Vandegrift v. State

• Decision Date: 01 September 1989
• Docket Number: No. 1221,1221
• Citation: 82 Md.App. 617,573 A.2d 56
• Parties: Richard VANDEGRIFT, Sr. v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 617

82 Md.App. 617

573 A.2d 56

Richard VANDEGRIFT, Sr. v. STATE of Maryland.

No. 1221, Sept. Term, 1989.

Court of Special Appeals of Maryland.

May 4, 1990.

Robert N. Dugan, Assigned Public Defender, Towson (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Jillyn K. Schulze, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and John L. Scarborough, State's Atty. for Cecil County, Elkton, on the brief), for appellee.

Argued before ROSALYN B. BELL, KARWACKI and WENNER, JJ.

WENNER, Judge.

Appellant, Richard Vandegrift, Sr., was convicted by a jury in the Circuit Court for Cecil County (Rollins, E.D.E., Jr., J. presiding) of numerous narcotics offenses. The court sentenced him to a total of forty-five years imprisonment, plus fines totaling $40,000. Upon appeal, appellant raises a plethora of issues. He urges us to hold that:

I. The circuit court erred by denying his motion to suppress the evidence that was obtained pursuant to an order authorizing a wiretap.

II. The circuit court erred by denying his motion to suppress evidence that was obtained pursuant to several search and seizure warrants.

III. Judge Rollins should have recused himself from deciding all motions and from presiding at trial.

IV. The circuit court erred by failing to require the State to disclose the identity of a confidential informant or, in the alternative, having an in camera disclosure.

V. The circuit court abused its discretion by admitting certain opinion evidence.

VI. The circuit court erred by permitting several handguns seized from Roy Reeps in Pennsylvania to be displayed to the jury.

VII. He was unfairly prejudiced by certain hearsay evidence.

VIII. The circuit court improperly admitted a chemist's report without a proper chain of custody.

IX. The circuit court erred in admitting into evidence certain telephone records.

X. The circuit court erred by requiring him to read to the jury from a transcript of [an] electronically recorded interception.

XI. The evidence was insufficient to support his convictions.

XII. The circuit court erred by failing to grant a mistrial due to the State's improper argument to the jury.

XIII. His convictions for conspiracy to distribute should merge with his conviction for conspiracy to import.

We agree that there was not sufficient evidence to sustain appellant's conviction for the distribution of marijuana. We also agree with appellant's argument with regard to the issue of merger. Otherwise, we shall affirm the judgments of the Circuit Court.

To set the stage for the discussion that follows, we shall, at the outset, introduce the principle characters. Maryland State Police Corporal Sandra M. Kestner and Trooper First Class Charlie P. Alvear were the chief investigating officers. Lieutenant Richard G. Mobley of the Cecil County Sheriff's Department prompted the investigation by relaying to Kestner and Alvear information furnished by a confidential informant. Lieutenant Mobley also assisted in the investigation.

Appellant, his son, Richard Vandegrift, Jr., his daughter, Irene Vandegrift, and appellant's girlfriend, Brenda Wheatley, were the subjects of an ongoing investigation into what the police believed to be a complex drug distribution network. Roy Reeps, a Pennsylvania resident, was also a target of the investigation.

James Tibbett "Tippy" Poore was the State's chief witness. Early in the investigation, Poore was arrested for, and subsequently convicted, of possession of cocaine with intent to distribute. Prior to his arrest, Poore had been a key player in the drug distribution network.

Further facts will be developed as necessary for the disposition of the issues presented by appellant.

I.

The circuit court granted an ex parte order authorizing the interception of telephone communications at the residence of appellant and that of appellant's son. Appellant and his co-defendants moved to suppress all evidence secured by electronic surveillance. After a lengthy pre-trial hearing, Judge Rollins denied the motion. Upon appeal, appellant asserts that this ruling is incorrect for two reasons. First, he contends that the police failed to show in the application for electronic surveillance and the supporting affidavits that other investigative procedures had been exhausted before they sought the order. Second, appellant contends that the interception lasted five days longer than it should have. We reject both contentions.

