the Constitution of the United States as unreasonable. The exclusionary rule applied to exclude the evidence from the prosecution's case-in-chief at a criminal trial on the merits. The State, in light of this ruling, nol prossed the charges.

In the meantime the State had filed a petition to revoke his probation for failure to comply with the condition that he "obey all laws," in that he possessed marijuana and narcotic paraphernalia. It pursued the petition. Chase asked the court "whether or not [it] will consider the evidence seized at the time of [Chase's] arrest as the basis of violation of [Chase's] probation." The court treated this question as a motion to dismiss grounded on the claim that the challenged evidence was inadmissible at the revocation hearing. The court denied the motion on the basis that the exclusionary rule did not apply, in the circumstances, to bar the evidence at Chase's revocation of probation hearing. Upon that ruling, Chase ultimately conceded that he had possessed marijuana. The court revoked his probation and the suspension of the execution of the 10 year sentence, suspended all but four years of it, gave credit for 580 days of previous incarceration and placed him once more on conditional probation for a period of five years commencing upon his release from prison. Chase appealed. The Court of Special Appeals affirmed the judgment except as to the length of the probationary period, which it ordered be reduced by 408 days, representing probationary time already served. Chase v. State, 68 Md.App. 413, 511 A.2d 1128 (1986).

We granted Chase's petition for a writ of certiorari and our order for the issuance of the writ accepted the two questions presented by Chase:

1) Is evidence that police have seized without a warrant and in violation of [Chase's] Fourth Amendment rights admissible to prove that he violated a condition of his probation?

2) Must the record of [Chase's] violation hearing show either that he was present and contested the charges or that he knowingly and voluntarily waived his rights to be present and to contest the charges?

I

The violation of probation hearing consisted of two phases, conducted about three months apart. The first phase dealt with the matter of the admissibility, at the hearing on the merits of the revocation of probation, of the evidence seized from Chase incident to his arrest. This evidence was the foundation of the State's case, but, as we have seen, it had been suppressed with respect to the criminal cause. The transcript of the suppression phase of the revocation hearing shows that when the case was called, defense counsel informed the court that Chase was "in the lock-up." The prosecutor thereupon introduced himself to the court, and the transcript immediately thereafter reads, "(Defendant present)." Defense counsel suggested that the evidence adduced at the suppression hearing in the criminal cause surrounding the arrest of Chase be entered in the revocation hearing by way of stipulation. The following stipulation was proffered by the State:

If we were to actually present evidence at this hearing the State would show that Private Andrew Pappas and Private Anderson, who is present in the courtroom, on January the 9th, 1985, were in the 7300 block of Hawthorne Street in Landover, Prince George's County, Maryland, when they saw the Defendant apparently signal to a passing motorist, who stopped his car. They saw apparently something exchanged between the Defendant, who pulled something out of his glove and gave it to a person in the car. The person in the car gave something back to him.

Given the nature of the area, that has a high volume of drug transactions that occur in exactly the same manner, they felt that they had just witnessed a drug transaction and decided to apprehend the Defendant.

Both officers did apprehend the Defendant. They conducted a search of the Defendant and recovered from him one plastic bag containing 58.6 grams of marijuana; three manila coin envelopes each containing a quantity, a small quantity of marijuana; and ... 125 small empty manila envelopes, and $171 in U.S. currency.

It was further proffered that

Officer Anderson did not know the Defendant, Jerome Edwin Chase, Jr., prior to this time. He had no knowledge at the time of the apprehension that he was on probation.

In fact, the reason for the apprehension was in order to prosecute him for what they believed to be a drug violation at that point in time.

Defense counsel expressly agreed to the stipulation and it was accepted by the court. It appears that the stipulation was in accord with the evidence adduced at the suppression hearing in the criminal cause. It was on that evidence that the court ruled that the articles seized from Chase were not admissible to prove the criminal charges against him, prompting the State to enter a nolle prosequi to all criminal charges. At the revocation suppression hearing, counsel argued whether the evidence seized from Chase incident to his arrest was admissible to establish that he had violated a condition of his probation. After due consideration, the court ruled that it was admissible. Following the ruling of the court, the revocation action came on for hearing on the merits. It is at this adjudicatory phase of the revocation hearing that the record is deficient. When the case was called for trial, Gregory Powell, Esq., informed the court that he was "standing in" for the defense counsel who was trying a case elsewhere. Powell said that he was ready to proceed and that Chase was "in the lock-up." The court asked: "He's coming around?" The Deputy Clerk of the court answered: "Yes, I called for him." There immediately follows in the transcript a question by the court:

All right, Mr. Powell, you admit or deny the allegations in the petition for violation of probation?

There is no indication in the transcript whether Chase was present in the courtroom when the court asked that question and Powell answered, or how much time elapsed between the clerk's statement that he had called for Chase to be brought from the lock-up and what thereafter followed. Powell answered the court's question:

For the record, we would like to preserve the right to appeal. We would deny any violation. But I believe we previously stipulated to the facts of the alleged violation. And basically that was, Your Honor, was that we agreed if there had been testimony presented in this case, the police officer would have provided the same testimony that he presented at the suppression hearing.

And, also, Your Honor, in light of the fact that there is a drug report in the underlying case reflecting that the material seized from Mr. Chase was, in fact, marijuana, we would stipulate that there was marijuana taken from Mr. Chase.

The court said: "Based upon that evidence, I am going to find the defendant in violation of probation." Defense counsel and the prosecutor entered into a discussion with the court concerning the disposition to be made of Chase. It was at the end of this discussion that the presence of Chase is affirmatively shown by the transcript. The court addressed Chase: "Mr. Chase, do you have anything you wish to tell me?" The transcript reads: "The Defendant No, sir Your Honor." The court announced its disposition and informed Chase that he had "a right to appeal this judgment of guilt in 30 days; ask me to reconsider it in 90 days." According to the transcript the case was called at 9:45 a.m. and the proceedings concluded at 9:55 a.m.

No one, including Chase and his counsel, have at any time suggested that Chase was in fact not present when the hearing...