Amos v. State, 975

• Decision Date: 20 April 1979
• Docket Number: No. 975,975
• Citation: 42 Md.App. 365,400 A.2d 468
• Parties: Gregory Martin AMOS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 365

42 Md.App. 365

400 A.2d 468

Gregory Martin AMOS v. STATE of Maryland.

No. 975.

Court of Special Appeals of Maryland.

April 20, 1979.

John W. Sause, Jr., Dist. Public Defender, for appellant.

Ray E. Stokes, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., and Donaldson C. Cole, Jr., State's Atty., for Cecil County on brief, for appellee.

Argued before LOWE, MELVIN and LISS, JJ.

LOWE, Judge.

Gregory Martin Amos would have us reverse the judgment of the Circuit Court for Cecil County, wherein a jury convicted him of conspiracy to distribute methamphetamine. He provides us with alternative reasons: evidentiary insufficiency, and improper chain of custody of the controlled dangerous substance which he purportedly conspired to distribute.

sufficiency of the evidence

An undercover officer, Trooper Michael H. Pasker, testified to that which constituted the conspiracy:

"A We went into the house and met with Greg. And then we went up to his room which is located in the attic. We began a drug related conversation.

Q Just tell us what the conversation was between you and the Defendant? What did you talk about? What did you say and what did he say?

A He said, 'Do you have anything for your head?'

MR. EVANS (Defense Attorney): I object. Who is this that says this?

THE WITNESS: Gregory.

MR. EVANS: Said what?

THE WITNESS: 'Do you have anything for your head?'

BY MR. COLE:

Q What happened next.

A I said 'No. That is what we are here to see you about.' And Gregory said he didn't have anything at that time, but if we came back or called him around 5:00 he would see what he could do for us.

Q He said come back or call?

A Around 5 that afternoon.

Q Did you do it?

A Yes. At about 5 that afternoon I returned to the house. Again with Dennis, we went into the house and into the kitchen. And Gregory said he didn't have anything at that time, but he had talked to Ralph Quincy Richardson and that he had two quarter-tees of crank for sale, which means he had a quantity of methamphetamine for sale. And that he would meet us at the Howard Hotel in Elkton to make the transaction.

Q Did he say anything else?

A He also said that he would call at that time and tell him that we were on our way.

Q Okay. Now, did you go to the Howard Hotel?

A Yes, I did. I arrived there at approximately 5:30 and I met with Ralph Quincy Richardson at that location. I identified myself that I had just talked to Gregory Amos, and asked Richardson if Amos had contacted him, at which time he said, 'Yes, he did.'

A Richardson and I then went into the bathroom, at which time he said he had two quarter-tees of crank. And I asked him what the price would be. And he said $30 to me. I produced a $20 bill and a $10 bill and handed it to him, at which time he removed from his shirt pocket a silver cigarette case and had a pack of Kool cigarettes there. And on the side or in the bottom of the case he had two small packages of methamphetamine.

Q And they were what happened to them?

A I then took them into my custody, and subsequently had them analyzed by a certified chemist for the State of Maryland."

While this evidence is admittedly thin, it is sufficient evidence from which a factfinder could infer a conspiracy. In Kelley v. State, 12 Md.App. 251, 278 A.2d 87 (1971), Cert. denied, 263 Md. 716 (1971), the facts were surprisingly similar. There, a police officer testified:

" 'I said, 'Do you have any grass that you would like to sell?'

He said, 'My brother has some, but he's not home right now.' Then on top of that he said, 'But I know a guy that might have some. If you want to come in, I'll call him.' " Kelley v. State, 12 Md.App. at 253 n. 2, 278 A.2d at 89 n. 2.

Kelley then called the source, relayed the messages and went with the officer to vouch for him. The transaction was consummated, and as here, no evidence was adduced that Kelley participated in the proceeds. This Court held that:

"the jury could have found from credible evidence before it that appellant at his own suggestion called Yeager and arranged for the sale of marijuana to Morton. This agreement between appellant and Yeager that the drug be sold to Morton resulted in the unlawful combination, as charged, to commit the crime proscribed by Code, Art. 27, § 277, then in effect, and the conspiracy was complete. Compare Randolph v. State, 10 Md.App. 89, 267 A.2d 767. Whether or not appellant thereafter shared in the profits or received some other consideration is not material." Id. at 258, 278 A.2d at 91.

