Thomas v. State

• Decision Date: 23 May 2018
• Docket Number: No. 630,630
• Parties: DAVON THOMAS v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

DAVON THOMAS v. STATE OF MARYLAND

No. 630

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

May 23, 2018

Circuit Court for Anne Arundel

Case No. 02CR16001540

UNREPORTED

Wright, Kehoe, Harrell, Glen T. (Senior Judge, Specially Assigned), JJ.

Opinion by Wright, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

A jury in the Circuit Court for Anne Arundel County convicted appellant, Davon Thomas, of possession of marijuana, possession with intent to distribute marijuana, possession of a firearm with a nexus to a drug trafficking crime, using, wearing, carrying, or transporting a firearm while engaged in a drug trafficking crime, unlawful possession of a regulated firearm while under 21 years of age, and wearing, carrying and transporting a handgun upon his person. The circuit court sentenced Thomas to a total of ten years in prison, suspending all but six years (the first five years without the possibility of parole). Thomas timely appealed, asking us to consider the following questions:

1. Did the circuit court err by denying the motion to suppress?

2. Did the circuit court err by allowing a sheriff to trail Appellant in the courtroom?

3. Did the circuit court err by limiting Appellant's right to cross-examination?

4. Was the evidence insufficient to sustain Appellant's convictions for the firearm and handgun offenses, and did the circuit court err by denying Appellant's motion for a new trial on grounds that the verdict was contrary to the evidence?

5. Did the circuit court err by allowing the prosecutor to call Appellant a "drug dealer" in closing argument and by refusing to allow defense counsel to refer to one of the State's expert witnesses as a "hired gun" in closing argument?

6. Did the circuit court err by failing to merge sentences?

Because the State concedes, and we agree, that the separately imposed sentences for possession of a firearm with a nexus to a drug trafficking crime and using, wearing, carrying, or transporting a firearm while engaged in a drug trafficking crime should merge,we vacate the sentence for the former crime. For the reasons that follow, we shall otherwise affirm the judgments of the circuit court.

FACTS AND LEGAL PROCEEDINGS

Hearing on the Motion to Suppress

On the afternoon of June 30, 2016, Annapolis Police Department Officer Joseph Mann located a blue Honda minivan, which was operating as a taxi cab, after receiving a tip that its occupants may be involved in drug activity. He followed the vehicle and observed it exceed the speed limit and go through two stop signs without stopping. Off. Mann radioed Detective Ascione,¹ who was in the area, and related his observations and the belief that the vehicle was involved in drug activity.

Det. Ascione observed the Honda traveling at speeds upwards of 70 miles per hour in an area with a posted speed limit of 40 miles per hour. Det. Ascione initiated a traffic stop; the vehicle pulled over, but before it came to a complete stop, the rear-seat passenger-side occupant, later identified as Dexter Burnside, jumped out of the car and ran away. As Detective Timothy Lathe had by that time reached the scene of the traffic stop, Det. Ascione chased Burnside on foot, catching up with him approximately a minute later.

Det. Lathe approached the taxi and asked the driver for the keys. The driver complied. Det. Lathe observed two passengers remaining in the taxi, Lance Logan in the front passenger seat and Thomas in the rear driver's-side seat. As the lone officer on thescene, Det. Lathe ordered the occupants to keep their hands in the air. Because the van's windows were tinted, Det. Lathe opened the back sliding door of the van for his safety and immediately smelled what he knew from his training, knowledge, and experience to be raw marijuana. When Logan stopped obeying the orders to keep his hands up, Det. Lathe moved to the front of the taxi where he saw Logan drop a clear bag of pills to the floor.

Det. Lathe said that Thomas was "cooperative," keeping his hands up. When backup arrived at the scene, Officer Jamal Davis ordered Thomas to exit the vehicle, at which point a black and red plastic bag containing approximately 12 ounces of suspected marijuana fell from his lap to the ground. Off. Davis arrested Thomas after the suspected marijuana was discovered.

