Garner v. State
| Decision Date | 01 December 2008 |
| Docket Number | No. 0818, September Term, 2007.,0818, September Term, 2007. |
| Citation | 960 A.2d 649,183 Md. App. 122 |
| Parties | Alphonso GARNER v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Piedad Gomez (Nancy S. Forster, Public Defender on the brief), Baltimore, for appellant.
Gary E. O'Connor (Douglas F. Gansler, Attorney General on the brief), Baltimore, for appellee.
Argued before HOLLANDER, CHARLES E. MOYLAN, JR., (retired, specially assigned) and RAYMOND G. THIEME, JR., (retired, specially assigned), JJ.
On December 8, 2005, a fragmented Court of Appeals significantly expanded the coverage of the Rule Against Hearsay in Maryland with its opinions in Stoddard v. State, 389 Md. 681, 887 A.2d 564, and Bernadyn v. State, 390 Md. 1, 887 A.2d 602. Several categories of verbal conduct that had theretofore been considered non-hearsay were brought within the expanded definition of "implied assertions" and, thereby, came under the potential exclusionary ban of the Rule Against Hearsay. The present case poses the question of whether yet another traditional category of non-hearsay, frequently referred to as "verbal parts of acts" and represented in this case by incoming telephone calls to gambling parlors or to sellers of narcotics, will also be swept away by the strong undertow of Stoddard and Bernadyn, or whether the expansionist tide that produced those opinions is actually on the ebb.
2. that Judge Sause erroneously admitted inadmissible hearsay evidence, and
3. that Judge Sause's improper comment deprived the appellant of his right to a fair trial.
The appellant does not challenge the legal sufficiency of the State's evidence to prove his guilt generally. The only small residuum of controversy was his effort to convince the jury that he was only a user of drugs and not a pusher.
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 Trooper Gussoni verified the fact that the driver's license had been revoked.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.
On the way to the police station, the appellant asked, "What's going to happen next?" Trooper Gussoni replied that the baggies were going to be fingerprinted. The appellant then said, When Trooper Gussoni said, "I hope you don't use cocaine; that ... ruins your heart, your brain," the appellant replied, "I don't do that stupid stuff, I only do it every now and again." Taken from the appellant at the police station was his cell phone.
At trial, the appellant called his girlfriend as a witness. She testified that the appellant had a cocaine problem and that she had sometimes seen him "eating" cocaine. Corporal Aaron Michael testified as an expert witness and testified that he had never heard of anyone eating cocaine. He further testified that each of the 13 rocks of cocaine seized from the appellant had a street value of between $40 and $60. Trooper Gussoni had testified that when the appellant's cell phone rang at the station house, Gussoni answered it and said, "Hello." The caller asked, "Can I get a 40?" but then hung up when Gussoni asked him for his name. Trooper Michael explained that the term "40" is a "common reference" for four-tenths of a gram of crack cocaine. It was Trooper Michael's expert opinion that the 13 baggies of cocaine taken from the appellant were intended for sale.
Before we can take up the evidentiary matter that is the marquee issue of this appeal, we must get across an ugly patch of difficult terrain. For a judge to traverse Rule 4-215 is to walk through a minefield. A miracle might bring one across unscathed. For mere mortals, the course will seldom be survived. The appellant's first contention is that Judge Sause failed to comply with the provisions of Rule 4-215(e) when he "allowed [the appellant] to waive his right to counsel" immediately before the trial began. Rule 4-215(e) provides:
(e) Discharge of Counsel—Waiver. If a defendant requests permission to discharge an attorney whose appearance has been entered, the court shall permit the defendant to explain the reasons for the request. If the court finds that there is a meritorious reason for the defendant's request, the court shall permit the discharge of counsel; continue the action if necessary; and advise the defendant that if new counsel does not enter an appearance by the next scheduled trial date, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds no meritorious reason for the defendant's request, the court may not permit the discharge of counsel without first informing the defendant that the trial will proceed as scheduled with the defendant unrepresented by counsel if the defendant discharges counsel and does not have new counsel. If the court permits the defendant to discharge counsel, it shall comply with subsections (a)(1)-(4) of this Rule if the docket or file does not reflect prior compliance.
(Emphasis supplied).
Operating on the assumption that the appellant had been permitted to discharge his counsel, the appellant contends that compliance with subsection (a)(3) then requires that the trial judge:
(3) advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any.
In this case, the appellant was charged by a criminal information filed by the State's Attorney for Queen Anne's County on August 3, 2006. The flagship count was the possession of cocaine with the intent to distribute. The initial appearance of the appellant was set for August 25, 2006, but the summons was "not served." Judge Thomas G. Ross issued a bench warrant for the appellant. It was served on the appellant on September 7, 2006. On September 8, the appellant appeared, without counsel, for a bail review and initial appearance hearing. Judge Ross advised the appellant of the allowable penalties as follows:
THE COURT: So you understand that you are charged with possession of a controlled dangerous substance, not marijuana; that carries four years in prison $25,000 fine or both. Charged with possession with intent to distribute controlled dangerous substance, not marijuana; that carries 20 years in prison, $25,000 fine or both. You're charged with possession of paraphernalia; that's a fine only, unless subsequent offender papers are filed. That carries a $500 fine. Charged with distributing paraphernalia. Let me see about that. That carries a $500 fine. You are charged as well, in Count 5 with driving without a license; carries a $500 fine in this court. You are charged with violation of Transportation Article 16-303(c) driving on a suspended license; that carries a year in jail, $1,000 fine or both.
Charged in the seventh count with driving on a revoked license and privilege; carries a year in jail, $1,000 fine or both. You are charged in Count 8 with a violation of 303(h) of the Transportation Article which is driving a motor vehicle while suspended under certain provisions of the Transportation Article. That carries 60 days in jail, $500 fine or both. You are charged with throwing, dumping, discharge, deposit of refuse on a public highway, carries $500 fine in this court. Charged with driving with an obstructed windshield view which carries a $500 fine in this court.
Okay. I've advise you of the nature of the charges, the range of allowable penalties.
(Emphasis supplied).
The advice as to the allowable sentence for a conviction of possessing cocaine with the intent to distribute was meticulously correct for a first offense on that charge. The "kicker" was that the appellant was apparently a fourth-time offender and was subject to a sentence, pursuant to Criminal Law Article, § 5-608(d), of "not less than 40 years." With respect to the required advice under that circumstance, the unforgiving command of Knox v. State, 404 Md. 76, 88, 945 A.2d 638, is clear:
We hold that "allowable penalties, including mandatory penalties, if any," as stated in Rule 4-215, includes notice of subsequent offender penalties .... Absent information as to mandatory or enhanced penalties, it could hardly be said that a defendant makes a knowing and voluntary decision to waive [or to discharge] counsel with eyes open or with full knowledge of the ramifications of the choice.
(Emphasis supplied). In this case, no advice was given with respect to the "mandatory or enhanced penalties" for a subsequent offender.1
The saving grace is that the triggering event for the imposition of Rule 4-215(a)(3) never came to pass. The activating clause in subsection (e) is:
If this court permits the defendant to discharge counsel, it shall comply with subsections...
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