Pugh v. State
| Citation | 654 A.2d 888,103 Md.App. 624 |
| Decision Date | 01 September 1994 |
| Docket Number | Nos. 622,636,s. 622 |
| Parties | Dennis Bernard PUGH v. STATE of Maryland. Morgan Adam KELLEY, Jr. v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Richard A. Parolski, Ocean City and Thomas C. Hill, P.C. and Shaw, Pittman, Potts & Trowbridge, Washington, DC, for appellant, Kelley.
Diane E. Keller, Celia Anderson Davis, Asst. Attys. Gen., Baltimore (J. Joseph Curran, Jr., Atty. Gen., Baltimore and B. Randall Coates, State's Atty. for Worcester County of Snow Hill, on the brief), for the state.
Submitted before CATHELL, MURPHY and HOLLANDER, JJ.
Dennis Pugh, appellant in No. 622, and Morgan Kelley, Jr., appellant in No. 636, were co-defendants below; they were charged with various narcotics offenses and were tried jointly by a jury sitting in the Circuit Court for Worcester County. As appellants were tried together and present common issues on appeal, we shall consider together their separately noted appeals.
On January 11, 1994, the jury convicted Pugh of the following: bringing into Maryland an amount of cocaine exceeding twenty-eight grams, in violation of Md.Code Ann., Art. 27, § 286A (1992 & Supp.1994); occupying a position as a "drug kingpin," as defined and proscribed in Art. 27, § 286(g); possession of cocaine with intent to distribute, in violation of Art. 27, § 286(a)(1); and possession of cocaine, in violation of Art. 27, § 287. Kelley was convicted of the same offenses, but, after trial, the court granted Kelley's motion for judgment of acquittal with respect to his conviction as a "drug kingpin."
On April 8, 1994, Pugh was sentenced to twenty-five years incarceration, without parole, for the "drug kingpin" conviction, a concurrent twenty-five year term for bringing into the State an amount of cocaine exceeding twenty-eight grams, and a concurrent twenty-year term for possession with intent to distribute, into which the simple possession conviction was merged. Kelley was sentenced on the same date to a total of twenty-five years incarceration.
Appellants were jointly represented by the same attorneys. Central to their appeals are appellants' claims that they were denied their constitutional right to effective assistance of counsel in part because of a serious conflict of interest resulting from dual representation. Because we are unable to find the requisite facts, from the record now before us, we hold that appellants' claims as to conflict of interest and ineffective assistance must be addressed through post conviction proceedings instituted pursuant to Md.Code Ann., Art. 27 § 645A (1992 & Supp.1994). As to appellants' remaining assertions,
we perceive no error and shall therefore affirm the judgments in all respects.
Pugh presents the following questions, which we have rephrased slightly for clarity:
I. Was the evidence sufficient to sustain appellant's conviction as a "drug kingpin," under Article 27, § 286(g)?
II. Was appellant denied effective assistance of counsel?
A. Was defense counsel laboring under a conflict of interest because counsel represented both Pugh and Kelley at their joint trial?
B. Did defense counsel fail to represent appellant competently because counsel failed to file timely a motion to suppress?
C. Did appellant have a meritorious motion to suppress, such that his defense was prejudiced by counsel's failure to file timely the motion?
III. Did the trial court err in failing to act, sua sponte, regarding defense counsel's joint representation of appellants?
IV. Was appellant's constitutional right to be present at a critical stage of the proceeding violated when he was not present for argument on the State's motion to strike the defense's motion to suppress?
V. Did the trial court err in granting the State's motion to strike the defense's motion to suppress?
Kelley presents these related questions:
I. "Was the State's evidence sufficient to support [Kelley's] convictions for possession with intent to distribute cocaine and importation of cocaine when the uncontroverted evidence simply established that [Kelley] was asleep as the passenger in a car driven by his co-defendant, rented to a third person unknown to [Kelley], when the cocaine was secreted in the spare tire in the car's trunk and appellant had no access to the II. "Did the court commit error by failing to instruct the jury that [Kelley's] knowledge of the existence of the cocaine was an essential element of the crimes charged?"
trunk and no knowledge of the presence of the cocaine?"
III. "Were [Kelley's] fifth and sixth amendment rights violated when he was represented by counsel who without explaining the actual conflict of interest and without obtaining waiver represented both the passenger [Kelly] and the co-defendant driver of the car? "
The following factual summary is gleaned from the evidence presented at trial.
On the morning of Wednesday, May 13, 1992, Corporal Ernest Leatherbury of the Maryland State Police and Trooper First Class Mike Lewis had parked their unmarked police cars in the median of Route 13 in Worcester County in the vicinity of Stockton Road. Corporal Leatherbury's police car was facing south and Trooper Lewis's police car was facing north so that their driver's side doors were side-by-side. At approximately 7:20 a.m., while the troopers were speaking, they observed a 1992 blue Pontiac Grand Prix with its lights on traveling southbound in the right-hand lane of Route 13. The troopers believed that the Pontiac was exceeding the posted speed limit of fifty-five miles per hour. When the Pontiac passed the troopers' position, they observed that its brake lights were on.
Corporal Leatherbury waited until the Pontiac was out of sight, then pursued the Pontiac in an attempt to "pace" the car. 1 After Corporal Leatherbury's police car was out of sight, Trooper Lewis also proceeded southbound on Route 13 in pursuit of the Pontiac.
