Cason v. State

780 A.2d 466

140 Md. App. 379

Robert James CASON v. STATE of Maryland.

No. 1648, Sept. Term, 2000.

Court of Special Appeals of Maryland.

September 7, 2001.

Geraldine K. Sweeney, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief) Baltimore, for appellant.

Jason F. Trumpbour, Staff Atty. (J. Joseph Curran, Jr., Atty., Diane E. Keller, Asst. Atty. Gen. and Patricia Jessamy, State's Atty. for Baltimore City, on the brief) Baltimore, for appellee.

Argued before HOLLANDER, DEBORAH S. EYLER, and JAMES S. GETTY, (Ret'd, Specially Assigned), JJ. DEBORAH S. EYLER, Judge.

A jury in the Circuit Court for Baltimore City convicted Robert James Cason,¹ the appellant, of possession of heroin with intent to distribute, possession of cocaine with intent to distribute, simple possession of heroin, and simple possession of cocaine. He was sentenced to a term of 20 years imprisonment for the possession of heroin with intent to distribute conviction and a concurrent 20 year term for the possession of cocaine with intent to distribute conviction. The other convictions were merged for sentencing.

On appeal, the appellant presents the following questions for review:

I. Did the suppression hearing judge err by abandoning his role of neutrality and assuming the role of prosecutor?

II. Did the suppression hearing court err in denying the appellant's motion to suppress evidence observed by the police during a warrantless search of his house?

III. Did the trial court err in denying the appellant's motion for recusal?

IV. Did the trial court err in allowing the case to continue after a violation of the sequestration rule?

V. Did the trial court err in allowing the case to be tried using a xeroxed copy of the search and seizure warrant?

For the following reasons, we answer "no" to these questions. Accordingly, we shall affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS

In December 1998, the appellant and his wife and daughter were living at 811 Druid Park Lake Drive, in Baltimore City. The home, which was owned by the appellant's mother, was protected by an ADT alarm system. The front bedroom window, on the second story of the house, was not wired into the alarm system, but had a grate affixed to it.

On December 10, 1998, the appellant called his insurance company and reported that he had found the grate on the front bedroom window ajar, that the window itself was damaged, and that some items of personal property were missing from the room. When the appellant inquired about having the insurance company pay to fix the window, the adjuster responded that he would need a police report number to process the claim. The appellant did not have such a number because he had not reported the alleged break-in to the police.

That night, the appellant called the police to report the break-in. The police did not respond. The following morning, December 11, the appellant again called the police. This time, Officer Steven Mayhan and his partner, Officer Whiting, patrol officers with the central district, responded to the call.² They arrived at the appellant's house at approximately 10:00 a.m.

The following is Officer Mayhan's version of the events that culminated in the appellant's arrest.³

The appellant met the officers outside, in front of his house. The appellant told the officers that the house had been broken into and pointed to the front bedroom window as the point of entry. He further told the officers that he needed a police report to submit to his insurance company. In response, Officer Mayhan told the appellant that the officers needed to investigate. The appellant then took the officers into the house and led them upstairs to the front bedroom.

Officer Mayhan found the front bedroom window closed with the grate ajar. He examined the window and found no signs of forced entry. The appellant told Officer Mayhan that the items stolen from the room were a .380 handgun and some jewelry. Officer Mayhan looked around the room and saw that it contained numerous palm-sized camcorders and cell phones, a tray of silver coins, and many new VCRs, still in their boxes.

Officer Mayhan and the appellant walked back downstairs. Officer Mayhan asked to be seated at the dining room table so he could speak to the appellant and get some more information from him. Officer Mayhan proceeded to ask the appellant his name, date of birth, and general information necessary for the burglary report. Officer Mayhan sensed that the appellant was irritated about having to give the general information necessary for the burglary report.

While Officer Mayhan was seated at the dining room table asking questions of the appellant, he noticed an ashtray on the table that contained several bullets of different calibers. He also noticed an open toolbox containing "several hundred empty gelatin capsules."

