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Donati v. State

Court of Special Appeals of Maryland

January 29, 2014

Michael E. DONATI
v.
STATE of Maryland.

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Michael T. Torres (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Cathleen C. Brockmeyer (Douglas F. Gansler, Attorney General, on the brief), Baltimore, MD, for Appellee.

Panel: MATRICCIANI, GRAEFF, and CHARLES E. MOYLAN JR. (Retired, Specially Assigned), JJ.

GRAEFF, J.

[215 Md.App. 694] A jury sitting in the Circuit Court for Montgomery County convicted appellant, Michael Donati, of one count of distribution of marijuana, two counts of obstruction of justice, two counts of making a false statement to a police officer, two counts of intimidating a witness, i.e., Jason Allen and Alex Zeppos, and fifteen counts of electronic mail harassment of Mr. Zeppos. The court sentenced appellant to a total of thirty-two years imprisonment. [1]

[215 Md.App. 695] On appeal, appellant presents eight questions for our review, which we have rephrased slightly, as follows:

1. Did the trial court abuse its discretion in admitting into evidence emails that were not properly authenticated?
2. Was the evidence sufficient to support appellant's convictions for e-mail harassment?
3. Do the convictions for e-mail harassment merge?
4. Did the trial court abuse its discretion in restricting defense counsel's closing argument?
5. Did the trial court err in admitting a letter seized during the execution of a search warrant on appellant's residence?
6. Did the trial court err in permitting witnesses to identify appellant's voice on a 911 call?
7. Did the trial court abuse its discretion in accepting Detective Heverly as an expert in digital forensic examinations?
8. Did the trial court err in denying appellant's motion for a new trial?

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

FACTUAL AND PROCEDURAL BACKGROUND

This case involves appellant's sustained attempts to harass and intimidate Mr. Zeppos, one of the owners of Growlers Pub (" Growlers" ) in Olde Towne Gaithersburg,

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and Mr. Allen, owner of the security company that had a contract with Growlers, after an incident that occurred at Growlers on April 10, 2011. Appellant had approached one of Mr. Allen's employees, Daniel Duncans, and offered to sell him marijuana. Mr. Allen removed appellant from the bar with the help of Mr. Duncans, Mr. Zeppos, and Growlers' chef, and Mr. Zeppos [215 Md.App. 696] called the police. Mr. Allen alleged that, while he attempted to restrain appellant, appellant punched, bit, and pushed him.

Rodney Campbell, an officer with the Montgomery County Police Department, received a dispatch to respond to Growlers. When he arrived, he arrested appellant for CDS violations. Officer Campbell recovered, from the ground next to appellant, a large sandwich bag, which contained 10 smaller bags of marijuana, as well as three hand-rolled marijuana cigarettes. Appellant subsequently was charged with various offenses relating to this incident. Trial was set in the Circuit Court for Montgomery County for October 19, 2011, and Mr. Zeppos was scheduled to be a witness.

On April 20, 2011, Marcus Jones, a lieutenant with the Montgomery County Police Department,[2] received an e-mail forwarded from Commander Willie Parker-Loan, a captain with the Montgomery County Police. The e-mail was from Robert Fox, at " bar security 123@ gmail. com" and it alleged that someone in the Gaithersburg area was involved in growing and selling marijuana.

That same day, Darien Manley, Chief of the Maryland-National Capital Park Police (" MNCPP" ), received an e-mail tip from Robert Fox, at " bar security 123@ gmail. com," regarding marijuana grow operations in Seneca Creek State Park and Black Hills Regional Park. He responded to the e-mail, stating that he would pass the information to an MNCPP investigator.

Chief Manley forwarded the e-mail to Detective Greg Worsey, a detective in the MNCPP Marijuana Eradication Unit. Detective Worsey and his partner, Detective Price, began an investigation. They walked through the parks, investigated locations where they had discovered grow operations in the past, and requested flight time with a National Guard helicopter that does flyovers to find suspected grow operations, but they did not find anything.

