Sivells v. State

• Decision Date: 02 December 2010
• Docket Number: No. 1480, Sept. Term, 2009.,1480, Sept. Term, 2009.
• Citation: 196 Md.App. 254,9 A.3d 123
• Parties: Bryan SIVELLS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

9 A.3d 123

196 Md.App. 254

Bryan SIVELLS

v.STATE of Maryland.

No. 1480, Sept. Term, 2009.

Court of Special Appeals of Maryland.

Dec. 2, 2010.

Vidya A. Mirmira (Williams & Connolley LLP, Washington DC, Paul B. DeWolfe, Public Defender, Baltimore, MD), on the brief, for appellant.

Carrie J. Williams (Douglas Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: MATRICCIANI, GRAEFF, and ARRIE W. DAVIS (Retired, Specially Assigned), JJ.

GRAEFF, J.

A jury sitting in the Circuit Court for Baltimore City convicted appellant, Bryan Sivells, of possession of cocaine. The court sentenced appellant to seven years imprisonment.¹

Appellant presents three questions for our review, which we have rephrased:

1. Was the appellant denied a fair trial by the prosecutor's comments in rebuttal closing argument, where the prosecutor commented on the credibility of the State's witnesses?

2. Did the trial court err in denying appellant's motion to suppress the cocaine found on appellant's person because the State did not have probable cause to arrest?

3. Did the trial court err in admitting expert fingerprint testimony as rebuttal evidence?

For the reasons set forth below, we hold that the prosecutor's statements in closing argument constituted reversible error. Accordingly, we shall reverse the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

I.Suppression Hearing

At approximately 10:45 p.m. on July 30, 2008, Detectives Thomas E. Wilson, III and Isaac Carrington responded to a complaint of narcotics activity at the corner of 20th and Boone Streets in Baltimore City. Detective Wilson, who was accepted as an expert in the "identification, packaging, and sale of narcotics," testified that, after patrolling Boone Street for approximately five minutes, he "observed an unknown black female entering the area." The woman approached an unknown man and asked: "[I]s any ready out[?]" Detective Wilson testified that "ready" was a street term used to refer to crack cocaine. The man directed the woman toward an alley where appellant was standing. The woman approached appellant, spoke briefly to him, and pulled out money. Appellant then reached into his right sock. Based on his training and experience, Detective Wilson believed that a drug transaction was occurring.

At that point, and prior to any distribution of drugs, Detectives Wilson and Carrington approached appellant. Detective Wilson testified that Detective Carrington searched appellant and recovered 13 ziploc bags of cocaine from appellant's right sock.

Detective Carrington then testified. His testimony corroborated that of Detective Wilson.

The State argued that the detectives' observations, coupled with Detective Wilson's expertise in the sale of narcotics, provided sufficient probable cause to arrest appellant, and the ensuing search of appellant was proper as a search incident to a lawful arrest. Defense counsel argued that the drugs should be suppressed, attacking the credibility of the detectives'testimony, stating that the detectives never actually saw any drugs before searching the appellant, and questioning whether the unidentified man or woman actually existed.²

The trial court denied appellant's motion to suppress, finding that the detectives had probable cause to believe that appellant had drugs in his sock. The court noted that the detectives saw the woman ask for "ready," approach appellant and take her currency out of her purse, and appellant then go for his sock. The court stated that "[u]nseen or unknown objects exchanged for currency constitutes probable cause."

II.Trial Proceedings

On July 9, 2009, trial began. The State's first witness was Hondge Pan, a chemist. Mr. Pan testified that he tested the substance seized from appellant in the ziploc bags, and he determined that it was cocaine. During cross-examination, defense counsel inquired as to whether the ziploc bags had been submitted for fingerprint analysis, and Mr. Pan stated that he did not know, that it was "not my work."

Defense counsel pressed Mr. Pan on his knowledge regarding whether drugs were typically dusted for fingerprints. Counsel inquired about the precautions Mr. Pan took to ensure that his fingerprints would not be on the ziploc bags should a fingerprint analysis be conducted after Mr. Pan analyzed the bags' contents. Appellant's counsel also inquired whether Mr. Pan had seen items submitted for analysis that had fingerprint dust on them. Mr. Pan stated: "Occasionally. Not much." He acknowledged that the black powder could be seen by looking at the submission, and he said: "There's no black powder in this case."

