Ezenwa v. State

• Decision Date: 02 May 1990
• Docket Number: No. 1009,1009
• Citation: 82 Md.App. 489,572 A.2d 1101
• Parties: Henry N. EZENWA, Theophilus C. Obi and Samson O. Okoroafor v. STATE of Maryland. Sept. Term 1989.
• Court: Court of Special Appeals of Maryland

Page 489

82 Md.App. 489

572 A.2d 1101

Henry N. EZENWA, Theophilus C. Obi and Samson O. Okoroafor v. STATE of Maryland.

No. 1009 Sept. Term 1989.

Court of Special Appeals of Maryland.

May 2, 1990.

[572 A.2d 1103]

Bruce L. Marcus, Greenbelt (Alan H. Murrell, Public Defender and Michael R. Braudes, Asst. Public Defender, on the brief), Baltimore, for appellant, Ezenwa

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty., Baltimore, and Alexander Williams, Jr., State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Argued before MOYLAN, ROBERT M. BELL and CATHELL, JJ.

ROBERT M. BELL, Judge.

Henry Nnaondi Ezenwa, Theophilus Chudi Obi, and Samson Okoroafor, appellants, were convicted by a jury in the Circuit Court for Prince George's County of conspiracy to import heroin into Maryland and conspiracy to distribute heroin. Each was sentenced to concurrent fifteen year terms of imprisonment. Aggrieved, each has appealed, raising essentially identical issues: ¹

1. Did the trial court err in permitting a police officer to interpret facially innocuous conversations as drug-related in the absence of any foundation establishing that the participants were involved in the importation or sale of drugs?

2. Did the trial court err in permitting the jury to consider and render a verdict upon two separate conspiracy charges when the State served notice upon the defense that it was relying upon a single conspiracy?

3. Did the trial court err in admitting irrelevant and prejudicial evidence?

4. Did the trial court err in denying appellants' motions to suppress the fruits of the wiretaps?

5. Did the trial court err in its admission of specific objectionable conversations?

6. Did the trial court err in admitting evidence that the prosecution's expert witness had been accepted as an expert by other courts in other cases?

7. Did the trial court impermissibly restrict the defense cross-examination of a State's witness alleged to have engaged in an improper conversation with a juror?

8. Did the trial court err in denying Appellants' motion for mistrial predicated upon the injection into the case of evidence of other crimes?

STATEMENT OF FACTS

During an investigation of illegal distribution of controlled dangerous substances in the Baltimore metropolitan area, the Maryland State Police Narcotics Division obtained information that a similar conspiracy involving a group of Nigerian nationals might be ongoing in Prince George's

County. Thus, an investigation was initiated in Prince George's County by applying for an Ex Parte Wiretap Order. The order was issued on or about December 1, 1987 and continued, with extensions almost without interruption, until February 17, 1988, when appellants were arrested. The tap was placed on the telephone line in the home of [572 A.2d 1104] one of the appellants, but registered in the name of that appellant's relative. Because most of the conversations, 1,574 of the 2,131, were conducted in a foreign language, the Ibo dialect of the Nigerian language, the police contracted with a private citizen to translate them

Additional facts pertinent to an issue will be set out when that issue is discussed.

1

Appellants contend that the trial court erred in allowing a police officer to interpret facially innocuous telephone conversations translated from a foreign language as drug-related. There was, they maintain, no factual basis for that interpretation. This contention is based upon a three-tiered analysis. First, appellants assert that the officer assumed that the conversants were speaking in an amorphous code, rather than literally. From that assumption, they continue, he interpreted words such as "things" and "pencils" as code references to drugs. Finally, they observe that, although never mentioned during the conversations, the officer concluded that the specific drug under discussion was heroin. Because none of these assumptions was supported by a factual basis and, indeed, the later ones are premised only upon the earlier, appellants argue that the court erred in admitting the opinion. ² Appellants rely on Bricker v. State, 80 Md.App. 532, 565 A.2d 340 (1989).

In Bricker, this Court addressed a very narrow issue, whether an unlicensed psychologist is qualified to testify that an accused is mentally retarded and the causal relationship between that mental retardation and the crime charged. 80 Md.App. at 540, 565 A.2d 340. To resolve that issue, we addressed the general admissibility of expert testimony, indicating that, as an initial matter, a trial judge had to determine, as a matter of law, 80 Md.App. at 547, 565 A.2d 340, "whether the jury will receive appreciable help from the expert testimony in resolving issues presented in the case." 80 Md.App. at 539, 565 A.2d 340, quoting Simmons v. State, 313 Md. 33, 41, 542 A.2d 1258 (1988). Of course, "the proposed expert testimony must be competent, that is, the expert's conclusion must be based upon a legally sufficient factual foundation." 80 Md.App. at 545, 565 A.2d 340, quoting Simmons, 313 Md. at 41-42, 542 A.2d 1258.

