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Young v. State

Court of Special Appeals of Maryland

December 1, 2017

STEVEN YOUNG
v.
STATE OF MARYLAND

         Circuit Court for Baltimore City Case No. 114169016

          Wright, Graeff, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

          OPINION

          RAKER, J.

         Appellant Steven Young appeals his convictions in the Circuit Court for Baltimore City for possession of heroin with intent to distribute, possession of oxycodone with intent to distribute, possession of methadone with intent to distribute, possession of alprazolam with intent to distribute, possession of heroin, possession of oxycodone, possession of methadone, and possession of alprazolam. He raises the following two questions for our review, which we have rephrased and re-ordered:

1. Did the circuit court err when it excluded appellant's evidence of written prescriptions for controlled substances when appellant was charged with the unlawful possession of and possession with intent to distribute those controlled substances?
2.Did the circuit court err by admitting appellant's post-arrest statements without holding a suppression hearing or ruling on appellant's motion to suppress based on an allegedly unlawful arrest?

         We shall hold that the trial court erred by excluding as hearsay evidence of written prescriptions. The motion to suppress was not preserved for our review. Accordingly, we shall reverse in part and affirm in part.

         I.

         By indictment filed in the Circuit Court for Baltimore City, appellant was charged with crimes related to controlled dangerous substances found in a police search of a house on May 28, 2014. The jury convicted appellant of possession of heroin with intent to distribute, possession of oxycodone with intent to distribute, possession of methadone with intent to distribute, possession of alprazolam with intent to distribute, possession of heroin, possession of oxycodone, possession of methadone, and possession of alprazolam. The circuit court sentenced appellant to four terms of incarceration of thirteen years, one for each count of possession with intent to distribute, to be served concurrently.

         The following evidence was presented at trial: On May 28, 2014, Detective Manuel Larbi executed a search warrant at 2580 Marbourne Avenue in Baltimore ("the residence"). Detective Larbi had surveilled the residence for a number of weeks, and identified appellant in the warrant application as a person observed at the residence. The application, however, only sought to search the residence-the form space on the warrant stating "on the person of" was left blank.

         Immediately prior to executing the warrant, Detective Larbi conducted covert surveillance of the area around the residence, where he observed appellant and another man, Arnold Bowman, in the street working on a car. Their specific location was estimated to be anywhere from directly in front of the residence to two blocks away.[1] Detective Larbi's team pulled up next to appellant and Mr. Bowman. The police officers got out of their cars, handcuffed the two men, searched them, and walked them to the residence. The officers then brought the men into the residence to wait while the officers conducted their search. Inside the residence, officers found and detained appellant's wife Angela Grubber. The officers advised all three persons of their rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).

         Appellant told the officers "that he lived in the [residence]" and that he "did have some [drugs] in his bedroom." In that bedroom, Detective Larbi found 32 pills of methadone, 7 pills of Xanax, and 3.5 grams of heroin. Detective Larbi also discovered in a kitchen cabinet downstairs 3 plastic bags each containing 100 oxycodone pills, another plastic bag containing 42 oxycodone pills, and $1, 498 cash. When confronted with the drugs, appellant told Detective Larbi that he "sells some of it from time to time."

         The Statement of Probable Cause for appellant's arrest listed appellant's address as 504 Manor Road, Glen Burnie, MD 20160. The Statement was signed by Detective Larbi.

         On July 30, 2015, appellant filed a Motion to Suppress Search and Seizure and Request to Examine Affiant, entitled a "Franks Motion." The Motion challenged Detective Larbi's Application for Search and Seizure Warrant for the residence based on the truthfulness and timeliness of Detective Larbi's affidavit that he had observed appellant at the residence selling drugs to a confidential informant. He also challenged the later Statement of Probable Cause (supporting Detective Larbi's arrest of appellant) as containing factual errors, including as follows:

"16. According to a witness, Rachel Ann Bunner, and the Defendant when the Police came to serve the Search Warrant, the Defendant was a quarter block down the road and across the street working on a vehicle, a Green Ford Explorer with Arnold Bowman. Police spotted the Defendant, stopped and searched both men, then handcuffed them and took them to 2580 Marbourne Avenue.
17. The Defendant is not an occupant of that dwelling, he does not live there, nor receive mail at 2580 Marbourne Avenue. The Defendant does not have telephone service there, his name is not on the BGE account or the Lease. In the Statement of Probable Cause Detective Larbi, under oath, put down Defendant's address as 504 Manor Road, Glen Burnie, Maryland, but then alleged that the Defendant stated he lived at 2580 Marbourne Avenue.
18. Lastly, Detective Larbi claimed that the Defendant and Mr. Bowman failed to provide any prescriptions, that is false. The Defendant attempted to provide them to police during the incident and explained that he has valid prescriptions for Methadone, Xanax (alprazolam), and Percocet (a mixture of oxycodone and acetaminophen). The Defendant has also shown that his wife had valid prescriptions for Methadone, Xanax, and Percocet."

         The motion was followed by a Memorandum of Law in support of the unlawful seizure claim on September 18, 2015, the State's Response on October 27, 2015, and appellant's Reply on November 12, 2015.

         On January 13, 2016, the State orally moved in limine to suppress any evidence concerning the written prescriptions claimed by appellant. The State argued that the prescriptions constituted inadmissible hearsay and could not be authenticated as business records. The judge granted the motion before the State could finish and did not invite appellant's counsel to respond before moving on to the next motion. Appellant's counsel did not object to the ruling. Following what appears to be a chambers conference, the hearing proceeded as follows:

"[THE STATE]: And, Your Honor, the State's second motion that we spoke in chambers is the exclusion. State's moving a motion in limine to exclude any prescription evidence as it is, number one, hearsay, and, number two, not admissible hearsay because it does not fall within the exception of 803(6).
Defense is trying to enter into evidence, number one, a prescription-an alleged prescription of the defendant and, number two, a prescription by his wife, Angela Grubber, who is not going to testify today. These are copies of alleged prescriptions. They are not certified. The doctor is not present.
There's no certification or authenticity and it's excluded under 803(6). I do have a case, Bryant v. State, by the Court of Special Appeals where in a murder trial the defense tried to enter in a piece of paper that was the alleged toxicology report because it was murder. And the Court said it's hearsay, number one, even if the defendant took the stand-
[THE COURT]: Yeah. I'm familiar with that law because I had the very same issues several times. Okay. The motion is granted.
That leaves us to-the speedy trial . . ."

         At the end of the day, the court postponed any hearing on appellant's motion to suppress until the next morning, stating as follows:

"[THE STATE]: We still have - we still have the motion issue to resolve.
[THE COURT]: Yeah, yeah, yeah.
[THE STATE]: Maybe that first thing in the morning? The witness has been here all day. He's waiting outside of the courtroom, but he's the same witness who would testify tomorrow as well.
[THE COURT]: Who is it again?
[THE STATE]: It's Detective Larbi.
[THE COURT]: Why can't we take him real quick?
[DEFENSE COUNSEL]: No, because I'm going to be a long time with him. I cannot be restricted when I do cross-examination. I never know. I can tell you five minutes. It could be a half hour. I never know. It depends on what they bring out and what they don't bring out. I mean ...

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