Detective Wilson testified next, and he was accepted as an expert in the "identification, packaging and sale of cocaine within Baltimore City." He testified regarding how cocaine is packaged, explaining that it is packaged in, among other things, ziploc bags. Detective Wilson then explained how a typical narcotics transaction occurs. A drug dealer wouldhave the drugs on his or her person or in a stash. A person seeking to buy drugs would approach the drug dealer, engage in a brief conversation, give the dealer money, and the dealer would give the buyer drugs.

Detective Wilson then testified, consistent with his testimony at the suppression hearing, regarding the events of July 30, 2008. He also testified that, based on his training and experience, the quantity of cocaine appellant possessed led him to believe that appellant possessed the drugs for the purposes of selling them.

On cross-examination, counsel for appellant challenged the veracity of Detective Wilson's account of events. Counsel asked Detective Wilson about his testimony in another case, where his credibility had been questioned:

[DEFENSE COUNSEL]: Detective Wilson, you had the uncomfortable experience some years ago, 2003, of being, testifying in front of Andre Davis in Federal Court, the conclusion of which, Judge Andre Davis basically declared that he didn't believe your testimony ... Judge Davis declared basically, "I find the (unintelligible) of the Affidavit to be a knowing lie. I also find the use of the term 'in a covert position' to be a knowing lie. I also find the assertion [that] ofthe unknown subject fled the area on foot to be a knowing lie. Wilson received an anonymous call, I find Detective Wilson's testimony in that regard incredible. The government has not established it. It rejected it. I reject that testimony. I do not find it credible. I don't believe Detective Wilson saw what he claims he saw. I reject that testimony. I don't find it credible...."

"Specifically, I find there's no way that Detective Wilson could have made the observations he claims he made. I've assessed the demeanor of Detective Wilson. I've listened carefully to his testimony and, indeed, I've engaged in pressuring Detective Wilson in an effort not to impeach or undermine the governmen'ts [sic] presentation, but to satisfy in my own mind, as the finder of fact in the suppression hearing, how it could be that a narrative so implausible, andso implausible and incredibly presented might be accepted by the Court. Frankly, I don't mean this as criticism, but ... the State's Attorney argument today, shed some light," dah-dah-dah-dah-dah.

Do you recall the uncomfortable experience?

Detective Wilson testified that he recalled the case, and counsel for appellant continued with this line of questioning as follows:

[DEFENSE COUNSEL]: The matter resulted in your being called in front of the [Internal Affairs Division] and disciplined and given five days extra training, did it not?

[DETECTIVE WILSON]: It wasn't extra training. It was one day search and seizure training.

[DEFENSE COUNSEL]: Search and seizure. Court's indulgence. I stand corrected, five days loss of leave and search and seizure training from neglect of duty, is that fair to say?

[DETECTIVE WILSON]: That's correct.

Defense counsel then questioned Detective Wilson about his failure to gather evidence in this case to corroborate his account of events. He asked Detective Wilson whether he "could have made this all up."

On redirect, the State asked Detective Wilson to explain the discrepancies in his statements in federal court. With respect to the affidavit that he signed, Detective Wilson explained that he had used incorrect grammar and misspelled words. Additionally, he had stated that an incident occurred in the first week of October, when it actually had occurred on October 9th, and he stated that he took a covert position when he was engaging in on-foot surveillance. Detective Wilson suggested that the "knowing lies" to which Judge Davis referred "could be characterized as misconceptions, misunderstandings." Detective Wilson testified that he did not receive any demotion or reassignment as a result of the 2003 case. With respect to the July 30, 2008, incident in this case, Detective Wilson testified that he was telling the truth, and he had not fabricated his testimony.

On re-cross, counsel for appellant again questioned Detective Wilson regarding Judge Davis' characterization of his affidavit as a "blatant lie," and he questioned whether "grammatical confusion" would result in Detective Wilson losing five days of pay. Detective Wilson acknowledged that he "did lose money. I did lose time."

The State's next witness was Detective Isaac Carrington, who was also accepted as an expert in the "identification, packaging, and the sale of narcotics in Baltimore City." Detective Carrington's testimony with respect to the events leading up toappellant's arrest on July 30, 2008, was consistent with his testimony at the suppression hearing. He also confirmed the chain of custody of the 13 ziploc bags of cocaine recovered from the appellant. The drugs then were admitted into evidence.

On cross-examination, appellant's counsel questioned Detective Carrington about the unknown male and female, noting that they were not arrested and suggesting that they did not exist. After asking...