Diaz v. State

Decision Date02 November 1999
Docket NumberNo. 199,199
Citation129 Md. App. 51,740 A.2d 81
PartiesTony DIAZ v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Fred Warren Bennett (Jason D. Tulley and Bennett & Nathans, LLP, on the brief), Greenbelt, for appellant.

Rachel Marblestone Kamins, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Patricia Jessamy, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and HOLLANDER and THIEME, JJ THIEME, Judge.

Tony Diaz, appellant, was convicted by a Baltimore City jury of possession of heroin with intent to distribute (Count 1), possession of cocaine with intent to distribute (Count 3), use or transport of a handgun (.357) in a drug trafficking (heroin) offense (Count 5), use or transport of a handgun (9mm) in a drug trafficking (cocaine) offense (Count 8), maintaining a common nuisance (heroin) in a vehicle (Count 9), maintaining a common nuisance (cocaine) in a vehicle (Count 10), and altering the serial number of a handgun (9mm) (Count 1 of a second indictment jointly tried).

Appellant was sentenced to twenty years for Count 1, increased to forty years pursuant to Md.Code (1957, 1996 Repl.Vol.), Art. 27 § 293; twenty years for Count 3, increased to forty years under § 293; consecutive twenty years for Count 5 (merged with Count 8); consecutive twenty years for Count 9 (merged with Count 10), increased to forty years under § 293, consecutive; and three years for the alteration of the serial number, consecutive, the first five years to be served without parole pursuant to Count 5, for a total of 143 years. Subsequently, the Circuit Court for Baltimore City granted appellant this belated appeal.1 He presents the following questions:

1. Did the trial court err in replacing a seated juror on the second day of trial with an alternate when the original juror was seven and one-half minutes late; the court made no inquiry into the juror's whereabouts; and the record indicated poor weather and congested traffic that morning?

2. Did the trial court err in instructing the jury that possession alone of a handgun with an altered serial number shifted the burden of proof to the appellant by creating a presumption that the appellant had performed the alteration?

3. Did the trial court err in denying the appellant's motion for judgement of acquittal on the common nuisance charge where the evidence established drugs in the car in question on only one day and the offense requires proof of a repeated violation?

4. Did the trial court err in admitting irrelevant "expert" testimony regarding drug organizations, drug packaging, and firing characteristics of different weapons; and testimony merely used to scare and inflame the jury?

5. Did the trial court err in applying the sentencing enhancement of Md. Code, Art. 27, § 293 to double three separate counts from sixty (60) years to one-hundred twenty (120) years, for a sentence totaling one-hundred forty-three (143) years, merely because of one prior possession of cocaine conviction?

6. Did the trial court err in refusing to instruct the jury that the presumption of innocence alone is sufficient to acquit the appellant?

We answer "no" to questions 1, 3, 4, and 6, "yes" to questions 2 and 5, and explain.


On December 22,1992, Agent Thames of the Federal Bureau of Investigation ("FBI"), while staking out an apartment, saw someone he suspected to be appellant proceed to a car. This individual walked back and forth from the passenger side to the trunk a number of times before entering the car and driving away. Agent Thames followed the car and subsequently lost it. When Agent Thames again spotted the car later the same day, he and a number of other agents began to follow the car. The car sped up, and all the law enforcement personnel except for Agent Thames lost track of it. Agent Thames followed the vehicle until it parked in downtown Baltimore. There, the driver exited and went into a nearby building. Agent Thames identified the individual as the same man he had seen enter the car earlier in the day.

The police brought in drug-sniffing dogs that alerted to the car, which was then seized and subsequently searched. The police found two secret compartments in the door panels that were hydraulically locked, and could be opened by a mechanism under the steering wheel. Inside the compartments were 533 blue and white glassine bags of heroin, 355 yellow-topped vials containing cocaine, 10 yellow glassine bags containing heroin, 3 blue-topped vials containing cocaine, 9mm and .357 handguns (both of which were loaded), $10,825 in cash, a social security card, and a certificate of citizenship and passport for Henry Rafael Diaz. The two larger bags containing the heroin and cocaine were dusted for fingerprints. The prints lifted did not match those of appellant. Neither the car itself nor the glassine bags and guns were tested for fingerprints. The serial number of the 9mm gun had been obliterated. The glove compartment contained several invoices for repair work done on the car that listed various names and addresses.

