RECENT DEVELOPMENT: GARNER V. STATE. By: Mary Lynn Denholm

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1 Member, National Conference of Law Reviews UNIVERSITY OF BALTIMORE LAW FORUM VOLUME 41 Fall 2010 NUMBER ONE RECENT DEVELOPMENT: GARNER V. STATE By: Mary Lynn Denholm

2 GARNER v. STATE: AN OUT-OF-COURT STATEMENT MADE BY AN UNKNOWN CALLER TO THE DEFENDANT S CELL PHONE WHILE IN POLICE CUSTODY DID NOT CONSTITUTE INADMISSIBLE HEARSAY; WHERE DEFENDANT NEVER DISCHARGED HIS COUNSEL, MD. RULE 4-215(a)(3) DID NOT APPLY. The Court of Appeals of Maryland held that the out-of-court utterance can I get a 40, made to the defendant s cell phone by an anonymous caller, did not constitute inadmissible hearsay. Garner v. State, 414 Md. 372, 995 A.2d 694 (2010). Specifically, the court held that words expressed by an individual during a telephone call to purchase drugs constitute a verbal act, and therefore, are not classified as hearsay. Id. at 382, 995 A.2d at 700. Further, the Court of Appeals of Maryland held that because the defendant did not discharge his counsel, the judge was not obligated to advise the defendant in compliance with Maryland Rule 4-215(a)(3). Id. at 389, 995 A.2d at 704. On June 22, 2006, a state trooper stopped Alphonso Garner ( Garner ) for several minor traffic violations. Garner was driving with a revoked license, and a search incident to Garner s arrest produced thirteen individually wrapped plastic bags containing cocaine. At the police station, officers seized Garner s personal items including his cell phone. When the cell phone rang, an officer answered, and an anonymous male caller stated, can I get a 40. The male caller hung up when asked for his name. At the start of trial, Garner informed the judge that he wished to dismiss his private attorney, Curt Anderson ( Anderson ). Garner later agreed to permit Anderson to serve as standby counsel. Following this exchange, Anderson conducted the trial from start to finish, absent any objections or active participation from Garner. He was convicted of possession of cocaine with intent to distribute and related offenses in the Circuit Court for Queen Anne s County. On appeal, Garner argued to the Court of Special Appeals of Maryland that he was entitled to a new trial for two reasons. First, Garner argued that the trial court erroneously permitted the admission of hearsay evidence. Second, Garner asserted that the trial court did not comply with 1

3 the requirements of Maryland Rule 4-215(a)(3) when ruling on his request to discharge his counsel. The Court of Special Appeals of Maryland rejected both arguments. Garner filed a petition for a writ of certiorari, which the Court of Appeals of Maryland granted. In addressing the first issue, the Court of Appeals of Maryland noted that when a cell phone is used to receive orders for the purchase of controlled dangerous substances ( CDS ), the cell phone becomes an instrumentality of the crime. Garner, 414 Md. at 382, 995 A.2d at 700. The court classified CDS purchases as a form of contract, with an offer and acceptance. Id. (citing Little v. State, 204 Md. 518, , 105 A.2d 501 (1954)). The court held that the words uttered by the intended purchaser constitute a verbal act, and because such acts are not assertions, they are not subject to the rules against hearsay. Id. at 382, 995 A.2d at 700 (citing Garner v. State, 183 Md. App. 122, 140, 960 A.2d 649, 659 (2008)). The court further stated that although the declarant was not identified in this case, the utterance was admissible because the words were not introduced against a particular person. Id. at 383, 995 A.2d at (citing Beard v. United States, 65 App. D.C. 231 (1936)). The court found that the utterance in this case was provided as circumstantial evidence to prove that Garner s cell phone was used to receive drug orders. Id. at 383, 995 A.2d at 701 (citing Courtney v. State, 187 Md. 1, 48 A.2d 430 (1946)). The court acknowledged that although there may be an implied assertion in every question, the only implied assertion here was that the caller possessed the money to purchase the drugs. Garner, 414 Md. at 388, 995 A.2d at 704. Furthermore, the State did not introduce the utterance to prove the truth of the matter asserted, but only to show that the words had been said. Id. Accordingly, the court held that the utterance, can I get a 40, constituted the verbal act of buying drugs, which established the consequential fact that Garner possessed a cell phone called by a person attempting to purchase cocaine. Id. at 389, 995 A.2d at 704. The dissent argued that the utterance at issue constituted an implied assertion, and should have been excluded as inadmissible hearsay. Id. at 397, 995 A.2d at 708 (Bell, C.J. dissenting). The 2

4 dissent reasoned that the statement was offered for the truth of the matter asserted, that Garner owned the cell phone, and had cocaine to sell to the caller. Id. at 414, 995 A.2d at 719 (Bell, C.J. dissenting). As to the second issue, the court addressed Garner s argument that the trial court had failed to instruct him under Maryland Rule 4-215(a)(3), by examining the transcript to determine whether counsel was discharged during trial. Garner, 414 Md. at 398, 995 A.2d at 704. The court stated that the purpose of Maryland Rule 4-215(a)(3) is to protect the right to effective assistance of counsel in a criminal trial when a defendant discharges his counsel in favor of pro se representation. Id. at 389, 995 A.2d at 704 (citing Garner v. State, 183 Md. App. 122, , 960 A.2d 649, (2008)). Relying on the intermediate appellate court s analysis, the court held that because Garner never took charge of his defense, Anderson was never discharged, and Maryland Rule 4-215(a)(3) concerns never arose. Id. at 390, 995 A.2d at (citing Garner v. State, 183 Md. App. 122, , 960 A.2d 649, (2008)). The dissent found that Garner had, in fact, discharged his counsel. Garner, 414 Md. at 392, 995 A.2d at 706 (Bell, C.J. dissenting). The transcript indicated that the judge asked Garner, [a]re you going do you want to discharge him, is that it, and Garner responded by saying, [y]es, sir. Id. at 394, 995 A.2d at 707 (Bell, C.J. dissenting). At that moment, the dissent claimed, Garner discharged his counsel. Id. (Bell, C.J dissenting). The dissent argued that the trial court erred by failing to immediately instruct Garner under Maryland Rule 4-215(a)(3), so that Garner could effectively assist himself in his own defense. Id. at 418, 995 A.2d at 721 (Bell, C.J. dissenting). In Garner, the Court of Appeals of Maryland extended the nonhearsay category of verbal acts by analogizing the words exchanged in furtherance of CDS purchases to contract formation. This decision adheres to Maryland s precedent in affording the State broader latitude in gathering evidence and prosecuting cases. Maryland practitioners must now evaluate their evidence against 3

5 this expanded scope of admissible nonhearsay evidence. In addition, the Garner court placed a greater burden on the defendant, who must now take control of their defense upon declaring their wish to discharge counsel. The responsibilities of standby counsel remain unclear, as few defendants will be capable of calling the shots in their defense without significant intervention by standby counsel. Maryland practitioners called upon to serve as standby counsel must be cautious and provide sufficient legal support without crossing the line into full legal representation. 4