Canty v. State, 012221 MDSCA, 432-2019

Docket Nº432-2019, 554-2019
Opinion JudgeKEHOE, J.
Party NameMARCUS CANTY v. STATE OF MARYLAND
Judge PanelKehoe, Beachley, Raker, Irma S., (Senior Judge, Specially Assigned) JJ.
Case DateJanuary 22, 2021
CourtCourt of Special Appeals of Maryland

MARCUS CANTY

v.

STATE OF MARYLAND

Nos. 432-2019, 554-2019

Court of Special Appeals of Maryland

January 22, 2021

Circuit Court for Baltimore City Case Nos. 118096009 and 118128034

Kehoe, Beachley, Raker, Irma S., (Senior Judge, Specially Assigned) JJ.

OPINION [*]

KEHOE, J.

After a jury trial in the Circuit Court for Baltimore City, Marcus Canty was convicted of conspiracy to distribute a controlled dangerous substance, distribution of heroin and distribution of a mixture containing heroin and fentanyl. He was sentenced to incarceration for a term of eleven years on the conspiracy to distribute heroin conviction, a concurrent term of eleven years for distribution of heroin, and a consecutive term of ten years for distribution of a mixture containing heroin and fentanyl.

Canty presents two questions for our consideration, which we have reworded: 1. When a defendant is charged with distribution of controlled dangerous substances and distribution of heroin and fentanyl, does the trial court err in failing to instruct the jury, as requested, (a) as to the elements of possession of a controlled dangerous substance, and (b) that proof of scienter is required to establish possession of those substances?1

2. Did the trial court err in denying his motion for a mistrial and accepting a partial verdict?

The State concedes that the trial court erred in failing to give the requested instruction as to possession but argues that the error was harmless. For the reasons set forth below, we will vacate Canty's convictions and remand these cases for a new trial.

Background

Canty was charged by separate indictments in the Circuit Court for Baltimore City with numerous counts relating to the distribution of controlled dangerous substances.2 In brief summary, the evidence presented at trial was as follows:

In July 2017, officers from State and Federal law enforcement agencies began a months-long investigation of drug trafficking in the Brooklyn Park area of Baltimore City. During the course of this effort, police identified Robert King as being involved in the street-level dealing of heroin in that neighborhood. Officers obtained a court order authorizing the interception of phone calls and text messages to and from telephone numbers associated with King and Canty. From these intercepted communications, officers identified Donnel Chambers as the source of supply for King's drugs. Investigators also concluded that Chambers had introduced King to Canty, who continued to provide drugs to King after Chambers took a step back from day-to-day distribution.

In late March 2018, the police believed that King and Canty were planning several meetings to resupply King. Although no officer observed Canty handing drugs to anyone or receiving money from King, the investigators concluded that those exchanges had occurred from results of their electronic surveillance. On March 30, 2018, after one of those suspected exchanges, police stopped King and found 175 gel caps, packaged for street-level distribution, hidden in his groin area. Chemical analysis identified the contents of the gel caps seized from King as heroin with the presence of fentanyl.

A warrant was issued for Canty and he was arrested at a Home Depot in Ellicott City. The police seized Canty's mobile telephone from his person. He consented to a search of his vehicle, where police found a flip phone. Police successfully downloaded the contents of the flip phone but were unable to download the contents of the phone recovered from Canty's person. A prosecution expert witness in the distribution of controlled dangerous substances told the jury that, in his opinion, Canty, Chambers, and King were involved in a conspiracy to distribute narcotics in the Brooklyn Park area and that Canty and Chambers supplied the narcotics to King.

Prior to the close of the State's case, the trial court and counsel for the parties discussed the jury instructions. The State advised the court that it did not "want a possession count going back to the jury" and that the pattern instruction for distribution of a controlled dangerous substance was sufficient.3 Referring to MPJI-Cr 4:24.2, defense counsel argued that an instruction on possession was appropriate, stating: [W]hen reading the distribution jury instruction, the language in number 1, 4 where he sold, exchanged or transferred, transferred gives a, I would argue, possession from one person to another, so I think it would be helpful to instruct the jury about what - you know, transferred or gave away, that implies that somebody possessed something. So I think possession of something to give it to another human being, you have to know what you're possessing before you can give it away to make it illegal.

