Young v. State , 234 Md. App. 720 ( 2017 )

EVIDENCE – HEARSAY – PRESCRIPTIONS
Medical prescriptions for oxycodone, methadone, and alprazolam are not hearsay when
offered as a statutory defense to the offenses of possession of controlled dangerous
substances and possession of controlled dangerous substances with intent to distribute.
Circuit Court for Baltimore City
Case No. 114169016
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 928
September Term, 2016
STEVEN YOUNG
v.
STATE OF MARYLAND
Wright,
Graeff,
Raker, Irma S.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Raker, J.
Filed: December 1, 2017
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).
1
Detective Larbi placed the men “in front of” and “two houses down from” the residence
in the Statement of Probable Cause and his trial testimony, respectively. Another witness,
speaking at different times, placed the men half a block away, and two blocks away, from
the residence.
2
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
3
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.
4
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 there’s really
no reason you can’t accommodate me knowing full well –
[THE COURT]: Which accommodation are you asking for that
I’m not giving you?
[DEFENSE COUNSEL]: Recess until tomorrow.
5
[THE COURT]: Oh, okay.
[THE STATE]: If we recess until tomorrow, can we start the
motion earlier?
[THE COURT]: Yeah. I’m thinking –
[THE STATE]: Like maybe start at 8:30 so at least we get the
ball rolling.
[THE COURT]: Unfortunately, every Friday I have a prior
commitment.
[THE STATE]: Tomorrow is Thursday.
[THE COURT]: I’m normally here at 7:30 in the morning.
Friday –
[THE STATE]: Tomorrow is Thursday.
[THE COURT]: Oh, good. I’m sorry. I got it all confused.
It’s my age speaking. So Thursday – Thursday.
[THE STATE]: Can we bring him in here by 8:30? Can he be
in here by 8:30?
[DEFENSE COUNSEL]: (indiscernible) It depends on the
transportation.
[THE COURT]: All right. Well, that’s the decision. We’re
going to start at 9:00. We’re going to start at 9:00.”
On January 14, at 9:42 a.m., the jury was sworn, and, significantly, the court did not
address the suppression motion. Appellant’s counsel did not mention the issue or request
a hearing throughout the rest of the entire trial (nor did anyone else), and he did not object
when the State introduced Detective Larbi’s testimony that included appellant’s
statements.
6
As discussed supra, appellant was convicted and sentenced.2 This timely appeal
followed.
II.
Before this Court, appellant argues that the trial court erred in excluding evidence
of appellant’s prescriptions as hearsay. Appellant claims that he did not offer the
prescriptions for the truth of any matter asserted in them, but as a legal defense based on
the language of the statutes, Maryland Code Ann., Crim. Law §§ 5-601, 5-602 (2002; 2012
Repl. Vol., 2015 Supp.).3 Simple possession has a statutory exception for possession of
prescribed medications, which the prescriptions could prove. The prescriptions, according
to appellant, provided a defense to the intent to distribute charges because a prescription
provides alternative explanations for possession of a prescribed drug besides selling it. The
prescriptions were probative of the asserted legal possession of the drugs, not the truth of
any matter asserted in them. If the prescriptions were hearsay, appellant continued,
physician’s orders fall squarely within the Maryland Rule 5-803(b)(4) exception for
statements “made for purposes of medical treatment.”4 Appellant argues also that the
2
At sentencing, the possession charges were merged for sentencing into the charges that
included intent to distribute. Therefore the sentence was based on the four intent-to-
distribute charges.
3
Unless otherwise indicated, all subsequent statutory references herein shall be to
Maryland Code Ann., Criminal Law Article.
4
The Rule states as follows: (footnote continued . . .)
7
prescriptions should not have been excluded for lack of authentication because appellant
had no chance to present evidence to meet that slight burden (requiring only a finding that
the jury might find that the evidence is what its proponent claims).
