Shelton v. State
| Decision Date | 05 September 2012 |
| Docket Number | No. 1240,Sept. Term, 2011.,1240 |
| Citation | 207 Md.App. 363,52 A.3d 995 |
| Parties | Daniel SHELTON v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Anne K. Olesen (George Washington University Community Legal Clinics, Washington, DC), on the brief, for appellant.
James E. Williams (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.
Panel: EYLER, DEBORAH S., WRIGHT, and KEHOE, JJ.
On October 27, 2010, Daniel William Shelton, appellant, was arrested as a result of an undercover drug investigation. On November 18, 2010, Shelton was indicted in the Circuit Court for Montgomery County on one count of distributing a controlled dangerous substance, one count of conspiring to distribute a controlled dangerous substance, and one count of first-degree assault.
Shelton's jury trial began on February 16, 2011. At the close of the State's case on February 17, 2011, Shelton moved for a judgment of acquittal. The motion was denied. On February 18, 2011, the jury acquitted Shelton of the first-degree assault charge but found him guilty of the lesser-included second degree assault charge and the remaining distribution and conspiracy offenses. On June 22, 2011, the trial court sentenced Shelton to eight years imprisonment for distribution of a controlled substance, eight years for conspiracy, and five years for second-degree assault, with all sentences to run concurrently. On July 5, 2011, Shelton timely filed this appeal.
Shelton presents two issues for our review, which we have rephrased as follows: 1
I. Did the trial court err in admitting a hearsay statement under Maryland Rule 5–803(a)(5), the co-conspirator exception, because the statements of the accomplice were not made in furtherance of the conspiracy?
II. Did the trial court err in allowing the State, during its closing argument, to make statements that presented facts not in evidence and that misrepresented the State's relationship with a key witness?
For the reasons that follow, we affirm.
On October 26, 2010, detectives from the Montgomery County Police Department's Tactical Narcotics Unit organized an undercover investigation, in which they sought to purchase crack cocaine from suspected drug dealers. Sergeant Charles Carafano tried to call a man named Scoop to set up the deal, but Sgt. Carafano reached a woman named Nicole Hosley instead. Hosley told Sgt. Carafano that although Scoop had been “locked up” and was unavailable, she would be willing to supply him with drugs. The two communicated back and forth until they arranged to meet the next day at a grocery store in Rockville, Maryland.
On October 27, 2010, Sgt. Carafano arrived at the grocery store at 5:00 p.m. Hosley and a man named Darrin Duffin arrived shortly thereafter and entered Sgt. Carafano's truck. Once inside, Duffin made a brief telephone call. After hanging up, Duffin directed Sgt. Carafano to drive to the nearby Maryvale Market. At that point, Sgt. Carafano suspected that Duffin was not in possession of the drugs, and, when asked, Duffin confirmed that he did not have the drugs on him. As they drove to the market, Sgt. Carafano and Duffin discussed the details of their transaction. Duffin insisted that Sgt. Carafano pay for the drugs and then wait in the car while Duffin retrieved them. Sgt. Carafano indicated that he was uncomfortable with this arrangement, but, when Duffin again insisted, Sgt. Carafano agreed to pay in advance, if Duffin agreed to leave his wallet with Sgt. Carafano as collateral. After agreeing to this arrangement, Sgt. Carafano gave Duffin one hundred and sixty dollars in marked bills: a one hundred dollar bill and three twenty dollar bills all of which Sgt. Carafano had photocopied. Upon arriving at the market, Duffin left the car to meet with the drug supplier, and Hosley stayed in the car with Sgt. Carafano. While in the car, Hosley and Sgt. Carafano spoke, among other things, about Duffin's supplier, Hosley's decision to quit using cocaine, and Duffin's outfit.
A few minutes later, a white Jeep Cherokee pulled into the market's parking lot. Sgt. Carafano's view was partially obstructed by the Jeep, but he observed Shelton step out of the vehicle and begin interacting with Duffin. Duffin and Shelton entered the market where no officer could see or hear them. When they eventually emerged, Detective Timothy Spelman, who was assisting with the investigation, noticed that Duffin was carrying a small paper sack. None of the officers involved in the investigation witnessed the exchange between Shelton and Duffin. After the exchange, Duffin walked back to Sgt. Carafano's car. As Duffin got back into the car, Hosley got out of the car and began walking down the street. Duffin produced a substance that, to Sgt. Carafano, appeared to be crack cocaine. Sgt. Carafano then gave the signal for the other detectives to make the arrest, and three detectives from a nearby van apprehended Duffin and Hosley.
