Conte v. State

DENNIS ALLEN CONTE, III v. STATE OF MARYLAND

No. 1296

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

October 26, 2017

Circuit Court for Cecil County

Case No. K-15-1364

UNREPORTED

Beachley, Shaw Geter, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Shaw Geter, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

After shooting three individuals during an altercation in North East, one of whom died, Dennis Allen Conte, III, appellant, fled to Elkton, where he was quickly apprehended by police officers responding to a "be on the lookout" for the suspected shooter and getaway vehicle. A jury in the Circuit Court for Cecil County convicted appellant of attempted second degree murder, three counts of first degree assault, possession of heroin with intent to distribute, and related crimes. He was sentenced to a total executed time of forty-five years.

Challenging those convictions and sentences, appellant raises three questions that we reorder and restate as follows¹:

1. Did the hearing court err in denying appellant's motion to suppress evidence obtained following a Terry stop² that led to appellant's arrest and a search of his vehicle?

2. Did the trial court violate the prohibition against double jeopardy by changing its ruling on appellant's Motion for Judgment of Acquittal onthe charge of heroin possession, and thereafter sending that charge, as well as a related charge of possession with intent to distribute, to the jury?

3. Did the sentencing court err in hearing unsworn statements from anonymous victim impact witnesses?

For the reasons that follow, we hold that the hearing court did not err in denying appellant's motion to suppress. Although we agree with appellant that the trial court erred in changing its ruling on the possession charge, it did not err in sending the possession with intent to distribute count to the jury. On the sentencing challenge, we conclude that appellant's complaints are not preserved for appellate review. Accordingly, we shall reverse in part and affirm in part.

BACKGROUND

Shortly after 3 a.m. on September 9, 2015, police and paramedics in Cecil County responded to a 911 report of multiple shootings in the Lakeside Park neighborhood of North East. Two victims, George Thodos and Shannon Burlin, survived, but Joshua Hodge later died of multiple gunshot wounds. Because appellant does not challenge the sufficiency of the evidence supporting his convictions, we summarize the trial record to provide context for the issues addressed in this appeal. See Washington v. State, 180 Md. App. 458, 461 n.2 (2008).

At trial, the State presented evidence that earlier that evening, appellant sent a group text message, stating that he was at 418 Lakeside Drive to offer "samples" of a "new batch" of heroin. Among those who received this message were Lakeside Park residents Joshua Hodge and Frank Thodos.

When George Thodos, Frank's cousin, learned that appellant was on Lakeside Drive, he informed Frank that he was going there to confront appellant. George had been angry since the week before, when appellant left Frank without a ride back from his mother's home in Elkton. Separately, Mr. Hodge and Ms. Burlin walked from their residence to 418 Lakeside Drive, planning to accept appellant's offer of samples. Coincidentally, they arrived at the same time as George Thodos.

When the three visitors entered the residence, George Thodos immediately assaulted appellant. Joshua Hodge broke up the fight. According to Shannon Burlin, while appellant was still down on his knees, he pulled a handgun from his waist area and starting firing. Ms. Burlin was shot once in the neck; Mr. Thodos was shot once in the hip; and Mr. Hodge was shot four times, in the abdomen, hip, thigh, and arm. The casings at the scene of the shooting were marked "380 auto."

Joshua Hodge and Shannon Burlin fled to the nearby residence of Justin Hodge, a family member who called 911. Joshua told Justin that "D shot me."

Witnesses reported to responding police officers that appellant, an African-American male known as "D," fled in a dark blue minivan with Delaware tags and that he was known to frequent Elkton near the former Brothers Pizza shop. Less than an hour after receiving a "be on the look-out" ("BOLO") broadcast relaying that information, Elkton police found appellant's vehicle in the parking lot next to that shop; they arrested appellant as he was hiding nearby.

Executing a search warrant for the van, police recovered heroin, both uncut and packaged for street sale, along with other packaging materials and three cell phones. Also in the van was a .38 semiautomatic handgun and ammunition, as well as ammunition for a .357 handgun.

