State v. Young

462 Md. 159

198 A.3d 806

STATE of Maryland

v.Steven YOUNG

No. 2, Sept. Term, 2018

Court of Appeals of Maryland.

December 18, 2018

Argued by Gary E. O'Connor, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Catherine E. Fata, Assigned Public Defender (Robert J. Meyer and Abigail L.P. Edwards, Assigned Public Defenders, Willkie Fan & Gallagher LLP, Washington, DC), on brief, for Respondent.

Argued before Barbera, C.J. Greene^* , Adkins, McDonald, Watts, Hotten, Getty, JJ.

Adkins, J."The true nature of the hearsay rule is nowhere better illustrated and emphasized than in those cases which fall outside the scope of its prohibition." 6 John Henry Wigmore, Evidence in Trials at Common Law § 1766, at 250 (Chadbourn rev. 1976). Steven Young was convicted by a jury in the Circuit Court for Baltimore City of possession and possession with intent to distribute controlled dangerous substances. Before trial, the State filed a motion to suppress introduction of any supposed prescriptions for controlled substances, which the Circuit Court granted on hearsay grounds. We consider whether the alleged prescriptions are barred by the rule against hearsay, or if instead, they are nonhearsay and admissible as a "verbal act."

BACKGROUND

In May 2014, Detective Manuel Larbi ("Larbi") and a team of officers executed a search warrant for 2580 Marbourne Avenue in Baltimore, Maryland. Larbi observed Steven Young and another male in front of the house. The officers handcuffed both individuals and entered the residence. Once inside, the officers observed a third individual, Angela Grubber, later identified as Young's wife. After Larbi read Young his rights pursuant to Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Young advised that he had controlled dangerous substances in the bedroom. Larbi went into the bedroom and found 32 pills of methadone, 3.5 grams of heroin, seven Xanax pills, and "a digital scale containing a powder substance." In the kitchen cabinet, Larbi recovered 342 OxyContin pills, ten gel caps containing suspected heroin, and $1,498 in cash.

Young was arrested and charged with illegal possession of controlled substances and possession with intent to distribute controlled substances. Young filed a motion to suppress evidence of these drugs, asserting that he "attempted to provide [prescriptions] to police during the incident, and explained that he [had] valid prescriptions for [m]ethadone, Xanax, and Percocet." Young also claimed he had "shown that his wife had valid prescriptions for [m]ethadone, Xanax, and Percocet." He did not attach copies of the prescriptions to the motion or otherwise provide specific information about them.

Young's trial in the Circuit Court began in January 2016. Before jury selection, the parties met with the trial judge in chambers. No record of the conversation was made. Upon returning to the courtroom, the prosecutor moved to exclude all evidence that Young had a prescription for the drugs seized. The court granted this motion in limine , without providing Young an opportunity to respond:

[PROSECUTOR]: And, Your Honor, the State's second motion that we spoke in chambers is the exclusion. State's moving a motion in limine to exclude any prescription evidence as it is, number one, hearsay, and, number two, not admissible hearsay because it does not fall within the exception of [Maryland Rule] 803[ (b) ](6).

Defense is trying to enter into evidence, number one, a prescription -- an alleged prescription of the defendant and, number two, a prescription by his wife, Angela Grubber, who is not going to testify today. These are copies of alleged prescriptions. They are not certified. The doctor is not present. There's no certification or authenticity and it's excluded under [Maryland Rule] 803[ (b) ](6). I do have a case, Bryant v. State , [129 Md. App. 690, 743 A.2d 814 (2000),] by the Court of Special Appeals where in a murder trial the defense tried to enter in a piece of paper that was the alleged toxicology report because it was murder. And the Court said it's hearsay, number one, even if the defendant took the stand --

THE COURT: Yeah. I'm familiar with that law because I had the very same issues several times. Okay. That motion is granted.

Defense counsel did not respond, object, or make a proffer in response. The case proceeded to trial.¹

During its case-in-chief, the State called Detective Larbi, who was accepted as an expert in the field of narcotics identification and packaging. Larbi testified that, in his expert opinion, the substances, scale, and currency recovered were for distribution, not personal use. The detective recalled that during one conversation, "Mr. Young also stated that he does sell from time to time," and that aside from four pills that were recovered, Young took ownership of all the other drugs at the house. Larbi also testified that Young never claimed to have a prescription for the drugs.

