Green v. State

RICHARD ANDRE GREEN v. STATE OF MARYLAND

No. 3155

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

August 27, 2020

Circuit Court for Allegany County

Case No.: C-01-CR-17-57

UNREPORTED

Graeff, Reed, Moylan, Charles E., Jr., (Senior Judge, Specially Assigned), JJ.

Opinion by Graeff, 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.

Following a bench trial, the Circuit Court for Alleghany County convicted appellant, Richard Andre Green, of possession of cocaine with intent to distribute, possession of cocaine, and possession of Oxycodone. The court sentenced appellant to eight years, all but four years suspended, for the conviction of possession of cocaine with the intent to distribute, and six months concurrent, for the conviction of possession of Oxycodone, to be followed by three years' supervised probation.¹

On appeal, appellant presents the following questions for this Court's review, which we have slightly rephrased, as follows:

1. Did the circuit court err by admitting into evidence State's Exhibit 6, a package containing controlled dangerous substances, without an adequate chain of custody?

2. Did the circuit court abuse its discretion by accepting Trooper Lewis as an expert witness?

3. Was the evidence sufficient to sustain appellant's convictions?

For the reasons set forth below, we shall affirm the judgments of the circuit court.

BACKGROUND

Detective Eric Rice, the lead investigator and member of the Allegany County Narcotics Task Force, began an investigation concerning appellant in September 2017. This investigation culminated in the execution of a search and seizure warrant on October10, 2017, at 144 Wood Street, Apartment 3B, in Frostburg, Maryland. Appellant shared the residence with his wife, Carla Bernal. Detective Rice had seen appellant at this location on "numerous occasions" when conducting surveillance and engaging in "undercover police officer buys from Mr. Green."

On October 10, 2017, the police arrived at the residence at 8:20 p.m. to execute the search warrant. They saw appellant and Ms. Bernal standing outside the apartment building in the parking lot area, near their vehicle. Maryland State troopers detained appellant and Ms. Bernal and held them outside of the apartment for the duration of the search.

During the search, the police found small Ziplock baggies of suspected crack cocaine inside the pocket of a purple coat hanging in the bedroom closet. Additional contraband was found in the bedroom, including: two baggies of crack cocaine on the nightstand near the bed; two more baggies of suspected crack cocaine in a cellphone case; and a box of sandwich baggies located in the bedroom closet, on a shelf directly above the purple coat.

During the search, Maryland State Police Sergeant Andy Farrell noticed that the overhead globe light in the hallway of the apartment was not working. Upon closer inspection, Sergeant Farrell observed plastic bags, containing an unidentified substance, concealed within the globe light. He unscrewed the globe cover off the light fixture and discovered three bags inside, one contained a powdered substance and the remaining two held a rock-like substance. The police then searched appellant and found eleven Oxycodone pills in his pants pocket.

At trial, the State admitted evidence of a phone conversation between appellant and Ms. Bernal, recorded the next day, October 11, 2017, while appellant was incarcerated at the Allegany County Detention Center. Detective Rice testified that, during the call, appellant "referenced a light in the hallway um, right inside the, the front door where we located the powder cocaine and the crack cocaine." Appellant asked: "[D]id they find it up in the, the light thing?"

The call, which was played in court, contained the following dialogue:

[Appellant]: So that means, so that means that they didn't find the light thing until when?

Bernal: ...until when they were about to leave. Until like they noticed that the light wasn't goin' on. And then they just put the light right there. 'Cause they were about to leave and I was just like oh my God.

[Appellant]: I know. But they didn't have no right to take it. . . . This is just a wake up call for me and you.

Charles Miller, a forensic scientist with the Maryland State Police, and an expert in "forensic chemistry and the identification of controlled dangerous substances," testified that he examined three of the 63 baggies in State's Exhibit 6 and found that all three tested positive for cocaine. He also weighed all 63 baggies and found that the baggies and their content weighed 20.62 grams. Mr. Miller also tested one of the eleven tablets found on appellant, which tested positive for Oxycodone.

The State sought to qualify Trooper Trenton Lewis, a member of the Narcotics Task Force with the Maryland State Police, as an expert in the "manufacturing, processing, packaging, repackaging, transport and sales of controlled dangerous substances." TrooperLewis testified that he had not previously been accepted as an expert witness, and he had been a member of the Narcotics Task for a little over a year.

