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McCree v. State

Court of Special Appeals of Maryland

September 24, 2013


Kehoe, Berger, Moylan, Charles E., Jr. (Retired, Specially Assigned) JJ.


Kehoe, J.

In this case we consider a constitutional challenge to Md. Code (2002, 2011 Supp.) § 8-611 of the Criminal Law Article ("CR"), which prohibits the distribution, sale, and possession, with an intent to sell or distribute, items identified by a counterfeit mark. Appellant, Bernard Delaney McCree, Jr., asserts that the statute is unconstitutionally vague and overbroad. We conclude that, when viewed in context and properly construed, the statute is sufficiently clear and its prohibitions sufficiently narrow so as to pass constitutional muster.

After a one day trial by jury in the Circuit Court for Queen Anne's County, McCree was convicted of distributing, selling, and/or possessing items (DVDs) identified by a counterfeit mark having an aggregate value of at least $1, 000, possessing with intent to distribute recorded articles (DVDs) without credit, possessing marijuana, and driving on an expired license. He presents five challenges to his convictions, which we have reordered and rephrased:

I. Is CR § 8-611 unconstitutionally vague and overbroad?
II. Did the trial court err in denying McCree's motion to suppress evidence?
III. Did the trial court deny McCree his right to self-representation by failing to comply with Md. Rule 4-215(e)?
IV. Did counts ten through sixteen, as stated on the criminal information sheet, fail to state any cognizable offenses?
V. Did the trial court commit plain error in its instructions to the jury? We affirm the judgments of the trial court.


The Traffic Stop

On August 29, 2010, Trooper Cummings, of the Maryland State Police, observed a Honda Odyssey mini-van with two burned out tag lights traveling on Route 301 in Queen Anne's County, Maryland. At 2:59 a.m., he conducted a traffic stop for the apparent violation. McCree was the driver of the van. A woman named Wendy Evans sat in the passenger seat.

During the stop, McCree explained that he was traveling to New York City for the day. Trooper Cummings observed that McCree would not make eye contact with him, and that four tree-shaped air fresheners were "hanging from the driver's seat back to the rear of the van where the hatch opens up." At 3:01 a.m., after obtaining McCree's license, Trooper Cummings radioed a request for both a criminal history and traffic information check on McCree. The results indicated that, within the past year, McCree had been charged with possession of a controlled dangerous substance, and revealed that McCree's license had expired eleven days prior, on August 18, 2010. Based on the combination of these observations, Trooper Cummings decided to call Trooper Martha Connolly and her K-9 partner, Lenya, who were nearby, to the scene.

Meanwhile, at 3:06 a.m., Trooper Cummings requested a criminal history and traffic information check on Evans. The check revealed "[n]othing to make note of." Thereafter, Trooper Cummings began the process of issuing a citation to McCree for driving on an expired license. Trooper Cummings completed filling out the citation at the scene, but did not issue it to McCree. Instead, he began, but did not finish, handwriting an equipment repair order for the burned out tag lights. His efforts related to the repair order were interrupted by the arrival, at 3:14 a.m., of Trooper Connolly.

Trooper Cummings and Trooper Connolly conferred briefly about the situation, and then McCree and Evans were asked to exit the Odyssey. Trooper Cummings remained with McCree and Evans. Trooper Connolly accompanied Lenya, the K-9, as she scanned the vehicle.

At approximately 3:17 a.m., [1] Lenya—who, at the time, was specially trained to detect various types of heroin, cocaine, marijuana, methamphetamine, ecstasy and hashish—alerted to the presence of illegal substances. Trooper Cummings then searched the vehicle and recovered two partially smoked marijuana cigarettes, one in the sun visor above the driver's seat and the other in a portable ashtray in the center console. McCree—who stated that the marijuana belonged to him—was placed under arrest. Continuing the search of the vehicle, Trooper Cummings discovered approximately 160 suspected counterfeit DVDs inside a black duffle bag on a backseat, a box on the floor containing 187 suspected counterfeit CDs, and, in the rear of the vehicle, a black trash bag containing approximately 45 suspected counterfeit adult DVDs.

Once the contraband was seized, Evans was permitted to return to the vehicle and leave the scene. McCree was transported back to the police station where Trooper Cummings finished handwriting the repair order for the tag lights and issued both the repair order and the citation for driving on an expired license to McCree. Some time thereafter, McCree was charged with the remaining counts at issue in the instant case.

The Preliminary Motions

Prior to trial, McCree filed a motion to dismiss the counts for distributing, selling, and/or possessing items (DVDs) identified by a counterfeit mark having an aggregate value of at least $1, 000—i.e., the counts under CR § 8-611—in which he asserted that the statute was unconstitutionally vague and overbroad. The circuit court disagreed and denied the motion. We will discuss McCree's contentions in Part I.