[215 Md.App. 697] On April 23, 2011, at 2:25 a.m., a man who declined to identify himself called 911, stating that he would " like to report a drug dealer." The man reported that his neighbor on Sioux Lane, Mr. Allen, was selling drugs to individuals who drove to his house. The caller stated that Mr. Allen had " marijuana plants growing on the outside of his house on the steps ... in gray pots," and Mr. Allen had put a bag on " the outside of his house on the steps, [into] black shoes." The caller further stated that Mr. Allen was growing marijuana in Seneca Creek State Park and Black Hills Regional Park, and there was fencing in Mr. Allen's yard that he used around plants.

At approximately that same time, Mark Norris, a detective with the Montgomery County Police Department who was off-duty at the time, drove down Sioux Lane in his unmarked car. He observed a dark colored, older model minivan sitting on Sioux Lane " partially blocking the roadway." Detective Norris was very familiar with the area, and he found the presence of the van unusual because people generally were not out in that area at that time of night. Detective Norris was aware that

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there had been increasing crime in the neighborhood, and in his experience, older model minivans often were used by burglars. Based on his concerns, he pulled up behind the van.

The driver of the van then pulled out and began to drive down Sioux Lane, going approximately 10 miles per hour. Detective Norris followed behind and then pulled over and turned his lights off. A few minutes later, he observed the van drive back down Sioux Lane at a slow rate of speed.

At that point, Officer Nicholas Jerman, who was training a rookie police officer, Gregory Hollis, drove down Sioux Lane in a marked police car. Detective Norris signaled him, told Officer Jerman about the van, and indicated that they should pull the driver over to investigate. Officer Jerman stopped the vehicle, and Detective Norris pulled up three car lengths away.

[215 Md.App. 698] Officer Hollis made contact with the driver of the van and asked him to step out of his vehicle. Both he and Officer Jerman identified appellant at trial as the driver of the van.

Officer Hollis asked appellant for his identification, and he asked appellant why he was in the neighborhood. Appellant responded that he was looking for something to eat. Officer Jerman noted that, " being in a neighborhood, you're not going to find a place to eat, unless you know somebody's house to go to." Officer Hollis observed a police scanner in appellant's car, which was tuned to the Sixth District channel for police radios.

After completing a field interview report and obtaining appellant's contact information, Officers Jerman and Hollis responded to the address on Sioux Lane referenced in the 911 call. Two other officers, John Ceresini and Rick Goodale, who had heard the detailed dispatch regarding the alleged activity at the house, also responded.

Officer Goodale observed a plastic bag in the driveway containing " a green leafy substance." Based on his training, he recognized the substance as marijuana. He also observed, consistent with the information from the 911 call, a pair of work boots on the front steps that contained a bag of marijuana. Officer Goodale then looked in the garden area by the front door and found two small live marijuana plants and a roll of green fencing.

Officer Goodale approached the front door to make contact with the homeowner. Based on the 911 call, he believed that the suspect was a white man, 5'7" to 5' 8", named Jason. The man who opened the door was a large black male; he stated that he was not Jason, but Jason was at home. As soon as the front door opened, Officer Goodale smelled a strong odor of marijuana coming from inside the house. The man who opened the door admitted that he had just smoked a joint. A man who identified himself as Jason Allen then came to the door, and Officer Goodale asked him to step outside.

Officer Goodale and the other police officers told Mr. Allen that they had received an anonymous call regarding his residence, [215 Md.App. 699] and Officer Goodale showed him what they had observed in front of the house. Officer Goodale asked Mr. Allen if he would consent to a search of the residence, which Mr. Allen did. Officers Goodale and Hollis searched the residence and found no evidence of a marijuana grow operation or distribution. Officer Goodale explained that the police did not arrest Mr. Allen because, " based on what we found at the house, we did not believe that he was involved in any narcotics distribution or possession."

