Lewis v. State (Ct. of Appeals)

Filed April 12. 2007. Opinion by Judge Lynne A. Battaglia. Dissenting opinion by Judge Lawrence F. Rodowsky (retired, specially assigned), joined by Judges Raker and Harrell.

From the official headnote:

CRIMINAL LAW – SUPPRESSION OF EVIDENCE:
Petitioner, Lamont Anthony Lewis, sought review of the denial of his motion to suppress the seizure of marijuana discovered during a traffic stop. The marijuana was discovered by police stopped Lewis after he "almost" struck a police car when he pulled his vehicle away from a curb; Lewis was convicted of possession of a controlled dangerous substance, marijuana, in violation of Section 5-601 (c)(2) of the Criminal Law Article, Maryland Code (2002). The Court of Appeals reversed, and held that the court erred in denying Lewis’s motion because the police did not have an articulable reasonable suspicion to stop Lewis based upon the fact that he "almost" hit the car.

In dissent, Judge Rodowsky found the evidence sufficient to support the traffic stop, because the misdemeanor of negligent driving was committed in the presence of the police officers.

The majority and dissenting opinions are available in PDF format.

Haley v. State (Ct. of Appeals)

Filed March 21, 2007--Order by Judge Irma S. Raker, joined in all but Part III by Chief Judge Robert M. Bell.

Haley was convicted of robbery, second-degree assault, theft of property valued at $500 or more, unauthorized use of a motor vehicle, and theft of a motor vehicle.

The victim in this case ("Singer") testified at trial that, based on his belief that Haley was a woman in distress, stopped his car in the late night/early morning to help her. Once inside the car Haley propositioned him for sex, at which point Singer demanded Haley leave his car. Haley then threatened Singer with a knife demanding his money. Singer testified that he then ran from the car on noticing an approaching cab, and Haley drove off with Singer's car. Singer then called the police and, later that morning, identified Haley in a line up. Prior to that incident, Singer testified he had never met Haley.

Haley testified that he and Singer had been having a homosexual relationship off and on for over a year or so. On that particular evening, Haley began teasing Singer that he was going to tell Singer's son about their relationship. The conversation became serious because Haley stated he was tired of hiding in Singer's closet, literally, whenever his son and neighbors came by, and an argument ensued. Singer then stated he was going to catch a cab and ordered Haley to stop the car on noticing the approaching cab.

In an effort to demonstrate the ongoing relationship with Singer, Haley, during trial, described the outside of Singer's residence, the area surrounding the residence, items inside the residence, and Singer's dog. Over objection, the State was permitted to question Haley about when he relayed the information about his familiarity with Singer's house and dog to his defense counsel.

In an unreported opinion, the intermediate appellate court affirmed the conviction holding that Haley's information was intended to be disclosed to third parties and, consequently, the attorney-client privilege was not breached. It seems that, prior to Haley discussing his defense with his counsel, he provided a report to "some lady." It is this testimony that this Court reviews for breach of attorney-client privilege.

This Court granted a writ of certiorari to consider two questions:

1) Did the Court of Special Appeals err in holding that the attorney-client privilege does not extend to information provided by a criminal defendant to his defense attorney that would later form the basis of his defense at trial because such information was "intended to be disclosed to a third party?"

2) Where the only description of the suspect involved in a carjacking is a "black female with long hair" wearing a mult-colored shirt," did the officer in this case have probable cause to arrest the petitioner, a black male with short hair, several hours later based primarily on the fact that he was wearing the same shirt?

In reviewing the grant or denial of a motion to suppress evidence under the 4th Amendment, an appellate court considers only the information contained in the record of the suppression hearing and not the record developed at trial. The attorney-client privilege is well established and understood to be a rule of evidence that prevents the disclosure of a confidential communication made by a client to his attorney for the purpose of obtaining legal advice. In its analysis of privilege, the Court set out the elements as follows: (1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client (6) are at his insistence permanently protected (7) from disclosure by himself or by his legal adviser, (8) except that the protection may be waived. There is no legal distinction between the disclosure of [the contents] of a communication as distinguished from the fact that no such communication was ever made between the client and the attorney. The fact that a defendant testifies in his own behalf does not waive the privilege. Consequently, this Court held that the timing and the substance of Haley's communications to his defense counsel was, in fact, privileged communication.

The second question goes to whether the officer had probable cause to arrest Haley given the description of the suspect as a "black female with long hair" wearing a "multi-colored shirt." In considering whether probable cause existed, the Court considers the totality of the circumstances, in light of the facts found to be credible by the trial judge, factoring in the variables of the information leading to police action, the environment, the police purpose, and the suspect's conduct. A finding of probable cause requires less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion. Even though Haley did not match the description, per se, the Court was pursuaded by the fact that the arresting officer, after getting confirmation that the car he was following was indeed the subject of the carjacking, personally observed Haley during the commission of the crime and then again when he executed the arrest. Thus, the particularity of the description of the offender was based on first-person observation. Consequently, this Court held there were sufficient facts on the record to justify reasonable grounds for belief by the officer that Haley was associated with the carjacking.