When Corporal Leatherbury paced the Pontiac, he determined that it was travelling at approximately fifty-five miles per hour. While the corporal was behind the Pontiac, he observed that approximately half of the vehicle crossed the center line. Consequently, Corporal Leatherbury executed a traffic stop of the Pontiac "[f]or crossing the center line, not driving in a designated lane." As the corporal was stopping the Pontiac, Trooper Lewis arrived at the scene.
Corporal Leatherbury approached the driver's side of the Pontiac and asked the driver, later identified as Pugh, for his driver's license and registration. Trooper Lewis approached the passenger side of the Pontiac and spoke to Kelley, who was the passenger. When Pugh could not produce his license, Corporal Leatherbury asked Pugh to accompany him to his police car. After learning Pugh's name, address, and date of birth, the corporal, through a radio check, was able to determine that Pugh was a licensed driver. The corporal also learned that the Pontiac had been rented to one Mary Holman in New York. At some point, the troopers obtained a copy of the rental contract.
Trooper Lewis spoke with Kelley, who remained seated in the Pontiac; he learned that appellants were supposedly travelling from Brooklyn, New York to Norfolk, Virginia. Trooper Lewis noticed a brown jacket on the back seat of the Pontiac with an airline ticket protruding from the pocket. Kelley informed Trooper Lewis that he had travelled to New York "... yesterday, to see my mom for Easter, I mean Mother's Day." Trooper Lewis said that Kelley also informed him that he had travelled to New York to pick up a car he was planning to buy and that the two men did not have any luggage. The trooper commented to Kelley on what the trooper thought was a "big bulge" in Kelley's front left pants pocket. In response, Kelley reached into his pocket and pulled out a "wad of money." Trooper Lewis further testified that Kelley said he was unemployed.
The troopers then privately discussed their observations of the two men and they agreed that they should request permission Trooper Lewis searched the Pontiac while Corporal Leatherbury watched appellants, who were standing beside the car. When he searched the trunk of the car, Trooper Lewis observed that the carpeting was in disarray. He pulled back the carpet, and noticed that The trooper then removed the cardboard panel and found an old Firestone Supreme tire that was deflated and covered with brake dust. In contrast, there were four new B.F. Goodrich tires on the Pontiac. Trooper Lewis also observed marks around the perimeter of the Firestone tire. As a result, he asked appellants if they had had a flat tire during the trip and both men responded in the affirmative.
to search the Pontiac for drugs and contraband. As Pugh was the driver, Corporal Leatherbury obtained his consent to search the Pontiac. But when Kelley stepped out from the Pontiac, Trooper Lewis also asked him if he had "any problem" with the troopers' search of the vehicle. Kelley responded that he did not, and also gave his consent to a search of his person.
Trooper Lewis removed the tire from the trunk. He realized that it was unusually heavy and that there were some "obstructions" in the tire. After Trooper Lewis pried the rubber loose he observed some "gray duct tape packages" in the tire. At that point, Pugh and Kelley were placed under arrest. Trooper Lewis then cut the tire open and recovered "eleven large duct tape packages." Also recovered were $286.00 from Pugh and $44.00 and a beeper from Kelley.
Subsequent analysis of the packages revealed that they contained 2307.7 grams of powdered cocaine and 1472 grams of crack cocaine. At trial, Trooper Lewis, testifying as an expert in...
To continue reading
Request your trial
-
Velez v. State
......State, 329 Md. 275, 281, 619 A.2d 111 (1993). In performing this role, the jury has the power to decide which testimony to accept and which to reject. "In this regard, it may believe part of a particular witness's testimony, but disbelieve other parts of that witness's testimony." Pugh v. State, 103 Md.App. 624, 651, 654 A.2d 888 (1995); see also, Muir v. State, 64 Md.App. 648, 654, 498 A.2d 666 (1985), aff'd, . Page 202 . 308 Md. 208, 517 A.2d 1105 (1986). Moreover, "it is the exclusive function of the jury to draw reasonable inferences from proven facts." McMillian v. ......
-
Pringle v. State
....... Colin, 101 Md.App. at 407, 646 A.2d 1095 (citations omitted). . In Colin, we examined all four Folk factors and found the "proximity" and "mutual enjoyment" factors were satisfied. Id. Colin was followed a year later in Pugh v. State, 103 Md.App. 624, 652-53, 654 A.2d 888 (1995), a case in which cocaine was found inside the spare tire under the carpeting of the trunk. Folk, Colin, and Pugh were all cases in which this Court was tasked to review the sufficiency of the evidence to sustain a possession conviction. . ......
-
Woodfolk v. Maynard
...omitted); see Mosley v. State , 378 Md. 548, 836 A.2d 678, 686-90 (2003) (discussing limited nature of exception); Pugh v. State , 103 Md.App. 624, 654 A.2d 888, 897 (1995) (acknowledging that ineffective assistance of counsel can be considered on direct appeal "in unusual circumstances"). ......
-
Hollingsworth v. Connor
......, in denying H & V's motion to dismiss for lack of personal jurisdiction, because of the lack of contacts of H & V and its subsidiary with the State of Maryland? . 2. Did the trial court err, as a matter of law, by instructing the jury that it could not consider plaintiff's ...at 290, 600 A.2d 430 (1992)). In this regard, it may believe part of a particular witness's testimony but disbelieve other parts. See Pugh v. State, 103 Md.App. 624, 651, 654 A.2d 888, cert. denied, 339 Md. 355, 663 A.2d 73 (1995). . The jury was free to believe all, ......