The jury convicted Young of eight counts: possession of heroin, oxycodone, methadone, and alprazolam; and possession with intent to distribute heroin, oxycodone, methadone, and alprazolam. After merging the possession charges, the trial judge sentenced Young to multiple years of imprisonment for the four counts of possession with intent to distribute.

Young timely appealed to the Court of Special Appeals, which affirmed in part and reversed in part. See Young v. State , 234 Md. App. 720, 174 A.3d 481 (2017). The intermediate appellate court held that "[v]alid prescriptions provide the basis of a statutory defense to the charges for possession of and possession with intent to distribute methadone, alprazolam, and oxycodone. Introducing them for such purpose, when properly authenticated, is not hearsay." Id. at 736, 174 A.3d 481. As a result, it reversed each of Young's convictions, except for his two convictions for possession of heroin and possession with intent to distribute heroin. See id. at 741, 174 A.3d 481.

DISCUSSION

1. Preservation

We first address two preservation issues: (1) Young's claim that the State failed to preserve the issue of whether he authenticated the alleged prescriptions; and (2) the State's claim that Young failed to preserve his claim that the trial court erred in excluding the alleged prescriptions.

Young's Preservation Argument—Authentication

Young argues that the State failed to raise the issue of authentication at trial and therefore cannot raise that issue on appeal. He maintains that the State's sole reference to authentication was in the context of its business records argument. This reference is insufficient, Young continues, because the prescriptions are not hearsay, and no exception is needed to properly admit them. Young further asserts that because he could self-authenticate the prescriptions, neither the physician nor her records custodian need testify.

The State responds that the prosecutor raised the issue of authentication in five ways. First, the prosecutor argued that there was no "authenticity"—meaning authentication. Second, by referring to the "alleged prescriptions," the prosecutor asserted that they were not genuine. Third, the prosecutor argued that "there's no certification," meaning that the prescriptions were not admissible without a sponsoring witness who could establish that they were authentic. Fourth, the prosecutor pointed out that "Young's wife is not going to testify today" and "the doctor is not present," meaning that Young was not calling witnesses who could potentially sponsor and authenticate the prescriptions. Finally, the prosecutor cited Bryant v. State , 129 Md. App. 690, 743 A.2d 814 (2000), in which the only issue on appeal was authentication.

We reject the State's arguments that it challenged authentication at trial because we do not ascribe the same meaning to the prosecutor's statements. Rather, the prosecutor clearly spelled out her reasons for excluding the prescription evidence, and they all clearly focused on challenging the prescriptions as inadmissible hearsay. Specifically, the prosecutor made her motion in limine "to exclude any prescription evidence as it is, number one, hearsay, and number two, not admissible hearsay because it does not fall within the exception of [ Md. Rule 5-803(b)(6) ]," the business records exception. Nor was the prosecutor's citation to Bryant v. State supportive, as Bryant involved the question of whether "the trial court err[ed] in admitting the results of a toxicology report into evidence as a business record," and the authentication issue wholly related to the document's admission and authentication as a business record. Finally, simply naming absent witnesses was not sufficient to preserve the State's objection, because Young could potentially authenticate the prescriptions through his own testimony. The trial court granted the motion in limine without giving the defense any chance to proffer or authenticate the alleged prescriptions.²

State's Waiver Argument—Exclusion of Prescriptions

The State argues that Young failed to preserve his claim that the trial court erred in excluding the alleged prescriptions. It contends that where a prosecutor has presented two independently dispositive reasons why the trial court should not take an action, and the court relies on those reasons, it is incumbent on a defendant to object or demonstrate why the prosecutor's arguments are not dispositive.

Young responds that the trial court was on notice of his position based on the crimes charged and his motion to suppress. Further, he contends that the court's ruling makes clear it was aware that he intended to introduce the prescriptions into evidence. As to the State's remaining argument, Young asserts that he did not have an opportunity to object to the ruling—the court granted the motion to exclude before the State finished its argument, and the court moved to the next motion without giving Young a chance to respond.

Under ...