Scott v. State

926 A.2d 792

175 Md. App. 130

Terrance SCOTT v. STATE of Maryland.

No. 1076 September Term, 2005.

Court of Special Appeals of Maryland.

June 28, 2007.

Claudia A. Cortese (Nancy S. Forster, Public Defender, on the brief), Baltimore, MD, for Appellant.

Sarah Page Pritzlaff (J. Joseph Curran, Jr., Atty. Gen. on the brief), Baltimore, MD, for Appellee.

JAMES R. EYLER, SHARER and WOODWARD, JJ.

SHARER, Judge.

A jury in the Circuit Court for Baltimore City convicted Terrance Scott of possession with intent to distribute heroin, cocaine, and marijuana.¹ On appeal, Scott raises three issues, which we have rephrased:

I. Whether the trial court abused its discretion in denying the defense motion for a new trial, based on a claim of juror misconduct.

II. Whether the evidence is sufficient to sustain Scott's convictions.

III. Whether the trial court abused its discretion by denying a motion to recuse.

For the reasons that follow, we shall affirm the judgments of the circuit court.

FACTUAL BACKGROUND

The jury heard testimony from Detective Mark Lunsford, of the Baltimore City Police Department, that, on February 21, 2003, he was working in an undercover capacity in a parked car in the 500 block of Laurens Street. Shortly after 3:00 pm, a black Chevrolet Malibu parked about 20 feet in front of Lunsford's car. The driver of the Malibu, later identified as Terrance Scott, got out and opened the trunk. He then stood by the back of the vehicle.

While Scott was standing next to the open trunk, a man approached and handed him what Lunsford described as "U.S. currency in bill form." After Scott accepted the cash, he "reached in the trunk [and] ... handed ... this black male small items, which were consistent in size and shape of street level packaged narcotics." Scott then closed the trunk and walked towards a nearby store.

Lunsford formed the opinion that he had just witnessed a narcotics transaction, and called for an arrest team. When the arrest team arrived, Lunsford exited his car and together they arrested Scott "right by the store." A search incident to the arrest yielded $237 in currency and a "remote car opening device."

Scott denied that he had been driving the Malibu, and explained that the keys he had been holding belonged to a cousin, and that he had driven his cousin's car without permission. Lunsford took the keys from Scott and operated the remote, which unlocked the vehicle. The passenger compartment of the car was searched, and police found a temporary vehicle registration in Scott's name, 81 vials of a substance later identified as cocaine, and four bags of marijuana. Recovered from the trunk were 244 gel-caps containing heroin. Scott was taken into custody and the vehicle was towed from the scene.

Lunsford, who was accepted by the court as an expert in the fields of drug enforcement, identification, packaging, and street-level narcotics distribution, opined that, based on his training and experience, the drugs were packaged not for personal use, but for distribution. One of the arrest team members, Detective Kenneth Ramberg, testified that the keys recovered from Scott fit the black Malibu.

The jury also heard from Savitri Sharma, a criminologist with the Baltimore City Police Department, who was accepted as an expert in the analysis of controlled dangerous substances. Her analysis of the contraband was recorded on a Baltimore City Police Department Form No. 442 Drug Analysis Report, which was admitted as State's Exhibit 41. Surveying "trace" amounts, Sharma reported, and testified at trial, that the samples tested positive for heroin, cocaine, and marijuana.

The defense presented the testimony of two witnesses who contradicted the State's case, especially the State's theory that Scott had driven the Malibu. Latasha Young recounted that, as she looked out of her window overlooking the scene, she saw Scott walk up the street and enter a store. She denied seeing Scott drive the Chevrolet Malibu, and further denied seeing any drug transaction. Damon Bowen said that he was "job hunting" with Scott that day. He recounted that they drove to Laurens Street that afternoon in Bowen's green Grand Cherokee, and that they both went into the store that was owned by Bowen's uncle.

We shall review additional facts as they relate to the issues raised on appeal.

DISCUSSION

1. Whether the trial court abused its discretion in denying the defense motion for a new trial, based on a claim of juror misconduct.

Scott moved for a new trial, primarily on a claim of juror misconduct, arguing that juror number 496 failed to respond truthfully to a voir dire question. After a hearing, the court denied his motion.

