Butler v. State, 837

• Decision Date: 09 March 1979
• Docket Number: No. 837,837
• Citation: 398 A.2d 514,41 Md.App. 677
• Parties: William Sylvester BUTLER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 677

41 Md.App. 677

398 A.2d 514

William Sylvester BUTLER v. STATE of Maryland.

No. 837.

Court of Special Appeals of Maryland.

March 9, 1979.

Phillip M. Sutley and Sutley & Marr, Baltimore, for appellant.

Stephen H. Sachs, Atty. Gen., Arrie W. Davis, Asst. Atty. Gen., Warren B. Duckett, Jr., State's Atty., for Anne Arundel County and Gerald K. Anders, Asst. State's Atty., for Anne Arundel County, for appellee.

WILNER, Judge.

Appellant was convicted in the Circuit Court for Anne Arundel County of possession of "controlled paraphernalia" in violation of Md.Annot.Code art. 27, § 287(d)(iii), for which he was sentenced to prison for two years. In this appeal, he raises three issues, the first two of which concern the sufficiency of the evidence produced against him and may be dealt with in short order.

Acting upon information received from a drug enforcement agent in Detroit, State Trooper Charles Boyd, assigned to Baltimore-Washington International Airport, observed the arrival at the airport of a particular aircraft and maintained surveillance of two of its passengers. One of these passengers was appellant, the other a man named John Davis. He first saw the two men just after they had deplaned, when they were about 50 yards from the aircraft, walking away from the plane. They were about 10 feet apart. Davis was carrying a tan satchel; appellant was carrying a clothing bag.

The two men entered the terminal building, stopped at the information booth, and had a 10-15 second conversation. They ten proceeded outside where they both attempted to enter a cab together. At this point, Trooper Boyd introduced himself and apparently suggested that they accompany him to the State Police office at the airport, which they agreed to do. Trooper James Simmons met them at that office. Ultimately, with Mr. Davis' written consent, he searched the satchel, previously in Davis' physical possession and found therein, among other things, various prescription bottles with appellant's name on them, two plastic bags containing, together, over 630 grams (approximately one pound six ounces) of a white powder later identified as quinine, and one plastic jar containing nearly 500 grams (just over one pound) of a substance later identified as lactose.

Section 287 of art. 27 provides, in relevant part, that, except as otherwise authorized (which in this instance it was not), it is unlawful for any person:

"(d) To possess or distribute controlled paraphernalia which shall mean . . .

(iii) Lactose, quinine . . . in sufficient quantity and under such circumstances which reasonably indicate an intention to use any such substance for the illegal manufacture, distribution or dispensing of any controlled substance. Evidence of such circumstances shall include but not be limited to close proximity of any such controlled paraphernalia to any other adulterants, diluents or equipment commonly used in the illegal manufacture and distribution of controlled substances, such as but not limited to any of the following: scales, sieves, strainers, measuring spoons, staples and staplers, glassine envelopes, gelatin capsules, or any controlled substance."

Appellant's first argument is that, as the lactose and quinine were found in the satchel carried by Davis, there was no evidence to show that they were ever in his possession. Possession of contraband to be criminal, however, need not be exclusive or actual. There may be joint possession and constructive possession, either of which will suffice to sustain a conviction. Md.Annot.Code art. 27, § 277(s); Garrison v. State, 272 Md. 123, 128, 321 A.2d 767 (1974); Folk v. State, 11 Md.App. 508, 275 A.2d 184 (1971); Anderson v. State, 9 Md.App. 639, 267 A.2d 302 (1970). The proximity of the two men leaving the plane, conversing in the terminal, and attempting to enter the same cab coupled with the presence of prescription drugs with appellant's name on them in the satchel, more than sufficed to establish a joint or constructive possession of the contraband.

Appellant's second contention is that, absent expert testimony to establish the utilization of lactose or quinine as a "cutting agent" or as to the significance, if any, of the quantities of those substances found in the satchel, the evidence was insufficient to prove that the intended use was an illegal one.

The State's case was a bit thin. Whether because of complacency or lack of preparation, no evidence was offered to explain the significance of a pound of lactose and nearly a pound and a half of quinine. Such lapses in the record, we caution the prosecutors, are often the progenitor of appellate reversals. Here, however, a fair and rational inference may be drawn sufficient to establish the requisite intent. A pound of lactose in close proximity to more than a pound of quinine one item of controlled paraphernalia in proximity to another both in sizable amounts does raise an inference that the possession of both is "under such circumstances which reasonably indicate an intention to use (them) for the illegal manufacture, distribution or dispensing of (a) controlled substance", especially in light of the fact that both of these substances have been statutorily recognized as specifically usable for that purpose.

Appellant's third complaint deals with procedure and it requires reversal of his conviction. He alleges that "(t)he record does not reflect that (he) knowingly, voluntarily and with full knowledge of the consequences waived his constitutional right to a trial by jury". ¹

We note that appellant does not allege that he desired a trial by jury or that he was unaware of his right to a jury trial or that he was unaware of what a jury trial entailed. He does not claim that he was denied a trial by jury or that he did not knowingly and voluntarily waive such mode of trial. In short, it is not any constitutional right that he says was violated but only the requirements of a rule of procedure (Maryland Rule 735) which does, however, have the force of law. He does not assert that he was misled or prejudiced in any way by what occurred or failed to occur. His sole complaint was that the court did not comply with the mandatory requirements of Maryland Rule 735, in particular section d thereof.

Rule 735 d provides:

"If the defendant files an election to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule."

In Biddle v. State, 40 Md.App. 399, 392 A.2d 100 (1978), this Court concluded that section d spells out a ritual which the trial judge must follow in accepting the election of a non-jury trial. We concluded that this ritual was a mandatory one a necessary prerequisite to the commencement of trial before the court. Moreover, drawing from Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), we held that waiver of a jury trial, which of course is implicit in the election of a court trial, must appear affirmatively in the record and that, if it does not so appear, any judgment of conviction rendered must be reversed.

Appellant was originally charged in the District Court of Maryland, a violation of § 287 of art. 27, being a misdemeanor within the concurrent original jurisdiction of that court. See Courts article, §§ 4-301(b), 4-302(c). The record in the District Court shows that on August 22, 1977, the date scheduled for trial in that court, appellant (either personally or through his counsel, Phillip Sutley, Esq.) elected a jury trial, thereby divesting the District Court of further trial jurisdiction and causing the case to be removed to the Circuit Court. See Courts article, § 4-302(d). The record does not reveal whether appellant personally was in court on August 22, whether the election of a jury trial was made by him or by his counsel, whether Maryland District Rule 751 requiring that the District Court inform a defendant of his right to trial by jury was complied with, or, if it was, in what manner such compliance was effected. We therefore do not know what information, if any, was actually conveyed to appellant with respect to his right to a jury trial when the matter came before the District Court.

As occurs so often and for a variety of reasons, ² when the day of reckoning finally came in the Circuit Court, nearly a year later and after two postponements, appellant (or his...