Rosenberg v. State, 1772

• Decision Date: 03 December 1999
• Docket Number: No. 1772,1772
• Citation: 741 A.2d 533,129 Md. App. 221
• Parties: Glenn Ivan ROSENBERG v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

741 A.2d 533

129 Md. App. 221

Glenn Ivan ROSENBERG v. STATE of Maryland.

No. 1772, Sept. Term, 1998.

Court of Special Appeals of Maryland.

December 3, 1999.

Bradford C. Peabody, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Steven L. Holcomb, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore; Robert Dean, State's Attorney for Montgomery County, Rockville, on the brief), for appellee.

Submitted before MOYLAN, HOLLANDER and EYLER, JJ.

HOLLANDER, Judge.

Appellant, Glenn Ivan Rosenberg, was convicted by a jury sitting in the Circuit Court for Montgomery County of two counts of theft of property valued at more than $300. He was subsequently sentenced by the court to two consecutive terms of fifteen years of imprisonment, with five years of each term suspended.¹ On appeal, Rosenberg presents a pentad of issues, which we have rephrased slightly:

I. Did the trial court err in denying appellant's motion to suppress a) physical evidence recovered during a warrantless search of his canvas bag and car, and b) physical evidence recovered from his home pursuant to a search warrant?

II. Did the trial court err in its jury instructions on reasonable doubt?

III. Did the trial court err in admitting evidence of "other bad acts"?

IV. Did the trial court err in permitting a police officer to give lay opinion testimony?

V. Did the trial court err in admitting certain evidence at trial that was provided by the State in violation of the discovery rules?

As we perceive no error, we shall affirm the trial court's judgments.

SUPPRESSION HEARING

In deciding whether the court erred in denying the suppression motion, the record at the suppression hearing is the exclusive source of facts subject to our review. Lee v. State, 311 Md. 642, 648, 537 A.2d 235 (1988); Trusty v. State, 308 Md. 658, 670, 521 A.2d 749 (1987); Aiken v. State, 101 Md.App. 557, 563, 647 A.2d 1229 (1994), cert. denied, 337 Md. 89, 651 A.2d 854 (1995). We extend great deference to the first-level factual findings of the suppression judge and accept the facts as found, unless clearly erroneous. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990); Perkins v. State, 83 Md.App. 341, 346, 574 A.2d 356 (1990). Moreover, we give due regard to the hearing judge's opportunity to assess the credibility of the witnesses. McMillian v. State, 325 Md. 272, 282, 600 A.2d 430 (1992). Although we review the evidence in the light most favorable to the State as the prevailing party, Riddick, 319 Md. at 183,571 A.2d 1239, we must make our own independent constitutional appraisal. This is accomplished by reviewing the law and applying it to the facts as found by the suppression judge. Howard v. State, 112 Md.App. 148, 156, 684 A.2d 491,cert. denied, 344 Md. 718, 690 A.2d 524 (1997); Jones v. State, 111 Md.App. 456, 465, 681 A.2d 1190 (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)),cert. denied, 344 Md. 117, 685 A.2d 451 (1996). With these principles in mind, we turn to review the evidence adduced at the suppression hearing.

At around 10:00 p.m. on October 7, 1997, Montgomery County Police Officers Sean Reilly and Alexander Scott Power arrived at the area of Kersey Road and Monticello Street in Silver Spring, Maryland, in response to a call reporting suspicious activity. The officers, who were in uniform, arrived separately in marked police vehicles. Upon arrival, the officers saw appellant seated on the ground in front of an open telephone equipment box.² The box consisted of a double door metal container encased in concrete, which was located between the sidewalk and curb; it was about four feet high, three feet wide, and one foot deep. Inside the box were rows of wires. According to Officer Power, "several wires were pulled out from the box.... [S]everal of them were actually sticking out as if someone had pulled on them." On the ground, a few feet from appellant, were a socket wrench, wire cuttings, and a white canvas bag with some wires and tools sticking out. One of the exposed tools was an orange and yellow hand-held telephone receiver. The officers recognized the tool as one used by telephone repair persons.