Before leaving the house, the officers asked Mr. Allen whether he had any ongoing

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disputes or issues with anyone, and Mr. Allen answered in the negative. They asked him whether he knew appellant. Mr. Allen expressed surprise at hearing appellant's name, stating that he did know him and explaining how.

After leaving Sioux Lane, Officers Jerman and Hollis went to the Emergency Communications Center (" ECC" ), where the 911 dispatchers are located, and they listened to the tape of the earlier 911 call. They listened to the tape twice, a little more than an hour after stopping appellant and speaking to him. At appellant's trial, Officer Hollis testified that appellant's voice was on the 911 call.

Officer Ceresini called ECC to determine the phone number used to make the 911 call. He subsequently determined that the call came from a pay phone in front of a Giant store. Officer Hollis reviewed the security footage from the Giant store parking lot and recognized the dark van as the one driven by appellant that he and Officer Jerman had stopped on Sioux Lane.

On April 23, 2011, Mr. Zeppos received an e-mail through the Growler's website, addressed to " Alex," from " The Don," at " pleasure daddy 123456@ gmail. com." The e-mail read as follows:

You[r] security staff are all dirty, Alex. That is why Jason was arrested yesterday, and the rest of them will be arrested soon enough. I would get rid of Dunkin, and the rest of them ASAP, and hire new staff. Distance yourself from [215 Md.App. 700] them while you can. Hire staff that do not try to rough up the customers, because if you try to rough up the wrong one, you may have more problems than you would want, Alex. In fact, you're [sic] establishment may disappear over night. Then what would you do to make money?

On April 24, 2011, Mr. Zeppos received another communication from " pleasure daddy 123456@ gmail. com." This e-mail, sent to his individual account, also referenced the incident at Mr. Allen's house and stated: " I also heard that the cops, and the IRS are looking at you really strong now because they think you are the organizer. You need to disassociate yourself from your security staff, and get some new people who will not get you busted, and put in jail, Alex."

On May 2, 2011, Chief Manley received an e-mail from " Mr. Tipster," at " mrtpstr 83@ gmail. com." The e-mail referenced the incident at Mr. Allen's home on April 23, 2011, alleging that Mr. Allen was selling drugs, and he was involved in a marijuana grow operation in Seneca Creek Park. That same day, Detective Worsey received an e-mail from " Mr. Tipster," at " mrtpstr 83@ gmail. com," that stated:

We gave a tip to the officers of the 6th District of the Montgomery County Police on April 23rd. We know they responded to the residence of a fellow named Jason Allen. He is one of the growers, and more importantly is one of the marketers. He markets it in the Ga[i]thersburg club scene, and he works at [G]rowlers. Officers responded to the address on Sioux Lane in Gaithersburg, MD near Seneca Creek Park. He had plants growing in pots on his porch, and had just conducted a series of marijuana deals and was so high he dropped a bag on his driveway, and then dropped one in his black running shoes on his front porch on the outside of his house. He even has the plastic green deer fencing on his porch which he uses when he plants in the park. All the evidence was right there for the police.

* * *

If the officers of the 6th [D]istrict did not arrest Allen on the 23rd, I don't

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know why. There was marijuana everywhere. [215 Md.App. 701] Simply everywhere. The plants on his porch were two he forgot to take to the park when he went out to plant that day.

On May 17, 2011, Theodore Vaughan, a police officer with the State Comptroller's Office, Field Enforcement Division, was assigned to investigate Growlers as a result of an e-mail sent to the Comptroller, who then forwarded the e-mail to the Field Enforcement Division. The initial e-mail complaint came from " Mr. Tipper," at the address " mrtipper 008@ gmail. com." The e-mail alleged that Growlers was selling untaxed alcoholic beverages and transporting untaxed cigarettes.

On May 19, 2011, Agent Vaughan conducted an inspection at Growlers, along with Agent David Hollingsworth. During their investigation, Agents Vaughan and Hollingsworth found no problems with alcohol or cigarette sales at Growlers.

