WILLIAM R. KYLER
STATE OF MARYLAND
Krauser, C.J., Graeff, Hotten, JJ.
A jury sitting in the Circuit Court for Calvert County convicted appellant, William Kyler, of two counts of being a drug kingpin, one count of possession with intent to distribute more than 448 grams of cocaine, one count of possession with intent to distribute more than 50 grams of cocaine base, one count of possession of cocaine with intent to distribute, one count of possession of cocaine base with intent to distribute, one count of concealing the proceeds of a controlled dangerous substance ("CDS") offense, and one count of conspiracy to distribute cocaine. The court sentenced appellant to a term of imprisonment totaling 65 years.
On appeal, appellant presents three questions for our review, which we have rephrased slightly as follows:
1. Did the circuit court abuse its discretion and violate appellant's Sixth Amendment right to a public trial by closing the courtroom during the testimony of five undercover police officers?
2. Was the evidence sufficient to support appellant's drug kingpin convictions?
3. Did the circuit court err in imposing separate sentences for the convictions of volume dealing and possession with intent to distribute?
For the reasons set forth below, we agree with appellant that his convictions for volume dealing merge, for sentencing purposes, with the convictions for possession with intent to distribute. Accordingly, we shall vacate the volume dealing sentences. Otherwise, we shall affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Detectives in the Calvert County Sheriff's Department, who worked undercover in the Drug Enforcement Unit, began investigating appellant in the summer of 2010. They conducted surveillance of appellant and used confidential informants to assist in investigating appellant's drug activity.
Detective B. conducted several controlled buys from appellant with the assistance of an informant. Detective B. observed the informant purchase narcotics from appellant, and the informant would then give the narcotics to Detective B. The informant purchased narcotics from appellant at various locations: appellant's residence; the King office building (the "King Building"), where appellant's business, Kyler Photo Inc., was located; a barbershop; and a wireless telephone store, adjacent to the barbershop.
Detective B. observed appellant engage in other hand-to-hand drug transactions between July and September 2010. One such transaction occurred behind the King building, where appellant received money from an individual in exchange for what Detective B. believed, based on his training and experience, to be narcotics.
Detective B. also observed what he believed to be hand-to-hand drug transactions arising from the barbershop. In one transaction, an unknown male exited the barbershop, walked across the street to a gas station, and placed an item on a cooler, at which time a woman walked to the cooler, placed money there, and walked away. The unknown male then took the money and returned to the barbershop.
On several other occasions, Detective B. observed individuals pull in front of the barbershop, exit their vehicles, and go into the barbershop for such a short period of time that it was "impossible for them to get a haircut." At times, the visitors to the barbershop spent more time looking for a parking space than they spent inside the shop. Although the barbershop offered only men's haircuts, women were seen entering the shop alone and leaving several minutes later. Detective B. recognized several of the individuals he observed entering and quickly leaving the shop from prior CDS cases. Based on the visitor traffic at the shop, including the cars pulling in front of the shop and the drivers entering only briefly, Detective B. believed that the activity he witnessed was consistent with illegal drug activity.
Detective B. saw appellant at the barbershop on approximately 20 occasions during his investigation. Appellant often visited the shop following days when there was a lull in activity. After his visit, however, traffic would pick up again. Appellant typically was inside the shop for approximately 30 minutes, although he stayed for one to two hours during several visits. Sometimes, he would enter and leave the shop carrying a gym bag or a suitcase.
Detective B. also observed activity that was consistent with illegal drug transactions at the wireless telephone store owned by appellant. After customers entered the wireless shop, they left without a bag, cell phone, or any other merchandise one would expect to be sold at a wireless store. The shop itself did not contain any cell phone or cell phone related merchandise; the only merchandise in the shop was clothing.
Corporal P. assisted with the investigation. He conducted surveillance of appellant's activities at the King building, where the photo shop was located in Suite 220. The exterior of the shop consisted of a door with the numbers 2-2-0 on the outside; there was no indication that the business was a photo shop. Corporal P. never observed appellant enter or leave the shop with photography equipment.
On October 14, 2010, four months after his investigation began, Corporal P. executed a search warrant for the photo shop, where he found evidence of drug dealing. Inside a locked, navy blue suitcase, Corporal P. found a large quantity of suspected cocaine and suspected crack cocaine, "several items used in the process to convert cocaine into crack cocaine, " a digital scale, and $14, 000. Corporal P. also found materials in the premises used to package cocaine and crack cocaine, as well as a candle, a hotplate, a mixer, and pyrex measuring glasses with a charred white residue. The police also found a lease agreement for the space in which the barbershop and wireless store were located.
Appellant was present during the search of the photo shop. His person was searched, and the police recovered money, more than 10 grams of suspected crack cocaine, and "independence cards" issued to individuals other than appellant. Corporal P. testified that these cards often are used by people to pay for drugs.
Greg Crump, a crime scene technician, analyzed the contents of the suitcase seized. He obtained from one of the measuring cups Corporal P. seized from the photo shop one latent fingerprint, which he sent to the Charles County crime lab. Earnest Jones, a fingerprint specialist with the Charles County Sheriff's Office, testified that the print on the measuring cup was from appellant's left middle finger.
Detective B. also obtained a search warrant for the barbershop and wireless store. No items indicative of a functioning business, such as a cash register or a receipt book, were found. The police did find receipts for phones, cell phone equipment inside of a locked filing cabinet, and a sports bag with cell phones inside.
Detective J. executed a search warrant for appellant's home. He seized a money counter from the closet of the master bedroom, as well as 37 cell phones and two memory cards. He did not find any cameras, photo paper, or other photo printing supplies.
