BERLIN — A Virginia Beach man, convicted last March by a Worcester County jury of possession with intent to distribute heroin and sentenced to eight years, had his bid for a new trial denied this week by the Maryland Court of Special Appeals.
Last March, David Russell, now 50, of Virginia Beach, was found guilty of possession with intent to distribute heroin and sentenced to eight years after a large quantity of the drug was discovered concealed within the dashboard of his vehicle during a routine traffic stop on Route 113 in Berlin. Russell appealed the conviction and sought a new trial, asserting the state erred by admitting text messages on his phone was evidence. This week, the Maryland Court of Special Appeals disagreed and upheld Russell’s conviction.
Around 4:50 p.m. on Aug. 28, 2019, Worcester County Sheriff’s deputies initiated a traffic stop on a vehicle on Route 113 north of Berlin because the Russell was using his cell phone while driving. According to police reports, Russell was sweating profusely, and his hands were shaking during the stop, leading the deputies to believe criminal activity was afoot.
The deputies issued a warning to Russell for using his cell phone while driving and asked him if they could search the vehicle. Russell consented to the search, according to court documents. During the search, deputies recovered a digital scale, some small tools and two mobile phones. The detectives also searched a portion of the dashboard near the radio that appeared to have been altered.
Behind the panel, the detectives located a white, cloth drawstring bag that contained two small rectangular items wrapped in newspaper and secured with tape. Inside the newspaper, the detectives discovered 99 small bags of heroin. Each of the bags had the words “alien rock” written on them, according to court documents. At that point, Russell was arrested and charged with possession with intent to distribute heroin.
Forensic analysis of the cell phones recovered during the search revealed text messages that appeared to be incriminating. According to court documents, one text message said, “Bro Mike, you not gonna believe that I just found them alien rocks that I thought old.” Another incoming text message said, “I need B.” Yet another text message said, “Remember what I was saying about the dude that fixed my car? It wasn’t true. I didn’t retrieve everything that I thought. I thought I retrieved everything, but I didn’t.”
Based on the amount of heroin recovered behind a hidden panel in the vehicle, and the forensic analysis of the cell phone text messages, a Worcester County jury found Russell guilty of possession with intent to distribute heroin. He was later sentenced to eight years in jail.
On appeal, Russell asserted the Worcester County Circuit Court abused its discretion by admitting text messages as evidence. In particular, Russell asserted on appeal the incoming text message “I need B” could have had several different meanings.
During trial, the Worcester County Sheriff’s detectives testified the “B” in the incoming text message was street slang for heroin, which is often packaged for distribution in bundles, or “B.” However, Russell asserted on appeal the text message could have had other meanings, and that the admission of the that message, and other text messages found on the recovered cell phone, should not have been admissible as evidence. The appeals court did not see it that way.
“Russell asserts that the text message “I Need B” is not relevant because it does not increase the likelihood that Russell distributed heroin or any other controlled dangerous substance,” the opinion reads. “Russell posits that ‘B’ could have referred to any number of things and that testimony presented regarding the likely meaning of ‘B’ was mere speculation. We disagree.”
The appeals court determined Russell’s effort to seek a new trial was unfounded because the evidence presented at trial was sufficient for the conviction.
“We agree with the state that the challenged text message is relevant because it makes it more probable that Russell possessed the heroin recovered from his vehicle with the intent to distribute it,” the opinion reads. “When considered within the context of the other evidence presented in this case, we are more than satisfied that the text message satisfies the low bar for a relevance determination.”
The high court determined the evidence presented, including the 99 bags of heroin recovered behind a hidden panel in the dashboard, along with the text messages and a recorded call from jail, were sufficient and denied Russell’s request for a new trial.
“The recorded jail call and text messages provided further support for Russell’s conviction,” the opinion reads. “In the record jail call. Russell stated that he thought he retrieved everything, but he didn’t. In the context of the other evidence presented, a jury could have interpreted this statement to mean Russell had previously had more heroin in his vehicle, retrieved some, and left 99 small bags that were ultimately recovered during the search of the vehicle.”
