Velez v. State

• Decision Date: 01 September 1994
• Docket Number: No. 1500,1500
• Citation: 106 Md.App. 194,664 A.2d 387
• Parties: , 103 Ed. Law Rep. 311 Isabel VELEZ v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 194

106 Md.App. 194

664 A.2d 387, 103 Ed. Law Rep. 311

Isabel VELEZ v. STATE of Maryland.

No. 1500, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Sept. 1, 1995.

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant

Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Joseph I. Cassily, State's Atty. for Harford County, Bel Air, on the brief), for appellee.

Submitted before BLOOM, DAVIS and HOLLANDER, JJ.

HOLLANDER, Judge.

This case results from a family run drug-trafficking operation in Harford County, Maryland, where appellant, Isabel Velez, lived with some of her grown children and several other adults. Appellant was convicted by a jury in the Circuit Court for Harford County of multiple narcotics offenses. Specifically, appellant was convicted of four counts of conspiracy to distribute cocaine, one count of conspiracy to distribute cocaine in a school zone, one count of conspiracy to import 28 grams or more of cocaine into Maryland, and one count of drug kingpin conspiracy, pursuant to Md.Ann.Code, Art. 27 § 290 (1992). In addition, Velez was convicted of one count of keeping and maintaining a nuisance, in violation of Md.Ann.Code, Art. 27 § 286(a)(5) (1992), and possession of cocaine with intent to distribute, pursuant to Md.Ann.Code, Art. 27 § 286(a)(1) (1992). ¹ She received a total sentence of twenty years without the possibility of parole. ²

Appellant presents a pentad of questions for our review:

I. Was the evidence legally insufficient to support the convictions for a "drug-kingpin" conspiracy and conspiracy to distribute a controlled substance in a school zone?

II. Was appellant deprived of the right to counsel at a pretrial suppression hearing?

III. Did the trial court err in failing to fully apprise appellant of her right of self-representation, and to permit her to elect between self-representation and representation by counsel?

IV. Did the trial court impermissibly restrict the direct examination of defense witness Richard Delvalle?

V. Did the trial court err in imposing separate sentences upon the convictions of engaging in a conspiracy as a drug kingpin and conspiracy to distribute cocaine?

For the reasons we discuss below, we conclude that the evidence was insufficient to support the conviction for drug kingpin conspiracy. Accordingly, we shall reverse that conviction and vacate the sentence. As we perceive no other errors, we shall affirm the remaining convictions.

FACTS

From February 27, 1989 through January 17, 1992, appellant was employed as a custodian at the William Paca Elementary School, located in Harford County in a drug-free school zone. ³ Between November 1991 and January 1992, a Harford Interception of telephone calls to and from appellant's home revealed numerous conversations concerning the acquisition and distribution of cocaine. In many of the conversations, the parties spoke in Spanish and used Spanish words for "cocaine" or "coke." When the conversations were in English, however, the participants did not use the word cocaine. Instead, the participants employed code words, such as, "tickets," "shots," "books," "tires," "pants," and "rims." ⁴ During various telephone conversations, appellant's adult children often stated that they would have to wait until appellant arrived before drugs could be sold or that they needed her approval before a drug buy could be consummated. In other intercepted conversations, the participants discussed drug meetings at particular places. Following these conversations, the police conducted surveillances of the locations mentioned and personally witnessed drug exchanges. On January 10, 1992, the police concluded the wiretap surveillance and raided appellant's home, from which they recovered two ounces of cocaine. Appellant was one of many people charged with narcotics violations.

County Joint Narcotics Task Force conducted a wiretap surveillance of appellant's residence.

At a pre-trial suppression hearing, sixteen defendants, including appellant, represented by fourteen attorneys, joined in a motion to suppress the evidence obtained from the electronic surveillance. Because of the large number of defendants, one defense attorney was appointed to conduct the examination of witnesses at the suppression hearing, on behalf of all the defendants. The other attorneys were, however, permitted to interpose additional questions. After the hearing, the judge denied the motion to suppress.

Although the motion to suppress involved many defendants, appellant was tried alone. At her trial, appellant denied knowledge of, or participation in, any drug-related activities. ⁵

Additional facts will be provided below, where pertinent to our discussion of the issues presented.

