Kenney v. State

• Decision Date: 01 September 1984
• Docket Number: No. 1032,1032
• Parties: Gary Wesley KENNEY v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 555

62 Md.App. 555

490 A.2d 738

Gary Wesley KENNEY v. STATE of Maryland.

No. 1032, Sept. Term, 1984.

Court of Special Appeals of Maryland.

April 11, 1985.

Arnold G. Foreman, Baltimore (Henderson, Green & Foreman, Baltimore, on the brief), for appellant.

Ann E. Singleton, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, Warren B. Duckett, Jr., State's Atty. for Anne Arundel County and Phillip Caroom, Asst. State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellee.

Submitted before BISHOP, ALPERT, and ROSALYN B. BELL, JJ.

ROSALYN B. BELL, Judge.

The issue raised in this appeal by Gary Wesley Kenney is one of entrapment. Kenney was convicted by a jury in the Circuit Court for Anne Arundel County of unlawfully receiving money from a person confined in a penal institution within the State and attempted distribution of a controlled dangerous substance. He was sentenced on both counts.

Gregory Rivers was an inmate at the Maryland Correctional Institution located in Jessup, Maryland. He testified that in July, 1983, he was serving a sixteen year sentence in the Maryland House of Correction for forgery and armed robbery. In May or June, 1983, Rivers asked for protective custody in the segregated section of the prison. The Chief of Security, Bernard Smith, called Rivers into his office to find out the reason for his request. Rivers explained that he was involved in smuggling drugs to fellow inmates, and that his physical safety had become endangered due to his inability to supply the drugs upon receipt of payment. Smith asked Rivers to set up another drug buy. Rivers agreed. Under this arrangement, Rivers using five $20 bills, would buy drugs from Kenney, a correctional officer. The buy would take place on July 20, 1983.

Rivers related that on July 20, 1983, he sent for Kenney through Correctional Officer Hampsey at approximately 12:30 a.m., but Hampsey told him that Kenney was not on that shift. At approximately 6:15 a.m. on July 21, 1983, Rivers was able to contact Kenney and asked him to obtain some marijuana and some "tall ones." Kenney agreed to do so, telling Rivers that he would take care of it when he returned to work after several days of leave. Rivers passed the money (provided by Smith) to Kenney, who put it in his pants pocket. Rivers gave Kenney a piece of paper with a fictitious name and address in Baltimore and told Kenney he could contact that person if he had trouble getting the marijuana. Kenney gave Rivers the address of Doris Harrison, P.O. Box 353, Jessup, Maryland 20794, and told him that Rivers could use that box if he wanted to send anything or have anything sent to him. Later that day, Rivers told Warden Lyles that he had given Kenney a slip of paper with the fictitious address.

Smith stated that he had responsibility for the security of the institution and that his duties included investigating and disciplining improprieties among correctional officers. When he learned Rivers had been moved from the general population to protective custody status, Smith became suspicious. He sent for Rivers because he learned that other inmates had chased Rivers with a shank (homemade knife).

When Rivers told Smith how he had gotten into trouble, Smith investigated the matter. Later, Rivers agreed to use the five $20 bills which Smith had obtained from the State Police to pay Kenney for obtaining drugs. This arrangement was to demonstrate to Smith that Kenney would take a bribe and was willing to bring contraband into the institution. Smith explained that, because prisoners were allowed to have only twenty cents a month for phone calls, the possession of any other U.S. currency was considered contraband in the prison. Regulations require correctional officers who find such forbidden goods to bring it to the attention of their immediate supervisor as soon as possible.

Smith gave Rivers the five $20 bills around July 20, 1983, and Major Richard Singletary told Smith the next day that the transaction had occurred. Having obtained this information between 7:00 and 8:00 a.m., Smith then had a meeting with Kenney and others. Kenney did not mention the contraband when given the opportunity to do so at the meeting. Following this meeting, Kenney and Smith went to the warden's office where a plainclothes State Trooper was also present. Warden Lyles read aloud the policy about receiving gifts from inmates and the applicable regulations. When asked if he had anything to say, Kenney said, "No." A subsequent search revealed four of the $20 bills in Kenney's left shirt pocket. Smith later questioned Rivers, who said he had given Kenney all five bills. The fifth bill was never found.