The car itself was registered to Carnell Burrow, who was initially arrested for the drugs recovered. The charges against him were subsequently dropped, however, in return for his testimony against appellant. Barrow denied being in the drug trade, and claimed that in December of 1991 appellant had paid him $900.00 to borrow his birth certificate so that appellant could obtain a car in his own name. The State also produced the testimony of Sofia Didley, who testified that appellant had shared an apartment with her in the fall and winter of 1992. This was the same apartment Agent Thames had staked out earlier on the day of the chase and seizure of the car.

In closing argument, the State argued to the jurors that they had a duty as citizens of Baltimore to stop the flow of drugs into their community from New York by finding appellant guilty on all counts. Attorneys for appellant argued that Burrow was in fact the person Agent Thames had seen driving the car in question and that the car registration had Burrow's signature on it.

Additional facts will be provided as required.


Appellant presents six assignments of error. We find four of those assignments of error to be disintegrous, but we find appellant's two assignments of error relating to the removal of a serial number from a semiautomatic firearm (Count 1 of the second indictment), and to the sentence enhancements under § 293 to be meritorious.

I. Dismissal of the Juror

On the beginning of the second day of trial, the trial court noticed that juror number 8 was missing. A discussion then ensued among counsel and the court, after which the court observed that seven minutes had passed since the time the trial was supposed to have commenced that morning, and that, according to the Sheriff, "there [was] nobody in sight, not in the jury room." When the trial court excused the jurors the preceding day, he had informed the jury to be in the courtroom by 9:30 a.m. The trial court replaced the absent juror with an alternate, and resumed the case at 9:37 a.m. Appellant's counsel objected, stating that the weather was stormy and raining and there had been an excessive amount of traffic during his drive to the courthouse.

Replacement of a juror with an alternate juror for reasons of judicial efficiency is discretionary in Maryland. For non-capital cases, Maryland Rule 4-312(b)(3) provides:

In all other cases, the court may direct that one or more jurors be called and impaneled to sit as alternate jurors. Any juror who, before the time the jury retires to consider its verdict, becomes or is found to be unable or disqualified to perform a juror's duty, shall be replaced by an alternate juror in the order of selection. An alternate juror who does not replace a juror shall be discharged when the jury retires to consider its verdict.

The decision to excuse a seated juror and replace him or her with an alternate for reasons particular to that specific juror will not be reversed unless there is "a clear abuse of discretion or prejudice" to the defendant. State v. Cook, 338 Md. 598, 620, 659 A.2d 1313, 1324 (1995). This standard of review exists for two reasons. First, "`the trial judge is physically on the scene, able to observe matters not usually reflected in a cold record.... [T]he judge has his finger on the pulse of the trial.'" Id. at 615, 659 A.2d at 1322 (quoting State v. Hawkins, 326 Md. 270, 278, 604 A.2d 489, 493 (1992)). Second, a defendant is not entitled to a jury comprised of any particular group of individuals, but only to a jury that is fair and impartial. Id. at 614, 659 A.2d at 1321-22.

Appellant argues that the court abused its discretion because a juror's tardiness by seven and one-half minutes does not mean that the juror was "unable or disqualified" from further service under Rule 4-312(b)(3) and that it was incumbent on the trial court to inquire as to whether the juror actually was unable or disqualified to continue her jury service before taking the "rash step" of dismissing her. His argument is unpersuasive. The trial court committed no error.

Appellant fails to show how the court committed the alleged abuse. When urging this Court to reverse for the trial court's failure to make a "minimal inquiry" into the juror's absence, appellant relies on a number of factually and legally inapposite cases. See, e.g., Wilson v. Morris, 317 Md. 284, 563 A.2d 392 (1989) (inquiry required when juror made biased remarks after trial began); Green v. Zant, 715 F.2d 551 (11 th Cir.1983) (inquiry required when juror in death penalty case fell ill); State v. Reevey, 159 N.J.Super. 130, 387 A.2d 381 (App.Div.1978) (inquiry required when juror appeared to be asleep during summations and charge); State v. Hurd, 325 S.C. 384, 480 S.E.2d 94 (S.C.App.1996) (inquiry required when juror appeared to be asleep during...

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