Kosh v. State
| Decision Date | 28 July 2004 |
| Docket Number | No. 121,121 |
| Citation | 854 A.2d 1259,382 Md. 218 |
| Parties | Nathaniel KOSH v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Amy E. Brennan, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Petitioner.
Michelle W. Cole, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Respondent.
Argued Before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, GREENE, JJ.
During the trial for alleged controlled dangerous substance (CDS) violations, the prosecutor asked a police officer if the defendant, Petitioner Nathaniel Kosh, after arrest, but prior to being given Miranda1 advisements, denied his involvement in the underlying drug sales. The defense objected, and a bench conference ensued during which the officer told the judge, outside the jury's hearing, that he could not remember whether Kosh denied his involvement. After the bench conference, the trial judge, in open court, sustained the objection, but told the jury:
Post-arrest silence is inadmissible as substantive evidence of a criminal defendant's guilt, regardless of whether that silence precedes the recitation to the defendant of Miranda advisements. In the present case, the trial judge erred by telling the jury that Kosh remained silent regarding his involvement, both because the judge's instruction was not supported by the officer's testimony and because post-arrest silence is inadmissible. The judge's instruction probably led the jury to believe that Kosh had not denied his involvement, and effectively impeached in advance the testimony of three defense witnesses who testified that Kosh actually denied his involvement. We conclude that the judge abused his discretion by failing to correct the jury's misapprehension of the testimony and by denying the subsequent defense motion for a mistrial. We reverse the convictions and remand for a new trial.
On the evening of 4 June 2001, Detective David Jones covertly observed two apparent drug deals from his vantage point on the 1400 block of Pennsylvania Avenue in Baltimore City. Detective Jones testified that he observed a series of interactions between Kosh and a fifteen-year-old juvenile, later identified as Donnell K., who were loitering in the area and engaging in periodic conversations with one another. Two women separately approached the scene and interacted with Kosh and/or Donnell K. These interactions involved, according to Jones, either Kosh or Donnell K. giving items to the women in return for cash.
Detective Jones directed a police team to arrest each woman after she left the area. The first woman was identified as Glenda Watkins; the second as Sharon Miller. Each woman was found to be carrying several vials containing cocaine. Jones then directed the team to arrest Kosh and Donnell K. During the search incident to his arrest, police found $291 in cash on Kosh, but no drugs. Police found forty-five vials of cocaine and $13 in cash on Donnell K.
Kosh was tried in the Circuit Court for Baltimore City on various CDS charges. At trial, Detective Jones, an eighteen-year veteran of the Baltimore City Police Department, was qualified as an expert in "the observation, packaging and street-level distribution of drugs." He testified that, in his experience, two dealers frequently work together:
Jones also testified that juveniles are often included in these drug dealing teams because the penalties for juveniles caught with narcotics are less harsh than those for adults. When an adult and a juvenile work together, he said, the adult typically oversees the operation and collects the cash, while the juvenile holds the narcotics.
During redirect examination on the second day of trial, Detective Jones was asked if he saw the male suspects again after they were arrested. He responded that he saw them at the Central District Drug Enforcement Unit Office prior to their transfer to the Central Booking Office. Jones testified that he had not given Miranda advisements to any of the suspects, and that he was not aware whether they had been given Miranda advisements by anyone else.2 The following exchanges then occurred:
Kosh's defense was premised on the contention that, although he was present at the scene, he was not involved in the drug deals. The defense called Donnell K., Sharon Minor, and Glenda Watkins as witnesses. Minor and Watkins denied purchasing cocaine from Kosh or Donnell K., claiming instead that they bought the drugs in a nearby apartment building. Donnell K. testified that he was working alone that day and that he never worked with anyone else when selling drugs. Donnell K., Minor, and Watkins each testified that Kosh protested when the police arrested him and further that he denied knowing any of them.
Kosh was convicted of distribution of cocaine, possession of cocaine with intent to distribute, possession of cocaine with intent to distribute within...
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