Appellant argues that the court’s failure to hold a hearing or rule on his motion to
suppress his statements constituted reversible error. Appellant filed a written motion five
months before trial to suppress any evidence as the fruits of an illegal seizure, and renewed
the motion during pre-trial proceedings. The trial court agreed to hold a hearing on the
motion, but never held the hearing or ruled on the motion. Appellant says that he never
waived his motion, and the court erred in never resolving it.
The State argues that the prescriptions question is not preserved for appellate review
because there is no evidence of the prescriptions in the trial court’s record. Appellant did
not proffer any copies of the prescription, nor any details such as the prescribing physician
or amount of the prescriptions. The State maintains that the prescriptions were excluded
properly as hearsay because they were introduced for the truth of the implied assertion that
“RULE 5-803. HEARSAY EXCEPTIONS:
UNAVAILABILITY OF DECLARANT NOT REQUIRED
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
***
(b) Other Exceptions.
***
(4) Statements for Purposes of Medical Diagnosis or
Treatment. Statements made for purposes of medical treatment
or medical diagnosis in contemplation of treatment and
describing medical history, or past or present symptoms, pain,
or sensation, or the inception or general character of the cause
or external sources thereof insofar as reasonably pertinent to
treatment or diagnosis in contemplation of treatment.”
8
appellant and/or his wife had a medical condition that required the prescribed drugs. Even
if the prescriptions could be admitted, says the State, appellant offered no evidence to meet
even the slight standard required for authentication. Appellant did not make any effort on
the record to argue that the prescriptions were admissible. Because appellant’s witness list
did not offer any expert witnesses who could have authenticated the prescriptions, the State
argues, it is reasonable to assume appellant had no evidence to authenticate them.
As to the trial court’s failure to hold a suppression hearing, the State argues that
appellant failed to preserve his claim for our review by not objecting to or mentioning the
omitted hearing to the trial court at any time after the trial commenced. Moreover and most
significantly, during the trial, appellant did not object to the introduction of the statements
he had sought to suppress when the State introduced that evidence at trial.
III.
A.
Before we address the trial court’s exclusion of the prescription evidence, we
address the State’s preservation argument. Preservation is controlled by Maryland Rules,
interpretations of which are classified as questions of law. Williams v. State, 435 Md. 474,
483, 79 A.3d 931, 936–37 (2013). We review the trial court’s interpretations of the rules
as conclusions of law de novo, that is, without deference “to determine if the trial court was
legally correct in its rulings on these matters.” Davis v. Slater, 383 Md. 599, 604, 861 A.2d
78, 80–81 (2004).
9
Rule 8-131(a) restricts appellate review generally to subjects that “plainly appear[]
by the record to have been raised in or decided by the trial court.” Rule 4-323(c) further
defines this standard for rulings excluding evidence5 as follows:
“[I]t is sufficient that a party, at the time the ruling or order is
made or sought, makes known to the court the action that the
party desires the court to take or the objection to the action of
the court. . . . If a party has no opportunity to object to a ruling
or order at the time it is made, the absence of an objection at
that time does not constitute a waiver of the objection.”
Finally, Rule 5-103(a)(2) requires, in order to overturn a ruling excluding evidence, that
“the party is prejudiced by the ruling, and . . . the substance of the evidence [being
excluded] was made known to the court by offer on the record or was apparent from the
context within which the evidence was offered.”
The trial court knew of appellant’s desire to introduce the written prescriptions. The
State moved to exclude the prescriptions in limine and the trial court granted the State’s
motion immediately, without affording comment from appellant’s counsel. Without
making an explicit objection, appellant made known to the trial court (as required by Rule
4-323(c)) his desire that the prescriptions be admitted in evidence. Appellant raised his
defense that he and his wife had valid prescriptions for methadone, alprazolam, and
oxycodone in his motion to suppress, and the trial court’s exclusion of the evidence makes
clear that the trial court was well aware that appellant desired to introduce the prescriptions.
5
Rule 4-323(c) covers “Objections to Other Rulings or Orders.” Sections (a) and (b) deal
with objections to the admission of evidence, and (c) can be presumed to cover all other
objections. Appellant is challenging the suppression of evidence, not its admission, leaving
this question under the rules prescribed by section (c).
