November 9, 2015
Certiorari to the Court of Special Appeals (Circuit Court for
Prince George's County), Maryland. Case No. CT 12-1276A,
CT 12-1276B. Hassan El-Amin, JUDGE.
BY: Thomas M. Donnelly, Assigned Public Defender (Law Offices
of Thomas M. Donnelly, LLC of Baltimore, MD) on brief FOR
BY: Gregory W. Gardner, Assigned Public Defender (Law Office
of Gregory W. Gardner of Washington, DC) on brief FOR
BEFORE: Barbera, C.J., Battaglia, Greene, Adkins, McDonald,
Watts, Harrell, Jr., Glenn T., (Retired, Specially Assigned),
JJ. Greene, Adkins and McDonald, JJ., dissent.
Md. 224] Battaglia, J.
approximately seven in the evening on August 9, 2012, Prince
George's County Police executed a search warrant at
apartment 102 located at 8018 14th Avenue in Hyattsville. The
apartment was small and compact and contained a single bath,
galley-style kitchen and one bedroom, although the living
room contained at least one other bed. When police entered
the apartment, they encountered the Respondents, Hector
Gutierrez and Edgar Perez-Lazaro.
Jason Swope, of the Prince George's Police Department,
the lead investigator for the search, initially found
baggies, about which he later testified are commonly used for
packaging drugs, in plain view on a table in the living room.
With the assistance of a translator, Gutierrez and
Perez-Lazaro contemporaneously were read and waived their
Miranda rights; Gutierrez stated that he slept in the living
room, while Perez-Lazaro replied that he slept in the back
Md. 225] During the search, Sergeant James Dyson, also of the
Prince George's Police Department, discovered
individually wrapped bags of a white powdery substance, later
identified at trial as cocaine hydrochloride, stacked
together in the front of the bathroom cabinet, visible
immediately upon its opening. Detective Jeffrey Konya, yet
another officer of the Prince George's Police Department,
searched a hallway closet and discovered baggies of a white
powdery substance wrapped in foil, later identified as
cocaine hydrochloride, as well as two passports and a receipt
with Gutierrez's name, on a shelf. A "
grinder" was found on the kitchen windowsill which, at
trial, was testified to by Officer Natalia Gaston, who had
been qualified as an expert in the field of distribution and
packaging of CDS, as a device that " breaks [cocaine]
down, it breaks down the crystal part of it so it can get it
to more of a powder." Various other plastic baggies were
also found on the kitchen windowsill.
ten baggies of white powdery substance, identified later as
cocaine hydrochloride, as well as a loaded black Smith and
Wesson 9MM semiautomatic handgun with no serial number, were
also recovered from under the kitchen sink and were visible
upon opening the cabinet. A paystub belonging to Perez-Lazaro
and dated May 18, 2012, was recovered from the back bedroom,
although no further identification of its contents is in the
Gutierrez and Perez-Lazaro were indicted for
possession not only of a controlled dangerous
substance, but also [446 Md. 226] with intent to
distribute a controlled dangerous substance, as well as
possession of a firearm with a nexus to drug
addition to obliteration of the identification number of a
was held in February of 2013 in the Circuit Court for Prince
George's County, before Judge Hassan A. El-Amin. Both
Gutierrez and Perez-Lazaro moved for judgment of acquittal.
Gutierrez argued that the evidence did not sufficiently
connect him to the drugs or the gun:
The only evidence that's been offered in this case is
that Mr. Gutierrez made a statement to the police that he
slept in the living room of the apartment and then there was
two passports and a piece of paper found in the closet that
identified Mr. Gutierrez. . . . [T]here was no other evidence
specifically connecting Mr. Gutierrez to the drugs, there was
no other evidence specifically connecting Mr. Gutierrez to
the gun that was found.
Md. 227] Perez-Lazaro similarly argued that, " the only
thing [the State] ha[s] is that [Perez-Lazaro] was present at
the time, and he admitted to sleeping in the back room and
actually found a pay stub." Both motions were denied
with respect to all four counts. During closing argument,
Gutierrez's counsel asserted that the State had failed to
show that he had possession of the cocaine because there were
multiple people in the apartment:
What evidence do we have that actually shows how many people
were living in this apartment? Because the police didn't
want to bother. They figured we got two people inside,
we're just going to charge them and move on from there.
