Evans v. State (Ct. of Special Appeals)

Filed May 3, 2007--Opinion by Judge Arrie Davis.

Subsequent to the sale of heroin to an undercover detective, Evans was arrested by another detective and approximately five members of a Baltimore City arrest team. A search conducted by the arresting detective produced one clear gel capsule containing suspected heroin in Evans' back pocket. In a pre-trial suppression hearing, defense counsel moved to suppress the evidence based on lack of probable cause. Both the undercover detective to whom the drugs were sold and the arresting detective testified at the suppression hearing. Subsequent to his jury conviction, Evans presented the following issues for review:

(1) Whether the trial court erred in failing to suppress evidence illegally obtained from [Evans] in a search incident to an arrest made without probable cause.

(2) Whether the trial court erred in instructing the jury on the State's failure to use certain investigative and scientific techniques, where the instruction hampered [Evans'] ability to present his legal defense and was not part of the Maryland Pattern Criminal Instructions.

Evans argued that, during the suppression hearing, the testimony of either detective failed to establish probable cause to arrest or subsequently search him. He based his contention on the fact that the only eyewitness to the buy-bust was the undercover detective who then relayed the information to the arresting detective, and the information provided to the arresting detective was too general to establish probable cause.

The State contended that because Evans failed to raise the issue at trial that the information relayed between the detectives was too general to establish probable cause, he was precluded, by Maryland Rule 8-131, from raising the issue on appeal.

The threshold issue, then, before the Court was whether Evans raised the lack of sufficient description to establish probable cause at trial as he did in his appellate brief. The Court found that defense counsel's argument at trial questioned the detectives about the description [of Evans] given to the arrest team. However, his counsel's argument was premised upon the claim that Evans was not acting in concert with the other arrestee. Thus, the issue of vagueness did not appear to have been raised, much less decided by the trial court, and Evans was precluded from raising it on appeal.

Evans further contended that the trial court went too far in charting a corrective course for the jury as to the significance to attribute to the alleged void in the State's evidence. The net effect of the court advising the jury that the State had no obligation to produce evidence, which was indisputably available to it, either explicitly or implicitly relieved the State, in the minds of the jurors, of the burden to establish guilt beyond a reasonable doubt. Evans contends this diminution of the State's burden unfairly prejudiced him.

The trial judge was prompted to give the questioned instruction by the cross-examination of one of the detectives, which inquired as to specific investigative techniques that were not used in this case. At the close of the State's case in chief and outside the presence of the jury, the court reviewed the instructions with all parties. Objections by defense counsel for the co-defendant were duly noted and overruled, but Evan's counsel did not note an objection at that point. Following the reading of the instruction to the jury, co-defendant's counsel noted another objection to the same instruction, but Evan's counsel, again, did not object.

The Court held that, pursuant to Rule 4-325, failure to request an instruction or object to an instruction constitutes a waiver. The trial record clearly demonstrates that Evan's counsel failed to object to the instructions at issue during the proceedings. In his brief, he relies solely on the objection raised by co-defendant's counsel. However, a bedrock principle of Maryland law is that a defendant may not rely on an objection made by a co-defendant for the purpose of raising an appeal as to that issue. Accordingly, Evans' failure to raise such issue in the trial court precluded the Court from such consideration on appeal.

The full Order is available in PDF.

Cunningham v. State (Ct. of Appeals)

Filed March 15, 2007--Opinion by Judge Alan M. Wilner (retired, specially assigned).

Appellant was caught distributing counterfeit compact discs (CDs) and digital video discs (DVDs) from the back of his van and was subsequently convicted in the Circuit Court for Baltimore City of (1) possession with intent to distribute goods of a value less than $1,000 that Appellant knew bore or were identified with a counterfeit mark, (2) possession for purposes of delivery of recorded articles on which sounds or images had been transferred that did not contain the same name and address of the transferor of the sounds or images, and (3) acting as a peddlar without a license. The court sentenced Appellant to 18 months in prison, with all but 30 days suspended in favor of 18 months probation. As an additional penalty, the court required that Appellant pay restitution in the amount of $955.

Although no objection was made to the restitution order and notwithstanding Appellant immediately, at the sentencing hearing, paid the restitution, Appellant now complains that the order constitutes an illegal sentence because (1) the recipient was neither a victim nor a proper restitution payee, and (2) no evidence was introduced regarding the amount of restitution.

Referring to Chaney v. State, to fit within the category of an illegal sentence, the illegality must inhere in the sentence itself, i.e., there either has been no convinction warranting any sentence or the sentence is not a permitted one for the conviction upon which it was imposed and, for either reason, is intrinsically and substantially unlawful. This Court held that the Order challenged here did not fit within the ambit of an "illegal sentence" in that regard, and the alleged deficiencies went only to the amount and to whether the recipients were persons entitled to restitution. Any other deficiency in the sentence that may be grounds for an appellate court to vacate it must ordinarily be raised in or decided by the trial court. Subject only to the appellate court's discretion under Maryland Rule 8-131(a), the defendant is not excused from having to raise a timely objection in the trial court. Here, not only did the Appellant not object to the restitution, but brought money orders totalling $955 to the sentencing hearing, made them payable to persons not identified in the record, and delivered them to the prosecutor.

Held: When a criminal defendant fails to raise a timely objection in the trial court to a valid restitution order, that defendant waives any complaint about the amount or the recipient of the restitution.

The full opinion is available in PDF.