Evans v. State

• Decision Date: 03 May 2007
• Docket Number: No. 2446, Sept. Term, 2005.,2446, Sept. Term, 2005.
• Citation: 174 Md. App. 549,922 A.2d 620
• Parties: Willie EVANS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

922 A.2d 620

174 Md. App. 549

Willie EVANS v. STATE of Maryland.

No. 2446, Sept. Term, 2005.

Court of Special Appeals of Maryland.

May 3, 2007.

Anne K. Olesen, Washington, DC, for appellant.

James Williams (Douglas F. Gansler, Atty. Gen., on brief), for appellee.

Panel MURPHY, C.J., DAVIS, KENNEY and JAMES A., III (retired, specially assigned), JJ.

DAVIS, J.

The failure of the State to produce evidence available to it has long been advanced by counsel in argument to a jury as the rationale for finding reasonable doubt. When counsel for appellant, Willie Evans, resorted to this trial strategy, the presiding judge admonished the jury regarding its limited consideration of evidence not adduced. Appellant now asks us, in this appeal, to denounce the court's instruction regarding the State's obligation to produce evidence. As we shall observe, infra, remarkably, judicial action to clarify the jury's consideration of such arguments has received virtually no appellate attention.

Appellant was tried and convicted by a jury in the Circuit Court for Baltimore City (Berger, J.) on October 26, 2005, of Count One, Distribution of Heroin (Md. Code, Criminal Law § 5-602); Count Two, Possession with Intent to Distribute Heroin (Md.Code, Criminal Law § 5-602); Count Three, Possession of Heroin (Md. Code, Criminal Law § 5-601); Count Four, Conspiracy to Distribute Heroin (Md.Code, Criminal Law § 1-202); Count Five, Conspiracy to Possess Heroin with Intent to Distribute (Md.Code, Criminal Law § 1-202); and Count Six, Conspiracy to Possess Heroin (Md.Code, Criminal Law § 1-202). On November 22, 2005, appellant was sentenced to an aggregate of seven years imprisonment. Aggrieved by the court's decision, appellant filed this timely appeal, presenting the following issues for our review:

1. Whether the trial court erred in failing to suppress evidence illegally obtained from appellant in a search incident to an arrest made without probable cause[.]

2. Whether the trial court erred in instructing the jury on the State's failure to use certain investigative and scientific techniques, where the instruction hampered appellant's ability to present his legal defense and was not part of the Maryland Pattern Criminal Instructions[.]

FACTUAL BACKGROUND

At approximately 11:00 a.m. on August 5, 2003, Detective William Bradley of the Baltimore City Police Department entered the 2100 Block of East North Avenue in Baltimore in an effort to conduct an undercover "buy bust" narcotics purchase. Less than an hour later, Baltimore City police arrested appellant and a codefendant, Antwon Peaks, in connection with the sale of heroin to Detective Bradley. Although Detective Bradley was the sole eyewitness to the alleged "buy-bust," he did not arrest appellant. Detective Bradley contacted Detective Steven Rose and an arrest team, consisting of approximately five other members of the Baltimore City Police Department, subsequently conducted the arrest. Detective Rose then searched appellant, finding one clear gel capsule containing suspected heroin in his back pants pocket.

In a pre-trial suppression hearing, appellant's counsel moved to suppress the evidence obtained from appellant, citing as the basis of his motion the lack of probable cause. Both Detectives Bradley and Rose testified at the suppression hearing; however, the other members of the arrest team did not.

Recalling the morning of the alleged incident, Detective Bradley testified that the location was "real active," noting that "there were people out on the street" that day. He made eye contact with a man whom he later identified as Peaks. Peaks asked "what do you want?" Detective Bradley's response was "two red lines," referring to street level heroin. He testified that Peaks was standing alone when this exchange took place.

Detective Bradley stated that, at this point, a second man, whom he later identified as appellant, became involved in the sale. He explained that Peaks directed him to appellant, who was standing approximately fifteen feet away. Peaks stated to appellant "I know this guy. He's okay. Give him two." Appellant allegedly produced two gel capsules containing a white powder substance from the front waistband of his pants. Suspecting that the capsules contained narcotics, Detective Bradley handed a marked twenty-dollar bill to a third black male at appellant's request.¹ Detective Bradley testified that the entire interaction lasted "approximately a minute, minute and a half. That's it." He then returned to his unmarked car, parked approximately a block away and contacted the arrest team with a description of the three suspects.