On June 21, 2011, Agent Vaughan received an e-mail from " Mike," at " bourbon st band@ gmail. com," which contained a link that purported to contain photos of marijuana growing operations for which " Zepo— the owner of Growlers" was responsible. The author of the e-mail stated that he got the pictures from Mr. Allen, who " directs the operation."

On June 22, 2011, Agent Vaughan received a second e-mail from bourbon street band@ gmail. com, which also contained a link to photos of marijuana plants. Shortly thereafter, he received a third e-mail alleging that Growlers' employees were laundering illegal drug money through the restaurant.

As follow-up to the e-mails, Agent Vaughan called the complainant, who identified himself as Mike, and spoke to him about Growlers for approximately an hour. Agent Vaughan also forwarded the e-mails regarding marijuana grow operations in state parks to the MNCPP.

On August 15, 2011, Mr. Zeppos received an e-mail from " Mr. Tipper," at " mrtipper@ yahoo.com," pertaining to the Agent Vaughan's visit to Growlers on May 19. The e-mail read as follows:

[215 Md.App. 702] I was in your club on Saturday, and I overheard the guys at the next table talking about the fact that they worked for the Maryland Comptrollers [sic] Office located in Baltimore, MD. I did not pay much attention to the conversation until I heard one of them say that they would, " Own the club after the audit is complete" . [sic] I am not sure what they were talking about, but thought you guys might want to know what I heard. I really do not know if I should be telling you this or not, or if I could get into trouble for doing so. You know how the IRS is. Only reason I am telling you this is because I visit you [sic] club weekly, and like [the] place.

On August 20, 2011, Detective Worsey was working in Black Hills Regional Park, in uniform, assisting with patrol and road coverage. Lieutenant Meixsell, an MNCPP patrol commander, received an e-mail advising that he would find evidence on the front door of the park manager's office, specifically a stem from a marijuana plant that was intended for Chief Manley. When Detective Worsey arrived at the office, he observed a three-foot long branch from the top of a marijuana plant hanging on a piece of brown twine.

On September 28, 2011, Lieutenant Jones received an e-mail from Clayton Thomas, III, at " cthomas 03@ hotmail. com," which stated that Growlers was " deeply involved in the drug trade," including " growing operations" and " selling it v.i.a. mail order." It also stated that Growlers " receive[s] marijuana shipments at the bar from growers in VA to blend

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with their marijuana grown in the County Parks."

Lieutenant Jones replied to the e-mail, expressing his interest in additional information. Mr. Thomas responded that he " could give you the tracking number of packages of drugs that Alex Zeppos— owner of Growlers— has shipped to him from Virginia to mix with his weed." He further stated: " I know that Darran [sic] Manley (Chief of Park Police), and some people with the MCPD already know about Growlers' grow operation, and what goes on in the club. Why they haven't busted them is beyond me."

[215 Md.App. 703] Lieutenant Jones continued to receive e-mails regarding a marijuana grow operation run through Growlers. He did not believe that the information regarding Growlers and Mr. Zeppos was legitimate information.

On September 30, 2011, Richard Grapes, a detective with the Montgomery County Police Department, received an e-mail from Mr. Essex, at " mr. essex@ ymail. com," which stated that Growlers " receive[s] shipments of marijuana from a grow operation in Virginia, and blend[s] it with the Maryland Marijuana for taste." It cautioned that Detective Grapes would be remiss if he did not act on the information " like in the case of the Park Police." Later that day, Detective Grapes received another e-mail from Mr. Essex, stating that he would " be getting tracking numbers ... pertaining to the marijuana shipments being sent to Alex Zeppos, and Jason Allen." Mr. Essex asserted that the shipments " are coming from Virginia, and while the two people just mentioned grow marijuana, the[y] blend it with what is being shipped."