After Trooper Lewis was accepted as an expert, he testified that, in Allegany County, crack cocaine is usually sold in a plastic bag and priced at $50 for a half gram or $100 for a full gram. A crack cocaine user's home usually would contain needles, spoons, pipes, or other items that the user can use to ingest the substance.

Additional details will be provided as necessary in the discussion that follows.

DISCUSSION

I.

Appellant first contends that the circuit court erred in admitting State's Exhibit 6, which included Maryland State Police ("MSP") Form 67 and a package containing controlled dangerous substances. The form listed Detective Rice as the first person who took possession of the evidence, and it listed the location where the evidence was found as 144 Wood Street. Appellant asserts that the drugs were admitted without an adequate chain of custody because: (1) the chain of custody log indicates that Detective Rice was the person who located the narcotics in the globe light fixture, but Sergeant Farrell testified that he found them; and, (2) the chain of custody log shows that the eleven Oxycodone pills were found at 144 Wood Street, but Detective Rice testified that they were found in Green's pants when he was outside of the residence.

The State contends that the circuit court "properly exercised its discretion in finding that there was an adequate chain of custody to admit State's Exhibit 6." It characterizes appellant's claims as "hypertechnical" and argues that they are without merit.

"A trial court's ruling on the admissibility of evidence is generally reviewed for abuse of discretion." State v. Robertson, 463 Md. 342, 351 (2019) (citing Hopkins v. State, 352 Md. 146, 158 (1998)). "A trial court abuses its discretion only when 'no reasonable person would take the view adopted by the [trial] court,' or when the court acts 'without reference to any guiding rules or principles.'" Easter v. State, 223 Md. App. 65, 75 (quoting King v. State, 407 Md. 682, 697 (2009)), cert. denied, 445 Md. 488 (2015).

In determining whether the State has shown the chain of custody of evidence, "the court evaluates whether the State satisfied its burden of establishing that the evidence presented at trial is in substantially the same condition as it was when initially recovered." Wheeler v. State, 459 Md. 555, 561 (2018). "The chain of custody need not be established beyond a reasonable doubt—the State need prove only that there is a 'reasonable probability that no tampering occurred.'" Johnson, 240 Md. App. 200, 211 (2019) (quoting Cooper v. State, 434 Md. 209, 227 (2013)), aff'd on other grounds, 467 Md. 362 (2020).

As this Court explained in Easter, 223 Md. App. at 75:

Chain of custody evidence is necessary to demonstrate the "ultimate integrity of the physical evidence." Best v. State, 79 Md. App. 241, 256, 556 A.2d 701, cert. denied, 317 Md. 70, 562 A.2d 718 (1989). In most cases, an adequate chain of custody is established through the testimony of key witnesses who were responsible for the safekeeping of the evidence, i.e., those who can "'negate a possibility of "tampering" . . . and thus preclude a likelihood that the thing's condition was changed.'" Jones v. State, 172 Md. App. 444, 462, 915 A.2d 1010 (quoting Wagner v. State, 160 Md. App. 531, 552, 864 A.2d 1037 (2005)), cert. denied, 399 Md. 33, 922 A.2d 574 (2007). What is necessary to negate the likelihood of tampering or of change of condition will vary from case to case. Best, 79 Md. App. at 250, 556 A.2d 701. The existence of gaps or weaknesses in the chain of custody generally go to the weight of the evidence and do not require exclusion of the evidence as a matter of law. See Jones, 172 Md. App. at 463, 915 A.2d 1010 (upholding the admission of the evidence, but noting that the gaps in theState's chain of custody supported defense counsel's remarks in closing that the jury should discount its value).

Accord Boston v. State, 235 Md. App. 134, 161 (2017), cert. denied, 457 Md. 664 (2018).

Here, after the State's forensic scientist, Charles Miller IV, testified that the drugs he tested came back positive for cocaine, a Schedule II controlled dangerous substance, the State sought to admit them into evidence. Appellant objected. The following colloquy ensued:

[DEFENSE COUNSEL]: Um . . . I'm concerned at this point, I mean looking at the chain of evidence log and listening to the evidence so far, I don't think there's sufficient foundation as to, first of all as to the 11 pills um . . . We have evidence that Detective Rice did not search or locate the pills on ah, Mr. Green but what we do have is we have a chain of custody log that says that he was the

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