McCree also filed a motion to suppress evidence of the marijuana and DVDs recovered from the Odyssey, in which he argued, in relevant part, that the length of the stop prior to the K-9 alert was unreasonably long. A hearing on the motion was held on January 21, 2011, during which Trooper Cummings, the sole witness, testified as to the above-described events. Based on his testimony, the circuit court denied McCree's motion, concluding that "the stop simply wasn't unreasonable in length by any standard." We will discuss McCree's motion in Part II.

Trial was originally scheduled for February 11, 2011. That morning, prior to the commencement of proceedings, McCree expressed concern about the quality of the representation he was receiving from his assigned public defender, and, eventually, requested "other representation." After substantial discourse on McCree's concerns, the trial court continued the trial but denied McCree's request for replacement counsel. We will discuss McCree's request and the circuit court's response in Part III.

On April 14, 2011, the case proceeded to a trial by jury on the charges.

The Trial

The State's Case

The prosecution called three witnesses to testify in its case-in-chief. Trooper Cummings and Trooper Connolly both testified. They recounted the events at the traffic stop, and testified that they suspected that the DVDs recovered from the van were counterfeit based on their packaging, and, in Trooper Connolly's case, because she had personal knowledge that several of the DVDs were yet to be released for public consumption.

The last witness to testify for the State was Dennis Supik, an investigator with the Content Protection Office of the Motion Picture Association of America, who was qualified as an expert in the field of identification, manufacturing, distribution and valuation of counterfeit DVDs. He testified that, in his opinion, the DVDs were counterfeit.

Supik based this conclusion on several observations. First, the DVDs were not properly packaged. Supik testified that the cases used to store the DVDs were only half the thickness of the factory standard; that the cases were not properly shrink wrapped; and that they lacked the hologram and security stickers placed on factory originals. Second, the paperwork inside the DVD case was not up to par with factory standards, and lacked the advertising typical of newly packaged DVDs. Third, the discs were blue in color, indicating that they were bought in a stack from a store, as opposed to factory originals, which are silver. Fourth, five of the movies portrayed on the DVDs—Piranha 3D, Despicable Me, Step Up 3D, Marmaduke, and Avatar—were not available for sale at the time they were recovered, and several of these appeared to have been recorded via camcorder in a theater.[2]Fifth, the DVDs did not contain the names and addresses of the entity that manufactured them, nor, in many instances, the name of the movie company or studio that created or produced the film.

In addition, Supik testified that the DVDs contained "numerous counterfeit marks, " including movie titles, and a hologram for the Disney Company, among other examples; that these marks were owned by the movie studios that created the movies; and that the movie studios did not, as a matter of policy, grant to individuals the right to make copies of DVDs or the trademarks contained thereon, but that he had no particular knowledge as to whether McCree had been granted an exception to this general practice. Supik testified that each DVD had a street value of approximately $7.00. He opined that, based on the quantity of DVDs recovered and the number of duplicate copies in his possession, McCree intended to sell or distribute the DVDs.

The Defense

McCree took the stand as the sole witness in his defense. He testified, in pertinent part, that, at the time of the stop, he was headed to New York to buy "a couple of outfits" for his children for school. He also testified that he was a licensed vendor in Maryland, that he had been buying and selling DVDs for approximately ten years, and that, typically, he bought adult movies for $3.00 and other movies for $2.00 and then resold them for $10.00. He further explained that he had purchased all of the DVDs recovered from the van, including the studio productions, from adult bookstores in New York. He asserted that he did not manufacture the DVDs, and that he had no knowledge as to their manufacture or whether the marks contained thereon were counterfeit.

The Verdict

Prior to sending the case to the jury, the court granted McCree's motion for judgment of acquittal as to counts for possessing paraphernalia, CR § 5-619(c)(1), knowingly transferring sounds recorded without the consent of the owner, CR § 7-308(b), and knowingly transferring a recorded article with the intent to sell without consent of the performer, CR § 7-308(d)(1).

After deliberating, the jury convicted McCree of one count of distributing, selling, and/or possessing items (DVDs) identified by a counterfeit mark having an aggregate value of at least $1, 000, CR §§ 8-611(b) & (c), [3] seven counts of knowingly possessing with intent to distribute a recorded article (DVDs) without credit, CR § 7-308(d)(2), [4] one count of possessing marijuana, CR § 5-601(a)(1), and driving on an expired license, Md. Code (1977, 2009 Repl. Vol.) § 16-115(f) of the Transportation Article.

McCree was sentenced, concurrently, to incarceration for a period of 30 days for possessing marijuana, and 180 days for each count of possessing with intent to distribute recorded articles (DVDs) without credit. For distributing, selling, and/or possessing items (DVDs) identified by a counterfeit mark having an aggregate value of at least $1, 000, McCree was sentenced to incarceration for a period of ten years, with all but one year suspended. The latter sentence was run consecutive to McCree's other sentences. This appeal followed.


I. The Constitutional Challenges to Criminal Law Article § 8-611

McCree first contends that CR ยง 8-611 is unconstitutionally vague and overbroad. That section ...

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