Dickerson v. State

• Decision Date: 01 September 1990
• Docket Number: No. 148,148
• Parties: James E. DICKERSON v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 163

324 Md. 163

596 A.2d 648

James E. DICKERSON v. STATE of Maryland.

No. 148, Sept. Term, 1990.

Court of Appeals of Maryland.

Oct. 9, 1991.

Michael R. Malloy, Asst. Public Defender, Stephen E. Harris, Public Defender, Baltimore, on brief, for petitioner.

M. Jennifer Landis, Asst. Atty. Gen., J. Joseph Curran, Jr., Atty. Gen., on brief, Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

The issue to be decided in this case is whether dual convictions for possession of cocaine with intent to distribute and for use of drug paraphernalia lie when the latter conviction is based solely on the possession of the vial containing the cocaine on which the former conviction is based. The Court of Special Appeals, reasoning that, because they are separate offenses, they do not merge, answered "Yes." We granted the Writ of Certiorari requested by petitioner James E. Dickerson and now reverse.

The facts out of which this case arose are simple and straightforward. Petitioner was a passenger in a car that was stopped by the police after it had been clocked, by radar, proceeding at a speed in excess of the posted limit. When a Crown Royal bag containing a vial of crack cocaine was discovered between the front seats, he and the driver were arrested. Based solely on the vial which contained the cocaine, petitioner was charged with violation of Maryland Code Ann. art. 27, § 287A(c) (1957, 1987 Repl.Vol.), use of drug paraphernalia, ¹ and art. 27, § 286(a)(1), (1990 Cum.Supp.), possession of the cocaine in the vial with intent to distribute. ² He was convicted of both charges.

Petitioner argued in the Court of Special Appeals that the Legislature did not intend to permit dual convictions when the drug paraphernalia conviction is premised solely on the use of the container in which the cocaine forming the basis for the distribution offense was found. In addition, he urged that, if the legislative intent is not clear--there is an ambiguity--, then the rule of lenity requires the court to resolve the ambiguity in his favor. In affirming the judgment of the lower court, the Court of Special Appeals, in an unreported opinion, reasoned:

The paraphernalia involved in this case is limited to the vial containing the cocaine. The sentence was suspended generally and we conclude that the $500.00 fine was not imposed. Md. Code, article 27, sec. 287(d)(2), relating to drug paraphernalia, refers to "gelatin capsules, glassine envelopes, or any other container suitable for packaging of individual quantities of controlled dangerous substances...." A vial is no different. Under the required evidence test for merger, appellant's argument for merger of the drug paraphernalia charge into the possession with intent to distribute charge fails. Each offense contains an element which the other does not. Concerning paraphernalia, the State must prove possession with an intent to use the paraphernalia. In possession with intent to distribute, the State must prove an intent to circulate some or all of the drug. Each offense requires proof of a fact that the other does not. There is no merger.... (Citations omitted)

Section 287A(a) defines "drug paraphernalia" as:

[A]ll equipment, products, and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled dangerous substance in violation of this subheading....

By way of example, that section lists 12 categories of items included in the definition. Two of them are relevant to the case sub judice:

(9) Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled dangerous substances;

(10) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled dangerous substances.

Section (b) recognizes that objects which are not necessarily drug paraphernalia may nevertheless be drug paraphernalia by virtue of their use or the surrounding circumstances ; therefore, as an aid to the trier of fact, it provides:

(b) Factors in determining whether object is drug paraphernalia.--In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:

(1) Statements by an owner or by anyone in control of the object concerning its use;

(2) Prior convictions, if any, of an owner, or of anyone in control of the object, under any State or federal law relating to any controlled dangerous substance;

(3) The proximity of the object, in time and space, to a direct violation of this section or to a controlled dangerous substance;

(4) The existence of any residue of controlled dangerous substances on the object;

(5) Direct or circumstantial evidence of the intent of the owner, or of anyone in control of the object, to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this section; the innocence of an owner, or of anyone in control of the object, as to a direct violation of this section shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;

(6) Instructions, oral or written, provided with the object concerning its use;

(7) Descriptive materials accompanying the object which explain or depict its use;

(8) National and local advertising concerning its use;

(9) The manner in which the object is displayed for sale;

(10) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products (11) Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;

(12) The existence and scope of legitimate uses of the object in the community;

(13) Expert testimony concerning its use.

Focusing on the definition of drug paraphernalia, petitioner argues that § 287A "is aimed at the possession of items whose purpose goes beyond merely containing the drugs that a defendant possesses." And, given the definition of paraphernalia ³, he continues, interpreting § 287A as permitting a conviction based solely on the use of the container for the drugs gives the statute a "strained interpretation"; under such interpretation, two convictions must lie whenever one possesses a controlled dangerous substance. He reasons: "[u]nless it is in the form of smoke, a controlled dangerous substance must always be contained in or on some object. 'Drug paraphernalia' could include a shirt pocket, underwear, an automobile seat, or a human hand."

Petitioner also relies upon State v. Owens, 320 Md. 682, 688, 579 A.2d 766, 768 (1990), and Davis v. State, 319 Md. 56, 62, 570 A.2d 855, 858 (1990). In Owens, we held that the General Assembly did not intend "separate prosecutions and punishments for possession of PCP and possession of marijuana where the two substances have been, for all practical purposes, irrevocably joined as one." In Davis, we rejected the State's argument that a glass jar and other items used to coat parsley with PCP constituted a device adopted for the production of PCP.

Not surprisingly, the State takes the opposite view, arguing "the vial at issue in this case is clearly an item of paraphernalia, as defined in § 287A, since it is a container used to store and conceal cocaine." It recommends that we make "a common sense reading of § 287A, in light of the Legislature's declared intent in § 276," ⁴ which would support the trial court's decision and mandate the conclusion that the Legislature intended separate prosecutions and penalties for violations of both § 287A and § 286(a)(1) notwithstanding that both, especially under these circumstances, address closely related conduct.

The State also argues that Owens and Davis are inapposite. Unlike Owens, it reminds us, the cocaine and the vial which contained it are not "irrevocably joined as one." Davis is distinguished on the basis that, at issue there was the sufficiency of the evidence to sustain the conviction, while here, that issue is not before us.

Petitioner was charged and convicted under two separate statutes, § 286 and § 287A, each addressing different conduct. Focusing on what the State must minimally prove to sustain a conviction under each statute makes clear that this is so. See Thomas v. State, 277 Md. 257, 267, 353 A.2d 240, 246-47 (1976). Section 286(a)(1) proscribes possession of a controlled dangerous substance in sufficient quantity reasonably to indicate under all circumstances an intent to distribute it. On the other hand, § 287A(c), as relevant to the case sub judice, prohibits the use of drug paraphernalia to "contain", "store" or "conceal" a controlled dangerous substance. Proof that drug paraphernalia was used in connection with the possession of a controlled dangerous substance is not necessary when the charge is possession of that controlled dangerous substance with intent to distribute it. Similarly, although its presence in at least a trace amount may be probative of the item's nature, see § 287A(b)(4), proof that the accused possessed a controlled dangerous substance, with or without the intent to distribute, is not required to prove use of drug paraphernalia. Particularly is this the case where the possession is constructive, ⁵ not actual, and is under circumstances, unlike those sub judice, where the controlled dangerous substance is not in a container.

We are here concerned with multiple convictions, and punishment, imposed...