Simpson v. State

• Decision Date: 01 September 1997
• Docket Number: No. 1196,1196
• Parties: Kevin SIMPSON v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 263

121 Md.App. 263

708 A.2d 1126

Kevin SIMPSON v. STATE of Maryland.

No. 1196, Sept. Term, 1997.

Court of Special Appeals of Maryland.

May 1, 1998.

Michael R. Braudes, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant

Gwynn X. Kinsey, Jr., Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, David J. Taube, Staff Attorney and Patricia Jessamy, State's Attorney for Baltimore City, on the brief), Baltimore, for appellee.

Argued before MOYLAN and KENNEY, JJ., and PAUL E. ALPERT, Judge (retired), Specially Assigned.

PAUL E. ALPERT, Judge, Specially Assigned.

Kevin Simpson, ¹ the appellant, was charged with possession with intent to distribute over 28 grams of heroin, possession with intent to distribute heroin in violation of Maryland Code, Article 27, § 286(f)(1)(iv), possession of heroin, conspiracy to distribute heroin, conspiracy to possess with intent to distribute heroin, and conspiracy to possess heroin. Prior to trial, appellant filed a motion to suppress physical evidence, contending that it was obtained by means of an illegal search, and a motion to disclose the identity of the confidential informant. Both motions were heard by The Honorable Albert Matricciani Appellant presents us with six questions on appeal which we have reordered:

Jr., and denied. Appellant was convicted in a jury trial in the Circuit Court for Baltimore City (Albert Matricciani, Jr., J.) of all charges. He was sentenced to a five-year term of incarceration without the possibility of parole on the charge of possession with intent to distribute over 28 grams of heroin, a fifteen-year term of incarceration for possession with intent to distribute heroin, a fifteen-year term of incarceration for conspiracy to distribute heroin, and a fifteen-year term of incarceration for conspiracy to possess with intent to distribute heroin. All terms were to be served concurrently. No sentence was imposed for appellant's convictions of possession of and conspiracy to possess heroin.

I. Did the trial court make insufficient findings of fact on the issue of whether appellant lacked standing to complain of an unlawful search and seizure?

II. Did the trial court err in requiring appellant to testify during the motion to suppress as to whether the heroin was his?

III. Did the trial court err in denying appellant's motion to disclose the identity of a confidential informant, or in failing to conduct an in-camera hearing on the matter?

IV. Did the trial court impermissibly restrict the cross-examination of the primary investigating officer?

V. Did the trial court err in permitting improper prosecutorial closing argument?

VI. Did the trial court err in imposing certain of appellant's sentences?

We agree with appellant that his sentence for possession with intent to distribute heroin and one of his sentences for conspiracy must be vacated. In all other respects, we affirm the judgments of the circuit court.

FACTS

1. Facts presented at trial.

Officer Raymond Yost testified that he had learned from a confidential informant that a residence located at 1615 North Longwood Street in Baltimore City was being used as a "stash house" for drugs. As a result of that information, he conducted a covert surveillance of the premises on January 20, 1996, beginning at approximately 8:30 a.m. Officer Yost conducted the surveillance while sitting in an unmarked police car in the 1600 block of North Longwood Street. Other members of his unit were in another car a few blocks away. According to Officer Yost, at approximately 9:00 a.m., a male in a beige coat approached the house. Appellant exited the house, handed the individual a plastic bag containing small white objects, and accepted currency in return.

After the man in the beige coat left the residence, he was stopped by an unidentified uniformed patrol officer. Officer Yost did not know the uniformed officer and did not hear the conversation between the uniformed officer and the man in the beige coat. He noticed, however, that as a result of the conversation, the man became upset. The man turned around and walked toward the residence under surveillance. Officer Yost believed that the man might warn those in the house that the police were nearby. Concerned that the drugs might be removed from the stash house, Officer Yost decided that, despite the lack of a warrant, the surveillance team should make an immediate entry into the residence. ²

Upon entering the residence, Officer Yost and Officer Sean Kapfhammer, another member of the surveillance team, entered a second floor bedroom. They encountered appellant and Cherese Rogers in that room. Rogers was in bed, and appellant was standing at the foot of the bed. According to Officer Yost, gel caps and cash were lying on the floor of the room. The officers arrested appellant and Rogers and seized

the gel caps and money. When the gel caps and money were counted, it was learned that the officers had seized 1,700 gel caps and $2,059 in cash from the room. The gel caps were subsequently tested and found to contain heroin.

