Larocca v. State

• Decision Date: 29 September 2005
• Docket Number: No. 2628,2628
• Citation: 883 A.2d 986,164 Md. App. 460
• Parties: James Bradley LAROCCA v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

883 A.2d 986

164 Md. App. 460

James Bradley LAROCCA v. STATE of Maryland.

No. 2628, September Term, 2003.

Court of Special Appeals of Maryland.

September 29, 2005.

Michael R. Braudes (Nancy S. Forster, Public Defender, on the brief), Baltimore, for appellant.

Devy Patterson Russell (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Panel: MURPHY, C.J., DAVIS, SALMON, JAMES R. EYLER, KENNEY, DEBORAH S. EYLER, ADKINS, KRAUSER, BARBERA, SHARER, MEREDITH and WOODWARD, JJ.

DEBORAH S. EYLER, Judge.

In a court trial in the Circuit Court for Washington County, James Bradley Larocca, the appellant, was convicted of possession with intent to distribute marijuana and possession of marijuana. The court merged the simple possession conviction and sentenced the appellant to five years' imprisonment, with all but two years suspended in favor of three years' probation.¹ The appellant presents three questions for review:

I. Was the evidence legally sufficient to support his conviction?

II. Did the trial court err in considering a witness's extrajudicial statement as substantive evidence?

III. Did the trial court err in denying the appellant's motion to suppress evidence?

This case originally was placed on the Court's non-argument docket. Because this type of sufficiency of the evidence issue is likely to recur in other cases, this Court set the case in for an en banc hearing, and permitted the parties to file supplemental briefs.

For the following reasons, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS

On January 16, 2003, the appellant and his friend, David Hinkle, were arrested and charged with possession of marijuana with intent to distribute and simple possession. Hinkle pleaded guilty to the lesser offense, and the State nol prossed the greater offense.

At the appellant's trial, the State called as witnesses Sergeant Johnny Lee Murray, Officer John Lehman, and Officer Todd Webster, of the Hagerstown Police Department; Hinkle; and Jeremy Miner, another friend of the appellant. The appellant did not call any witnesses. He did, however, introduce into evidence an affidavit signed by Hinkle. The evidence viewed in the light most favorable to the verdict was as follows.

On the night in question, the appellant, Hinkle, and Miner were in Hagerstown, "just riding through town" in a Honda Civic registered to Hinkle's mother. Hinkle was driving. The appellant was the front seat passenger. Miner was sitting in the back seat. It had been snowing on and off throughout the day.²

At the appellant's request, Hinkle drove to the 600 block of N. Mulberry Street. Hinkle double parked in front of a house there. It so happened that Sergeant Murray and Officer Webster, dressed in plainclothes, were at that location, conducting an undercover "trash pull." The officers were assigned to a special unit that was targeting street level drug dealers. No one else was in the area.

According to those portions of the testimony of Hinkle and Miner most favorable to the State, as the trio was driving to N. Mulberry Street, Miner produced a marijuana blunt, lit it, smoked it, and passed it to Hinkle. This communal partaking in marijuana took place in the appellant's presence, in the passenger compartment of the Honda. It continued while the appellant got out of the car and went into the house where the Honda was double parked.

Sergeant Murray, standing nearby, watched as the appellant entered the house on N. Mulberry Street and then a short time later exited and returned to the Honda. Sergeant Murray did not see the appellant carrying or holding anything. However, when the appellant opened the car door to get back inside, Sergeant Murray smelled burning marijuana in the vicinity of the Honda. He could not see inside the Honda because its windows were tinted and the rear window was covered with snow. Sergeant Murray noticed that the Honda's rear license plate was completely covered with snow.

Sergeant Murray told Officer Webster about what he had seen and smelled. The officers put in a request for a uniformed colleague, Officer Lehman, to follow the Honda in a marked cruiser, which he did. The undercover officers followed behind Officer Lehman in their unmarked car.

The marijuana smoking inside the Honda continued after the three men departed from N. Mulberry Street. While the Honda was waiting at a red light, Hinkle noticed police car lights coming up behind him, "from back . . . back about a mile or so." Hinkle testified, "And as soon as I seen him, I was trying to get through the intersection. I didn't know if the police officer was coming to pull me over or trying to . . . on a call that he had to get to."