After the close of the evidence, the parties revisited the issue of an instruction on possession. Defense counsel argued that the use of the word "transfer" in the jury instruction for distribution "implies to me that somebody has to have something to transfer, so that means possession of something." Defense counsel continued, stating that because the definition of distribution includes the transfer of an item, "you actually have to possess that." Counsel asked the court to give the pattern jury instruction on possession of a controlled dangerous substance, MPJI-Cr 4:24. The State objected to an instruction on possession on the ground that there would be "a substantial danger of confusion" for jurors between the distribution charges that were before them and an instruction on possession, an offense that would not be presented for the jury's consideration. The State argued that "[i]f an additional possession instruction is needed in every case where distribution is charged, it would be incorporated into the model jury instructions." After further discussion, the following colloquy occurred: [PROSECUTOR]: And, once again, if that's the case, then I think the definition of possess is embedded in "sold, exchanged, transferred or gave away." You can't do any of those without possessing something.

[DEFENSE COUNSEL]: And I guess that's my point. So the legal definition that needs to be done on [sic] possession. I understand he's not charged with possession, but just in a logical sense, that's what the jury has to at least come to that, at least first part of it. If I'm going to sell something, I'm going to transfer it, I have to have-possess[ed] it at some sort [sic]. And the law requires that I know what it is. And generally what's the nature. And it does kind of track where it says, you know, number 25 in distribution says that the substance was heroin and fentanyl. And that kind of tracks with possession, as well, initially.

[PROSECUTOR]: Your Honor, once again, the plain language suffices. It's just going to confuse the jury.

THE COURT: Well, you know, the thing is with these pattern jury instructions, as counsel pointed out, it just says the State has to prove that he sold it, exchanged it, transferred it, or gave it away.

[PROSECUTOR]: Yes, Your Honor.

THE COURT: And that it was heroin.

[PROSECUTOR]: Thank you, Your Honor.

THE COURT: So I'm not going to give the possession. I don't think it's applicable here. You can always argue he didn't know what it was.

The jury was asked to return verdicts on one count of conspiracy to distribute a controlled dangerous substance, twenty-six counts of distribution of heroin and twenty-six counts of distribution of a mixture containing heroin and fentanyl. No count for possession of any drug was submitted to the jury. The trial court instructed the jury on the charges of distribution of heroin and fentanyl as follows: The Defendant is charged with the crime of distribution of heroin and distribution of fentanyl, which is a controlled dangerous substances-which are controlled dangerous substances. And as I indicated, there are several counts of each charge, but they have different dates.

In order to convict the Defendant, the State must prove, one, that the Defendant sold, exchanged, transferred, or gave away heroin, or that the Defendant sold, exchanged, transferred, or gave away fentanyl; and two, that the substance was, in fact, heroin, or was, in fact, fentanyl.

As we have stated, the jury returned guilty verdicts as to conspiracy to distribute a controlled dangerous substance, distribution of heroin and distribution of a mixture containing heroin and fentanyl.

Analysis

A. The jury instructions

Canty contends that his convictions must be vacated for two reasons. First, he argues that the trial court erred when it declined to instruct the jury as to the elements of the crime of possession of a controlled dangerous substance. This is so, he says, because he could not be found guilty of distributing heroin or fentanyl absent proof of his awareness of the illicit character and nature of the substances that he was charged with distributing. According to him, the trial court's instruction on distribution did not make this clear.

Second, he asserts that the trial court erred when it failed to instruct the jury that the State was required to prove that he was aware that the substance he was distributing contained fentanyl in order to convict him of violating Crim. Law § 5-608.1.

1. The possession instruction

In criminal cases, the trial court "may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding." Md. Rule 4-325(c). However, the court "need not grant a requested instruction if the matter is fairly covered by instructions actually given." Id. The Court of Appeals has interpreted Rule 4-325(c) to require the trial court to give a requested instruction when (1) it...

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