Warden Lyles recounted that in late June, 1983, he went to Smith's office where Rivers was being interviewed. Lyles corroborated the testimony of the others concerning events to which he was privy. Rivers later told Lyles that they should look for a piece of paper with an address on it in Kenney's possession.

On July 20, 1983, ¹ Sergeant Drum went to the Maryland House of Correction and met with Major Singletary, Warden Lyles, Security Chief Smith, another supervisor and Kenney. Warden Lyles discussed the regulations and specifically addressed comments to Kenney before requesting him to empty his pockets. Four of the $20 bills supplied by Smith were found in Kenney's pockets.

Drum stated that he advised Kenney of his Miranda ² rights, and Kenney chose not to make any statement at that time. The officer took Kenney to the Glen Burnie Barracks where he was fingerprinted and photographed. While at the barracks, Drum received a call from Warden Lyles. As a result of that conversation, he asked Kenney to empty his pockets. Drum was looking for a small piece of paper that supposedly had an address of a person in Baltimore written on it. During the inspection of the items Kenney removed from his pockets, Drum noticed that Kenney had taken a piece of paper out of his left shirt pocket, which he opened, looked at quickly and then popped into his mouth and swallowed. The only thing Drum had seen was a Zip code--21230--written in black ink but not typed. The officer estimated that the piece of paper was approximately 2 1/2' by 2 1/2' inches. As Kenney swallowed the piece of paper, Drum said "Well, we really don't need that anyway." Later, Kenney said "the reason I did that ... is I don't want people fucking with me." During the drive back to the institution, Kenney volunteered that, "This guy wanted me to get something on the outside for him."

The parties stipulated that the United States Postmaster in Jessup, Maryland, would testify that P.O. Box 353 was registered to Kenney. Further, the parties stipulated that the phrase "tall ones" was a common street name for a controlled dangerous substance named pentazocine.

Kenney moved for judgment of acquittal at the end of the State's case, arguing that there was insufficient evidence and that entrapment had been shown as a matter of law. The trial court denied the motion, explaining:

"I don't think there's really any need for the State to argue. I think the State has established a prima facie case as to all three, and attempt is a common law crime. An attempt to commit a statutory violation is still a common law [offense] under the Maryland Law, so I think two and three are valid. And there--there's no indication that there was any coercion to get the defendant to do something that he wasn't naturally going to do, so entrapment doesn't even apply. So I will deny your motion on all three grounds."

Warden Lyles also testified as a defense witness and produced records showing that Rivers had numerous convictions and that his request for parole had been refused.

Correctional Officer James Johnson related that he knew Rivers and years before had picked him up after his escape. Rivers had told him then that he would "get" Kenney, and Johnson had warned Kenney to watch out for Rivers.

Kenney took the stand and recounted that he knew Rivers and had testified against him in his trial for escape. Sgt. Johnson had informed Kenney of Rivers' threats. Although Kenney admitted that he had a post office box in Jessup, he claimed to use it for his shoe selling business and denied any dealings with inmate Rivers that would involve bringing drugs into the institution.

In describing the chain of events, Kenney admitted talking with Rivers on July 20, 1983, but claimed that Rivers said his father had died and he wanted to make a phone call. A short time later, Kenney returned saying he could not bother Major Singletary to obtain permission for such telephone usage. At that point, Rivers gave Kenney a piece of paper with a girl's name on it asking that it be added to his visitor's list. After this conversation, Kenney looked down and saw money on the floor, which he picked up. He did not count it, but put it in his left shirt pocket. Since he had not found it in any inmate's possession, Kenney wanted to see Lieutenant Colburn before turning it in. He then went to Singletary's office, Smith's office and finally Warden Lyles' office. When asked if anything unusual had happened on the shift, he said no, because he thought the Warden meant escape attempts.

Later, when Kenney admitted to Sergeant Drum that he ate the piece of paper with the girl's name and address on it, he explained that he did not want Drum "to have another nail for my coffin." Kenney further testified that he never intended to bring drugs to Rivers and that Rivers had not handed him the money.

At the close of all the evidence, Kenney did not renew his motion for judgment of acquittal. He also failed to request any instruction on entrapment, nor did the trial court give one. The jury found Kenney guilty of Count I, receiving money from an inmate, and Count II, attempted distribution of a controlled dangerous substance.

-Entrapment-

Entrapment has been defined as the "coaching or coaxing,...