Scott asserts that, subsequent to the verdict, the defense learned that juror number 496 had a "negative history with Mr. Scott with respect to her sons." Scott also maintains that this juror "instilled a fear of the defendant" that caused the members of the jury to express "concern for their safety."² He maintains, therefore, that because of the asserted juror misconduct, the trial court "erred" by denying his motion for a new trial. We are not persuaded.

We review the trial court's denial of Scott's motion for a new trial based on juror misconduct for an abuse of discretion. Jenkins v. State, 375 Md. 284, 298-99, 825 A.2d 1008 (2003).

During the jury selection process, the court asked the prospective jurors whether anyone knew the defendant. Prospective juror 496 did not respond to this query, but did respond in the affirmative when later questioned about another matter.

In his motion for a new trial, Scott asserted in part that "a juror did not answer truthfully to voir dire posed to the panel; namely . . . [that she] did not stand when asked by the Court whether she knew Mr. Scott, and it has been revealed on information and belief that [the juror] in fact has known or known of Mr. Scott for many years." The motion was initially summarily denied by a chambers judge, and then heard fully by the trial judge at the disposition hearing on June 13, 2005.

The Motion Hearing

The transcript of the hearing on Scott's motion for a new trial reflects the following:

[DEFENSE COUNSEL]: ... Your Honor ... [w]e did not receive any response to [our subpoena request for information about the juror] in our office and what we wanted to do, Your Honor, was we wanted to subpoena Juror No. 496.... And what we had learned after the trial was that [the juror] has a history with Mr. Scott and that came to our attention after the trial as well as the specifics of that history. Your Honor, on information [and] belief the defense has learned that [the juror] has a negative history with Mr. Scott with respect to her sons. Her sons and Mr. Scott used to be in the same neighborhood. They used to run together and there is a negative history between [the juror's] children and Mr. Scott. After the jury verdict was read and after the jurors were about to, actually right before they were about to be released there came a note to the court where the jurors were expressing some concern over their safety.

* * *

We believe it was [juror 496] who had precipitated that concern among the jurors. She knows Mr. Scott. She did not disclose any of that information [on] voir dire.... Your Honor, we wanted to subpoena [the juror] to question her. I never received this. I would have made every attempt in the world to get [the juror] here today for this motion for a new trial for her testimony.

* * *

She did not stand up when it was asked whether or not she knew him.

THE COURT: ... we agree on that.

[DEFENSE COUNSEL]: And, Your Honor, what we wanted, I'm sorry —

THE COURT: Let me finish. And now of course you're stating that it's, I believe the words you use is has known or known of Mr. Scott for many years. There's really a, I don't know who knew this. I assume you're getting this from your client and if so, he probably knew it all along all through the trial, if that's true and he didn't say anything. I mean when did he suddenly have this sudden shot of enlightenment? And the other problem I have is that you're asking me to disregard that whether or not the juror was truthful or not and I have to then look at whether or not your client is a truthful person or is trying to get out of this trial. And in this case it's obvious that the jury didn't believe him....

* * *

And you come into court and I'm supposed to grant a motion for a new trial based upon the belief that your client suddenly discovered after the trial was over that this child of this woman had disputes with somebody connected with his family and didn't like him in the neighborhood.

[DEFENSE COUNSEL]: Well, if I could clarify my exact request at this point. Because I did not receive a copy of the certificate of record what I'm simply asking, Your Honor, is to be given the opportunity to summons [the juror] and bring her before the court to find out exactly what she knew, if anything, about Mr. Scott on the day of trial. That's what I'm asking.

The trial judge inquired about Scott's address and that of the juror, and pointed out that these addresses were "far apart." Defense counsel reiterated his request to question the juror at a hearing about the extent, if any, of her knowledge, and again complained that the jury commissioner failed to respond to his subpoena. The trial judge then inquired about the nature and extent of Scott's knowledge of this juror:

THE COURT: When did your client tell you this?

[DEFENSE COUNSEL]: My client intimated to me at the close of evidence that he suspected he knows who that juror is. He did not give a name. He just said —

THE COURT: When did he tell you this? When?

[DEFENSE COUNSEL]: At the close of evidence.

THE COURT: Close of evidence.

[DEFENSE COUNSEL]: He suspected he knew who that person was.

THE COURT: Did you bring this to my, did you bring this to my attention when I could have asked the juror once the juror was in the...