Anaweck v. State, 1205

• Decision Date: 01 September 1984
• Docket Number: No. 1205,1205
• Citation: 492 A.2d 658,63 Md.App. 239
• Parties: Edward ANAWECK, Jr. and Lena A. Anaweck v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 239

63 Md.App. 239

492 A.2d 658

Edward ANAWECK, Jr. and Lena A. Anaweck v. STATE of Maryland.

No. 1205, Sept. Term, 1984.

Court of Special Appeals of Maryland.

May 17, 1985.

Arnold M. Zerwitz, Towson, for appellants.

Diana G. Motz, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Baltimore, Sandra A. O'Connor, State's Atty. for Baltimore County and T. Michael McDonough, Asst. State's Atty. for Baltimore County, Towson, on brief), for appellee.

Argued before MOYLAN, ADKINS and ROSALYN B. BELL, JJ.

MOYLAN, Judge.

Seldom has evidence of other crimes been more relevant and valuable in helping to prove the crime in issue. Seldom have the appellants themselves made a more forceful case in support of that relevance and value.

The appellants, Edward and Lena Anaweck, husband and wife, were convicted by a Baltimore County jury, presided over by Judge William R. Buchanan, Jr., of the unlawful possession of cocaine in sufficient quantity to reasonably indicate an intent to distribute. Upon this appeal, they raise two substantial ¹ contentions:

1) That Judge Buchanan erroneously permitted the introduction of evidence revealing other criminal activity on the part of both appellants; and

2) That the evidence was not legally sufficient to support the convictions for possession with intent to distribute.

The two contentions are so inextricably intertwined that our discussion will randomly wander back and forth between them. In terms of legal sufficiency, an otherwise pallid but viable prima facie case will take on a far ruddier hue with the infusion of the earlier observations of criminal activity. Conversely, that salutary contribution to evidentiary robustness as opposed to bare sufficiency, will demonstrate the relevance and the value of those earlier observations of criminal activity. "As the creeper that girdles the tree-trunk, the Law runneth forward and back...." ²

Edward and Lena Anaweck lived at 2532 McComas Avenue in Baltimore County. On December 12, 1983, three officers of the Maryland State Police executed a search and seizure warrant at the McComas Avenue residence. At the time of the search, Edward Anaweck was not at home. Lena Anaweck was sitting in the kitchen, along with another individual named Charles Miller. In the course of the search, Lena Anaweck directed the troopers to a camera box located on a shelf in a closet in a first-floor bedroom. Recovered therefrom was a large plastic baggie containing five smaller baggies, each of which contained a white powdery substance which the State Police Crime Laboratory determined to be cocaine having a purity of 36.4%. ³ This was the contraband that was the gravamen of the possession convictions.

As we shuttle from "legal sufficiency" to "other crimes" to "legal sufficiency" again, our initial approach will view the events of December 12 as if frozen in time, encumbered by neither future nor past. What would we have if the evidence of December 12 were isolated in an historic vacuum chamber? We would have the argument on legal sufficiency precisely as framed by the appellants. It is an argument of potent force, at least for the ultimate finders of fact if not for the legal referee.

The appellants were not caught with the contraband in their hands. That, of course, is not legally fatal to proof of possession, but it does at least make the burden of persuasion a heavier one. "Possession and control need not be immediate and direct but may be constructive." Henson v. State, 236 Md. 518, 525, 204 A.2d 516 (1964); Bryant v. State, 229 Md. 531, 537, 185 A.2d 190 (1962). "Appellant's argument that the mere fact that narcotics were found in his apartment does not establish beyond a reasonable doubt that he put them there or that they were in his possession is without force." Armwood v. State, 229 Md. 565, 570, 185 A.2d 357 (1962). "That the narcotics were not on his person but in the house of which he was a resident did not prevent the inference the police and the trial court drew--that he had possession and control of narcotics--from properly and permissibly being drawn." Henson v. State, supra, 236 Md. at 524-525, 204 A.2d 516. It is also "well-settled that the proscribed possession ... of narcotic drugs under the Maryland law need not be sole possession." Folk v. State, 11 Md.App. 508, 511, 275 A.2d 184 (1971). "[T]here may be joint possession and joint control in several persons. And the duration of the possession and the quantity possessed are not material, nor is it necessary to prove ownership in the sense of the title." Jason v. State, 9 Md.App. 102, 111, 262 A.2d 774 (1970).

