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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1804 SEPTEMBER TERM, 2001

PHILIMON N. SHEMONDY v. STATE OF MARYLAND

Salmon, Kenney, Adkins, JJ.

Opinion by Kenney, J.

Filed: November 1, 2002

A jury sitting in the Circuit Court for Montgomery County convicted Philimon N. Shemondy, appellant, of possession of cocaine with the intent to distribute. years of imprisonment. The court sentenced him to fifteen

Appellant presents the following questions

for our consideration, which we have rephrased as follows:1 I. Did the trial court err by permitting a police officer to render an expert opinion about the meaning of numerical data that were retrieved from appellant's pager?

II. Did the trial court err by admitting into evidence the numerical data that were obtained from appellant's pager? III. Did the trial court err by permitting the State to offer rebuttal evidence? For the reasons stated below, we find no error and affirm the decision of the trial court. Factual and Procedural Background In the evening hours of August 16, 2000, police officers from the Special Investigations Division of the Montgomery County Police Department conducted surveillance of a three level, garden-style apartment building The located purpose at of 17116 the Queen Victoria was Court to in

Gaithersburg.

surveillance

serve

1

Appellant phrased the issues as follows: 1. Whether the trial court erred in permitting any evidence regarding the significance of the data contained in a pager recovered from the appellant during a search incident to arrest? 2. Whether the trial court erred in admitting improper rebuttal evidence?

-2appellant with an arrest warrant. While waiting for appellant, the police officers used radios to communicate with each other. Shortly before 9:00 p.m., Detective John St. Louis observed appellant and Purnell Smoot walking towards the front of the apartment building. By radio, Detective St. Louis alerted the

other officers of appellant's arrival and, then, all at once, the officers approached the men, shouting "county police, county

police" and "get down."

By this time, appellant and Mr. Smoot had

entered the open stairwell of the apartment building. Upon hearing the officers' oral commands, appellant ran up the stairwell of the building and Mr. Smoot hesitated for a moment and then followed appellant. The officers caught Mr. Smoot, but appellant continued running up the stairwell. When appellant reached the top level of the

building, Detective Mark Janney observed him remove an object from the waist of his pants and then bend towards the floor as if to conceal the object. Detective Janney made this observation while

standing on the sidewalk in front of the building. After appellant discarded the object, he walked down the stairwell where he encountered Detective Charles Carafano. As

Detective Carafano approached, he observed appellant throw a napkin on the floor of the stairwell. appellant under arrest. Thereafter, Detectives Carafano and Janney walked to the top Detective Carafano then placed

-3level of the building where they observed a large bulge under a floor mat in the area where Detective Janney had observed appellant bend over. The officers lifted the mat and discovered 25.95 grams Detective

of crack cocaine and 13.97 grams of powder cocaine.

Carafano also seized the napkin, which contained .26 grams of crack cocaine. The police searched appellant and seized the following items from his pants: one Samsung cellular telephone and $70 from the

right front pocket, $104 from the right front zipper pocket, $20 from the left front pocket, and one Motorola pager from the waistband. Detective St. Louis turned off the pager two days after appellant's arrest. obtained a search On September 8, 2000, Detective St. Louis warrant, which authorized him to retrieve

numerical data from appellant's pager. Initially, defendant was charged in the District Court of Maryland for Montgomery County with possession of cocaine with the intent to distribute and possession of cocaine. In October 2000, however, a grand jury returned a single-count indictment that charged appellant with possession of cocaine with the intent to distribute. At trial, the State proceeded under the theory that appellant sold cocaine. To support this theory, seven police officers

testified about the cocaine, cellular telephone, and pager that

-4were seized on the night of appellant's arrest. Louis testified about the search warrant he Detective St. obtained for

appellant's pager and, also, the numerical data that were retrieved from the pager. Finally, Sergeant Marcus Jones testified as an

expert in drug usage and drug trafficking. In order to qualify Sergeant Jones as an expert, the State, during voir dire examination, elicited the following information about his knowledge, skill, experience, training, and education. He had been a police officer with the Montgomery County Police Department for fifteen years, working in the Tactical Drug

Enforcement Unit of the Special Investigations Division for nine of those years. In this capacity, he worked undercover as an

investigator, participating in "hand to hand purchases with drug dealers" and obtaining information from drug dealers "on how actually they will purchase drugs, how they will cut drugs up to sell, their methods of operation, how they operated." In addition, he worked with confidential informants, learning the "street" value of drugs and how buyers and sellers used pagers and cellular telephones to communicate with each other. He also participated in the execution of nearly one hundred fifty search warrants. Sergeant Jones received a bachelor's degree in business

administration.

As a police officer, he attended several schools

and seminars where he learned, among other things, how to identify, package, and test drugs. The schools and seminars included a Drug

-5Enforcement Administration school on narcotics, advanced seminars on narcotics investigations, on and an Internal money Revenue Service and

sponsored narcotics.

seminar

organized

crime,

laundering,

Following this testimony, the trial court accepted Sergeant Jones as an expert in drug usage and drug trafficking. Thereafter, Sergeant Jones opined that appellant sold cocaine. this conclusion, he relied on three factors. the large amount of cocaine that was seized. In arriving at

The first factor was He testified that

drug users generally purchase cocaine in small quantities on a daily basis. In his experience, "[n]o user ha[d] ever told me ...

that they [would] buy this much for their own personal use." The second factor was the money that was discovered in

different pockets of appellant's pants.

Sergeant Jones testified

that some drug dealers "will separate their monies from what they actually make." In other words, dealers would keep money that was

earned from drug sales separated from money that would be used to purchase additional drugs. Also, dealers separated money in the

event of a robbery so that an "individual may not find it after going through one pocket, just grab the money and think that is all that they have." The third factor was the numerical data that were retrieved from appellant's pager. Sergeant Jones testified that buyers and

sellers of crack cocaine often use pagers to communicate with each

-6other. A buyer will call a dealer's pager and input a telephone For example, if "[the buyers]

number followed by certain "codes."

were looking for ... $50 worth [of drugs], they would put in a code [that would] say 50." Also, a buyer might use a code to identify

himself or use a code like 911, "which means hurry up call me back." Sergeant Jones then examined the numerical data that Detective St. Louis had retrieved from appellant's pager. follows: 528-5818 330-1109 528-5818 528-5818 869-9814 240-632-2693 240-632-2693 990-1819 444-0788 869-9814 240-632-2693 80 40 7589 911 40 711 50 50 60 40 911 40 911 7589 911 The data were as

Sergeant Jones explained that the data included telephone numbers that were followed by the same "codes" that he had discussed earlier. In his opinion, the data indicated that persons were

contacting appellant in order to purchase crack cocaine.

-7The defense's theory of the case was that appellant was a drug user and that the cocaine was for his personal use. In support,

Herbert Howard testified as an expert in drug addiction and drug usage. Mr. Howard, a former drug addict, was a certified chemical

dependency counselor who worked for two separate substance abuse programs. He testified that the amount of cocaine that was seized

could have been for personal use or for distribution. He explained that approximately five to ten percent of addicts would use a large quantity of cocaine but "it usually ha[d] to do with the amount of wealth they ha[d]." As examples, he referred to a professional

football player or a person who received a tax refund or an inheritance. DISCUSSION I

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