Anderson v. State, 542

• Citation: 9 Md.App. 639,267 A.2d 302
• Decision Date: 07 July 1970
• Docket Number: No. 542,542
• Parties: William Rudolph ANDERSON a/k/a William Randolph Anderson a/k/a William Albert Anderson v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 639

9 Md.App. 639

267 A.2d 302

William Rudolph ANDERSON a/k/a William Randolph Anderson

a/k/a William Albert Anderson v. STATE of Maryland.

No. 542.

Court of Special Appeals of Maryland.

July 7, 1970.

Certioari Denied Sept. 21, 1970.

Kenneth A. Pressman, Baltimore City, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty., and Peter D. Ward, Asst. State's Atty. for Baltimore City, on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

Sales of narcotics having been made on March 11 and 12, 1969 to a police informant at 2001 Booth Street in Baltimore-a two story row house dwelling in which Jerry Sawyer held the proprietary interest-police obtained a warrant to search the premises and the persons of Sawyer and one Arthur Carter, who were observed to be on the premises when the narcotic sales were made. On March 13 at 9:00 a. m. the officers executed the warrant by forcing entry to the premises. A man, later identified as Walter Perry, was apprehended as he attempted to run from the house. The police found Sawyer lying in the living room, 'where he had tripped' (lost consciousness). Two feet from Sawyer's body the police found fourteen glassine envelopes containing a substance later determined to be heroin. The envelopes were fastened together by means of a rubber band. ¹ On Sawyer's person the police found a hypodermic needle and syringe. Also found in the living room was a burnt bottom bottle cap containing narcotic residue. The officers found a metal case on the chair in the living room containing a hypodermic needle, burnt bottle caps containing a narcotic residue, and three improvised hypodermic syringes. On a shelf underneath a television set in the living room the officers found a paper bag containing another burnt bottle cap, also containing a narcotic residue, a hypodermic needle and an improvised syringe.

The second floor of the dwelling contained two bedrooms. The rear bedroom was being lived in; the front bedroom contained only a bed and did not appear to be lived in. A search of the rear bedroom uncovered two capsules containing methadone and a hypodermic needle in clothing belonging to Carter which was hanging in the cupboard. In the front bedroom police found appellant seated on the bed. They recovered a gun belonging to him from under the mattress but no narcotics or narcotic paraphernalia were found in that room. The appellant was observed to have a fresh needle mark in his arm which had been made within a forty-eight hour period prior to his arrest. He also had old needle tracks on both arms.

Appellant was convicted at a court trial of possessing the narcotic paraphernalia found in the house and with the control of heroin. He was sentenced to two concurrent three-year terms of imprisonment. He contends on this appeal that the evidence was insufficient to support the convictions.

Appellant testified at the trial that he resided with his mother, father, and brother in a home about one block from Sawyer's house. He stated that he was employed in a bakery; that he left work at 4:00 a. m. on March 13, and being unable to get into his own house, he went to Sawyer's house to sleep; that Sawyer, fully dressed, let him in at 5:05 a. m. and permitted him to sleep in the front bedroom. Appellant stated that there was no one else in Sawyer's house when he entered; and that he went to sleep and was aroused the following morning when the police forced entry to the premises. Appellant admitted that he had used heroin six or seven times in 1968, but he claimed that he had not used narcotics since that time. He testified that he never took narcotics at Sawyer's house. He professed friendship with Sawyer. He admitted that he had stopped at Sawyer's house the night before the police raid on his way to work, but he denied knowing either Carter or Perry. Perry, who the evidence showed had four fresh needle marks in his arm when he was arrested by the police, testified that he did not know the appellant.

Maryland Code, Article 27, Section 277 makes it unlawful for any person to 'have under his control' any prohibited narcotic drug. As used in the statute the term 'control' means 'to exercise any restraining or directing influence over,' viz., to relate to authority over what is not in one's physical possession. Franklin v. State, 8 Md.App. 134, 258 A.2d 767; Haley v. State, 7 Md.App. 18, 253 A.2d 424. Section 297 of Article 27 makes it unlawful (with exceptions not there pertinent) to 'have or possess a hypodermic syringe or needle or any instrument or implement adapted for the use of habit-forming drugs by hypodermic injections and which is possessed for the purpose of administering habit-forming drugs * * *.' As used in this Section, the term 'possess' means 'the act or condition of having in or taking into one's control or holding at one's disposal.' Munger v. State, 7 Md.App. 710, 256 A.2d 888. To constitute possession of narcotic paraphernalia within the ambit of the statute, the possession need not be immediate and direct; it may be constructive; and sole possession is not required-there may be joint possession in several persons and the duration of the possession is not material. Jason v. State, 9 Md.App. 102, 262 A.2d 774; Haley v. State,supra.

To obtain a conviction for control of a narcotic drug or for possession of narcotic paraphernalia the State must adduce evidence to meet the test of legal sufficienty; such evidence must show directly or support a rational inference that the accused did in fact control the drug or possess the paraphernalia in the sense contemplated by the statutes, namely, as to control of the drug, that he exercised restraining or directing influence over it, and, as to possession of the paraphernalia, that he had it in his control or held it at his disposal. Davis v. State, 9 Md.App. 48, 262 A.2d 578.

In Jason v. State, supra, we held that a person may be in control of a narcotic without being in physical possession of it; that if he is in constructive possession of the drug it is under his control; that constructive possession exists when the drug us taken into a person's control or he holds it at his disposal but is not on his person so as to be immediate or direct or physical possession; and that whether the drug is taken into one's control or he holds it at his disposal depends on the particular facts and circumstances of each case. But once a narcotic drug is injected into the vein, it is no longer within...