Skrivanek v. State
| Decision Date | 12 October 1999 |
| Docket Number | No. 146,146 |
| Citation | 739 A.2d 12,356 Md. 270 |
| Parties | James SKRIVANEK III v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
William G. Salmond, College Park, for Appellant.
Regina Hollins Lewis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for appellee.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW1, RAKER, WILNER and CATHELL, JJ RODOWSKY, Judge.
This is an appeal from a drug conviction. The appellant contends that the trial court erred by submitting the case to the jury on lesser included, but not expressly charged, attempt offenses. The appellant also argues that the police violated due process by the manner in which they conducted the reverse sting operation leading to the appellant's arrest and that the court improperly admitted evidence of other crimes. For the reasons set forth below, we shall affirm.
Corporal Robert Shelley (Shelley) of the Maryland State Police was working in an undercover capacity with the Cecil County Narcotics Taskforce on August 17, 1997. At that time, Shelley told confidential informants to give prospective buyers of marijuana his pager number so that he could be contacted to conduct a controlled sale of the drugs. On August 18, 1997, Shelley's pager was activated with a telephone number with which Shelley was not familiar. Returning the page, Shelley spoke with a person who identified himself only as "James." James was the appellant, James Skrivanek III (Skrivanek).
The next day, August 19, Shelley telephoned Skrivanek at the same number. The two men agreed to meet to discuss the terms of a transaction. Approximately ten minutes later, Shelley and Skrivanek met at a bank in Perryville, Maryland. Shelley wore a body wire, and their discussion was recorded. At the meeting, Skrivanek reiterated that "Steve told me that you might be able to help me find some weed." Skrivanek and Shelley then discussed the price for the drugs and agreed upon $900 per pound, $1,350 for a pound and a half. Portions of the transcript of the recorded conversation are set forth below.
....
There followed a discussion about a possible future course of dealing between the two men in which they would barter LSD and marijuana. In the conversation, Skrivanek gave a representation of the quality of his product, stating, "[i]t's got three hundred mic's on it ... [i]t's really good... real clean." Skrivanek said: "In fact, if you've ever heard [of] Timothy Leary designs, that's what design they are, they're Timothy Leary's, they come from California." Each party indicated that he might be able to effect price reductions in future transactions.
The conversation then continued as follows:
The parties agreed that Skrivanek would beep Shelley's pager the next day to make arrangements for the consummation of the sale of one and one-half pounds of marijuana.
On the next day, August 20, Skrivanek contacted Shelley by pager. Shelley called him back and was told that Skrivanek had to run an errand and would contact Shelley when he returned. Approximately one-half hour to an hour later, Skrivanek again paged Shelley. Skrivanek said that he would not be able to meet that day because his wife had not gone to the bank to withdraw money for the drugs. Skrivanek promised to obtain the money the next day and to page Shelley to make arrangements for purchasing the drugs.
Skrivanek again paged Shelley in the afternoon of August 21. He left a number consisting of the last six digits of Skrivanek's telephone number followed by 1400. This indicated to Shelley that Skrivanek was going to pay $1,400 for the drugs. When Shelley returned the page, Skrivanek confirmed that he had paged Shelley earlier and that he was going to pay him $1,400. The men agreed to meet in a half hour at an industrial plant in Perryville. After the half hour expired, Shelley was paged again. This time, Skrivanek left the number, 745 1400, which indicated to the officer that they should meet at 7:45 p.m.
The undercover officer arrived early, again wearing a body wire. When Skrivanek arrived, he parked his car so that their driver side windows faced and were within arm's reach of each other. Officer Shelley and Skrivanek exchanged the keys to their respective automobiles. Shelley then handed Skrivanek a brown paper bag in which he had placed roughly one and onehalf pounds of marijuana. Shelley's supervisors in the Maryland State Police had authorized this quantity be released to him for the reverse sting operation from the drug locker of the Bureau of Drug and Criminal Enforcement Division. Skrivanek placed the bag containing marijuana in his lap, beyond the officer's view, peered into the bag, and said to Shelley that it "[l]ooks good." According to Officer Shelley, the defendant then "appeared to place it over on the passenger's seat or on the floor somewhere over there." Skrivanek gave Shelley a large sum of U.S. currency, which the officer began to count.
As Officer Shelley was counting, another state trooper arrived at the parking lot. Skrivanek was arrested. A grand jury indicted Skrivanek on charges of unlawful possession of a controlled dangerous substance with the intent to distribute under Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 286, and possession of a controlled dangerous substance under Art. 27, § 287.2 Before the case was tried, the defendant filed a motion in limine seeking to exclude, inter alia, "any reference to any CDS for which Defendant is not charged." The court denied Skrivanek's motion. The objection was renewed at trial.
Appellant was tried to a jury. At the close of the State's case the trial judge handed the parties copies of Hagans v. State, 316 Md. 429, 559 A.2d 792 (1989), and raised the possibility of instructing the jury on the lesser included offenses of attempt to possess marijuana with intent to distribute and attempted simple possession. The trial judge apparently did not believe that the State had proved that Skrivanek had gained actual possession of the marijuana as a matter of law.
(Emphasis added). Later, the court again asked the prosecutor if he would agree to an instruction regarding attempts.
(Emphasis added). The prosecutor continued to maintain that possession had been proven and to oppose the defendant's motion for judgment of acquittal. In the following passage, Skrivanek submitted that the court could not force the prosecutor to accept the lesser included attempt charges.
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Wilder v. State
...must determine that the probative value of the evidence substantially outweighs its potential for unfair prejudice." Skrivanek v. State, 356 Md. 270, 291, 739 A.2d 12 (1999) (citations omitted). The Court has emphasized the need for those "substantive and procedural protections. . . to guar......
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Moore v. State
...the consummated crime, and that only the consummated crime has an additional or distinct element. See, e.g., Skrivanek v. State, 356 Md. 270, 281-283, 739 A.2d 12, 18-19 (1999) (Upon a charge of the consummated offense, a defendant can be convicted of the lesser included offense of attempt,......
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Williams v. State
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