Garner v. State

• Decision Date: 18 May 2010
• Citation: 995 A.2d 694,414 Md. 372
• Parties: Alphonso GARNER v. STATE of Maryland.
• Court: Maryland Court of Appeals

995 A.2d 694

414 Md. 372

Alphonso GARNER v. STATE of Maryland.

No. 26, September Term, 2009.

Court of Appeals of Maryland.

May 18, 2010.

Piedad Gomez, Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore), on brief, for petitioner.

Gary E. O'Connor, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore), on brief, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, and BARBERA, JJ.

MURPHY, J., which HARRELL, J., joins Part II only.

In the Circuit Court for Queen Anne's County, a jury convicted Alphonso Garner, Petitioner, of possession of cocaine with intent to distribute and related offenses. Although Petitioner concedes that the State's evidence was sufficient to establish that he committed those offenses on the afternoon of June 22, 2006, he argues that there are two reasons why he is entitled to a new trial: (1) the Circuit Court erroneously admitted hearsay evidence of what was said by an unknown person who had placed a call to Petitioner's cell phone, and (2) the Circuit Court failed to comply with the requirements of Md. Rule 4-215 when ruling on Petitioner's request to discharge his trial counsel.

After those arguments were rejected by the Court of Special Appeals in Garner v. State, 183 Md.App. 122, 960 A.2d 649 (2008), Petitioner requested that this Court issue a writ of certiorari to answer four questions:

1. Did the Court of Special Appeals, purporting to rein in the "expansionist tide that produced" this Court's decisions in Stoddard v. State, 389 Md. 681, 887 A.2d 564 (2005) and Bernadyn v. State, 390 Md. 1, 887 A.2d 602 (2005), err in holding that an out-of-court statement by a non-testifying, unnamed caller to Petitioner's cell phone in which the caller said, "can I get a 40," was not hearsay?

2. Where Petitioner unequivocally expressed a desire to discharge counsel, the trial court ruled that he could do so, and the docket entry reads: "court finds defendant has a right to proceed without counsel today and attorney may advise," did the Court of Special Appeals err in holding that counsel was not "discharged" for purposes of Rule 4-215, because Petitioner responded affirmatively when the trial court asked him, "would you like me to have him the attorney stay to be — sit next to you at the trial table to be on call if you need his help during the trial," and the attorney participated in all stages of the trial?

3. Is the State precluded from arguing that counsel was not "discharged" by the prosecutor's concession at the motion for new trial hearing that "the court allowed the attorney to stay to assist"?

4. Did the trial court fail to comply with the requirements of Maryland Rule 4-215?

That request was granted. 408 Md. 148, 968 A.2d 1064 (2009). For the reasons that follow, we hold that (1) the "out-of-court statement by a non-testifying, unnamed caller to Petitioner's cell phone in which the caller said, `can I get a 40,'" was properly received into evidence, and (2) it is clear from a review of the trial transcript that Petitioner is not entitled to a new trial on the ground that a docket entry indicated a "finding" by the Circuit Court that Petitioner "has a right to proceed without counsel today and Petitioner's trial counsel may advise." We shall therefore affirm the judgments of the Circuit Court.

Factual Background

I.

The opinion of the Court of Special Appeals includes the following factual summary that is relevant to question 1:

At 3:45 in the afternoon on June 22, 2006, Trooper Jeremy Gussoni of the Maryland State Police and Scott Myers, a State Police Academy candidate, stopped the appellant, who was driving on U.S. Route 301 in Queen Anne's County, for no less than three minor traffic infractions. As they approached the appellant's stopped car, they heard him yell into a cell phone that he had been "profiled." The appellant immediately handed Trooper Gussoni an identification card and volunteered that his driver's license had been suspended. Trooper Gussoni verified the fact that the driver's license had been revoked. Trooper William Heath arrived on the scene and arrested the appellant for driving on a revoked license. A search incident to the appellant's arrest revealed 13 individually wrapped baggies containing what turned out to be cocaine "secreted in the vehicle's glove box, inside a fuse box." The aggregate weight of the cocaine was 6.9 grams.

