Kyler v. State

• Decision Date: 31 July 2014
• Docket Number: No. 142,Sept. Term, 2013.,142
• Citation: 96 A.3d 881,218 Md.App. 196
• Parties: William R. KYLER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

218 Md.App. 196
96 A.3d 881

William R. KYLER
v.
STATE of Maryland.

No. 142, Sept. Term, 2013.

Court of Special Appeals of Maryland.

July 31, 2014.

[96 A.3d 883]

Grace L. Hill (Williams & Connolly, LLP, Washington, D.C., Paul B. DeWolfe, Public Defender, Baltimore, MD, on the brief), for Appellant.

Susannah E. Prucka (Douglas F. Gansler, Attorney General, on the brief), Baltimore, MD, for Appellee.

Panel: KRAUSER, C.J., GRAEFF, and HOTTEN, JJ.

GRAEFF, J.

A jury sitting in the Circuit Court for Calvert County convicted appellant, William Kyler, of two counts of being a drug kingpin, one count of possession with intent to distribute more than 448 grams of cocaine, one count of possession with intent to distribute more than 50 grams of cocaine base, one count of possession of cocaine with intent to distribute, one count of possession of cocaine base with intent to distribute, one count of concealing the proceeds of a controlled dangerous substance (“CDS”) offense, and one count of conspiracy to distribute cocaine. The court sentenced appellant to a term of imprisonment totaling 65 years.¹

On appeal, appellant presents three questions for our review, which we have rephrased slightly as follows:

1. Did the circuit court abuse its discretion and violate appellant's Sixth Amendment right to a public trial by closing the courtroom during the testimony of five undercover police officers?

2. Was the evidence sufficient to support appellant's drug kingpin convictions?

3. Did the circuit court err in imposing separate sentences for the convictions of volume dealing and possession with intent to distribute?

[96 A.3d 884]

For the reasons set forth below, we agree with appellant that his convictions for volume dealing merge, for sentencing purposes, with the convictions for possession with intent to distribute. Accordingly, we shall vacate the volume dealing sentences. Otherwise, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

Detectives in the Calvert County Sheriff's Department, who worked undercover in the Drug Enforcement Unit, began investigating appellant in the summer of 2010.² They conducted surveillance of appellant and used confidential informants to assist in investigating appellant's drug activity.

Detective B. conducted several controlled buys from appellant with the assistance of an informant. Detective B. observed the informant purchase narcotics from appellant, and the informant would then give the narcotics to Detective B. The informant purchased narcotics from appellant at various locations: appellant's residence; the King office building (the “King Building”), where appellant's business, Kyler Photo Inc., was located; a barbershop; and a wireless telephone store, adjacent to the barbershop.

Detective B. observed appellant engage in other hand-to-hand drug transactions between July and September 2010. One such transaction occurred behind the King building, where appellant received money from an individual in exchange for what Detective B. believed, based on his training and experience, to be narcotics.

Detective B. also observed what he believed to be hand-to-hand drug transactions arising from the barbershop. In one transaction, an unknown male exited the barbershop, walked across the street to a gas station, and placed an item on a cooler, at which time a woman walked to the cooler, placed money there, and walked away. The unknown male then took the money and returned to the barbershop.

On several other occasions, Detective B. observed individuals pull in front of the barbershop, exit their vehicles, and go into the barbershop for such a short period of time that it was “impossible for them to get a haircut.” At times, the visitors to the barbershop spent more time looking for a parking space than they spent inside the shop. Although the barbershop offered only men's haircuts, women were seen entering the shop alone and leaving several minutes later. Detective B. recognized several of the individuals he observed entering and quickly leaving the shop from prior CDS cases. Based on the visitor traffic at the shop, including the cars pulling in front of the shop and the drivers entering only briefly, Detective B. believed that the activity he witnessed was consistent with illegal drug activity.

Detective B. saw appellant at the barbershop on approximately 20 occasions during his investigation. Appellant often visited the shop following days when there was a lull in activity. After his visit, however, traffic would pick up again. Appellant typically was inside the shop for approximately 30 minutes, although he stayed for one to two hours during several visits. Sometimes, he would enter and leave the shop carrying a gym bag or a suitcase.

