Whack v. State
| Decision Date | 01 September 1992 |
| Docket Number | No. 284,284 |
| Citation | 94 Md.App. 107,615 A.2d 1226 |
| Parties | Larry Eugene WHACK v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Robert W. Mance, Washington, D.C., for appellant.
Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and John L. Scarborough, State's Atty. for Cecil County of Elkton, on the brief), for appellee.
Argued before WILNER, C.J., and ALPERT and FISCHER, JJ.
Appellant, Larry Eugene Whack, was convicted by a Cecil County jury of (1) possession with intent to distribute cocaine, (2) conspiracy to possess with intent to distribute cocaine, and (3) conspiracy to smuggle 28 grams (or greater) of cocaine. From judgments entered thereon, he appeals, asking us to resolve five issues:
I. Whether the trial court's denial of a request for a continuance was an abuse of discretion.
II. Whether the trial court improperly denied a motion to suppress.
III. Whether Whack was deprived of a fair trial because of the improper admission of hearsay evidence.
IV. Whether Whack was deprived of a fair trial because of the admission of unintelligible tape recordings.
V. Whether the trial court improperly denied Whack's Motion for Judgment of Acquittal.
We answer each of these questions in the negative, and therefore affirm.
On May 15, 1991, Larry Eugene Whack was arrested. He was subsequently indicted--and convicted--on several drug-related crimes. The relevant circumstances surrounding his conviction follow.
On the morning of May 15, 1991, Keith Watkins and Joey Sampson were driving a 1985 blue Pontiac Sunbird south on Interstate 95 from New York City through Maryland, allegedly in excess of the posted speed limit. Accordingly, Maryland State Trooper First Class John Appleby effected a traffic stop of the vehicle. Appleby testified at trial that, following the stop, Sampson voluntarily admitted to Appleby that (1) there was cocaine in the car, (2) this cocaine was located in the side panel of the front passenger door 1, and (3) they (Watkins and Sampson) had traveled to New York City specifically to buy the cocaine for Whack. At the scene, Watkins also admitted to Appleby that the purpose of the New York trip was to obtain the cocaine for Whack. Watkins and Sampson were both arrested and transported to the state police barracks.
At the barracks, Deputy Timothy McDonald of the Cecil County Sheriff's Department interviewed Watkins. McDonald testified at trial that, during this interview, Watkins reiterated the reason for his and Sampson's excursion: "[Watkins said that he and Sampson] were coming from New York with a quantity of cocaine for Larry Whack, and [that] the sole purpose of the trip was to purchase cocaine for Larry Whack in New York City and to bring it back to him in Prince George's County."
Also at the barracks, the police solicited and received Sampson's consent (both orally and in writing) to permit the police to record a telephone call that he would make to Whack 2; during the call, Sampson would tell Whack that the car transporting Sampson and Watkins had broken down, that it was currently being serviced on the Chesapeake House property 3, and that the men needed a ride back to Prince George's County. Sampson made the telephone call as agreed, and Whack assented to meet Sampson and Watkins at the Chesapeake House Texaco station. Moreover, Sampson agreed to wear a body wire so that, upon Whack's arrival at the Texaco station, the police could record and monitor Sampson's and Whack's in-person conversation. 4
Whack appeared at the Texaco station at approximately noon that day (May 15, 1991). Police observed Whack entering the garage; once inside, Whack spoke briefly with Sampson and Watkins. Shortly thereafter, and pursuant to a mechanic's request, the men (Whack, Sampson, and Watkins) pushed the Sunbird out of the garage. Police then watched as Whack began tampering with the passenger side car door, as though (according to Appleby) Whack was trying to get inside it. Whack then kneeled down and, as he pulled the upholstery away from the metal part of the door, he commenced reaching down inside the door panel. It was at this point that Whack was arrested.
A four count indictment was sent down on June 19, 1991, and correspondingly Whack was charged as follows:
I. Possession with intent to distribute cocaine.
II. Possession of cocaine.
III. Conspiracy to possess with intent to distribute cocaine.
IV. Conspiracy to smuggle 28 grams (or greater) of cocaine.
A trial on the merits was set for late October, 1991.
