Emory v. State
| Decision Date | 01 September 1993 |
| Docket Number | No. 1547,1547 |
| Citation | 101 Md.App. 585,647 A.2d 1243 |
| Parties | James Mitchell EMORY and Roger Lee Emory v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Byron L. Warnken (Warnken & Warnken, on the brief), and John C. Fones (E. Thomas Maxwell, Jr., on the brief), Baltimore, for appellants.
Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.
Argued before MOYLAN, DAVIS and HARRELL, JJ.
The appellants, James Mitchell Emory and Roger Lee Emory, were convicted by an Anne Arundel County jury of nine and seven counts, respectively, charging drug kingpin conspiracy and related offenses. On this appeal, they contend:
1. that the trial court erred in admitting "other crimes" evidence;
2. that the evidence was not legally sufficient to sustain James Emory's conviction for importation or Roger Emory's
conviction for possession with intent to distribute fifty pounds of marijuana;
3. that the trial court erred in denying the appellants' motion to suppress physical evidence seized pursuant to unconstitutionally issued search warrants;
4. that the trial court erred in denying the appellants' motion to suppress keys found in James Emory's Ford Explorer;
5. that the trial court abused its discretion in denying the appellants' motion for a mistrial in that the prosecutor's statements, in rebuttal closing argument, made the jury believe that the Emorys must be guilty because they did not testify, in violation of both the Fifth Amendment privilege against compelled self-incrimination and the Maryland common law; and
6. that six sentences must be vacated, either under the Blockberger required evidence test or under merger by legislative intent.
We hold that the trial court erred in admitting "other crimes" evidence. Under the circumstances, the appellants' fifth and sixth contentions are moot. It behooves us, however, to consider the second contention alleging the legal insufficiency of the evidence to support several of the convictions because of the possible double jeopardy ramifications such a holding might have should the State choose to retry the case. In the exercise of our discretion, we choose also to address the appellants' third and fourth contentions because a retrial on the merits would not necessitate a rehearing on or reconsideration of the suppression motions if we should decide that the initial rulings were not incorrect.
"Other Crimes" Evidence
The appellants were charged with having conspired 1) with each other; 2) with three other named parties, to wit, Philip Dulany, Lawrence Leiben, and George Thomas Johnson; and 3) with persons known and unknown to violate the anti-narcotics laws in a variety of ways. It was charged in the
indictment, moreover, that all of the offenses alleged to have been committed by both appellants occurred during the seventeen-month period that ran from June 1, 1991 through October 29, 1992.
It was on October 29, 1992 that officers of the Anne Arundel County Police Department culminated their ten-month investigation. They obtained and executed twenty-one search and seizure warrants and arrested eleven individuals, including the appellants, for drug kingpin conspiracy and related offenses. The jury trial of the appellants was spread over twelve trial days. Thirty-two witnesses were called for the prosecution and seventy-six exhibits were offered in evidence.
A key witness against the appellants was Lawrence Leiben, a codefendant and co-conspirator who had entered into a plea arrangement with the State. He supplied significant inculpatory information with respect to both appellants and their activities during the seventeen-month period charged in the indictment. The critical issue now before us involves Lawrence Leiben's testimony with respect to various narcotics-related activities engaged in by the appellants at various times over the course of a twenty-year period preceding the commencement of the seventeen-month period charged in the indictment. Both by way of a motion in limine and by subsequent repeated objections during the course of Lawrence Leiben's testimony, the appellants amply preserved their challenge to this line of testimony.
The State argued that it was necessary to have Leiben's testimony go back over the course of twenty years in order "to show the relationship between these parties almost their entire adult lives." The appellants offered to stipulate that both of them had known Leiben socially since the late 1960's, that Leiben and James Emory had been members of the same Army Reserve unit, and that Leiben and both appellants had once worked on the same job. The State was nonetheless permitted to have Leiben recount in detail his earlier involvement with the appellants in the narcotics traffic. Indeed, a
full thirty-eight pages of transcript of Leiben's direct examination is devoted to these pre-1991 activities.