Is it realistic to believe that what was found in this
apartment was just communal cocaine, that this was somehow
some sort of hippy commune of drug dealers that are all just
sharing drugs and guns and everything that's found inside
counsel also pointed to the possibility of more people in the
Now, there are other beds, but he was there. One of the
officers said there were three people, two or three. But they
were the ones that were brought in. We know that more than
two people were there. You have a couch, two beds in the
living room. We don't even know how many beds in the
But there are issues here. Just at a minimum it would be nice
to at least know who, what, where, when, why, and, of course,
photos of the room, because then we wouldn't have to rely
on if he works, how many beds were in each room, who lived
where, where things were situated.
counsel also argued in closing that the State needed more
evidence such as fingerprint analysis or a DNA expert:
But they still need more than just being present. . . .
Imagine if we would have heard from a fingerprint expert that
compared the fingerprints on the grinder to my client and
[446 Md. 228] said, yeah, they matched, or there was a DNA
expert who says the same thing about baggies that were found
under the sink, the gun that was found in the kitchen matched
the DNA of my client to a certain person? What can I say to
that? What can I stand here now and say, since I
wasn'tt present? You've got to ask yourself why not.
That would have locked this thing up, that would have shut me
down. I wouldn't have had anything to say, you all would
* * *
I know the science person could have at least shown us good
faith that they're trying to exonerate certain people and
check who the DNA's was, and then at least then we feel
they were trying to exclude, to find out who was really the
problem, really had the matter proceeded to trial to really
put the evidence there. But they didn't. And that's a
problem. You know, I'm really glad that we don't have
to do the same things as the jurors in the l960's and
1970's. If you read the paper at least once a week, once
a month you'l1 see somebody who is found guilty on words
is able to prove their innocence because of science and
And see, that should be like ash in your mouth to know that
somebody has to prove their innocence. See, that's not
the burden. But back then they didn't have those
advantages. We've got them now. We should use them now.
And if we don't use them, you should ask why.
the State's rebuttal closing argument, the State's
Attorney responded that fingerprinting and DNA analysis were
not " routine," that Defense counsel " has the
same subpoena power as the State" and that drugs never
come " with the defendant's name on it" :
[STATE'S ATTORNEY]: The detectives go in to their place,
and I don't have a cameraman working like in the cases
that you hear on TV, where they just do fingerprints and DNA
routinely, constantly. That's not the way it is. They
don't do routine fingerprints, they don't do routine
DNA. This is a drug case. The State has budget concerns. This
is a drug case where we have homicides that get DNA, [446 Md.
229] homicides get fingerprints, and even in the homicide
case might not get fingerprints or DNA. We have technology
and science at our availability; but is it within our cost?
* * *
If you are in an apartment and there [are] little bags out or
a grinder and you don't know what it is, why is it in
your apartment? Both defense counsel testified -- excuse me.
Both defense counsel told you in their opening that that
apartment belonged to several people.
And they want to testify as to the State didn't find out
who those several other people are. Defense counsel has the
same subpoena power as the State. No other people here, we
didn't hear from any other people. Defense wants to cloud
your opinion and state that there are other people but they
only arrested two, there must be some more people out there.
There are no more people out there. It's the two
defendants that were found at the residence that night.
* * *
Don't be dissuaded by defense counsel telling you they
don't have any evidence all they have is words. We have
evidence. You have the evidence to take back with you in the
jury room. You have any corroboration of the evidence that
they found. No one in the few drug cases I've had, no cop
has ever found drugs and the drugs come with the
defendant's name on it.
There is no way any case we're going to have.
[DEFENSE COUNSEL]: Objection, Your Honor.
[THE COURT]: It is closing argument.
[DEFENSE COUNSEL]: I understand, Your Honor.
[THE COURT]: And I believe you talked about your experience.
[DEFENSE COUNSEL]: No problem, Your Honor. Yes, Your Honor.
[THE COURT]: Objection is overruled, but, Counsel, please
keep it close to ...