State v. Brown

• Decision Date: 01 September 1991
• Docket Number: No. 30,30
• Citation: 327 Md. 81,607 A.2d 923
• Parties: STATE of Maryland v. Shirley Mitchell BROWN. ,
• Court: Maryland Court of Appeals

Page 81

327 Md. 81

607 A.2d 923

STATE of Maryland v. Shirley Mitchell BROWN.

No. 30, Sept. Term, 1991.

Court of Appeals of Maryland.

June 19, 1992.

Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief) Baltimore, for petitioner.

H. Richard Duden, III (Henley & Duden, both on brief) Annapolis, for respondent.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW and KARWACKI, JJ., and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (retired), Specially Assigned.

CHASANOW, Judge.

Shirley Mitchell Brown was convicted by a jury in the Circuit Court for Anne Arundel County of distribution and conspiracy to distribute cocaine. The charges against Brown stemmed from an ongoing undercover investigation of drug activity in Annapolis. When that investigation focused on Brown as a likely suspect, Special Agent Kenneth Johnson of the Drug Enforcement Administration contacted paid confidential informant Reginald Gray to arrange for Johnson to be introduced to Brown so that Johnson could then buy cocaine from Brown. Agent Johnson testified that originally he and Gray were to meet Brown at a shopping center in Annapolis, but those plans fell through. Gray testified that Brown was unwilling to deal directly with Agent Johnson, preferring instead to deal with Gray, whom he knew.

On February 17, 1988 Johnson and Gray drove to the Brooks Court Apartments in the Newton 20 area of Annapolis. There the two stopped the car in the apartment parking lot just past a group of men standing near a parked car. For Johnson's benefit, Gray identified Brown among the group before getting out of the car and approaching him. According to Gray's testimony, he and Brown had a brief conversation during which he asked the price of an ounce of cocaine and Brown replied that it would cost $1350. Gray then returned to the car and advised Johnson of the substance of the exchange. At Brown's request, Gray told Johnson to park the car farther down the parking lot. At that same time, Johnson saw Brown talk to another individual who then walked into apartment 805B of Brooks Court.

Agent Johnson testified that approximately five minutes later a man approached Johnson's car from the general direction of apartment 805B and identified himself to Johnson as "Larry." He handed Johnson an ounce of cocaine, stating that its price was $1350. Johnson gave Larry $1400 and then watched as Larry walked over to Brown, made an exchange with him, and returned to Johnson to give him $50 change. Detective Todd Young of the Anne Arundel County Police Department saw this transaction from the vantage point of his car parked in another section of the parking lot and corroborated most of Johnson's and Gray's testimony.

Over defense counsel's objection, Detective Young also testified that he was involved in an undercover cocaine purchase from Brown which occurred on March 7, 1988, roughly three weeks after the drug transaction here at issue. The court granted a continuing objection pursuant to Maryland Rule 4-323(b) to any testimony regarding the March 7, 1988 incident on the grounds of surprise, relevance, undue prejudice, and failure of the State to provide discovery. The trial court permitted the following exchange between the State's Attorney and Detective Young regarding the March 7, 1988 drug purchase:

Q: Now, did he hand the drugs to you or did he hand the drugs to the CI [confidential informant]?

A: No, he handed the drugs to the CI.

Q: What did Mr. Brown say to the CI?

A: He told the CI the next time for him to do a deal by himself.

Q: Did Mr. Brown then have occasion to say anything to you?

A: Yes. He told me that it's not that--he said exactly, "It's not that you're not okay, I just don't deal with anybody new."

Following this testimony, defense counsel objected that evidence of Brown's involvement in the second drug deal was irrelevant and highly prejudicial. The trial court allowed this testimony and also admitted the record of Brown's resulting conviction for distribution of cocaine, finding that neither was being offered to show Brown's propensity to commit the crime, but rather as evidence of Brown's "identity."

On appeal, the Court of Special Appeals held that Brown's statement to Detective Young was discoverable under Md.Rule 4-263(b)(2) and should have been produced in response to Brown's request. Further, that court found that this discovery violation was a sufficient ground for granting a mistrial because it could not say, beyond a reasonable doubt, that Brown would have been convicted on the evidence presented minus his statement to Young. Brown v. State, 85 Md.App. 523, 532-34, 584 A.2d 164, 169-70 (1991). Noting that this holding was dispositive of the appeal, the intermediate appellate court nevertheless went on for the benefit of the judge on retrial to address the admissibility of the evidence of Brown's actions during the second sale. The Court of Special Appeals ruled that the trial judge abused his discretion in admitting evidence of the March 7, 1988 transaction, because its probative value was outweighed by its prejudicial effect.