A single eyewitness, lucky enough to catch a culprit red-handed, can in a few sentences easily prove sole and actual possession of contraband. The proof of joint or constructive possession, on the other hand, is frequently more circuitous and frequently involves a set of predicate circumstances from which the inference of joint or constructive possession may permissibly arise.

This latter was the modality of proof in the case at bar. In such a case, the skirmishing ranges over a broad field. Defense counsel will parry every circumstantial thrust with at least a colorable explanation. "It was found in his house, but he wasn't home." "It was found in a bedroom, but it wasn't shown to be her bedroom." "It was found in the house in which they resided, but three other adults resided there as well." The prosecutor, in turn, will counter-parry by blocking or deflecting the explanations thrown forward by the defense. The weapons with which advocates thrust and parry and counter-parry are relevant facts. Relevant facts, in their turn, may be described as those facts which have significant utility in the business of thrusting and parrying and counter-parrying.

In terms of legal sufficiency, the argument made on behalf of Lena Anaweck--upon the motion for judgment of acquittal, in jury argument below, and in appellate brief and argument--was straightforward. When the searching party arrived, Lena Anaweck was in the kitchen, where no narcotics or paraphernalia were found. She was not in the bedroom, in the closet of which the only narcotics recovered were found. Although she had knowledge of the location of the narcotics, leading the police directly to them, the narcotics still may have belonged to her husband or to any other of the four other residents of the house. There was nothing to suggest that the suspect bedroom was the bedroom of Lena Anaweck; there were at least six rooms in the house, presumably including other bedrooms. There was no description of the type of clothing found in the suspect bedroom, so as even to imply that it was the bedroom of Lena Anaweck. That argument also, it will be noted, doggedly insists upon looking at the events of December 12 in a vacuum.

Again in terms of legal sufficiency, the argument made in behalf of Edward Anaweck--upon the motion for judgment of acquittal, in jury argument below, and in appellate brief and argument--was even stronger. He was not only not in the suspect bedroom at the time of the search, he was not even in the house. There was nothing to suggest that the suspect bedroom was his bedroom. There was nothing to make him a more likely possessor of the narcotics than any of the other five residents of the home in which they were found.

Even in the isolated context of December 12, the State's case was not quite so bereft of predicates for reasonable inferences; neither, however, was it any overwhelming one. There had been recovered in the course of the search, a bank statement from Patapsco Federal Savings and Loan Association in the names of Lena Anaweck and Edward Anaweck and giving their address as 2532 McComas Avenue. There was also a Baltimore Gas and Electric Company statement in the name of Edward Anaweck of 2532 McComas Avenue. It was clearly inferable that the suspect house was the home of Edward and Lena Anaweck. Defense argument about "four other residents, three of whom are adults" ⁴ did take on a less sinister connotation when it came out that the "three other adults" were the three daughters of Edward and Lena Anaweck, ranging in age from 20 to 24 years. The fourth "other resident" was effectively eliminated as a suspect when it was revealed that he was the infant child of one of the daughters, the grandchild of Edward and Lena Anaweck. The situs of the search was, in the last analysis, the family home of the Anawecks and not some communal "shooting gallery." There was nothing to suggest that any other individuals were using the house or any part thereof for illicit purposes. Neither Edward nor Lena Anaweck took the stand to offer any defense or explanation.

In terms of the State's burden of production--its establishment of a prima facie case--the evidence of December 12, standing alone, would obviously pose a closer quantitative call than that which we are here called upon to make. The knowledge of the narcotics on the part of Lena Anaweck would make the call in her case an easy one. The call with respect to Edward Anaweck, on the other hand, would have been a closer one. His connection with the suspect property and the absence of any apparent alternative culprits would probably have been enough to permit the State to clear the "low hurdle" of legal sufficiency, but the margin of clearance would have been admittedly narrow. In this case, however, we are not called upon to make these closer decisions, for, despite the stubborn insistence of the appellants, we are not going to look at the events of December 12 in a vacuum.

If the evidence of December 12, standing alone, might have given rise to at least arguable ambiguities, the observations of December 10 and December 11 dissolved those ambiguities and revealed unambiguous guilt. If plausible explanations might have been offered for the suspicious circumstances of December 12, the observations of December 10 and December 11 disintegrated those...