Stone v. State

• Decision Date: 13 February 2008
• Docket Number: No. 1447, Sept. Term, 2006.,1447, Sept. Term, 2006.
• Citation: 178 Md. App. 428,941 A.2d 1238
• Parties: Donald Leroy STONE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

941 A.2d 1238

178 Md. App. 428

Donald Leroy STONE v. STATE of Maryland.

No. 1447, Sept. Term, 2006.

Court of Special Appeals of Maryland.

February 13, 2008.

Christopher R. Hart (Nancy S. Forster, Public Defender on the brief), Baltimore and Williams & Connolly, LLP on the brief, Washington, DC, for Appellant.

Steven L. Holcomb (Douglas F. Gansler, Atty. General on the brief), Baltimore, for Appellee.

Panel: DEBORAH S. EYLER, SHARER and PAUL E. ALPERT, (Ret'd, Specially Assigned), JJ.

DEBORAH S. EYLER, Judge.

In the Circuit Court for Frederick County, Donald Leroy Stone, the appellant, was charged with first degree burglary, second degree assault, possession of a controlled dangerous substance (CDS), possession of drug paraphernalia, and two counts of felony theft. He filed a pretrial motion to suppress tangible evidence and statements he made to the police, alleging that they were obtained in violation of his Fourth Amendment rights. The court held a suppression hearing and denied the motion.

The case was tried to a jury for two days. The appellant was convicted of second-degree assault, possession of a CDS, possession of drug paraphernalia, and one count of felony theft. He was acquitted of first-degree burglary and the State entered a nolle prosequi on the second count of felony theft. The court imposed sentence of 15 years' imprisonment for felony theft, to be served concurrent with two years' imprisonment for second-degree assault and three years' imprisonment for possession of CDS.

The appellant noted a timely appeal. We have combined and rephrased his questions presented as follows:

I. Did the suppression court err in ruling that the police had probable cause to arrest the appellant for burglary and felony theft?

II. Did the suppression court err in ruling that the appellant's arrest was not illegal after it disallowed evidence about the police's electronic surveillance of the appellant?

III. Did the prosecutor improperly vouch for a witness in closing argument so as to require reversal of the second degree assault conviction?

IV. Did the sentencing court err in denying the appellant's request to proceed with counsel of his own choosing?

For the following reasons, we shall affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS

On October 17, 2005, Maryland State Trooper Richard Bachtell stopped a green Ford pickup truck in which the appellant was seated as a passenger and Joanne Stone, the appellant's wife, was driving. Corporal Jason West of the Frederick County Sheriff's Office and Maryland State Trooper Martin Speak joined Trooper Bachtell in the stop shortly after it commenced. The three officers arrested the appellant and his wife in connection with the October 6, 2005 burglary of Judith Reisman's house, located at 1840 Mt. Ephraim Road, in Adamstown. In a search of the appellant incident to arrest, Corporal West recovered a glass pipe. Subsequent testing revealed trace amounts of cocaine in the pipe. Ultimately, the appellant was charged with crimes stemming from the Reisman burglary and with possession of a CDS.

After placing the appellant under arrest, Corporal West transported him to the Sheriff's Department headquarters and advised him of his Miranda rights.¹ The appellant waived those rights and his right to prompt presentment. Under interrogation by Corporal West, the appellant made certain incriminating statements about the Reisman burglary. As noted above, he eventually filed a motion to suppress evidence, namely the glass pipe, the trace amounts of cocaine, and his incriminating statements.

We shall include additional facts as necessary to our discussion of the issues.

I.

The following facts, set forth in a light most favorable to the State as the prevailing party, were adduced at the suppression hearing.

On October 6, 2005, Judith Reisman called the Frederick County Sheriff's Office and reported that her house had been broken into. Detective Joseph Rowe investigated Reisman's complaint. Reisman told Detective Rowe that the burglary had to have been carried out that day, sometime between 7:30 a.m. and 2:30 p.m. She described several cameras that had been stolen, including a Nikon.

In investigating the burglary, Detective Rowe checked the Sheriff Office's list of items recently pawned at local pawn shops. He discovered that a Nikon camera similar in description to the one missing from Reisman's house had been pawned at Famous Pawn at 12:33 p.m., on October 6, 2005, the same day as the Reisman burglary. On October 14, 2005, at Detective Rowe's request, Reisman met him at Famous Pawn. Corporal West was present as well. The three reviewed the store's surveillance videotape for October 6. It showed a man and a woman entering the store together. The woman was carrying a Nikon camera. Reisman identified the camera as one that had been stolen from her house. She told Detective Rowe that the camera was worth about $1,000.

