Seck v. State
| Decision Date | 11 May 2022 |
| Docket Number | 1305-2019 |
| Parties | AZIZ NALLA SECK v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Wicomico County Case No. C-22-CR-19-000153
Kehoe Friedman, Woodward, Patrick L. (Senior Judge, Specially Assigned), JJ.
In the Circuit Court for Wicomico County, a jury found Aziz Nalla Seck, appellant, guilty of possession with intent to distribute cocaine and possession of cocaine. As to the possession with intent to distribute conviction, the court sentenced appellant to five years of imprisonment, with all but three years suspended and eighteen months of supervised probation. The possession of cocaine conviction was merged for sentencing purposes. Appellant raises two questions for our review:
For the reasons to be discussed, we shall affirm the judgment of the circuit court.
In January 2019, Officer Joseph Doyle stopped at a Wawa store in Salisbury to use the restroom. When he walked into the restroom, he noticed two men huddled around a solo urinal. He identified the men as appellant and Randall Allen Boyd. At that time, Boyd began "act[ing] as if he was using the urinal[, ]" and appellant "looked at [Officer Doyle] almost like a deer in the headlights[.]" Both appeared nervous upon seeing Officer Doyle.
Because of the way that appellant and Boyd were huddled around a solo urinal, Officer Doyle thought that they were trying to conceal a drug transaction. As a result, Officer Doyle asked them to step away from the urinal. At that time, Officer Doyle observed "wax paper with trace amounts of crack cocaine" inside the urinal. Officer Doyle tried to seize the suspected drugs from the urinal, but the urinal automatically flushed and carried away some of the substance. Officer Doyle seized what remained and searched the bathroom. Under the trashcan near where appellant had been standing, Officer Doyle found "a plastic bag containing an amount of crack cocaine with a preliminary weight of 1.07 grams." That bag had not been on the floor before Officer Doyle's interaction with Boyd. And Officer Doyle did not observe Boyd toss anything on the floor.
Officer Doyle arrested Boyd and appellant. Officer Doyle searched appellant and found $393.02 and two cell phones on his person. Officer Doyle found nothing on Boyd's person. Officer Doyle's body camera recorded the incident.
Under an agreement with the State, Boyd testified in appellant's case.[1] Boyd testified that he was living in a halfway house in January 2019 after he had finished a drug treatment program for addiction to cocaine and heroin. On the day of the incident, Boyd walked to Wawa to get coffee. Appellant approached Boyd near the Wawa and asked Boyd if he wanted to buy crack. Boyd responded in the affirmative, but he planned to take the drugs from appellant without paying. Appellant and Boyd went into the Wawa bathroom, and appellant dropped a bag of drugs into Boyd's hand. Officer Doyle then walked in the bathroom, and Boyd dropped those drugs into the urinal.
A chemist for the Maryland State Police, Jessica Taylor, provided expert testimony about the substances that Officer Doyle recovered from the Wawa bathroom. One item weighed .067 grams and the other item weighed .365 grams. Taylor testified that both items tested positive for the presence of cocaine.
Michael Daugherty, a special investigator for the Wicomico County State's Attorney's Office, reviewed the case and testified as an expert in "narcotics valuation, identification, investigations, and common practices of users and dealers of controlled dangerous substances[.]" Daugherty stated that Officer Doyle's body camera video showed that a drug distribution had occurred. Daugherty's testimony also referenced the following. Officer Doyle recovered .067 grams of cocaine from the urinal and .365 grams of cocaine from the bathroom floor. Daugherty noted appellant's proximity to the cocaine on the floor. On appellant's person, Officer Doyle recovered two phones and cash in various denominations. Boyd had no money on him. Daugherty testified that the circumstances showed that Boyd possessed cocaine for personal use and appellant was the seller. Additional facts will be discussed below.
I. Officer Doyle's Testimony
Officer Doyle testified on cross-examination that appellant "normally does not have nice words to [say[2] towards law enforcement[.]" Defense counsel objected to that testimony and moved to strike and for a mistrial. The trial court denied the motion for mistrial. The full exchange, including defense counsel's objection, is as follows:
(Counsel returned to trial tables[.])
As discussed later in this opinion, defense counsel did not then move to strike Officer Doyle's statement.
Appellant makes three arguments. First, the testimony was irrelevant under Maryland Rule 5-402. Second, the testimony was far more prejudicial than probative under Rule 5-403. Third, the testimony was inadmissible evidence of other crimes, wrongs, or acts under Rule 5-404(b). The State responds that "Officer Doyle's comment was not irrelevant, substantially more prejudicial than probative, or propensity evidence and, thus, the trial court did not have to sustain [appellant]'s objection or grant him a remedy."
We address the relevancy of Officer Doyle's testimony first. The determination of relevance is a matter of law that we review de novo. State v. Simms, 420 Md. 705, 725 (2011). Rule 5-401 defines "relevant evidence" as evidence having "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." As the Court of Appeals stated in Williams v. State, "[h]aving 'any tendency' to make 'any fact' more or less probable is a very low bar to meet." 457 Md. 551, 564 (2018). ' ' Simms, 420 Md. at 727 (quoting Thomas v. State, 397 Md. 557, 577 (2007).
Officer Doyle's testimony meets the "very low bar" for relevancy. See Williams, 457 Md. at 564. The challenged testimony stemmed from defense counsel's open-ended cross-examination question. On direct examination, Officer Doyle testified that appellant had appeared nervous and "looked at [Officer Doyle] almost like a deer in the headlights" when Officer Doyle entered the Wawa bathroom. During cross-examination, defense counsel asked Officer Doyle why he believed that appellant was nervous when the officer entered the Wawa bathroom. Defense counsel specifically inquired about whether it had been "just demeanor" or "words" that were said that caused the officer's belief. The officer testified that it was a "combination of both" and that appellant "normally does not have nice words to [say] towards law enforcement[.]" Although defense counsel did not anticipate Officer Doyle's answer, that answer was responsive to defense counsel's question and was clearly relevant to Officer Doyle's explanation for the basis of his observation that appellant appeared nervous.
Next, we examine whether the trial court erred by failing to exclude the testimony under Rule 5-403. Rule 5-403 states, in relevant part: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]" Such determination is left to the sound discretion of the trial judge, and an appellate court will only reverse upon a clear showing of abuse of discretion. Malik v. State, 152 Md.App. 305, 324 (2003). Moreover, "a trial court is given significant deference in its determination that probative evidentiary value outweighs any danger of prejudice." CSX Transp., Inc. v. Pitts, 203 Md.App. 343, 373 (2012) (quotation marks and citation omitted).
We, however, do not weigh the probative value against prejudice generally. Newman v. State, 236 Md.App. 533, 548-49 (2018). Instead, we consider only unfair prejudice. Id. at 549. That is because '"all competent and trustworthy evidence offered against a defendant is prejudicial."' Id. (quoting Oesby v. State, 142 Md.App. 144, 165-66 (2002)) (emphasis omitted). In the context of Rule 5-403, unfairly prejudicial evidence "tends to have some adverse effect . . . beyond tending to prove the fact or issue that justified its admission." Smith v. State, 218 Md.App. 689, 705 (2014) (quotation marks and citation omitted). This Court has clarified the meaning of "unfair prejudice":
The "unfair" component of the prejudice is...
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