On October 2, 2011, Mr. Essex sent an e-mail stating that he had provided Detective Grapes with information regarding the shipment from Virginia for free, but " [t]he latest info is not gratis." The e-mail stated:

You will need to do something for me. Zeppos and his security gang get people in his club to approach customers, talk about weed, and if they show an interest he has them point out the guys who sell it (usually security guys). If they don't want to do it for Zeppos, he is usually pretty cool, and just says he was joking. There was one fellow in April that he approached, but the guy did not want to sell ... Zeppos had his security guys set him up.... The guy was charged. I was not there but my friend was, and everybody knows what happened, [Detective Grapes]. We all feel bad for the guy, and he goes to trial this month on the 19th for Possession with intent, and ass[ ]ault.... You will have a deal worked out with the State's Attorney saying that all charges will be dropped as soon as you find this grow. All parties will sign it, and it will be legally binding.

[215 Md.App. 704] They call this guy who was busted Montana. Some people call him Mike.

Detective Grapes responded to Mr. Essex's e-mail, stating that he would look into a deal for Mr. Essex's friend, Mike. He testified that he was trying to gain more information from Mr. Essex and attempting to get Mr. Essex to continue to work with him.

On October 3, 2011, Mr. Essex sent an e-mail to Detective Grapes asserting that he " [j]ust got wind of a shipment going out tomorrow sometime. As soon as it does I will have some tracking numbers for you." They continued to exchange e-mails regarding the shipment, as well as Detective Grapes' efforts to reach a deal for Mr. Essex's friend.

On October 4, 2011, Mr. Essex sent an e-mail to Detective Grapes indicating that

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he would have a map of the grow operations for him later that day, and " [t]he guy working with me on this (i.e. mole) has been to the grows, and will mark it out with bright ribbon so you will not get lost."

Meanwhile, Detective Grapes and members of the Metropolitan Area Drug Task Force had been conducting surveillance of appellant, at appellant's residence and throughout Montgomery County. They began looking for appellant's maroon minivan, anticipating that appellant " would be in the process of being out in the woods marking a path with bright ribbon." They spread out looking for his van, " in parks, highway ramps, park and rides," and other locations where they believed the grow might be located based on his e-mails.

Detective Grapes saw appellant's van parked across the street from appellant's house. He got out of his vehicle and walked past the van. On the floor of the van, Detective Grapes observed " a Home Depot bag that contained a new roll of bright marking tape." Detective Grapes alerted his team that he had located appellant's van, and they were to follow the van to see if appellant used the tape to mark grow operations.

[215 Md.App. 705] Three minutes after Detective Grapes sent out the radio call to the task force, he received an e-mail from Mr. Essex stating that Mr. Zeppos had been tipped off, he could no longer work with Detective Grapes, and he would take his information " to the FEDs." Detective Grapes realized that the sender of the e-mails was monitoring the police radio. He then sent out a call over the radio stating that he " received an email, this wasn't going to work out, that we could go ahead and leave, and that I'd follow up on it later." He further stated that a tow truck would come and tow the van, and they would obtain a search warrant for it later. A few moments later, appellant left his residence and walked to his van, at which point Detective Grapes and other members of the task force placed him under arrest. Detective Grapes received no further e-mail communication from Mr. Essex.

After appellant's arrest, Detective Grapes obtained a warrant to search appellant's residence, which he and other members of the task force executed a few hours later. In a room in the basement, which was locked with a padlock, they found a desk with documents and notepads. Included among the documents seized were three sheets of paper with numerous e-mail addresses listed on them. A sheet labeled " Special emails" included the following addresses: " taxman 86@ hotmail. com," " cthomas 03@ hotmail. com," " mr. essex@ ymail. com," " ms. watcher@ ymail. com," " jrkelly 123@ hotmail. com," " mr. yo_ daddy@ yahoo. com," " thebomb 00769@ yahoo. com," and " back door. greeky. greeky finder@ hotmail. com." A sheet labeled " Normal emails" included the following address: " bourbonst band@ gmail. com."