Leiben testified that he met James Emory in the late 1960's when they served together in the same Army Reserve unit. Through James, Leiben became acquainted with Robert Emory. He testified that at some time in the early 1970's, he, James Emory, and Philip Dulany together bought a pound of marijuana, split it up three ways, and then sold their respective shares to make approximately $100 of profit apiece. He further testified that James Emory then began selling marijuana on a more regular basis. At some time thereafter, Leiben began purchasing small amounts of marijuana from James Emory and then resold it for profit. He concluded that Roger Emory was James Emory's partner because "they were always together and they had the money in it together and Mitch [James Emory] told me they were partners."
Most of Leiben's knowledge about the drug-related activities of the appellants in the early 1970's was based simply on what had been told him by James Emory. Leiben testified that James Emory had told him that the father of the two appellants "had put some money up and that they [the father and both appellants] took a trip to Texas or Texas and Mexico and made a connection there and bought some marijuana and started selling it."
Leiben was questioned about whether the appellants, during the early 1970's, had developed "any other sources." He responded that there was "a fellow named Bud," with a last name that sounded German. James Emory confided in him that Bud was a large dealer who dealt in "Mexican Pot." Leiben indicated that his own purchases from James Emory were approximately "twenty pounds at a time," although on one occasion it might have been as much as "a bale of forty or fifty." He indicated that this arrangement that started in the 1970's continued "off and on until we were arrested." Because of that arrest, Leiben left Baltimore in approximately 1980 or 1981 and went to Florida. He remained in Florida, selling
automobiles, for three-and-a-half years. During that time, he had no connection with either appellant.
After that approximate three-and-a-half-year sojourn in Florida, Leiben returned to Maryland (he believed it was in 1984) because he "just wanted to live back in Maryland again." Initially, he resumed a legitimate relationship with James Emory, going to work for him at the Brandon Contracting Company at sometime "in '84 or '85." The Brandon Contracting Company was owned by James Emory and was involved in the sale of home improvements. Roger Emory also worked for Brandon Contracting.
At sometime while Leiben was working at Brandon Construction, he was approached, at the small shop he owned and where he slept, by James Emory, with Roger Emory possibly in attendance. Leiben was shown some "Thai Weed" or Thailand Pot, a very high potency and very expensive form of marijuana and asked if he wanted to sell some of it. Leiben agreed to do so and subsequently purchased the Thai Weed from James Emory in lots of one or two kilos. He explained that a kilo is 2.2 pounds and that the purchase price of the Thai Weed was between $1,800 and $2,200 a pound. Leiben would then sell it to his own customers in smaller units of quarter-pounds or ounces. That business relationship "lasted probably for ... two to three months and then it ran out." During the life of the relationship, there were "maybe two or three deliveries," involving a total of "probably eight kilos ... nine kilos." Leiben's only sure recollection was that it was delivered to him by James Emory. Whether Roger Emory was ever involved in a delivery was by no means certain. There was no testimony with respect to the involvement of any other persons in the Thai Weed operation and there was no testimony with respect to the source of the Thai Weed.
It was just at the time that the two-to-three-month involvement in the purchase of Thai Weed was coming to an end that the second phase of criminal dealing between Leiben and James Emory also came to an end. The reason for the termination of the relationship was that James Emory believed
that Leiben had failed to make an $8,000 payment that was due to Emory. For his part, Leiben allegedly believed that he had paid the $8,000 and that James Emory had neglected to record or to remember the payment. "So, basically, we parted company at that time." To the best of Leiben's recollection, that second parting of the ways occurred at sometime in 1986. Leiben's employment with Brandon Construction was also terminated.
When asked initially whether he, after his return from Florida, resumed any illegal activities with James Emory, Leiben first indicated that he "fooled around a little bit with cocaine in small sales." It was extremely difficult to get Leiben to place the time of certain of his activities within the decade, let alone within the year. Under some probing, however, he subsequently placed his cocaine-related activities with James Emory into the time period between the second breakup (198...
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