10
An objection or exception to the court’s ruling when the court granted the in limine
motion was unnecessary—the court gave appellant no opportunity to object to the ruling
at that time and counsel was not required to argue with or confront the court. The court
ruled on the State’s motion without offering appellant’s counsel any opportunity to respond
or to argue his position. In fact, the trial court did not let the State finish its argument
before granting the motion and immediately moving on. While appellant could have
objected and asked to return to the topic, Rule 4-323(c) does not require such a remedial
measure to preserve the issue for appeal. Reed v. State, 353 Md. 628, 639–40, 728 A.2d
195, 201 (1999). Appellant made no explicit offer of proof on the record, but the substance
of the prescription evidence is apparent from both the charges against appellant, as
discussed infra, and appellant’s suppression motion. This apparent substance of the
prescription evidence satisfies Rule 5-103(a)(2). Additionally, the court’s ruling on the
motion satisfies Rule 8-131(a)’s second option for preservation, a decision by the trial
court. We hold that the issue is preserved for our review.
B.
Unlike other evidence, a trial court “has no discretion to admit hearsay in the
absence of a provision providing for its admissibility.” Bernadyn v. State, 390 Md. 1, 8,
887 A.2d 602, 606 (2005). Hearsay is thus an issue of law, not fact. Id. “Whether evidence
is hearsay is reviewed de novo,” without deference to the trial court. Morales v. State, 219
Md. App. 1, 11, 98 A.3d 1032, 1038 (2014).
11
Maryland Rule 5-801(c) defines hearsay as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.”
We hold that the trial court erred in excluding the prescriptions. They were not
hearsay and were authenticated potentially by appellant.
Apparently, appellant did not plan to introduce the prescriptions to assert the truth
of any matter stated in the prescriptions, just their existence. Sections 5-601 and 5-602 of
the Criminal Law Article, which appellant was convicted of violating, read, in pertinent
part, as follows:
Ҥ 5-601. Possessing or administering controlled dangerous
substance.
(a) Except as otherwise provided in this title, a person may not:
(1) possess or administer to another a controlled dangerous
substance, unless obtained directly or by prescription or
order from an authorized provider acting in the course
of professional practice; . . .
§ 5-602. Distributing, possessing with intent to distribute, or
dispensing controlled dangerous substance.
Except as otherwise provided in this title, a person may not:
(1) distribute or dispense a controlled dangerous substance;
or
(2) possess a controlled dangerous substance in sufficient
quantity reasonably to indicate under all circumstances
an intent to distribute or dispense a controlled
dangerous substance.”
(emphasis added). Section 5-601 applies only to drugs not obtained by a valid prescription.
The statute does not require that the prescription be appropriate for a patient’s medical
condition, or that appellant in fact suffered from any particular medical condition, but only
12
that the prescription had been prescribed by “an authorized provider acting in the course of
professional practice.”
The State’s analogy to State v. Bryant, 361 Md. 420, 428–29, 761 A.2d 925, 929
(2000) (holding that a written certification by the custodian of hospital records was
insufficient to self-authenticate a toxicology report under Rule 5-902), which the trial court
agreed with in granting the motion, was inapt. In that case, the report was not itself a
defense to the charge, but was introduced by the State to prove the driver’s intoxication in
a vehicular homicide, i.e., to prove the blood alcohol content asserted by the report. See
id. at 431, 761 A.2d at 931. The State sought to authenticate the report as a hearsay
exception for business records under Rule 5-803(b)(6). Id. at 425, 761 A.2d at 927. Bryant
does not apply to prescriptions that are relevant to an element of the charge.
The United States Court of Appeals for the District of Columbia Circuit addressed
a similar issue in U.S. v. Bruner, 657 F.2d 1278 (D.C. Cir. 1981). John Bruner and Carl
Lynch were two of seven men convicted of unlawful distribution of a controlled substance,
interstate travel in aid of a racketeering enterprise, and conspiracy to distribute narcotic
drugs. Id. at 1282–83. The group flew women from Washington, D.C., to other cities,
where the women would visit local doctors to acquire prescriptions for the weight-loss drug
Preludin and the pain reliever Dalaudid and fill them at local pharmacies. Id. at 1283.