The investigators also found a video camera, an electric cord, and a bag containing videotapes. One of the tapes, admitted into evidence as State's Exhibit 55, depicted a heating pad, " growth media" in the form of a " semi-clear plastic container," and bags of soil, items that Detective Grapes observed in the basement during the execution of the warrant. The tape contained a narration, which began as follows: " This is a short film. It will show you the (unintelligible) of getting your plants started, transplanting to outdoor areas, and constructing [215 Md.App. 706] outdoor growing sites." The tape then depicted an outdoor area, which Detective Grapes identified as the backyard of appellant's house. Detective Grapes identified the voice on the tape as appellant's voice.

Investigators also seized a computer and other items from the home. William Heverly,

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the technical leader of the Montgomery County Police Department electronic crimes unit and an expert in digital forensic examination, examined the computer items. He determined that the computer was registered as " Bourbon St Band" and contained one user account named " Montana." [3] While searching the hard drive of appellant's computer, Detective Heverly found a series of e-mails between Mr. Essex, at " mr. essex @ ymail. com," and Detective Grapes. He also found a fragment of an e-mail from " Mr. Tipper" addressed to Chief Manley, as well as a Hotmail account for Mr. Tipper.

Mr. Zeppos testified regarding the series of e-mails that he received, beginning on April 23, 2011, directed to either his personal e-mail account or the Growlers account. The e-mails escalated from " a little threatening" to " very threatening," and they contained personal attacks. The last such e-mail he received was on October 3, 2011.

Jason Fair, appellant's former roommate, testified that he moved in with appellant in November 2010 and lived with him, appellant's wife, and three other roommates. There were plants in the common areas of the home, including the kitchen, the living room, and the upstairs hallway. Mr. Fair had never seen marijuana in the home, but on several occasions, appellant had asked Mr. Fair if he would like to smoke a joint with him. Mr. Fair always declined due to his employment and his personal preference.

Mr. Fair's bedroom was on the main floor of the home, and he also used a portion of the basement to build model planes. There was a small room in the basement that belonged to appellant, which contained computer equipment. Mr. Fair [215 Md.App. 707] had been in the room only when appellant invited him, and the door was kept locked with a padlock. Appellant showed Mr. Fair photographs of marijuana grows on his computer, and he told Mr. Fair that " the owner at Growlers was planting all that out there." Appellant further stated that " he knew where a lot of stuff was out there and, if they, the police, were smart enough, they would drop the charges against him and he could tell them where all the fields were at."

On October 4, 2011, when the police executed the search warrant for appellant's home, Mr. Fair went into appellant's basement room. He noticed that there was an additional room, of which he had not been aware. That room contained plants, " silver reflector shades," a humidifier, and potting materials. He also saw gardening equipment in the room, including a shovel and a rake, and he described the room as having an odor like a cat litter box.

Mr. Fair recalled that appellant had visited area parks for the purpose of tracking deer. When appellant went out to track deer, he would leave the house in full camouflage clothing and come back a few hours later. In addition to wearing camouflage pants, shirt or jacket, and boots, appellant also wore several pairs of gloves. On several occasions, Mr. Fair noticed that appellant wore cotton gloves under the camouflage gloves, and once appellant wore " a latex glove, a cotton glove, and then a regular glove."

Mr. Fair's rental agreement with appellant was set to expire in mid-October 2011, when he was scheduled to leave for a new construction job in Tennessee. Mr. Fair and appellant had discussions regarding the return of Mr. Fair's security deposit and prorating his remaining rent, but they initially reached an impasse. Appellant

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then proposed a solution to Mr. Fair; if Mr. Fair would mail a package for him, " it would be no problem getting [his] deposit and prorated moneys back." Appellant wanted Mr. Fair to mail the package on his way to Tennessee in mid-October, requesting that he send it from Virginia and give appellant the tracking number. Appellant explained his request to Mr. Fair as follows: " He said it [215 Md.App. 708] was tax reasons for his home business, ...


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