Massey v. State (Ct. of Special Appeals)

Filed March 7, 2007--Opinion by Judge J. Frederick Sharer.

Appellant was convicted of possession with intent to distribute a controlled dangerous substance and possession of cocaine following a bench trial in the Circuit Court for Wicomico County. Appellant noted this appeal after his motion for a new trial and to correct an illegal sentence was denied, raising four issues:

1) Whether the suppression court erred in denying Massey's motion to suppress.

2) Whether the trial court erred by not directing the State to provide the defense with a witness's report.

3) Whether the trial court erred by considering evidence outside the record.

4) Whether the trial court erred in accepting Massey's jury trial waiver.

In limited review of the disposition of the motion to suppress, the Court considered de novo evidence and reasonable inferences drawn therefrom in the light most favorable to the prevailing party, in this instance the State.

Takoma Griffith was arrested as a result of a narcotics investigation at the Delmarva Inn. In his post-arrest interview, he telephoned and arranged for Massey to drive down from Delaware and come to the room to deliver crack cocaine. Seated next to him during the call, Griffith's arresting officer could hear partial voices on the other end of the call but admitted he could not identify the person to whom Griffith was speaking. Griffith confirmed Massey's identity from a photograph officers printed from the Delaware Criminal Justice Information System computer, and when Massey arrived at the Inn officers took him into custody and seized 3.9 grams of crack cocaine from his person and an additional 3.1 grams from his automobile. Massey now asserts that the suppression court erred in concluding that Griffith was trustworthy and takes issue with the rationale that Griffith was known to the police and was motivated to cooperate.

The Court reasoned that Griffith was neither a confidential informant, an anonymous tipster, nor an innocent civilian. Rather, he was caught red-handed, and the fact that he was interviewed "face-to-face" by police strengthens the reliability of his information. The basis of Griffith's knowledge was easily established because his information was grounded on his past conduct with Massey and by the events as they unfolded in police presence. The reliability of his information was confirmed by corroboration of details by the police, and his veracity was enhanced by the fact that he provided the information with police under circumstances that would make his information more likely to be true -- face-to-face after his arrest.

At issue in the second question was whether the officer who found the crack cocaine in Massey's automobile should have been permitted to testify even though the State failed to provide, through discovery, any report that he may prepared. During cross-examination, the officer stated that he believed he had prepared a report but had not used it to prepare his testimony and did not bring a copy to court. The Court concluded that the State had the obligation under Maryland Rule 4-263 to provide any such reports during discovery and made no effort to assuage the issue by providing relevant information. The State should have affirmatively advised the trial court that such report either did or did not exist or, if the State was likewise uncertain, ought to have sought from the court the opportunity to clarify whether such report was made. It is not for the witness to declare that the report was not used for his testimony; whether the report is useful to the defense is up to the defendant. As such, the trial court had an affirmative duty to ascertain whether the officer's report indeed existed and, if so, to ensure that it was available for review. Conviction vacated and remanded for new trial.

Third, Massey refers to the two seized baggies of cocaine. Massey's objection to the admission of the laboratory analysis of the baggie seized from his person was sustained, and admission was precluded as a discovery sanction against the State. Nonetheless, the arresting officer made reference to the baggie during his testimony, and the court engaged in a colloquy as to the significance of the difference in the weights of the two baggies (intent to distribute as opposed to personal use). Massey now argues that the trial court erred in permitting the discussion of the first baggie even though the laboratory analysis was excluded. In other words, Massey argues that the court took into account the total amount of cocaine seized from him in reaching its verdict of possession with intent to distribute, and that the possession of only 3.1 grams (the amount found in the second baggie) is insufficient to infer such an intent. While the trial judge was aware of what evidence had been admitted and what was not in the record, his decision demonstrates that the substance from the first baggie played some part in the finding that Massey had possessed cocaine in sufficient quantity to indicate the intent to distribute. Notwithtanding that there is sufficient evidence of possession with intent to distribute based solely on the possession of 3.1 grams of cocaine, the Court was unable to conclude that the trial judge ignored the persistent references to the other baggie. As such, this conviction was also vacated and remanded.

Finally, Massey asserts that the trial court made no finding that his waiver of his right to a trial by jury was intelligently and voluntarily made. This Court, however, found satisfaction that the waiver procedure was adequate and in compliance with Md. Rule 4-246.

The full opinion is available in PDF.