The full opinion is available in PDF.

Massey v. State (Ct. of Special Appeals)

Filed March 7, 2007--Opinion by Judge J. Frederick Sharer.

Appellant was convicted of possession with intent to distribute a controlled dangerous substance and possession of cocaine following a bench trial in the Circuit Court for Wicomico County. Appellant noted this appeal after his motion for a new trial and to correct an illegal sentence was denied, raising four issues:

1) Whether the suppression court erred in denying Massey's motion to suppress.

2) Whether the trial court erred by not directing the State to provide the defense with a witness's report.

3) Whether the trial court erred by considering evidence outside the record.

4) Whether the trial court erred in accepting Massey's jury trial waiver.

In limited review of the disposition of the motion to suppress, the Court considered de novo evidence and reasonable inferences drawn therefrom in the light most favorable to the prevailing party, in this instance the State.

Takoma Griffith was arrested as a result of a narcotics investigation at the Delmarva Inn. In his post-arrest interview, he telephoned and arranged for Massey to drive down from Delaware and come to the room to deliver crack cocaine. Seated next to him during the call, Griffith's arresting officer could hear partial voices on the other end of the call but admitted he could not identify the person to whom Griffith was speaking. Griffith confirmed Massey's identity from a photograph officers printed from the Delaware Criminal Justice Information System computer, and when Massey arrived at the Inn officers took him into custody and seized 3.9 grams of crack cocaine from his person and an additional 3.1 grams from his automobile. Massey now asserts that the suppression court erred in concluding that Griffith was trustworthy and takes issue with the rationale that Griffith was known to the police and was motivated to cooperate.

The Court reasoned that Griffith was neither a confidential informant, an anonymous tipster, nor an innocent civilian. Rather, he was caught red-handed, and the fact that he was interviewed "face-to-face" by police strengthens the reliability of his information. The basis of Griffith's knowledge was easily established because his information was grounded on his past conduct with Massey and by the events as they unfolded in police presence. The reliability of his information was confirmed by corroboration of details by the police, and his veracity was enhanced by the fact that he provided the information with police under circumstances that would make his information more likely to be true -- face-to-face after his arrest.

At issue in the second question was whether the officer who found the crack cocaine in Massey's automobile should have been permitted to testify even though the State failed to provide, through discovery, any report that he may prepared. During cross-examination, the officer stated that he believed he had prepared a report but had not used it to prepare his testimony and did not bring a copy to court. The Court concluded that the State had the obligation under Maryland Rule 4-263 to provide any such reports during discovery and made no effort to assuage the issue by providing relevant information. The State should have affirmatively advised the trial court that such report either did or did not exist or, if the State was likewise uncertain, ought to have sought from the court the opportunity to clarify whether such report was made. It is not for the witness to declare that the report was not used for his testimony; whether the report is useful to the defense is up to the defendant. As such, the trial court had an affirmative duty to ascertain whether the officer's report indeed existed and, if so, to ensure that it was available for review. Conviction vacated and remanded for new trial.

Third, Massey refers to the two seized baggies of cocaine. Massey's objection to the admission of the laboratory analysis of the baggie seized from his person was sustained, and admission was precluded as a discovery sanction against the State. Nonetheless, the arresting officer made reference to the baggie during his testimony, and the court engaged in a colloquy as to the significance of the difference in the weights of the two baggies (intent to distribute as opposed to personal use). Massey now argues that the trial court erred in permitting the discussion of the first baggie even though the laboratory analysis was excluded. In other words, Massey argues that the court took into account the total amount of cocaine seized from him in reaching its verdict of possession with intent to distribute, and that the possession of only 3.1 grams (the amount found in the second baggie) is insufficient to infer such an intent. While the trial judge was aware of what evidence had been admitted and what was not in the record, his decision demonstrates that the substance from the first baggie played some part in the finding that Massey had possessed cocaine in sufficient quantity to indicate the intent to distribute. Notwithtanding that there is sufficient evidence of possession with intent to distribute based solely on the possession of 3.1 grams of cocaine, the Court was unable to conclude that the trial judge ignored the persistent references to the other baggie. As such, this conviction was also vacated and remanded.

Finally, Massey asserts that the trial court made no finding that his waiver of his right to a trial by jury was intelligently and voluntarily made. This Court, however, found satisfaction that the waiver procedure was adequate and in compliance with Md. Rule 4-246.

The full opinion is available in PDF.