By the time the officers arrested Duffin and Hosley, Shelton had already driven out of the parking lot. Detectives Fernando Jaramillo, Donnie Oaks, and Spelman followed Shelton's white Jeep while trying to maintain their cover. When Shelton realized that he was being followed, he attempted to evade the officers. Det. Oaks radioed for help and gave a description of both the driver and the vehicle he was driving.
Detectives Jaramillo and Spelman were located one block south of the market. They testified that, as the Jeep passed by, the driver looked over at Det. Jaramillo, who was sitting in his unmarked Chevrolet Trailblazer. Even though Det. Jaramillo was dressed in plain clothes, both Det. Jaramillo and Det. Spelman believed that the driver realized that Det. Jaramillo was a police officer. As the Jeep continued south, it passed the intersection where Det. Oaks was waiting in his unmarked Toyota 4Runner. Det. Oaks was wearing a police-marked vest, a neon arm band, and his police badge around his neck. He also wore a black jacket that covered his front so that it was not apparent that he was a police officer. As the driver of the Jeep passed Det. Oaks, he saw the driver look at him and believed that the driver had identified him as a police officer.
Det. Oaks testified that he began surreptitiously following the Jeep but did not attempt to stop it. Det. Jaramillo also pursued the Jeep, following several car lengths behind Det. Oaks. According to Det. Oaks, the driver continued operating the Jeep normally. After driving a short distance, Det. Oaks and Det. Jaramillo observed the Jeep turn left onto a narrow street, pass a “No Outlet” sign, and then pull over to the side of the road at an intersection.
Det. Oaks then attempted to apprehend the driver by pulling his 4Runner diagonallyin front of the Jeep. Prior to exiting his vehicle, Det. Oaks removed his jacket so that his police-marked vest, neon arm band, and police badge were visible. Det. Oaks advanced toward the Jeep with his gun drawn and yelled “police.” Det. Oaks testified that he saw Shelton initially put his hands up, but then Shelton put the Jeep in gear and accelerated forward. Det. Oaks had to jump out of the way to avoid being hit. The Jeep clipped the front of the 4Runner and continued down a hill towards a circle at the end of the street.
Det. Oaks went back to his SUV while Det. Jaramillo pursued the Jeep towards the circle. After following the Jeep to the circle, Det. Jaramillo and Det. Oaks maneuvered their SUVs and blocked the Jeep between them. Det. Oaks testified that he opened his door and, while still partially inside, began shouting “police.” According to the detectives, the Jeep then began moving in reverse, hitting the front of Det. Oaks's 4Runner.
The Jeep then began driving forward again and broke two wooden posts at the end of the circle. In an effort to prevent the Jeep from driving away, Det. Oaks drove his vehicle forward, colliding with the side of the Jeep. One of the wooden posts became lodged under Det. Oaks's 4Runner, disabling the vehicle. Det. Oaks exited his SUV and attempted to run beside the Jeep, which gained speed and pulled away when it reached the street running adjacent to the circle. Det. Jaramillo attempted to follow the Jeep through the posts, but he was unable to get through in time to continue the pursuit.
After the Jeep left the circle, Det. Oaks radioed for assistance and gave a description of both the Jeep and its driver. Sgt. Ronald Merritt, a patrol supervisor with the Rockville City Police Department, responded to the area and spotted Shelton walking down the sidewalk. Sgt. Merritt, who was in uniform and driving a marked police vehicle, pulled up next to Shelton and, from his car, commanded that Shelton get on the ground. Shelton was arrested without resistance. Officer Mark Broadus, a Rockville City Police Officer who assisted Sgt. Merritt, searched Shelton and seized a cellular phone and $132 in cash, but no drugs.
Corporal Troy Brenner examined the $132 found on Shelton, but the bills did not match the marked currency Sgt. Carafano had given Duffin. However, Cpl. Brenner found the three twenty dollar bills that Sgt. Carafano gave to Duffin in Duffin's possession. The one hundred dollars bill was never recovered. The detectives also examined both Shelton's and Duffin's phones to match the phone calls made during the investigation. From this, they were able to determine that Duffin had placed an earlier call to Shelton.
Additional facts will be provided in the discussion below as necessary.
While waiting for Duffin's supplier to arrive, Hosley and Sgt. Carafano had a conversation in which they discussed Duffin's outfit, how Hosley had quit using cocaine, Sgt. Carafano's purported drug habit, and Duffin's supplier. During this conversation, Hosley made several statements that tended to identify Shelton as Duffin's supplier. Specifically,...
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