Detective B. also observed activity that was consistent with illegal drug transactions

[96 A.3d 885]

at the wireless telephone store owned by appellant. After customers entered the wireless shop, they left without a bag, cell phone, or any other merchandise one would expect to be sold at a wireless store. The shop itself did not contain any cell phone or cell phone related merchandise; the only merchandise in the shop was clothing.

Corporal P. assisted with the investigation. He conducted surveillance of appellant's activities at the King building, where the photo shop was located in Suite 220. The exterior of the shop consisted of a door with the numbers 2–2–0 on the outside; there was no indication that the business was a photo shop. Corporal P. never observed appellant enter or leave the shop with photography equipment.

On October 14, 2010, four months after his investigation began, Corporal P. executed a search warrant for the photo shop, where he found evidence of drug dealing. Inside a locked, navy blue suitcase, Corporal P. found a large quantity of suspected cocaine and suspected crack cocaine, “several items used in the process to convert cocaine into crack cocaine,” a digital scale, and $14,000.³ Corporal P. also found materials in the premises used to package cocaine and crack cocaine, as well as a candle, a hotplate, a mixer, and pyrex measuring glasses with a charred white residue. The police also found a lease agreement for the space in which the barbershop and wireless store were located.

Appellant was present during the search of the photo shop. His person was searched, and the police recovered money, more than 10 grams of suspected crack cocaine, and “independence cards” issued to individuals other than appellant. ⁴ Corporal P. testified that these cards often are used by people to pay for drugs.

Greg Crump, a crime scene technician, analyzed the contents of the suitcase seized. He obtained from one of the measuring cups Corporal P. seized from the photo shop one latent fingerprint, which he sent to the Charles County crime lab. Earnest Jones, a fingerprint specialist with the Charles County Sheriff's Office, testified that the print on the measuring cup was from appellant's left middle finger.⁵

Detective B. also obtained a search warrant for the barbershop and wireless store. No items indicative of a functioning business, such as a cash register or a receipt book, were found. The police did find receipts for phones, cell phone equipment inside of a locked filing cabinet, and a sports bag with cell phones inside.

Detective J. executed a search warrant for appellant's home. He seized a money counter from the closet of the master bedroom, as well as 37 cell phones and two memory cards. He did not find any cameras, photo paper, or other photo printing supplies.

Detective B. believed that appellant might have a storage unit because “drug dealers often hide currency” or “evidence of illegal activity” in storage units. He sent subpoenas to all the area storage facilities and learned that appellant leased a storage unit less than an eighth of a mile

[96 A.3d 886]

from the barbershop, on Calvert Beach Road.

Corporal P. obtained and executed a search warrant for the storage unit. He found appellant's personal belongings, as well as documents with appellant's and Cranston Brown's names on them, including documents identifying appellant as Mr. Brown's employer.⁶

On October 21, 2010, in response to a tip, Corporal P. obtained a search warrant for an additional storage unit leased by appellant. That storage unit contained a dresser, which contained a black “laptop style carrying case” with $91,000 in cash and a piece of paper with numbers written on it. Detective G., who had conducted surveillance of appellant at the barbershop, identified the black laptop bag as the same bag that she had seen appellant carry into and out of the barbershop on at least one occasion.

During the course of the investigation, Detective B. connected two other men to the activities at the barbershop, Antoine Savoy and Roosevelt Brooks. Mr. Savoy rented the building in which the barbershop was located, and Mr. Brooks frequented the shop every few days.

In one controlled-buy, an undercover police detective, Detective T., arranged to purchase crack cocaine from Mr. Brooks. He went to Mr. Brooks's front yard, and Mr. Brooks told him that he “had to wait for his man to show up.” Mr. Brooks received a phone call, and a few minutes later, a black Mercedes pulled in front of the house. Mr. Brooks got into the vehicle, and the vehicle drove around the block. Detective B. recognized the car as one he had seen Mr. Savoy drive to and from the barbershop, and Detective T. recognized Mr. Savoy as the driver. Mr. Brooks then exited the Mercedes and sold Detective T. cocaine.

Detective G. applied for, and received, a search warrant for Mr. Brooks's home. During the search, she found a copy of the search warrant that was executed at appellant's house.

Sergeant Matthew McDonough, a member of the Calvert County Sheriff's Office, testified as an expert in the field of CDS investigations. His expertise included methods of distribution and trafficking, CDS distribution...