Couriers would then pick up the drugs from the women and return the drugs to Washington.
Id. The government’s evidence included approximately five thousand prescriptions from
Dr. Gus Bashien, who had knowingly written prescriptions for the conspiracy. Id.
13
Defendant Lynch objected to the prescriptions as inadmissible hearsay. Id. The court
rejected his assertion, reasoning as follows:
“In our view, the prescriptions were not admitted to prove the
truth of the assertions they contained, and are, therefore, not
hearsay. They were not offered to prove Dr. Bashien’s or any
of his patients’ addresses. Nor were they offered to prove the
doctor believed that the patient needed the drug prescribed,
which is an assertion probably intended by the doctor when he
wrote the prescriptions. They were offered in evidence to show
they were used to obtain drugs.”
Id. at 1284.
Section 5-602 charges of possession with intent to distribute could also be impacted
by appellant’s prescription evidence even though the statute does not include a specific
prescription exception. To be convicted, a violator must “possess a controlled dangerous
substance in sufficient quantity reasonably to indicate under all circumstances an intent to
distribute or dispense a controlled dangerous substance.” While possession of 342, 42, or
even 7 pills, and the packaging of said pills, may suggest strongly that the drugs are not for
personal use, we cannot as a matter of law say that possession was for distribution, as
opposed to the trier of fact making that determination.
Valid prescriptions provide the basis of a statutory defense to the charges for
possession of and possession of with intent to distribute methadone, alprazolam, and
oxycodone. Introducing them for such purpose, when properly authenticated, is not
hearsay. We hold that the trial court erred in excluding them as hearsay.
14
IV.
We turn to appellant’s second issue—whether the trial court erred in not holding a
hearing on his pre-trial motion to suppress. We hold that appellant did not preserve this
issue for our review.
We note at the outset that the record before us is not as clear on this issue as it should
be. Appellant filed a pre-trial motion, captioned an Omnibus Motion, requesting, inter
alia, “all evidence be suppressed because of an unlawful search or seizure.” Later, he filed
a “Motion to Suppress Search and Seizure and Request to Examine Affiant (Franks
Motion).” In his second motion, he alleged that “[a]ccording 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.”
In his memorandum of law, appellant argued that because the search warrant was
for a particular house and not for any individual or named person, the detective lacked the
authority to stop, search and arrest appellant, who was not at the house when police
executed the search warrant. He requested a hearing on the motion. The State responded
in writing, stating that appellant “is specifically referred to in the second paragraph of the
affidavit,” which established probable cause to seize him prior to entry into the residence.
The trial court appears to have addressed appellant’s motion on several occasions.
The record colloquy on the first day of trial indicates that the judge and counsel met in
chambers and discussed the pending motion, although no one put a summary of the
15
chambers conference on the record. When the court asked about Franks v. Delaware, 438
U.S. 154 (1978), the prosecutor told the court, “I believe we litigated that issue, . . . the
only remaining motion was the factual dispute as to the location as to challenging the arrest
and the probable cause of Mr. Steven Young; whether the factual discrepancy between the
two blocks or in front of 2580 Marbourne Avenue is left.” At the end of the first day of
trial, the court inquired about pre-trial motions, the prosecutor reminded the court of the
outstanding motion that needed to be resolved, and the court was available to hear the
motion “real quick.” Following defense counsel’s objection to a “real quick” hearing, the
court agreed to proceed the next morning.
As we now know, the next morning, the search and seizure motion never came up
and was never mentioned—not by the court, the prosecutor, nor, significantly, defense
counsel. At trial, when Detective Larbi testified about the fruits of the arrest, i.e., appellant
leading officers to drugs that he claimed to possess and incriminating statements made by
appellant that he “sells [drugs] from time to time,” defense counsel remained silent and
never objected to the admission of that evidence. We hold that appellant has affirmatively
waived any objection to the admissibility of this evidence.