Officer Mayhan told the appellant that he was going out to his police cruiser to get some more reports. In fact, Officer Mayhan went to the cruiser to call the appellant's name and date of birth into the police computer to see if there were any outstanding warrants for him. Officer Mayhan learned that there were two warrants for the appellant, one for a traffic violation and one for a failure to appear. Officer Mayhan then used the cellular telephone in his cruiser to call the district drug unit to determine whether the appellant had a criminal record. He spoke to Detective William Denford and Detective Mark Lunzford, who informed him that the appellant was a convicted felon.

Officer Mayhan returned to the appellant's dining room to continue writing his report. The appellant told him that he thought the burglar had only been inside the front bedroom of the house because the window in that room was the only entry to the house that was not connected to the alarm system.

In response to Officer Mayhan's call to the district drug unit, a number of officers from that unit came to the scene, among them Detective Denford. Officer Mayhan showed Detective Denford the front bedroom window. Officer Mayhan and Detective Denford then went to the basement of the house, where they observed an interior basement room with a door that was knocked off its hinges. The officers looked through the doorway opening to that room and saw a scale, a sandwich bag containing a large amount of white powder, and what appeared to be drug packaging material. At that point, the officers placed the appellant under arrest.

Detective Denford's rendition of the events in question was as follows.⁴ He and his partner, Detective Lunzford, arrived at the appellant's house and were told by Officer Mayhan that he had a suspicious report of a burglary, that the complainant was very nervous, and that there were "several" gelatin capsules in the complainant's dining room. Officer Mayhan and Detective Denford then went to the upstairs bedroom. Detective Denford observed that, although the window grate was open, there were no scrape marks or any signs of forced entry on the window.

Detective Denford, Officer Mayhan, and Detective Lunzford then went to the basement of the house, where they saw an interior door that had been smashed off its hinges and was lying on its side in the doorway. Detective Denford and the other officers went to the basement as part of their investigation of the point of entry of the alleged burglary and to protect the crime scene. Detective Denford denied that the burglary investigation had become a "ruse ... [for] traipsing throughout [the] entire house looking to undercover [sic] controlled dangerous substances [.]" He explained that he looked inside the basement room and saw a plastic bag containing a white substance and vials, capsules, and "stuff" strewn about a table in the room. Based on his training and experience in the field of narcotics investigation, he suspected the white substance to be heroin or cocaine.

Using the information they had obtained in their walk through the basement of the appellant's house, the officers prepared a written application for a search and seizure warrant. The warrant was issued and executed the same day. In the search and seizure effected pursuant to the warrant, the officers found in the basement room of the appellant's house: a brown bag containing 90 red capsules of heroin; a plastic bag containing 49 grams of cocaine; a plastic bag containing 8.9 grams of heroin; a plastic bag containing 121 grams of a white substance determined to be a noncontrolled dangerous substance; a plastic bag containing 10 pounds of a white substance suspected to be a cutting agent; an electronic scale with residue; and implements used in drug processing and distribution. In addition, the officers found and seized 25 bullets from an upstairs bedroom.

Detective Denford testified that an item of evidence marked "item 9," identified as "[t]housands of empty gel capsules," was recovered from the basement and the dining room of the house. When asked by the suppression hearing judge to specify what was seized from the dining room, Detective Denford replied, "bullets, Your Honor, and a bag with several gelatin capsules."

Additional facts will be recounted in our discussion of the issues.

DISCUSSION

I.

The appellant first contends that the suppression hearing judge abused his discretion by abandoning his neutral role and assuming the role of prosecutor. Specifically, the appellant argues that the suppression hearing judge acted improperly by reopening the evidentiary portion of the case to admit additional testimony and evidence that the prosecutor had not introduced during his presentation of the case. Officer Mayhan and Detective Denford were the only witnesses called by the State at the suppression hearing. The appellant and his mother, Carolyn Cason, testified at the suppression hearing. The State called Officer Mayhan as a rebuttal witness and the defense then announced that it had no surrebuttal. The contraband seized in...