Appellant seeks to distinguish Kelley because of his limited participation in the actual transaction. He contends that he did little more than give gratuitous advice to the trooper at the trooper's importunacy, I. e., he made inquiries solely on behalf of the trooper. But that is his interpretation of the facts proven without allowance for logical inferences which may flow from those facts. If jurors could not infer elements of dishonesty from borderline conduct, few, if any, conspiracy convictions would occur. Id. at 257-258, 278 A.2d 87. The difficulty, of course, is that the law of conspiracy is broad enough to ensnare innocent acts shaded with corrupt appearances.

Over one hundred and fifty years ago the Court of Appeals decided that every conspiracy to do an unlawful act, or to do a lawful act for an illegal purpose which has a tendency to prejudice the public, is at common law an indictable offense. State v. Buchanan, 5 H. & J. 317 (1821). If the evidence in the case at bar is considered thin, it appears abundant when compared to some of the examples given in Buchanan, e. g.:

"So in The King vs. Leigh and others, (Macklin's Case,) 2 Macklin's Life, 217, in which it was held, that an indictment would lie for a conspiracy to impoverish an actor, by driving or hissing him off the stage; and in Clifford vs. Brandon, 2 Campb. 358, it was said by Sir James Mansfield, that 'though the audience had a right to express by applause or hisses their sensations at the moment, yet if a body of men were to go to the theatre, with a settled intention of hissing an actor, or even of damning a piece, there could be no doubt that such a deliberate preconcerted scheme would amount to a conspiracy, and that the persons concerned in it might be brought to punishment.' There the preconcerted scheme alone, the unexecuted conspiracy, was held to be indictable; but if put into execution, according to circumstances, it would be a riot." Id. at 346-347.

We will, therefore, not reverse without retrial, because the evidence was sufficient to have sustained the verdict. However, finding evidentiary error of a prejudicial nature, we will reverse and remand for retrial. State v. Boone, 284 Md. 1, 13-14, 393 A.2d 1361 (1978); Mackall v. State, 283 Md. 100, 387 A.2d 762 (1978).

chain of custody

If appellant were to be convicted of conspiracy to distribute a quantity of methamphetamine, a controlled dangerous substance, as charged, the proof must equal the charge. The testimony set forth above without more would have been sufficient. The actual transaction conspired need not have transpired. Execution is not requisite, Buchanan, supra at 355; the gist of the conspiracy is an unlawful combination and no further overt act is required to constitute the crime. Kelley, supra; Jones v. State, 8 Md.App. 370, 375-378, 259 A.2d 807 (1969).

But, presumably, because the evidence was inferentially equivocal, the State chose to bolster it by showing the consummation of the overt act conspired. To further substantiate the testimony that the sale took place as set up by appellant, the State sought to introduce the methamphetamine purchased by the officer, then to prove by a chemical analyst that it was indeed methamphetamine. In short, the State sought to corroborate the testimony of the trooper and to enlarge the scope of inferential culpability by introducing the real evidence of the crime appellant had conspired to have perpetrated, I. e., by presenting to the jury the controlled dangerous substance itself.

To be admissible, however, this "real evidence" must be in substantially the same condition that it was in at the time of the crime and must be properly identified. 3 Wharton's Criminal Evidence § 635 (13th ed. C. Torcia). Although there is a natural inference or presumption of continuance in the same condition, that inference varies in each case with the nature of the subject matter and the time element. Nixon v. State, 204 Md. 475, 482, 105 A.2d 243 (1954); 2 Wigmore, Evidence § 437(1) (3d ed.).

Whether real evidence is in the same condition as at the time of the crime so as to permit admissibility is not entirely a discretionary matter with the court, Nixon, supra at 483, 105 A.2d 243; although the circumstances surrounding its safekeeping in that condition in the interim need only be proven as a reasonable probability. Breeding v. State, 220 Md. 193, 199, 151 A.2d 743 (1959). The proof negating the probability of changed conditions between the crime and the trial, is spoken of as proving the chain of custody, and in most instances is established by accounting for custody of the evidence by responsible parties who can negate a possibility of "tampering" and thus preclude a likelihood that the thing's condition has changed.

In a narcotics' case, the heart of the crime is that the seized evidence is legally proscribed, and this of necessity requires expert analysis of the thing seized. Obviously, the identifying guarantee that the hard evidence seized is unchanged between the time of seizure and the trial is not as important as establishing that the thing seized is the same analyzed and introduced at the trial as a proscribed drug. When drugs are submitted to police laboratories for analysis, and held in drug lockers with "say two hundred (other specimens) to be tested," there is far greater risk of misidentification than there is of changed conditions. It is the assurance that the substance...