This Court granted certiorari to review each of these two holdings, as well as a third issue relating to the admissibility of hearsay evidence at sentencing. 323 Md. 27, 590 A.2d 549 (1991).

I. Admissibility of Evidence at Trial

We must first consider whether the trial court erred in admitting evidence regarding Brown's involvement in the March 7, 1988 drug transaction. The admitted evidence consisted of "one sheet showing the entry of [Brown's] guilty plea" to distribution of cocaine as well as Detective Young's testimony about Brown's statements and physical acts during that drug transaction. In its petition for certiorari, the State alleges that:

"In this case, evidence of Brown's involvement in a drug transaction other than that for which he was standing trial was relevant to establish his participation in the instant offense. Indeed, inasmuch as Brown himself did not make the actual delivery of the cocaine to the undercover officer, it was imperative that the State show the precise extent of Brown's involvement in the charged drug transaction. Evidence of his unwillingness to deal directly with persons with whom he was unfamiliar, as evidenced by his statement to Officer Young in the March 7, 1988 drug transaction to the effect that he did not deal with strangers, goes to explain and reinforce ... [Brown's participation in the instant offense]."

The Court of Special Appeals categorized all the evidence as "other crimes" evidence and indicated that the trial judge had abused his discretion in admitting it. As to evidence of Brown's conviction as the result of his guilty plea for the second drug deal, we believe it was correctly categorized as "other crimes" circumstantial evidence. If only Brown's conduct and the resulting conviction were offered, the evidence would not be admissible, since it would not fall within the identity exception for which it was proffered. Brown's statement during the transaction, however, was admissible because it had special relevance to a contested issue in the case, was not introduced simply to prove criminal character, and had probative force that substantially outweighed its potential for unfair prejudice. See Harris v. State, 324 Md. 490, 597 A.2d 956 (1991).

The Court of Special Appeals concluded that "[t]he events of March 7, 1988 are insufficient to establish a modus operandi unique to appellant when linked with the events of February 17, 1988 and thus had little, if any, probative value." Brown v. State, 85 Md.App. at 537, 584 A.2d at 171. Had this evidence been offered in the absence of the statement, we would agree that Brown's use of a "runner" to deliver cocaine was not " 'so unusual and distinctive § to be like a signature' " and earmark the crime as the handiwork of the accused. State v. Faulkner, 314 Md. 630, 638, 552 A.2d 896, 900 (1989), (quoting McKnight v. State, 280 Md. 604, 613, 375 A.2d 551, 556 (1977), in turn quoting McCormick on Evidence § 190, at 479 (2d ed. 1972)). Were this the only ground of admissibility, the "other crimes" evidence could not be admitted. ¹

We agree with the Court of Special Appeals that the conviction must be reversed, although for substantially different reasons. Since the Court of Special Appeals "for the direction of the court on retrial" indicated that all of the events on March 7, 1988 would be inadmissible, we feel compelled to correct the intermediate appellate court's instructions and to point out that Brown's statement on that date also relates to the sale in the instant case and was properly admitted.

Brown's statement is not confined to the sole category of "other crimes" evidence. During the March 7, 1988 drug transaction, Brown told Detective Young: "It's not that you're not okay, I just don't deal with anybody new." A reasonable implication from Brown's statement is that he conducts an ongoing drug business in which he has direct contact only with customers he knows and, with customers like the undercover agent in the instant case whom he does not know, he deals indirectly through an intermediary. Brown's explanation of how he conducted his ongoing business was probative of how he conducted that same business 2 1/2 weeks earlier during the sale here charged. Moreover, Brown's statement would not be objectionable on the ground of hearsay, because it was an admission of a party opponent. This Court has stated that "an admission is a statement of pertinent facts which, in connection with proof of other facts, tends to prove guilt...." Holland v. State, 244 Md. 671, 673, 224 A.2d 864, 865 (1966). See also 2 McCormick on Evidence, § 254 (4th ed., J. Strong 1992).

The Court of Special Appeals saw the issue as only involving the admissibility of "other crimes" evidence. We disagree. The evidence was not simply that on another occasion Brown also sold...