2. Facts relating to the Motion to Suppress.

Prior to trial, appellant filed a motion to suppress the drugs and money found in the bedroom. The State contended that appellant did not have standing to contest the lawfulness of the search of the bedroom. A hearing was held on the motion. The following testimony occurred at that hearing.

Cherese Rogers testified that she had lived at 1615 North Longwood Street for a couple of months prior to January 20, 1996. She reported that she shared the room with her boyfriend, who was not appellant. Her uncle, Kenneth Steele, was the owner of the property. On the morning of January 20th she had made an agreement with Antoine "Little Butt" that he could count money in her room. He was going to pay her to let him do so. Appellant came to her room with a bag of money and drugs pursuant to that agreement.

On cross-examination, Rogers acknowledged that her uncle, Kenneth Steele, owned the house and that she did not pay rent for the premises. She reported that appellant did not reside at the premises; that he did not keep property at the premises; that he did not have a key to the premises; that he did not have the right to exclude others from the premises; that he was not allowed to remain in the house when she or Steele were not there; and that January 20th was the first time appellant had been to the residence. She further testified that her room had a door, and that, when the police came into the bedroom, the door was "almost shut."

Rogers testified that the bag appellant had brought was next to a chair when the police entered the room. The police turned the bag over, and money and drugs fell out. Rogers and appellant were then arrested.

Kenneth Steele testified that he was the owner of the house at 1615 North Longwood Street. According to Steele, appellant Steele testified that appellant did not reside at the property or rent a room at the property; that he did not sleep at the premises; that he did not have a key to the premises; that he did not receive mail or other deliveries at the premises; and that he was not related to anyone who resided at the property. Steele further testified that appellant had no right to exclude others from the premises and that he was not permitted to stay in the premises if no one was at home. According to Steele, appellant "did not have access to [any] of the rooms in the house."

had visited Rogers a couple of times previously. Steele reported that he told appellant that Rogers could not have company after 11:00 p.m. and that no one was permitted to spend the night.

John Gross, appellant's cousin, testified that appellant and Rogers did not have a "boyfriend and girlfriend" relationship. He reported that he was present when Rogers asked appellant for some money. Appellant gave her the money she requested. Gross also reported that he had been present on a couple of occasions when she had asked other men in the neighborhood for money.

Appellant testified that he had a conversation with Rogers several days before January 20th. During that conversation, Rogers had approached him and asked for money to buy her daughter diapers. She stated that she would have sex with him in return for the money. On the morning of January 20th, he went to Rogers's house to have sex with her. He had been there two or three times previously. Steele let him into the house that morning. He went into Rogers's room and shut the door. He saw that Rogers was sleeping. He tapped her and waited for her to wake up.

During cross-examination, appellant testified that he had not brought the bag containing drugs and money into Rogers's room that morning. In fact, he denied any knowledge of the bag.

The trial court ruled that appellant had no standing to contest the lawfulness of the search of the premises at 1615 Additional facts will be set out as necessary to our resolution of the questions presented.

North Longwood Street or of the bag in which the heroin was found.

DISCUSSION

I.

We shall first address appellant's contention that the trial court made insufficient findings of fact to justify his ruling that appellant lacked standing to complain of the search at 1615 North Longwood Street.

Appellant filed a motion to suppress the evidence seized from Rogers's bedroom, based on Officer Yost's alleged violation of his Fourth Amendment rights. The State asserted that appellant lacked standing to contest the search. The trial court held a hearing to determine whether appellant did have standing. Appellant put forth six theories to support his position that he had standing to contest the search. After hearing the evidence, the trial court ruled that appellant did not have standing. In his decision, he stated:

To the extent that the State was seeking a hearing on standing and citing Thompson versus State, the Court grants [si...