183 Md.App. at 125-26, 960 A.2d at 650-651.

According to Petitioner (in the words of his Petition):

This case presents "a fascinating evidentiary issue," as described by the Court of Special Appeals. At the police station, Mr. Garner was stripped of his personal items, including his cell phone. Trooper Gussoni subsequently answered the cell phone. Gussoni was allowed to testify, over objection, that after he said "hello" a male caller replied, "can I get a 40," and then hung up when asked his name. The State relied upon the caller's utterance to characterize Petitioner's possession as commercial in nature and not as simple possession for personal use. During opening statement, the prosecutor told the jurors that the caller "said he needed a 40 ... you'll hear from Corporal Michael a 40 is slang for a $40 piece of cocaine." During closing argument he told the jury, "why pray-tell sic, would you call a user and ask him for a 40. Because he is not a user." And during rebuttal he told the jury, "but I keep coming back, I know I said this before, you do not, you do not call a user a mere user of cocaine and ask him for a 40." The question before this Court is whether the utterance, "can I get a 40," which the State offered to prove that Petitioner was a dealer, was hearsay.

The record shows that the following transpired during Trooper Gussoni's direct examination:

Q While you were filling out your paperwork, back in the trooper's room, what happened?

A While I was typing, Mr. Garner's cell phone — the cell phone I received off of him, was ringing non-stop. I had spoken with his girlfriend earlier, I was figuring she might be calling him, wanting to know what's happening, not knowing if he's allowed to keep his cell phone on his person.

Q What happened when you noticed the phone ringing?

A Again, it was just continually ringing, ringing. I picked up the telephone and said hello. On the other line was a male voice. He said —

MR. ANDERSON: Objection, Your Honor, as to what the other — as to what the voice on the other line said. Objection as to what the voice on the other line said and I believe that might be hearsay, Your Honor.

THE COURT: Overruled.

BY STATE'S ATTORNEY:

Q You can answer.

A On the other line was a male voice, sounded like a male. I said hello. He said, yo, can I get a 40. I asked his name, he then hung up the telephone.

Q Did you tell him who you were?

A Not that one, but that phone was ringing off the hook.

Q Is that the only time you answered it?

A I answered it twice, the next one was a female. After that, another member of the drug task force answered the phone.

II.

The following factual background is relevant to questions 2, 3, and 4:

Petitioner's initial appearance before the Circuit Court occurred on September 8, 2006. On October 10, 2006, Curt Anderson, Esq. entered his appearance as Petitioner's privately-engaged trial counsel. When Petitioner's case was called for trial, on November 30, 2006, Mr. Anderson informed the Circuit Court that Petitioner "doesn't think that I have his best interests at heart with regard to this case," and Petitioner stated to the Circuit Court that defense counsel "is trying to force a plea, make me take a plea that I don't want to take." The Circuit Court stated to Petitioner, (1) "I'm not going to make you take a plea," and (2) "I'm not going to postpone this case." The following transpired at this point:

THE COURT: Are you going — do you want to discharge him, is that it?

THE DEFENDANT: Yes, sir.

THE COURT: All right. Would you like me to have him stay to be — sit next to you at the trial table to be on call if you need his help during the trial? What I'm saying is we are going to have a trial today.

THE DEFENDANT: Is there any kind of way I can discharge him from representing me?

THE COURT: I said you can do — you have an absolute right to represent yourself, if you want to. You have an absolute right to get an attorney. You can't wait until the day of trial and come in and tell me that you are going to fire your attorney.

THE DEFENDANT: Well, I didn't know to go to —

THE COURT: What?

THE DEFENDANT: I didn't know who to go to to let anybody know, know what I mean, what kind of situation it was. My best interests was to come to the judge that's hearing the case and let him know that I don't —

THE COURT: I don't have anything to do, you chose the attorney. If you had problems, you had to work it out with him. Mr. Anderson is a member of the bar, I'm sure if you told him what your feelings were, I'm sure he would have done something about it.

THE DEFENDANT: I have told him.

THE COURT: What?

THE DEFENDANT: He can sit there.

THE COURT: Okay. Thank you. Go ahead.

The following transpired when the jury panel entered the courtroom:

MR. ANDERSON: I'm still in the case and on Mr. Garner's behalf, I want to make a motion here, not in the presence of the jury, to dismiss this jury pool as not being representative of Mr. Garner's peers.

(Emphasis supplied). That motion was denied, and jury selection followed, during which the following transpired:

THE COURT: Thank you. Mr. Anderson, would you stand up, please. Does any member of the prospective panel know Mr. Curtis Anderson, the attorney for the defendant in this case? I see no responses. Mr. Anderson, would you introduce your client, please.

MR. ANDERSON: Stand up.

THE COURT: Turn around and face the jury. Does any member of the prospective panel know Mr. Alphonso Garner, the defendant in this case? You may have a seat, Mr. Garner. Do you have any

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