Appellant admitted that he was present during the shootings but claimed self-defense. He testified that it was George Thodos who, after assaulting him, produced the gun and that the weapon fired as they struggled over it. After appellant got control of the gun, George Thodos ran, and appellant "fired one shot" at him.

The jury acquitted appellant of second degree murder in Joshua Hodge's death and attempted second degree murder in the shooting of Shannon Burlin. He was convicted of attempted second degree murder in George Thodos's shooting, as well as first degree assault against all three victims, possession of heroin, possession of heroin with intent to distribute, and use of a firearm in the commission of a crime of violence.

At sentencing, the court "rejected" documents submitted by individuals who were not present in court. Relatives of Mr. Hodge, some of whom remained anonymous with the court's permission, made victim impact statements. Appellant was sentenced to twenty-five years for first degree assault of Mr. Hodge, a consecutive twenty years for first degree assault of Ms. Burlin, ten years concurrent for the attempted murder of Mr. Thodos, ten years concurrent for possession with intent to distribute, and a mandatory five years for use of a handgun. The convictions for possession and first degree assault on Mr. Thodos were merged for sentencing purposes.

We shall add pertinent facts in our discussion of the issues raised by appellant.

DISCUSSION

I. Suppression Challenges

Appellant contends that he "was the subject of an unlawful stop, and an unlawful search of his person, and the fruit of those Fourth Amendment violations was the warrant - otherwise lacking probable cause - used to search a vehicle near the scene of his arrest." Specifically, he argues that (1) "[p]olice lacked reasonable suspicion to detain" him; (2) "[p]olice lacked reasonable suspicion to search [his] person"; (3) "[a]ssuming that [p]olice could search [his] person, the State failed to show a lawful basis for his continued detention" and arrest; and (4) "[t]he lower court erred in failing to suppress the fruit of the unlawful stop...or unlawful search[,]" which includes the drugs, paraphernalia, gun, ammunition, and cell phones recovered during the warrant search of his vehicle.

The State counters that appellant's suppression challenge must be limited to the two arguments defense counsel made at the suppression hearing, which were that police lacked probable cause for the arrest and that there was no probable cause for the warrant authorizing the search of appellant's van. On the merits of those two issues, the State argues that police had reasonable suspicion to stop appellant and then probable cause to arrest him after they found pills on him; that "the only information gleaned from Conte's arrest was his identity, which is not a suppressible 'fruit'"; and that given the witnessidentifications of appellant and his vehicle, there was probable cause to support the search warrant.

After reviewing the record of the suppression hearing and the legal standards governing appellant's Fourth Amendment challenges, we shall address - and reject - each of his contentions in turn.

A. Fourth Amendment Suppression

The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, prohibits "unreasonable searches and seizures." U.S. Const., amends. IV, XIV. The Court of Appeals recently summarized the standards governing warrantless seizures and searches as follows:

For the Fourth Amendment's purposes, a "seizure" of a person is any nonconsensual detention. There are two types of seizures of a person: (1) an arrest, whether formal or de facto, which must be supported by probable cause; and (2) a Terry stop, which must be supported by reasonable articulable suspicion. During a Terry stop, for the sake of the safety of the law enforcement officer and others, a law enforcement officer may frisk a person who the law enforcement officer has reason to believe is armed and dangerous.

A law enforcement officer has reasonable articulable suspicion that a person is armed and dangerous where, under the totality of the circumstances, and based on reasonable inferences from particularized facts in light of the law enforcement officer's experience, a reasonably prudent law enforcement officer would have felt that he or she was in danger. Because a court considers the totality of the circumstances, the court must not parse out each individual circumstance; in other words, a court must not engage in a "divide and conquer" analysis. Indeed, a circumstance may be innocent by itself, but appear suspicious when considered in combination with other circumstances.

Reasonable articulable suspicion is a commonsense, nontechnical concept that depends on practical aspects of day-to-day life; as such, a courtmust give due deference to a law enforcement officer's experience and specialized training, which enable the law enforcement officer to make inferences that might elude a civilian. That said, although

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