The admissibility of expert testimony was also at issue in Bohnert v. State, 312 Md. 266, 539 A.2d 657 (1988). The Court of Appeals there stated the criteria for its admission as follows:

An expert opinion derives its probative force from the facts on which it is predicated, and these must be legally sufficient to sustain the opinion of the expert. The premises of fact must disclose that the expert is sufficiently familiar with the subject matter under investigation to elevate his opinion above the realm of conjecture and speculation, for no matter how highly qualified the expert may be in his field, his opinion has no probative force unless a sufficient factual basis to support a rational conclusion is shown. The opinion of an expert, therefore, must be based on facts, proved or assumed, sufficient to form a basis for an opinion, and cannot be invoked to supply the substantial facts necessary to support such conclusion. (Citations omitted)

312 Md. at 274-75, 539 A.2d 657 (quoting State Department of Health v. Walker, 238 Md. 512, 520, 209 A.2d 555 (1965).

In the case sub judice, the conversations conducted in the Nigerian language were recorded in full. Shortly after their recording, the police would play the tapes for the interpreter. Consistent with his instructions, the interpreter was to listen to only so much of a conversation as to determine whether it was privileged or irrelevant to [572 A.2d 1105] the investigation. When he determined that the calls were relevant, the interpreter wrote a non verbatim summary of the conversation and gave it to the police. After the wiretap was concluded, the interpreter was given duplicates of the tapes containing the relevant conversations. He then made a verbatim transcript of those calls. ³ Using these transcripts, the police officer testified that in his "expert" opinion, the conversations were drug related.

The determination whether an expert opinion is admissible is a matter entrusted to the sound discretion of the trial court, the exercise of which will be reversed only if it is found to have been an error of law, an evidentiary error, or a clear abuse of discretion. Bricker, 80 Md.App. at 547, 565 A.2d 340. We discern no abuse of discretion in this case. See Yeagy v. State, 63 Md.App. 1, 22-23, 491 A.2d 1199 (1985).

Review of the decision to admit expert testimony may not be undertaken in a vacuum; one must look at the totality of the circumstances to determine whether that decision was a proper exercise of discretion. In this case, the expertise of the police officer in narcotics investigations is not challenged. And while the translator's neutrality is challenged, there is no real challenge to his competence to

translate the Nigerian Ibo dialect. Moreover, it was as a result of a narcotics investigation begun in the Baltimore metropolitan area that the police began to focus upon appellants and their alleged drug-related activities in Prince George's County. That heroin was seized, albeit in another State, following one of the intercepted conversations in which one of appellants was involved lends support to the proposition that appellants may have been involved in a conspiracy to import and distribute heroin. Considered in their totality, then, the circumstances do not indicate that the court abused its discretion in permitting the police officer, as an expert, to interpret these conversations

Each appellant was charged in separate counts of the indictment filed against him with two distinct conspiracies: (1) to import heroin and (2) to distribute heroin. Maintaining that there was but one conspiracy, appellants filed, inter alia, a motion to dismiss both counts, see Maryland Rule 4-252, and a Bill of Particulars. ⁴ In response to the Bill of Particulars, and, indeed, throughout the proceedings, the State conceded that a single agreement underlay both conspiracy counts. It stated, however, that that agreement had two distinct objectives; hence, it maintained that, for that reason, the conspiracy was properly charged in two counts. In the State's view, both counts had to be submitted to the jury and, in the event that the jury found appellants guilty of both, their remedy lay in their being sentenced on only one. ⁵

Accepting the State's position, the court submitted both counts to the jury. The jury did return a guilty verdict on each count. Notwithstanding the State's position that it was only appropriate to punish appellants for one conspiracy, the court [572 A.2d 1106] imposed separate, but concurrent, 15 year sentences for each.

Appellants allege that the indictments are defective, albeit for somewhat different reasons. In addition, appellants Obi and Okoroafor allege that the indictments failed to place them on proper notice of the allegations upon which the State was proceeding. Each appellant suggests that he was...