From prior encounters, Detective Rowe recognized the man on the videotape as the appellant. Famous Pawn's written record of the videotaped transaction showed that Joanne Stone signed a receipt for an outright sale of the Nikon camera for $75.

There was some discrepancy between the testimonies of Detective Rowe and Corporal West as to whether the videotape showed the appellant physically touching the stolen Nikon camera. According to Detective Rowe, the appellant actually handled the camera. According to Corporal West, the appellant was not actually "in possession of th[e] camera."²

On the same day that he viewed the videotape, Corporal West told Trooper Bachtell that the Sheriff's Office was investigating the appellant and his wife in connection with the Reisman burglary. Trooper Bachtell had been investigating the appellant and his wife for another residential burglary in Frederick County, in which a shotgun was stolen. Later that same day, Trooper Bachtell obtained the appellant's cell phone number and contacted his cell phone service provider. At Trooper Bachtell's request, the service provider conducted a "ping" of the appellant's cell phone, which revealed that the phone was "within a two mile radius of the Frederick County Detention Center."

Using that information, Trooper Bachtell drove the roads in the vicinity of the detention center. He located a pickup truck registered to the Stones parked at a motel.³ He, Detective Rowe, and Corporal West believed at that point "that there may be another burglary that had been planned." The three decided to attach a global positioning system ("GPS") tracking device to the pickup truck parked at the motel.⁴

On October 17, 2005, Trooper Bachtell received transmissions through his cell phone from the GPS device. Using the transmission, he tracked and located the pickup truck. Joanne Stone was at the wheel.⁵ Trooper Bachtell lost sight of the vehicle near Woodsboro. Forty minutes later, he saw Joanne Stone driving another vehicle, a green Ford pickup truck. (In an earlier interview of Joanne Stone's sister, Trooper Bachtell had learned that someone in the Stone family, probably her mother, owned a blue-green Ford pickup truck.) The appellant was a passenger in the green Ford pickup truck. Trooper Bachtell stopped the green Ford pickup truck and, together with Trooper Speak and Corporal West, arrested the appellant and his wife for the Reisman burglary and for felony theft of the Nikon camera.

The suppression court ruled on the evidence before it that the officers had "probable cause to arrest [the appellant] for the felony theft of the Nikon camera based upon the testimony of Deputy Rowe as, again as well as the burglary of the Reisman residence."

(a)

The appellant contends the suppression court erred in ruling that there was probable cause to support his arrest for the Reisman burglary because the only evidence linking him to that crime was the "conflicting testimony of two police officers regarding the contents of a surveillance video." He argues that the pipe and his incriminating statements to the police were fruits of his illegal arrest and therefore should have been suppressed from evidence.

In reviewing the denial of a motion to suppress evidence, we are limited to the record before the suppression court. In re Calvin S., 175 Md.App. 516, 524-525, 930 A.2d 1099 (2007); Carter v. State, 367 Md. 447, 457, 788 A.2d 646 (2002). "We consider the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the prevailing party." Myers v. State, 395 Md. 261, 274, 909 A.2d 1048 (2006). "`We extend great deference to the findings of the hearing court with respect to first-level findings of fact and the credibility of witnesses unless it is shown that the court's findings are clearly erroneous.'" In re Calvin S., supra, 175 Md.App. at 525, 930 A.2d 1099 (quoting Daniels v. State, 172 Md.App. 75, 87, 913 A.2d 617 (2006)). We review de novo the suppression court's application of the law to the facts, and the determination of whether the evidence should be suppressed. See Swift v. State, 393 Md. 139, 155, 899 A.2d 867 (2006).

The Fourth Amendment permits a government agent to effect a warrantless arrest of a person in a public place for a felony if the arrest is supported by probable cause. Massey v. State, 173 Md.App, 94, 103, 917 A.2d 1175 (2007) (citing Maryland v. Pringle, 540 U.S. 366, 370, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003)). Probable cause is a "practical, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Pringle, supra, 540 U.S. at 370, 124 S.Ct. 795 (citation omitted).

Probable cause exists when the police possess reasonably trustworthy information, drawn from the totality of the facts and circumstances of each case, which supports the fair probability that contraband or evidence of a crime will be found in a particular place or that the suspect has...