Detective Rose testified that Detective Bradley advised him that three males were involved in the sale of heroin. Detective Bradley's description of the suspects was "mostly clothing, a little bit of physical." He stated that the team selected appellant and Peaks based on Detective Bradley's description of the suspects' clothes and location. Detective Rose did, however, testify that there may have been "a lot" of other people in the area, especially around the intersection of Collington and North Avenue, about a half a block away from where the suspects were arrested. Detective Rose and other members of the Baltimore City Police were parked a few blocks away from where the sale took place. The arrest was made within "a couple of minutes" after Detective Bradley contacted the arrest team.

A gelatin capsule containing heroin was recovered from appellant's back pocket subsequent to his arrest. No drugs were recovered from appellant's waistband, the area from where Detective Bradley claimed appellant had retrieved the gelatin capsules that he had purchased. Later, Detective Bradley returned to the scene in his vehicle and did a "drive-by" identification of the men whom the officers had stopped as two of the suspects who sold him the drugs.

At the close of the suppression hearing, the trial court denied the motion to suppress the gelatin capsule recovered by Detective Rose, finding that there was probable cause for appellant's arrest based on Detective Bradley's testimony:

The Court is going to deny the motion to suppress at this time. Clearly, probable cause existed at the time of this incident. Clearly, a warrantless arrest is constitutional if police have probable cause to believe that a person is committing or about to commit a crime felony or a misdemeanor in the officer's presence. Probable cause is defined as a fair probability that contraband or evidence of a crime will be found at a particular place. Clearly, in this case, the detective, Detective Bradley, identified Mr. Evans as that person who he was instructed to approach with regard to purchasing the alleged controlled dangerous substances at issue. Clearly, based on his own testimony, that establishes the probable cause in this case and the Court will deny the defendant [appellant's] motion to suppress the gelcap of alleged CDS that was recovered from his back pants pocket.²

Over two years after the arrest, Detective Bradley testified as the sole eyewitness to the sale of heroin at the joint trial of appellant and Peaks. Detective Bradley's trial testimony was substantially the same as his testimony at the suppression hearing. He also acknowledged that he intended to conduct a number of buy-busts. He did not, however, employ video or audio equipment to record potentially illegal transactions even though the recording equipment was available in the Baltimore City Police Department. Detective Bradley claimed not to have had the authority to order its use. He also stated that pre-marked bills were used in this buy-bust.³

Detective Rose's testimony was also similar to his testimony at the suppression hearing. He noted that Detective Bradley described one suspect (later identified as Peaks) as wearing a light-blue shirt and blue-jean shorts and another suspect (later identified as appellant) as wearing a white t-shirt and blue-jean shorts. Detective Rose also added that Detective Bradley identified appellant and Peaks only after they were arrested.

LEGAL ANALYSIS

I PROBABLE CAUSE

Appellant contends that, during the suppression hearing, the testimony of Detectives Bradley and Rose failed to establish probable cause to arrest or subsequently search him. He bases his contention on the fact that the only eyewitness to the buy-bust was Detective Bradley, who relayed information to Detective Rose and the arrest team who made the arrest. Appellant argues that the description provided to Detective Rose was too general to establish probable cause to arrest him.

The State responds that appellant failed to raise this issue during the suppression hearing. Accordingly, the State argues that appellant is precluded by Maryland Rule 8-131 from raising this issue on appeal. Specifically, the State posits that appellant's argument during the hearing was that it was not proven that he was working in concert with Peaks. We agree.

Maryland Rule 8-131(a) provides in pertinent part,

Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

Accordingly, Maryland appellate courts have consistently held that they will not review issues not raised or decided at the trial level. See Taylor v. State, 381 Md. 602, 612, 851 A.2d 551 (2004) (citing Md. Rule 8-131(a) in holding that a claim of double jeopardy was not preserved because it was not raised at the trial level); Conyers v. State, 354 Md. 132, 148, 729 A.2d 910 (1999) (citing Md. Rule 8-131(a) in holding that several issues in review of a death sentence were not preserved because they were not raised at the trial level); Lerman v. Heeman, 347 Md. 439, 450, 701 A.2d 426 (1997) (citing Md. Rule 8-131(b)(1)...