On October 2, 1991, Whack moved to suppress his May 15, 1991 telephone conversation (as well as the in-person conversation) with Sampson "and any evidence derived [therefrom]." Whack based his motion on a single contention, i.e., "That the said telephone and oral conversations were illegally intercepted without the consent of the parties involved[.]" In particular, Whack contends that, in violation of Md.Cts and Jud.Proc.Code Ann. ["CJ"] § 10-402(c)(2), Sampson did not actually consent to interception of the conversations 5.
A hearing on the suppression motion was held on October 16, 1991 (Edward D.E. Rollins, Jr., J.). On the day of the hearing, but before the hearing itself had actually commenced, defense counsel informed the trial court that--despite being properly subpoenaed--Sampson had failed to appear. From Whack's perspective, Sampson's testimony was critical to his motion to suppress; i.e., without Sampson's own testimony, he could not effectively prove lack of Sampson's actual consent. The court volunteered: "If you want, I'll issue a body attachment and have him brought here." Defense counsel responded: "I would request that your honor."
Next, in deference to defense counsel's request, the trial court granted an approximate two-hour recess so that Whack might have some time to procure Sampson. Nevertheless, the record does not reflect that defense counsel (or, for that matter, Whack himself) made even the slightest attempt to contact or ascertain the whereabouts of Sampson during that hiatus. Thus, when the trial court reconvened 116 minutes later, Whack was still without his "star" witness. Accordingly, defense counsel moved the court for a continuance which the court, without much elaboration, denied.
Without Sampson's corroborating testimony, defense counsel was reduced to making an argument by analogy, i.e., since Watkins (according to his own testimony) had been allegedly offered inducements to cooperate with the wire-tapping and body-wiring plan, so too was Sampson probably offered similar inducements. Defense counsel's argument was supported by the following testimony at the suppression hearing:
[WATKINS:]
As [Sampson and I] got to the state police barracks, [the officers] told me what charge that I was, I was facing, and they told me how many years that I was facing. Then they asked me, if I help them they'd help me, by telling me that they would give me an alternative of four years and a $2,500 bond, being released on my own recognizance, as opposed to thirty years and a $100,000 bond.
So when they told me that, I cooperated with them so that I could get out.
[MR. ARAGONA (defense counsel):]
Did [the officers] make similar statements to Joey Sampson in your presence?
[WATKINS:]
Yes; as far as I know, yes.
Toward the conclusion of the hearing, defense counsel summarized his argument: "And I want to suggest to the Court that there's every reason to believe that Joey Sampson was similarly hit, as Mr. Watkins was, with these threats--and I would construe them as threats--if you don't cooperate, you'll get a $100,000 bond."
Nevertheless, the trial court denied Whack's suppression motion. In so doing, the court stated as follows:
I think there's substantial evidence before the Court that the young Sampson gentleman signed a consent, that he did so willingly, and that he voluntarily took part in the intercept by telephone with this defendant, and I deny the motion of suppress.
Prior to the court's ruling, defense counsel asked the judge "to reserve ruling until such time as we hear from Mr. Sampson directly." The motions judge responded:
I'm not going to reserve on any ruling. It's not my responsibility to see that the people are here. It's the attorneys' responsibility to summons their own witnesses in.
Well, you did, apparently, but you come in today and there was--you say you want a bench warrant, or a body attachment when the thing's ready for a hearing, and I don't even see, I don't believe--September 27th, a subpoena was issued. I don't see anything in here whether he was served or not.
After the ruling, the court, at the request of defense counsel, did indeed order the issuance of a body attachment for Sampson.
At 9:00 p.m. the next day, i.e., October 17, 1991, Sampson was murdered in Prince George's County, and thus he was rendered unavailable for trial.
On October 23, 1991, a jury trial on the merits was held. During the trial, the prosecutor elicited as part of his case-in-chief the following testimony with regard to statements made by the late Mr. Sampson:
[BY MR. KEMP, prosecutor:]
And specifically with regard to Mr. Sampson, did he make a statement to you [at the scene of the arrest]?
[APPLEBY, on direct examination:]
Yes, he did.
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