Exhaustion

An application for an order authorizing the interception of electronic communications must contain, in part, a full and complete statement of other investigative procedures that had been tried and had failed, or why such procedures reasonably appear to be unlikely to succeed or would be too dangerous if tried. Md.Cts. & Jud.Proc.Code Ann. § 10-408(a)(3) (1989 Repl.Vol.). The underlying purpose of this requirement is to guard against the use of electronic surveillance as an initial investigative tool. Bell v. State, 48 Md.App. 669, 674-675, 429 A.2d 300, cert. denied, 291 Md. 771 (1981). However that may be, it is not necessary that the State exhaust every possible investigative technique prior to seeking the order. Salzman v. State, 49 Md.App. 25, 33, 430 A.2d 847, cert. denied, 291 Md. 781 (1981). There is sufficient need for electronic surveillance where, in light of the objectives of the investigation, it appears that normal investigative techniques have been unsuccessful and, if continued, would be unlikely to yield the evidence sought. With these precepts firmly in mind, we have reviewed the application and supporting affidavits and find them to be sufficient to demonstrate the need for electronic surveillance.

According to the affiants, the overall objective of their investigation was to ascertain the identity and degree of involvement of any "higher-ups," co-conspirators, and sources of supply of the illegal drug operation. The affidavits recited in detail that traditional investigative techniques had been employed but had failed to yield those objectives. Intermittent stationary and mobile surveillance at numerous locations had failed to reveal the identity of higher-ups and sources of supply. Nor did the use of pen registers and toll billing reveal this information. The confidential informant was unable to identify sources of supply and those "higher-ups" other than appellant. Numerous other police agencies contacted by the affiants had no knowledge of the drug distribution network or any of its known participants.

Furthermore, the affiants listed various investigative tools which were not used because they either appeared unlikely to succeed or might jeopardize the investigation. Search and seizure warrants were not initially sought because it was not known whether the participants had in their possession narcotics, records, ledgers, or other incriminating evidence. The confidential informant was not willing to testify, and it was unlikely that other participants would come forward or could be approached without endangering the investigation. A "blind buy" was thought to be impractical because the participants were known to be reluctant to deal with persons with whom they were not acquainted. Moreover, visual surveillance was terminated once such surveillance began to arouse the suspicion of the suspects.

The affiants were officers experienced in the investigation of violations of narcotics laws. Where, as here, the objective of an investigation is to seek evidence regarding "higher-ups," co-conspirators and sources of supply in a drug distribution network, we think that the failure of the investigative procedures we have just recounted are more than sufficient to comply with the exhaustion requirement.

Duration

Authorization to intercept communications over the targeted telephone lines began on July 19, 1988, and ended on August 17, 1988. In his brief appellant posits that the interception should have ended on August 7, 1988. Why this is so we are not told. We hasten to remind appellant that he is required to support his position with some kind of cognizable argument as well as the facts material to its resolution. Md. Rule 8-504(a)(4) and (5).

Notwithstanding this lack of illumination, although we are not required to do so, we have reviewed the record and have located what we believe to be the crux of appellant's argument. Appellant asserts that, inasmuch as Corporal Kestner said that she had sufficient information as of August 7 to begin drafting an application for a search and seizure warrant, the interception should have ended on that date. We find this argument to be utterly without merit. In the first place, there is no indication that as of August 7 the objectives of the investigation had been achieved. In the second place, that there was sufficient evidence available on August 7 to support the issuance of a search and seizure warrant does not, in our view, preclude the State from continuing electronic surveillance within the confines of the order. See United States v. Clerkley, 556 F.2d 709, 714 (4th Cir.1977), cert. denied, Genco v. United States, 436 U.S. 930, 98 S.Ct. 2830, 56 L.Ed.2d 775 (1978), London v. United States, 436 U.S. 930, 98 S.Ct. 2830, 56 L.Ed.2d 775 (1978), and Shade v. United States, 436 U.S. 930, 98 S.Ct. 2830, 56 L.Ed.2d 775 (1978) (in investigation of gambling operation, fact that the government has ample evidence to arrest known participants does not preclude it from seeking wiretap order to uncover names of bookmakers and other co-conspirators). Moreover, we note that the police did terminate interception five days early, on August 12, because in their judgment further interception would have been fruitless.

II.

The circuit court denied appellant's motion to suppress certain evidence seized pursuant to the execution of numerous search and seizure warrants. This, according to appellant, constitutes reversible error. Appellant mounts a three-pronged...