Officer Lehman made the traffic stop and approached the driver's side of the car. Sergeant Murray and Officer Webster approached the opposite side of the vehicle and asked the passengers to roll down their windows. When the windows were rolled down, Sergeant Murray and Officer Webster both smelled the odor of burnt marijuana coming from inside the car. According to Officer Webster, it took about three to five minutes to make the traffic stop.

Officer Lehman obtained Hinkle's driver's license and the registration for the Honda. Because of the smell of marijuana, the investigation immediately focused on drugs inside the vehicle or on the occupants' persons. Hinkle was brought to the rear of the Honda and asked by Sergeant Murray if there were any drugs on his person or in the vehicle. He answered in the negative and consented to a search of his person. That search revealed rolling papers and currency.

Sergeant Murray next ordered Miner to exit the vehicle. He did as ordered and also consented to a search. The search of Miner uncovered a small baggie of marijuana. Miner was immediately placed under arrest for possession of marijuana.

The appellant also was asked to exit the Honda. He complied. Officer Webster inquired whether he had anything illegal in his possession. The appellant responded in the negative. He then consented to a search of his person. No drugs or paraphernalia were recovered in that search.

Officer Webster proceeded to search the Honda. Underneath the front passenger seat he recovered a white plastic bag that contained five individually wrapped baggies of marijuana. In Officer Webster's words, the white bag was located, "[j]ust under the rim of the seat. If [the appellant is] sitting in the seat, if you just reach your hand under, I guess right where normally the adjustments are, it's right under there in the front portion of the seat." In other words, the white plastic bag was found directly under the appellant's seat, on the floor of the car near the edge of the seat, in the area immediately behind and next to where the appellant's legs had been when he was seated. The white plastic bag was opaque, and therefore had to be opened to see what was inside.

None of the occupants of the vehicle claimed ownership of the white bag of marijuana at the time of the stop. As noted above, the appellant and Hinkle were arrested and charged with possession of marijuana with intent to distribute and simple possession.³ Miner was arrested and charged with simple possession of the marijuana found on his person.

At the police station, Officer Webster interviewed Miner and Hinkle. Miner told the officer he did not know how the white bag of marijuana got under the front passenger seat of the car. Hinkle told Officer Webster that the white bag of marijuana was not in the car until the appellant and Miner got in the car. Also, Hinkle told Officer Webster, "Brad [the appellant] has told me he sells dope." Hinkle gave this information in written statement form, but refused to sign it. Hinkle's statement was admitted at trial for impeachment purposes only.

Before trial, Hinkle gave the appellant's counsel an affidavit in which he attested that the appellant was not aware of the white bag of marijuana underneath the seat prior to its seizure by the police; that the marijuana was in the car before the appellant entered it; and that he never told the appellant that the marijuana was there. He also attested that, sometime after their arrests, he wrote a note to the appellant's defense counsel (attached to the affidavit), admitting that the marijuana was his.

Also as noted above, before trial, Hinkle pleaded guilty to the lesser charge of simple possession of the marijuana in the white bag and the State nol prossed the possession with intent to distribute charge against him.

Miner's trial testimony was consistent with what he told Officer Webster on the night of the arrest. Miner said he did not know the white bag of marijuana was in the car, did not put it there, and did not see anyone else put it there. He first learned of its presence when the police removed it from the car.

Hinkle testified at trial that the white bag of marijuana belonged to him and its presence in the car was unknown to the appellant. He said that the day before the stop, someone named Robert, whose last name Hinkle did not know, gave him the bag of marijuana (worth about $500) for free. He put the bag under the front passenger seat of the Honda to take to his house, for personal use (although it was packaged for sale), but forgot about it. The next night, when the traffic stop occurred, he did not tell the police about the bag under the seat because he was scared (not because he had forgotten about it, however).

Many times in his testimony, Hinkle claimed not to remember what had happened on the night of the traffic stop, because of "short term memory loss" due to drug use. Yet, he claimed to remember clearly that the appellant did not know of the presence of the bag of marijuana in the car. Hinkle's trial testimony was inconsistent with what he told Officer Webster on the night of the stop. At trial, he claimed that he had put the marijuana in the car the night before and only he knew of its presence; in...