Because it is not crystal clear what appellant is arguing before this Court, we shall
first address briefly the procedure entitling a defendant to a so-called Franks hearing
attacking a search warrant. If appellant is arguing that he was entitled to a Franks hearing,
his argument fails because he never met his burden entitling him to a hearing on the validity
of the search and seizure warrant beyond the four corners of the warrant. Moreover, as we
16
shall explain infra, the record indicates that any Franks issue was resolved apparently
during a chambers meeting, off the record, with the court and counsel.
As Judge Charles E. Moylan, Jr., explained cogently in Fitzgerald v. State, 153 Md.
App. 601, 642, 837 A.2d 989, 1012 (2003), “a Franks hearing is a rare and extraordinary
exception 1) that must be expressly requested and 2) that will not be indulged unless
rigorous threshold requirements have been satisfied.” The United States Supreme Court
set out “a formal threshold procedure before a defendant will be permitted to stray beyond
the ‘four corners’ of a warrant application to examine live witnesses in an effort to establish
that a warrant application was tainted by perjury or reckless disregard of the truth.” Id. at
643, 837 A.2d at 1012. Before a defendant may have a hearing, that defendant must make
a substantial preliminary showing that the warrant affidavit included a false statement,
made either knowingly and intentionally or with reckless disregard for the truth. Id., 837
A.2d at 1012. For this showing, “[a]ffidavits or sworn or otherwise reliable statements of
witnesses should be furnished, or their absence satisfactorily explained.” Franks, 438 U.S.
at 171. If such intentional or reckless falsity is established in a hearing, a court must find
that the alleged false statement was necessary to the finding of probable cause in order to
suppress evidence resulting from the warrant. Id. at 156. The Court of Appeals, in
McDonald v. State, 347 Md. 452, 471, 701 A.2d 675, 684 n.11 (1997), explained as
follows:
“Franks v. Delaware set out a procedure, requiring a detailed
proffer from the defense before the defendant is even entitled
to a hearing to go behind the four corners of the warrant. Under
Franks, when a defendant makes a substantial preliminary
showing that the affiant intentionally or recklessly included
17
false statements in the supporting affidavit for a search
warrant, and that the affidavit without the false statement is
insufficient to support a finding of probable cause, the
defendant is then entitled to a hearing on the matter. The
burden is on the defendant to establish knowing or reckless
falsity by a preponderance of the evidence before the evidence
will be suppressed. Negligence or innocent mistake resulting
in false statements in the affidavit is not sufficient to establish
the defendant’s burden.”
In the event that appellant is claiming he was entitled to a Franks hearing, he is
wrong because his arguments fail to satisfy the threshold requirements to entitle him to
such a hearing. First, he has not made a substantial preliminary showing that the affiant
intentionally or recklessly included false statements in the supporting affidavit for the
search warrant. In fact, he never even claims intentional or reckless falsehood, which is
the entire basis for a Franks motion. Second, bare allegations in a motion without affidavits
or the like are insufficient to satisfy the stringent threshold requirement which must be met
before a defendant may go beyond the four corners of a warrant. Appellant offers no
witness testimony or other evidence to claim that Detective Larbi’s affidavit for the search
warrant was knowingly or recklessly false. He speculates that the affidavit’s evidence
might be stale and merely disputes Detective Larbi’s report of a confidential informant
buying drugs from appellant.
Moreover, and dispositive of the issue, as reflected in the quoted colloquy, the
record suggests that the parties resolved any Franks issue in chambers. It appears that all
that remained on any pre-trial motion was a factual dispute between the State and appellant
as to whether his arrest was lawful.
18
We turn to the remaining portion of appellant’s motion: the legality of his arrest.
There is no dispute that after the first day of trial and the parties’ agreement to address the
motion the next day, no one mentioned the outstanding motion again. There is no
explanation on the record as to why defense counsel did not address the motion first thing
the next morning. Most significantly, counsel did not object when the incriminating
evidence, arguably the fruit of an illegal arrest, was introduced by the State into evidence.
