Travis Darnell Bishop v. State
| Decision Date | 19 September 2018 |
| Docket Number | No. 2123,2123 |
| Parties | TRAVIS DARNELL BISHOP, SR. v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Harford County
Case No. 12-K-16-1541
UNREPORTED
Reed, Fader, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.
Opinion by Fader, 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 Harford County jury convicted Travis Darnell Bishop of six offenses associated with the possession and distribution of cocaine. In addition to challenging the sufficiency of the evidence against him, Mr. Bishop contends that the trial court erred in: (1) allowing certain testimony from a police officer who observed the events at issue and was also qualified as an expert; (2) failing to instruct the jury as to the definition of "possession"; and (3) allowing the State to discuss facts not in the record during its closing argument. We agree with Mr. Bishop that the court erred in permitting the State to discuss facts not in the record during its closing argument. Although we conclude that error was harmless with respect to Mr. Bishop's convictions for distribution, possession, and possession with intent to distribute, we reverse Mr. Bishop's conspiracy convictions and remand for a new trial on those counts. The remainder of Mr. Bishop's claims are without merit.
On the evening of September 21, 2016, the three members of a Havre de Grace Police Department counter-narcotics unit—Officer Francis Davidson, Corporal Joseph Cooper, and Officer Chad Smith—were conducting coordinated surveillance in the Battery Village neighborhood as part of a several-months-long investigation into an open air drug market. The object of their focus that evening was 431 Battery Drive, which they had identified as a distribution point for illegal narcotics trafficking. At approximately 10:30 p.m., Officer Smith saw Mr. Bishop and Andre Waiters leave 431 Battery Drive and walk toward Revolution Street. At the same time, Officer Davidson observed Kurt Porter,known to the officer as a drug buyer and user, park his pickup truck on Bay Boulevard, near where Battery Drive intersects Revolution Street.
According to Officer Davidson's trial testimony, shortly after Mr. Porter parked, Officer Davidson saw Messrs. Bishop and Waiters come walking "in a tandem-like formation"—one in front of the other and a few feet apart—along Revolution Street toward Mr. Porter's truck. The two then separated, with Mr. Bishop approaching the truck and Mr. Waiters taking a position approximately 50 feet away, keeping line-of-sight with Mr. Bishop and "maintaining obvious vigilance." Mr. Bishop initially walked about a truck's length past Mr. Porter's vehicle before turning around, approaching the truck from the rear, and quickly tossing a small plastic baggie into the bed of the truck directly behind the driver's seat. Mr. Bishop continued walking up to the driver-side window, where Mr. Porter gave him "U.S. currency." Messrs. Bishop and Waiters then promptly resumed their tandem-like formation and walked out of Officer Davidson's sight in the direction from which they came. The two spoke to each other as they walked away, although Officer Davidson could not hear what they said.
While Officer Davidson waited for Messrs. Bishop and Waiters to leave (to avoid jeopardizing the broader investigation), he allowed Mr. Porter to drive away. Approximately two to three minutes later, Corporal Cooper, who had been alerted by Officer Davidson and knew where Mr. Porter lived, found Mr. Porter pulling his truck up to park by his house. At approximately the same time, Officer Davidson also caught up to Mr. Porter, although he initially stayed back to avoid compromising his unmarked vehicle.Both officers observed Mr. Porter exiting his vehicle, looking nervous, and "frantically" moving things around in the bed of the pickup truck immediately behind the driver's seat—the same place where Officer Davidson had just seen Mr. Bishop toss the plastic baggie.
Upon approaching the truck, Corporal Cooper discovered a small plastic baggie containing a white substance, later confirmed as cocaine that had been mixed with wax, in a small, partially-unzipped cooler that was located immediately behind the driver's seat. Corporal Cooper also found several cold beers in the cooler. Although there was condensation on the cold beers, both officers observed that the baggie was dry. The officers seized the suspected cocaine and arrested Mr. Porter.
