Gillis v. State
| Decision Date | 18 February 1983 |
| Docket Number | No. 742,742 |
| Citation | 53 Md.App. 691,456 A.2d 89 |
| Parties | Frederick A. GILLIS, Jr. v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
J. Bernard McClellan, Baltimore, for appellant.
Alexander L. Cummings, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William A. Swisher, State's Atty., for Baltimore City and Olga M. Bruning, Asst. State's Atty. for Baltimore City, on brief, for appellee.
Argued before LISS, BISHOP and ADKINS, JJ.
On October 20, 1981, appellants, Frederick J. Gillis, Jr., and Robert Lewis Paige, Jr., were charged by indictment in the Criminal Court of Baltimore with conspiracy to distribute heroin, possession with intent to distribute heroin, and possession of heroin.
On February 9, 1982, all indictments against Paige were nol prossed. Appellant was tried before a jury in the Criminal Court of Baltimore on February 22, 1982, and was convicted of possession of heroin with intent to distribute. A fifteen year sentence was imposed and it is from that judgment that the instant appeal was filed. 1 Appellant raises four issues to be decided by this appeal:
1. Did the lower court err in refusing to require the production of the grand jury testimony of State's witness, Officer Joseph Goldberg (the arresting officer)?
2. Did the lower court err in calling Robert Lewis Paige, Jr., as a court's witness?
A. Did the lower court abuse its discretion in calling Paige as a court's witness?
B. Did the lower court err in the procedure by which it called Paige as a court's witness?
3. Did the lower court err in not complying with the provisions of Maryland Code (1974, 1980 Repl.Vol.) § 10-1003 of the Courts and Judicial Proceedings Article?
4. Did the lower court err in denying appellant's motion for a judgment of acquittal on the count charging appellant with possession of heroin in sufficient quantity to reasonably indicate under all the circumstances an intent to distribute?
The record discloses that on September 9, 1981, at approximately 6:10 p.m., Officer Joseph Goldberg, of the Baltimore City Police Department, while in uniform and driving a marked police vehicle, approached the area of the intersection of Brunt and Gold Streets in Baltimore City. Officer Goldberg observed a large group of approximately 30 to 40 people gathered on the corner of the intersection. Officer Goldberg noted that many of these people were known drug abusers. At that time, he further observed the appellant and another person come out of an alley located near the 2200 block of Brunt Street.
After circling the block a number of times, Officer Goldberg stopped his police vehicle near the alley, off the 2200 block of Brunt Street, and observed the appellant standing in front of a telephone pole. The appellant then turned away from the telephone pole and was facing the wall in the alley, with his back to the officer. Officer Goldberg approached the appellant, patted him down, and then walked to the telephone pole where the appellant had been standing. The officer seized from the telephone pole a plain brown bag which had been tucked into a wire which was wrapped around the telephone pole. Officer Goldberg opened the paper bag and observed six capsules containing a white powder. At this time, according to the testimony of Officer Goldberg at the trial, the appellant stated, "Man, those aren't mine, those aren't mine." Officer Goldberg then placed the appellant under arrest and he was transported to the Western District Police Station.
Approximately three hours later, while inside the Western District Police Station, Officer Goldberg was approached by an unknown black female, who directed Officer Goldberg's attention to a young, black male, who was later identified as Robert Lewis Paige, Jr. Paige proceeded to admit to ownership of the controlled dangerous substance which the officer had located in the alley, near the 2200 block of Brunt Street, and exculpated the appellant. Paige was then placed under arrest and charged with possession with intent to distribute heroin and possession of heroin.
During the course of his direct testimony Officer Goldberg told the jury about the circumstances surrounding his seizure of the contraband attached to the pole. The officer stated that at the time of the seizure the appellant said, "Those aren't mine, those aren't mine," the implication being that the appellant knew at that time that the packet contained illegal drugs. Officer Goldberg also testified to the circumstances under which Paige had claimed ownership of the drugs and had attempted to exculpate the appellant, who was known to Paige as "Dimples." Officer Goldberg stated that he did not believe Paige because he appeared to be under the influence of narcotics at the time he claimed ownership of the drugs and was unable to describe accurately the contents of the packet in which the drugs were found.
On cross-examination, Officer Goldberg conceded that appellant's alleged incriminating statement as to the contraband seized was not included in either the narrative of the charging document or the five page police report which he prepared. He also admitted that his reservations as to the truthfulness of Paige and his condition with respect to being under the influence of narcotics were not recorded in either document. The officer was then asked whether his testimony before the grand jury with respect to these two points was consistent with his trial court testimony. When the officer stated that he did not remember, defense counsel requested the trial judge to require the State to produce the grand jury testimony of the officer. The trial judge ruled that if the transcript was already typed, defense counsel was to be advised of Officer Goldberg's testimony, if any, concerning these two points. If the testimony was not typed, the trial judge stated that she would not require it to be typed.
1.
We conclude that the trial court committed reversible error in its ruling concerning the applicability and effect of §§ 10-1001 through 10-1003 of the Courts & Judicial Proceedings Article of the Maryland Code (1974, 1980 Repl.Vol.). It is therefore not necessary for us to consider the other contentions of error alleged by appellant in his brief. If, upon retrial, the issue of appellant's right to the use of the grand jury testimony for impeachment purposes is raised again, we call to the attention of the trial court the cases of Carr v. State, 284 Md. 455, 397 A.2d 606 (1979) and Leonard v. State, 46 Md.App. 631, 421 A.2d 85 (1980), aff'd 290 Md. 296, 429 A.2d 538 (1981).
Maryland Code (1974, 1980 Repl.Vol.) Subtitle 10 of the Courts & Judicial Proceedings Article, entitled "Controlled Dangerous Substances", provides in pertinent part as follows:
For the purpose of establishing that physical evidence in a criminal or civil proceeding constitutes a particular controlled dangerous substance defined under Article 27 of this Code, a report signed by the chemist or analyst who performed the test or tests as to its nature is prima facie evidence that the material delivered to him was properly tested under procedures approved by the Department of Health and Mental Hygiene, that those procedures are legally reliable, that the material was delivered to him by the officer or person stated in the report, and that the material was or contained the substance therein stated, without the necessity of the chemist or analyst personally appearing...
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...spelled out in Courts Art. § 10-1003." (Footnote omitted). (Emphasis supplied). We spoke to the same effect in Gillis v. State, 53 Md.App. 691, 697-698, 456 A.2d 89 (1983): "The Legislature in adopting the sections of the law here under consideration created a prima facie presumption in fav......
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