Procedurally, appellant was entitled to a hearing on his motion to suppress fruits of
an illegal arrest. The court offered him a hearing, but then agreed to defer the hearing to
the next morning. While it was incumbent upon the court to address the motion and to
hold a hearing, when the court failed to do so, it was incumbent upon defense counsel to
raise the issue and bring it to the court’s attention. Then, when the State offered the
evidence, appellant remained silent. Maryland Rule 5-103(a)(1) allows an admission of
evidence to be an appealable error only if “a timely objection or motion to strike appears
of record.” A contemporaneous objection to the admission of evidence is required.
Malarkey v. State, 188 Md. App. 126, 156, 981 A.2d 675, 693 (2009). Here, there was no
objection.
Counsel cannot stand silent and invite error. The right to a ruling on a pending
motion “carries with it a commensurate responsibility [to bring the motion] to the attention
of the trial court.” White v. State, 23 Md. App. 151, 156, 326 A.2d 219, 222 (1974).
Appellant had to remind the court if he still desired a hearing on his motion, because failing
to object to a court’s decision not to rule on a motion waives the right to appeal that motion.
Malarkey, 188 Md. App. at 156, 981 A.2d at 693. In Malarkey, the judge explicitly
19
reserved on each of three motions for judgment of acquittal and never ruled on any of them.
Id. at 155, 981 A.2d at 692–93. The defendant never objected or otherwise claimed an
entitlement to a ruling on his motions, even as the case went to the jury. Id. at 155–56, 981
A.2d at 692–93. Like appellant, the defendant’s failure to bring the question to the court’s
attention waived his right to appeal it. Id. at 156, 981 A.2d at 693.
Even if both the court and counsel erred, the deciding factor in this case is counsel’s
utter silence when the State introduced the incriminatory evidence, i.e., the fruits of the
search and the incriminatory statements. Appellant was beyond question required to make
a contemporaneous objection when the State offered the evidence to “afford the trial court
an opportunity to cure or correct the error.”6 Malarkey, 188 Md. App. at 157, 981 A.2d at
693. He failed to do so.
By failing to bring to the court’s attention the failure to hold the hearing before
commencement of trial, or even at any time during the trial, and, significantly, by failing
to make a contemporaneous objection to the admission of the evidence when offered by
the State, appellant has waived the failure to hold a hearing for our review.
V.
We remand for a new trial on the six charges that were affected by the error of
excluding appellee’s prescription evidence: possession of oxycodone with intent to
6
In addition to appellant’s failure to make a contemporaneous objection, any error by the
trial court to hold a hearing was rendered harmless by appellant’s failure to object when
the incriminating evidence was introduced. Davis v. State, 8 Md. App. 327, 329 (1969).
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distribute, possession of methadone with intent to distribute, possession of alprazolam with
intent to distribute, possession of oxycodone, possession of methadone, and possession of
alprazolam. We affirm the convictions for possession of heroin with intent to distribute
and possession of heroin.
JUDGMENTS OF CONVICTIONS
FOR POSSESSION OF
OXYCODONE WITH INTENT TO
DISTRIBUTE, POSSESSION OF
METHADONE WITH INTENT TO
DISTRIBUTE, POSSESSION OF
ALPRAZOLAM WITH INTENT TO
DISTRIBUTE, POSSESSION OF
OXYCODONE, POSSESSION OF
METHADONE, AND POSSESSION
OF ALPRAZOLAM IN THE
CIRCUIT COURT FOR
BALTIMORE CITY REVERSED.
CASES REMANDED TO THAT
COURT FOR FURTHER
PROCEEDINGS CONSISTENT
WITH THIS OPINION AND A NEW
TRIAL ON THE SPECIFIED
COUNTS. JUDGMENTS OF
CONVICTIONS FOR POSSESSION
OF HEROIN WITH INTENT TO
DISTRIBUTE AND POSSESSION OF
HEROIN AFFIRMED. COSTS TO
BE PAID BY MAYOR AND CITY
COUNCIL OF BALTIMORE.
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