DISCUSSION

I. Sufficiency of the evidence

A. Drug kingpin statute

Appellant argues that the evidence was insufficient to convict her as a "drug kingpin" because: (1) the evidence did not establish that she was an "organizer, supervisor, financier, or manager," as required by § 286(g), and (2) the evidence was insufficient to establish that she dealt in the statutorily requisite quantity of drugs. Although we conclude that the evidence was sufficient to find that Velez was an "organizer" or "supervisor," we agree with appellant that the evidence was insufficient regarding the requisite quantity of narcotics.

The standard of review for the sufficiency of evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); Williams v. State, 329 Md. 1, 15, 616 A.2d 1275 (1992). In an action tried before a jury, "it is the jury's task, not the court's, to measure the weight of evidence and to judge the credibility of witnesses." Dawson v. State, 329 Md. 275, 281, 619 A.2d 111 (1993). In performing this role, the jury has the power to decide which testimony to accept and which to reject. "In this regard, it may believe part of a particular witness's testimony, but disbelieve other parts of that witness's testimony." Pugh v. State, 103 Md.App. 624, 651, 654 A.2d 888 (1995); see also, Muir v. State, 64 Md.App. 648, 654, 498 A.2d 666 (1985), aff'd 308 Md. 208, 517 A.2d 1105 (1986). Moreover, "it is the exclusive function of the jury to draw reasonable inferences from proven facts." McMillian v. State, 325 Md. 272, 290, 600 A.2d 430 (1992).

Section 286(a)(1) makes it unlawful for any person "to manufacture, distribute, or dispense, or to possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance." Section 286(g) defines "drug kingpin" as "a person who occupies a position of an organizer, supervisor, financier, or manager as a coconspirator in a conspiracy to manufacture, distribute, dispense, bring into, or transport in the State controlled dangerous substances." When an accused is involved with at least 448 grams (16 ounces) of cocaine ⁶, and is a drug kingpin as defined by the statute, then the accused is subject to a mandatory minimum sentence of not less than twenty years without the possibility of parole. § 286(g).

In Williams v. State, 329 Md. 1, 616 A.2d 1275, based on the defendant's minimal involvement in the drug operation, the Court found the evidence legally insufficient to confer drug kingpin status on the defendant, whose involvement was limited to approximately six hours in which he obtained drugs in New York and had them driven to Maryland, where he completed the drug sale and accepted the money. Id. at 20, 616 A.2d 1275. The Court said:

It is plain to us that the phrase "drug kingpin" was intended by the legislature to apply to a leader of a drug trafficking network. It thus follows that the words "organizer," supervisor," "financier," and "manager," read in the context of the statute, were not intended to encompass a person occupying a role substantially less than that of a large-scale drug trafficker. In other words, in looking to the larger context of the statute (which prescribes lesser penalties for non-kingpins); at the bill's title; and at external evidence in order to chart the blurry perimeters of the statute's operative terms, we believe that the legislature intended the statute's heightened penalties for "drug kingpins," or leaders, to have limited application to those acting as organizers, supervisors, financiers, or managers of large-scale drug trafficking operations.

Id. at 17, 616 A.2d 1275.

The Court explored the operative words of Maryland's drug-kingpin statute by reference to Webster's Third New International Dictionary (1981). It stated:

[A]n "organizer" is "one who organizes" (to "organize" is "to unify into a coordinated functioning whole; ... to arrange by systematic planning and coordination of individual effort"). A "supervisor" is "one that supervises a person, group, department, organization, or operation" ("supervise" is "to ... oversee with the powers of direction and decision the implementation of one's own or another's intentions"). A "financier" is "a large scale investor." A "manager" is "one that manages, a person that conducts, directs, or supervises something."

Id. at 11, 616 A.2d 1275.

Here, appellant's conduct differs considerably, in kind and degree, from the conduct at issue in Williams. The State established at trial that appellant supervised and orchestrated many of the Velez family's drug transactions. Indeed, one officer testified, "Isabel is basically running the show." She helped determine who owed the family money for drugs, and she directed others to collect the money owed; her approval was sought before drug sales...