When the officers asked appellant what he was doing, he responded that he was "testing out his equipment." Appellant indicated that he did not work for the telephone company. When he was asked where he got his tools, he responded that he had bought them. Upon request, appellant produced his driver's license for identification. A warrant check came back "negative." The officers also performed a pat down of appellant and made a cursory look inside the canvas bag for weapons. Although no weapons were discovered, the canvas bag contained several unidentifiable tools and several papers on which were written 1-800 and 1-900 telephone numbers. Officer Power also found a blue technician's repair card dated June 20, 1997.

About five minutes after they arrived, the officers looked through the window of appellant's car, which was parked close by. Inside the car, lying on the back seat, was a "Bell Atlantic" hard hat, like those used by telephone repair persons. When Officer Power saw the helmet, he recalled an earlier report of a break-in involving a Bell Atlantic truck. Appellant told the officers that he received the helmet from a friend.

Appellant was "fidgety" and "very evasive in his movements." Officer Reilly believed that appellant was "tampering with the phone lines." The officers reported the situation over the radio and within a few minutes two other officers appeared on the scene. One was Montgomery County Police Officer Elizabeth Cornett, who heard appellant's name broadcast on the police radio and went to the scene because appellant was "known to have a lot of guns." She was aware that appellant had previously been suspected of using explosives, and she once saw him "scaling the side of a building with gasoline." Moreover, appellant was listed on interdepartmental bulletins for officer safety because of an incident in which he had followed home an officer who had intervened in his harassment and stalking of his exwife. Because of other encounters with the police, the bulletins also noted that appellant owned a large number of guns and had a working knowledge of explosives.

About fifteen minutes after Officers Reilly and Power arrived, appellant indicated that he wished to leave the area. He was told, however, that he could not leave until his car was searched. Appellant then gave the police permission to search his car, saying: "You can go and search it." Inside the trunk of appellant's car the police discovered two small medicine bottles labeled "mercury." Knowing that mercury can be used to make explosives, two bomb sniffing K-9 units and a fire marshall were called to the scene. Also in the trunk of the car were several more papers on which were written 1-800 and 1-900 telephone numbers. At this time, the officers performed a second search of the canvas bag to determine if there were any markings on the items identifying them as property belonging to Bell Atlantic. The items contained no such markings.

Around this time, Sergeant Alan Goldberg arrived at the scene. After being briefed by the other officers, recognizing the specialized nature of the tools, and recalling an earlier report of a break-in of a telephone company truck, the sergeant contacted a Bell Atlantic representative and Detective Robert Angelino, a member of the Montgomery County Police Department's Special Investigations, Electronic/Technical Support Unit, to come to the scene. Based on what he saw, Detective Angelino said: "I thought we had a theft of ... service [from the telephone company]. I thought we had a possible theft of equipment." He based his view of possible theft of services on the open telephone equipment box, the condition of the wires, and a butt-in set.³ Sometime between an hour and an hour and a half after the first officers arrived at the scene, Sergeant Goldberg decided to arrest appellant "at the minimum for destruction of property [and] vandalism for tampering with the box." Appellant was handcuffed and transported to a police station for questioning.

After appellant was taken to the police station, the Bell Atlantic representative and Detective Robert Angelino arrived at the scene. The telephone company representative thought the canvas bag contained Bell Atlantic equipment. Although the Bell Atlantic representative recognized many of the tools as the type used by the company, she was unable to "positively" identify any of the items contained in the canvas bag as belonging to the company.

Detective Angelino searched the canvas bag and recognized many of the tools as those used by telephone repair persons. He also believed that the items were not generally available to the public. When Detective Angelino inspected the telephone box, he noticed that some wires had been pulled out. The wires showed evidence of "crimping," a term referring to indentations on the wires from the use of certain equipment. The marks on the wires were consistent with someone attaching a "buttin set" with "alligator clips," so as to allow the user to make a telephone call. The Bell Atlantic representative, Sergeant Goldberg, and Detective Angelino were aware that earlier that evening a Bell Atlantic truck had been broken into, but they did not know what, if anything, was taken. Both Sergeant Goldberg and Detective Angelino suspected that appellant was connected with the stolen Bell Atlantic equipment in a way that they did not yet know. Accordingly, it was decided not to charge appellant with any crimes. Instead, appellant was released on his own recognizance pending further investigation. Nevertheless, the police confiscated from appellant a side kick stress test,⁴ a handset telephone tester, a flashlight, a roll of wire, assorted tools, the Bell...