Detective B. believed that appellant might have a storage unit because "drug dealers often hide currency" or "evidence of illegal activity" in storage units. He sent subpoenas to all the area storage facilities and learned that appellant leased a storage unit less than an eighth of a mile from the barbershop, on Calvert Beach Road.
Corporal P. obtained and executed a search warrant for the storage unit. He found appellant's personal belongings, as well as documents with appellant's and Cranston Brown's names on them, including documents identifying appellant as Mr. Brown's employer.
On October 21, 2010, in response to a tip, Corporal P. obtained a search warrant for an additional storage unit leased by appellant. That storage unit contained a dresser, which contained a black "laptop style carrying case" with $91, 000 in cash and a piece of paper with numbers written on it. Detective G., who had conducted surveillance of appellant at the barbershop, identified the black laptop bag as the same bag that she had seen appellant carry into and out of the barbershop on at least one occasion.
During the course of the investigation, Detective B. connected two other men to the activities at the barbershop, Antoine Savoy and Roosevelt Brooks. Mr. Savoy rented the building in which the barbershop was located, and Mr. Brooks frequented the shop every few days.
In one controlled-buy, an undercover police detective, Detective T., arranged to purchase crack cocaine from Mr. Brooks. He went to Mr. Brooks's front yard, and Mr. Brooks told him that he "had to wait for his man to show up." Mr. Brooks received a phone call, and a few minutes later, a black Mercedes pulled in front of the house. Mr. Brooks got into the vehicle, and the vehicle drove around the block. Detective B. recognized the car as one he had seen Mr. Savoy drive to and from the barbershop, and Detective T. recognized Mr. Savoy as the driver. Mr. Brooks then exited the Mercedes and sold Detective T. cocaine.
Detective G. applied for, and received, a search warrant for Mr. Brooks's home. During the search, she found a copy of the search warrant that was executed at appellant's house.
Sergeant Matthew McDonough, a member of the Calvert County Sheriff's Office, testified as an expert in the field of CDS investigations. His expertise included methods of distribution and trafficking, CDS distribution organizations, packaging, use and value of CDS and paraphernalia, and circumstances indicative of CDS distribution and/or an intent to distribute CDS.
Sergeant McDonough explained the significance of the evidence found. Five packages recovered from the photo shop appeared to contain cocaine in its powder form, and one package contained cocaine that had "been converted back into its base form, which is known as crack." The packing of the cocaine and crack indicated that they would each be sold for $150 to $200. Other packages of cocaine found at the photo shop, which were packaged in much larger, quarter kilo amounts, indicated that the dealer had staff to whom he would give the quarter kilos to sell.
Other items found in the photo shop were related to drug dealing. The hotplate and baking soda found in the suitcase in the office could be used to convert powder cocaine into crack cocaine. Acetone, a component of the nail polish remover, is used to wash cocaine, i.e., to dissolve the materials used in diluting the cocaine during the process of converting the cocaine to crack. Inositol is used to dilute cocaine to increase profits to dealers.
The independence cards in other people's names, found on appellant's person, were also indicative of drug dealing activity. Sergeant McDonough explained that it is "fairly common" for people who do not have cash to purchase drugs with the funds on their independence cards by giving their cards to the dealer.
Sergeant McDonough stated that the large amount of money recovered from the laptop bag in the storage unit, $91, 000, as well as the "substantial amount of cocaine, " indicated that appellant had sold a portion of an even larger amount of cocaine and was in the process of selling the remaining portion. He opined that the piece of paper that was found with the money appeared to be a ledger, where appellant kept track of money going in and out.
With respect to appellant's visits to Mr. Brown, and his deposits into Mr. Brown's commissary accounts, Sergeant McDonough stated: "If a person is a standup person, does not give information to law enforcement and goes ahead and eats the charge or takes the arrest and goes to jail, " then "the individual(s) who did not get charged will sometimes help out that person by putting money into their commissaries."
Evidence that appellant had spent over $18, 000 on rental cars over the course of 18 months was also significant to Sergeant McDonough. He explained that drug traffickers often drive different vehicles to avoid police surveillance and avoid having their personal vehicle forfeited in the event that they get caught. Drug traffickers also tend to avoid keeping any funds in a bank as an additional measure to avoid police detection. Based on the testimony and evidence presented against appellant, Sergeant McDonough opined that appellant was a mid-to-high level drug dealer.
After the State rested its case, appellant moved for judgment of acquittal. With respect to the drug kingpin charges, counsel argued that there was insufficient evidence to establish that appellant was "an organizer, supervisor, financier, or manager" of a drug distribution network. The State disagreed, arguing that there was evidence from which the jury could draw inferences that appellant was "in a position of a supervisor, manager, organizer, [or] financier" of a drug conspiracy. The court denied appellant's motion.
Appellant then called John Boome, his cousin, who testified that appellant worked as a photographer, taking photos at events and parties. Beginning in 2006 or 2007, Mr. Boome worked, when he was available, as appellant's photography assistant, helping him photograph events on the weekends. Mr. Boome went with appellant to events, including night clubs, and accepted payments for appellant's services, which typically cost $700 or $800 for adult events, and $70 or $80 for children's parties. All of the payments for appellant's photography services were made in cash. Mr. Boome testified that appellant possessed "all kinds" of photography equipment, including tripods, printers, and several cameras. The last event with which Mr. Boome helped occurred in August 2010.
Shemeka Cole, an event organizer, hired appellant from 2002 to 2008 to take photos at events. After she stopped working with appellant, she would still see him at events taking photographs. Appellant was always paid for his services in cash. April Harrod, appellant's ex-girlfriend, testified that appellant had a photography business called Flick It Up Photo.
After the defense rested, the State moved into evidence several exhibits, including appellant's bank records, as well as a certificate from the Custodian of Records with the Comptroller of Maryland, which indicated that appellant had not paid income taxes in 2010.Appellant ...