Mr. Bishop was later charged and tried before a jury on six charges: possession of cocaine, possession with intent to distribute cocaine, distribution of cocaine, and conspiracy to commit each of those offenses. At trial, the jury heard testimony from Officer Davidson and Corporal Cooper as to the facts described above, along with expert forensic testimony that the substance recovered from Mr. Porter's truck was cocaine. In addition to hearing from Officer Davidson as a fact witness, the court also accepted him, without objection from Mr. Bishop, "as an expert in packaging, manufacturing, distribution, sales and valuation of controlled dangerous substances." Specific aspects of Officer Davidson's testimony are discussed further below.
The jury found Mr. Bishop guilty on all six counts. The trial court sentenced him to twenty years for distribution of cocaine, all but fourteen suspended, to be servedconsecutive to another sentence he was already serving; another twenty years for conspiracy to distribute cocaine, all suspended, to be served consecutive to all other sentences; and five years' probation. The remaining four counts merged for sentencing purposes.
Mr. Bishop argues that the trial court erred in three respects regarding the testimony of Officer Davidson, who testified as both a fact witness and as an expert. We review the trial court's decision to admit lay witness testimony for an abuse of discretion. See Crosby v. State, 366 Md. 518, 526 (2001). Similarly, "the admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal." Roy v. Dackman, 445 Md. 23, 38-39 (2015) (quoting Bryant v. State, 393 Md. 196, 203 (2006)). The trial court's decision "may be reversed if founded on an error of law or some serious mistake, or if the trial court has clearly abused its discretion." Gutierrez v. State, 423 Md. 476, 486 (2011) (quoting Raithel v. State, 280 Md. 291, 301 (1977)). A trial court abuses its discretion when its decision is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Levitas v. Christian, 454 Md. 233, 243 (2017) (quoting Neustadter v. Holy Cross Hosp. of Silver Spring, Inc., 418 Md. 231, 241 (2011)) (emphasis removed).
Mr. Bishop contends that the trial court erred in allowing Officer Davidson to provide an expert opinion that Mr. Waiters was acting as a lookout during the transaction. In doing so, Mr. Bishop maintains, the court (1) erroneously allowed Officer Davidson to testify about something about which he had no personal knowledge and (2) improperly "invaded the province of the jury" by testifying as to an ultimate issue in the case. We disagree. Officer Davidson did not offer an expert opinion regarding Mr. Waiters's actions, nor did he testify as to an ultimate issue in the case. To the contrary, he offered only his own recollection of what he observed Mr. Waiters doing: initially walking in tandem with Mr. Bishop, breaking off while maintaining line-of-sight, "maintaining obvious vigilance," and then resuming his tandem formation with Mr. Bishop after the transaction.
Mr. Bishop's reliance on Cook v. State, 84 Md. App. 122 (1990), is misplaced. There, the trial court allowed a police officer to provide an opinion about the command structure of an alleged conspiracy and various roles within the conspiracy. Id. at 136-37, 142. Here, Officer Davidson merely described what he observed. The trial court did not err in permitting him to do so.
Mr. Bishop next argues that the court erred when it did not retroactively strike testimony Officer Davidson had given regarding a distinctive aspect of the cocaine seized from Mr. Porter. As Mr. Bishop failed to preserve this claim, we will not consider it.
In the testimony that Mr. Bishop now argues should have been stricken, Officer Davidson testified that the cocaine seized from Mr. Porter was distinctive in that it had been cut with wax. Mr. Bishop made no objection to that testimony. Later, when Officer Davidson was asked about the next time he encountered a similar product, Mr. Bishop objected.1 The court sustained that objection. Notably, however, Mr. Bishop did not then or at any other time ask the court to strike the earlier testimony. Having failed to object or ask that the testimony be stricken, Mr. Bishop waived this claim and we will not consider it here. See Fallin v. State, 460 Md. 130, 152 (2018) ().
Mr. Bishop's final argument concerning Officer Davidson's...
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