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State v. Gutierrez

Court of Appeals of Maryland

January 28, 2016

STATE OF MARYLAND
v.
HECTOR LEONEL GUTIERREZ & EDGAR PEREZ-LAZARO

         Argued 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.

         ARGUED BY: Thomas M. Donnelly, Assigned Public Defender (Law Offices of Thomas M. Donnelly, LLC of Baltimore, MD) on brief FOR RESPONDENTS.

         ARGUED BY: Gregory W. Gardner, Assigned Public Defender (Law Office of Gregory W. Gardner of Washington, DC) on brief FOR RESPONDENTS.

         ARGUED BEFORE: Barbera, C.J., Battaglia, Greene, Adkins, McDonald, Watts, Harrell, Jr., Glenn T., (Retired, Specially Assigned), JJ.  Greene, Adkins and McDonald, JJ., dissent.

          OPINION

Page 986

         [446 Md. 224] Battaglia, J.

         At 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, a

Page 987

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.

         Detective 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 bedroom.

          [446 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.[1] 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.

         Another 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 record.

         Both Gutierrez and Perez-Lazaro were indicted for possession[2] not only of a controlled dangerous substance,[3] but also [446 Md. 226] with intent to distribute a controlled dangerous substance,[4] as well as possession of a firearm with a nexus to drug trafficking[5] in

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addition to obliteration of the identification number of a firearm.[6]

         Trial 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.

          [446 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 the residence?

         Perez-Lazaro's counsel also pointed to the possibility of more people in the apartment:

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 bedroom.
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.

         Perez-Lazaro's 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

Page 989

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 be home.
* * *
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 technology.
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.

         During 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? Not always.
* * *
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.

Page 990

[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 ...

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