Barkley v. State
| Citation | 219 Md.App. 137,98 A.3d 1111 |
| Decision Date | 02 September 2014 |
| Docket Number | No. 1593,Sept. Term, 2013.,1593 |
| Parties | Keith S. BARKLEY v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Deborah Richardson (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.
Gary E. O'Connor (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.
Unlawfully to possess heroin is a misdemeanor subjecting the possessor to the risk of imprisonment for four years plus a fine of $25,000. Criminal Law Article, § 5–601. To possess that heroin with the intent to distribute it, however, escalates the crime into a felony with a maximum sentence of twenty years imprisonment. §§ 5–602, 5–608. How then does the State go about proving that specific intent to distribute which is the escalating trigger? The defendant, of course, could tell us, but defendants are seldom so forthright. As an alternative, the State sometimes looks into the mind of the defendant inferentially, with the help of an expert witness. There is a discernible line, however, between what the expert is permitted to tell us and what he may not. The burden of this appeal is to determine on which side of that line the testimony of the State's expert fell.
The appellant, Keith S. Barkley, was convicted in the Circuit Court for Wicomico County by a jury, presided over by Judge W. Newton Jackson, III, of 1) possession with intent to distribute heroin; 2) the simple possession of heroin; and 3) the simple possession of cocaine. On appeal he raises two contentions.
1. That Judge Jackson erroneously permitted a police detective, as an expert witness, to testify as to the appellant's state of mind; and
2. That Judge Jackson erroneously refused to allow him to discharge his attorney and to proceed pro se.
To place the appellant's primary contention in perspective, we must ask, “Why would we, or why would anyone, care about the appellant's state of mind?” It is a legitimate contention, but it does affect only one of the three charges for which the appellant was convicted. Even if the contention were to prevail, two of the appellant's three convictions would remain totally unscathed.
The hard core of basic facts in this case is not in dispute. On March 21, 2013, the appellant was arrested at the intersection of Lehigh Street and North Division Street in Salisbury. The legality of that warrantless arrest is not contested. In the presence of several other officers, Officer Brandon Caton of the Salisbury Police Department searched the appellant as an incident of the arrest. The Fourth Amendment reasonableness of that search incident is not contested. What that search revealed, moreover, is not factually contested.
Officer Caton recovered from the appellant's right front pocket 53 wax baggies containing a total weight of 10.7 grams of heroin. The 53 baggies were bundled together with a small rubber band. There was also recovered from the appellant's person five twenty dollar bills, one ten dollar bill, one five dollar bill, and eight one dollar bills. From the appellant's left front pocket Officer Caton recovered a glass smoking device containing trace amounts of cocaine on the glass pipe.
The evidence of the appellant's basic guilt is not controverted. As the appellant stood there on that street corner in the presence of three officers, he was indisputably in unlawful possession of both heroin and cocaine. With respect to the charges of unlawful possession, moreover, the state of the appellant's mind was immaterial. Crimes of simple possession require only a general intent to possess. A specific intent (either to distribute or to do anything else) is not involved.
The appellant was convicted on three charges. He was convicted for the simple possession of cocaine. That conviction, and the four-year sentence imposed for it, will not be affected by whatever happens on the present contention. The appellant was also convicted for the simple possession of heroin. That conviction will also be unaffected by the present contention. For sentencing purposes, the conviction for that lesser included offense, of course, was merged into the conviction for the greater inclusive offense of possession of heroin with the intent to distribute. Should the sentence for the greater inclusive offense for any reason be vacated, however, the now merged conviction for simple possession would reemerge from its state of suspended animation and, on remand for resentencing, become the predicate for a sentence in its own right. We will go forward with the contention but with the awareness that it can affect only the conviction for the specific-intent crime of possessing heroin with the intent to distribute it.
The intent to distribute is, by definition, an element involving a defendant's mens rea. Frequently, however, the proof of that particular mens rea, to wit, that particular specific intent, is established by inference from the surrounding physical circumstances. What then were the surrounding physical circumstances in this case?
Of the 53 baggies of heroin taken from the appellant's right front pocket, those that were tested by the crime laboratory showed that each contained trace amounts of heroin. The chemist testified that the term “trace amount” refers to anything less than one-tenth of a gram. Trooper First Class Kenneth Moore of the Maryland State Police, who was accepted as an expert on street level identification, sales, packaging, and marketing of narcotic drugs for distribution, testified, without objection, that heroin on the street is “normally” sold “in those little packages in 100th of a gram.” He testified, without objection, that what was in the bags recovered from the appellant was what “you normally purchase.”
The cash recovered from the appellant included a $10 bill and five $20 bills. Trooper Moore testified, without objection, that a baggie of heroin “on average will cost you about $20 a fold.” He testified, without objection, that “oftentimes” drug dealers “utilize 20s and 10s, smaller denominations, there's not change.”
Trooper Moore also testified, without objection, as to the characteristic possessory behavior of a “typical user” of drugs in contrast to the possessory habits of a distributor of drugs. With respect to a “typical user,” he testified, without objection, He further testified, again without objection, that when making a street level arrest of a “typical user,” the police would find “one to two bags” in the arrestee's pocket but would not typically find “all that cash in that pocket after they purchased their heroin.” Fact by fact by fact, the prosecution was loading the major premise into the syllogism.
The number of baggies of heroin found on the appellant was 53. Trooper Moore testified, without objection, that Four bundles of 13 baggies each would yield a product of 52 baggies, and the appellant had 53. Was there a miscount? Had 12 baggies already been sold from a fifth bundle? Or did one of the bundles come with an unexpected bonus? All this is grist for the jury mill! In any event, all of this testimony by Trooper Moore, unobjected to, dealt with general street level patterns and not with this appellant personally.
The stage was set. Having established the constituent elements without objection, the prosecutor put them all together for an omnibus conclusion. Although the question still meticulously referred not to the appellant personally but only to “an individual with this set of facts” generically, the alarm went off on the defense side of the trial table.
(Emphasis supplied).
At first it appeared that the court was ready to sustain the objection. If the question was not a question that was ultimately one for the jury, it was at least tantalizingly close.
The prosecutor immediately threw out the life preserver of the critical distinction between the generic major premise that “any person with this pattern of behavior would be distributing” and the more suspect but unspoken minor premise that “the appellant with this pattern of behavior was distributing.” It was, indeed, a fine line, but a dispositive one.
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