Defense counsel did not challenge the police officers' stop of the taxi in which Thomas was a passenger, conceding that the taxi was speeding and running stop signs, and the police therefore had probable cause to stop the vehicle. Instead, counsel urged the court to suppress the evidence of the marijuana found in the bag on Thomas's person following the stop, arguing that the police had no probable cause to arrest Thomas, a passenger in the taxi who had not "done anything wrong other than have the bad luck to be in a fleeing taxi cab."² Det. Lathe had admitted that until his removal from the vehicle and placement in custody, Thomas had complied with police orders; the officers had no probable cause tobelieve he had committed a crime, and, in the absence of probable cause, neither his belongings nor his person were lawfully subject to a search. Finally counsel contended that the bag was a personal belonging and "part of him"—like a purse—such that the officers had no right to "start rummaging around in it," regardless of the smell of marijuana, when he had committed no crime.

The prosecutor disagreed, responding that as soon as Det. Lathe smelled marijuana, he had probable cause to search the vehicle and every container therein. And, as soon as the police officers recovered the suspected marijuana, they had the right to arrest Thomas.

The circuit court ruled, as follows:

THE COURT: No, thank you. All right, the testimony that the Court received and listened to testimony of the officers [sic] particularly that of Detective Lathe. At this point, the Court has no reason to find that any of the testimony presented by an[y] of the officers was not credible and therefore meets a finding at least for purposes of this hearing that their testimony was credible.

With regard to whether or not there was the ability to believe that there was contraband or evidence that might be found in the vehicle after finding the pills in the event and after smelling what appeared to be based on the training and experience of Detective Lathe to be raw marijuana emanating from the back-driver's side of the vehicle and then asking the Defendant in this case to step of out of the vehicle—to exit the vehicle at that time.

The officer indicates that at that point it is because he intends to search. And as he goes to get out presumably the testimony is saw that his hands has been up [sic], as he goes to move out of the car, the container—plastic bag as it has been described to the Court falls to the ground.

I don't believe, counsel, that because it falls to the left on the ground or to the right and into the well of the vehicle, that in and of itself changes the right of the officer to be able to search that compartment or to search that bag.

And for those reasons—for that reason in particular, the Court is going to deny your motion to suppress.

Trial

The trial testimony generally repeated, but added to, the testimony presented at the suppression hearing. The evidence revealed that at approximately 4:00 p.m. on June 30, 2016, Off. Mann was conducting surveillance outside a community in Annapolis when a blue Honda Odyssey minivan, registered as a taxicab, caught his attention. When the Honda left the community, Off. Mann followed but lost sight of it. Later in the day, however, he observed the Honda at the Chesapeake Market and followed it as it left the area. He again lost sight of the vehicle due to its excessive speed but alerted other officers in the area to be on the lookout for the vehicle.

Det. Ascione located the vehicle travelling 70 miles per hour or more in a 40 mile per hour zone and pulled in behind it, activating his emergency equipment. As the vehicle slowed, Det. Ascione observed at least four people inside. Before the vehicle had come to a complete stop, the rear passenger door slid open and Burnside jumped out and ran across several lanes of traffic toward a nearby shopping center.

As Det. Lathe had arrived at the scene of the traffic stop, Det. Ascione gave chase on foot, noticing that Burnside was holding the right front of his waistband and digging into the waistband is if trying to retrieve something. To Det. Ascione, that movement was characteristic of an armed person. As Burnside reached a fence, he jumped, placing both arms over the fence, and then dropped back down to the ground to where he started his leap.

Det. Ascione took Burnside into custody. A search on the other side of the fence turned up a silver Bersa 380 handgun.³ Det. Ascione then returned to the scene of the traffic stop, where he issued the driver of the taxi a number of traffic citations.

Three people remained in the Honda—the driver, a front-seat passenger, and a rear-seat, driver's-side passenger, later identified as Thomas. When Det. Lathe opened the doors to the Honda, he "immediately" smelled the odor of fresh marijuana coming from the vehicle. Det. Lathe saw a black and red bag on Thomas's lap and instructed all of the Honda's occupants to keep their hands up. The front seat passenger kept lowering his right hand between himself and the door, out of Det. Lathe's view. As Det. Lathe walked around the vehicle to make contact with that passenger, he saw the passenger throw a bag containing pills onto the ground.

Det. Lathe instructed Off. Davis to remove Thomas from the van, and as he did, Off. Davis observed that Thomas had a black and red bag on his lap, which Thomas placed on the floorboard before exiting the vehicle.⁴ Neither Det. Lathe...