Davis v. State

• Decision Date: 09 March 1990
• Docket Number: No. 83,83
• Citation: Davis v. State, 319 Md. 56, 570 A.2d 855 (Md. 1990)
• Parties: William Randolph DAVIS v. STATE of Maryland. Sept. Term 1989.
• Court: Maryland Court of Appeals

Page 56

319 Md. 56

570 A.2d 855

William Randolph DAVIS v. STATE of Maryland.

No. 83 Sept. Term 1989.

Court of Appeals of Maryland.

March 9, 1990.

Arthur A. DeLano, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, both on brief), Baltimore, for petitioner.

Cathleen C. Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.

Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, and ADKINS, JJ., HOWARD S. CHASANOW, Judge, ^* Specially Assigned, and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.

McAULIFFE, Judge.

It is a violation of Maryland law to possess any device adopted for the production of controlled dangerous substances with the intent to use that device to produce, sell, or dispense any controlled dangerous substance. Maryland Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.) Art. 27 § 286(a)(4). The question presented here is whether a glass jar adopted for the purpose of coating parsley with phenclyclidine (PCP), or plastic "baggies" and other containers adopted for packaging or repackaging of PCP, can, under the particular circumstances of this case, be considered devices for the production of a controlled dangerous substance within the meaning of the statute. We hold that they can not.

William Randolph Davis was arrested on 23 March 1987, in Carroll County, when the vehicle he was driving was stopped by the Maryland State Police. ¹ Among other items seized from the passenger compartment of the vehicle were the following:

1) a glass jar containing PCP treated parsley flake residue;

2) a glass jar containing 31.9 grams of PCP treated parsley flakes;

3) an empty one ounce container of Safeway brand parsley flakes;

4) a 35 millimeter film canister with residue;

5) two food coloring bottles containing in one a trace and in the other 28 milliliters of liquid PCP;

6) five plastic baggies containing 20.5 grams of PCP treated parsley flakes in a glass jar;

7) $1,825.00 in United States currency, taken from Davis's pockets.

Davis was charged with various offenses, and was tried before Judge Donald J. Gilmore in the Circuit Court for Carroll County. Corporal Wayne Jirsa, who had participated in the search of the vehicle, and who had experience as an undercover narcotics officer, was accepted by the defense as an expert in the field of controlled dangerous substances. Corporal Jirsa testified that when item 1 was seized from the front passenger floor of the vehicle, there were parsley flakes clinging to the outside of the jar that were still damp with PCP, and that a strong odor of PCP emanated from the jar. He opined that Davis, and a passenger in the vehicle who was arrested with Davis, were selling parsley coated with PCP. Corporal Jirsa said they were probably using the jar identified as item 1 to coat the parsley with PCP. He described the usual process as follows:

First, they buy the parsley flakes. Then, they pour the parsley flakes in a larger container, which would be indicative of the large glass jar. The liquid is poured in on top of the parsley flakes, and then, they just shake it and shake it.

Corporal Jirsa testified that the film canister would then be used to measure saleable quantities of the coated parsley into plastic baggies.

Judge Gilmore found Davis guilty of possession of PCP with the intent to distribute, possession of a device adopted for the production of PCP with the requisite intent, and simple possession of PCP. He imposed a sentence of 20 years imprisonment on the first of these charges, 20 years consecutive imprisonment on the second, and four years concurrent imprisonment on the third. Davis appealed to the Court of Special Appeals. That court, in an unreported opinion, affirmed the first two convictions, but vacated the judgment of conviction of the simple possession count, finding that it merged into the first charge. We granted Davis's petition for certiorari on the single issue of the sufficiency of the evidence to prove the second charge.

Article 27, § 286(a)(4) provides that it is a felony for any person:

To manufacture, distribute, or possess any machine, equipment, instrument, implement, device, or combination thereof which is adopted for the production of controlled dangerous substances under circumstances which reasonably indicate an intention to use such item or combination thereof to produce, sell, or dispense any controlled dangerous substance in violation of the provisions of this subheading.

Article 27, § 277 provides the following definitions:

"Production" includes the manufacture, planting, cultivation, growing, or harvesting of a controlled dangerous substance.

"Manufacture" shall mean the production, preparation, propagation, compounding, conversion or processing of a controlled dangerous substance either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its containers....

The argument is made that because "production" means "manufacture", and "manufacture" means packaging or repackaging of a controlled dangerous substance, a conviction is proper under § 286(a)(4) when a defendant is shown to have possessed jars, baggies, canisters, or the like for the packaging or repackaging of PCP for purposes of sale or distribution. The fallacy in this argument lies in the interpretation of the definition of "manufacture".

In attempting to determine the intent of the legislature, "we look first to the words of the statute, read in the light of the full context in which they appear, and in light of external manifestations of intent or general purpose available through other evidence." Cunningham v. State, 318 Md. 182, 185, 567 A.2d 126 (1989). Ofttimes we are able to look to the Uniform Controlled Dangerous Substances Act, 9 U.L.A. 187 (1978) for assistance in determining the intent of the legislature in enacting the Maryland Controlled Dangerous Substances Act, because the Maryland Act was modeled on the Uniform Act. See Cunningham v. State, supra, 318 Md. at 186, 567 A.2d 126. In this instance, however, that source is of no assistance, because § 286(a)(4) has no counterpart in the Uniform Act. Nor do we find any specific legislative history in Maryland bearing on this precise question.

Clearly, the general intent of the legislature in passing the Maryland Act was to "prevent [the abuse of controlled dangerous substances] which results in a serious health problem to the individual and represents a serious danger to the welfare of the people of the State of Maryland." Article 27, § 276. Additionally, as we pointed out in Cunningham, supra, 318 Md. at 189, 567 A.2d 126, we agree that:

[T]he history of the narcotics legislation in this country "reveals the determination of Congress to turn the screw of the criminal machinery--detection, prosecution and punishment--tighter and tighter." ²

That the General Assembly clearly intended to take a hard line on the illegal manufacture, distribution, and use of controlled dangerous substances does not mean, however, that we are free to apply a strained construction to a penal statute in order to affirm a conviction. As our predecessors said more than a century ago:

No man incurs a penalty unless the act which subjects him to it, is clearly, both within the spirit and letter of the statute. Things which do not come within the words are not to be brought within them by construction.

Cearfoss v. State, 42 Md. 403, 407 (1875). Penal statutes, as a general rule, are strictly construed, Jones v. State, 304 Md. 216, 220, 498 A.2d 622 (1985), "by which is meant that courts will not extend the punishment to cases not plainly within the language used," State v. Archer, 73 Md. 44, 57, 20 A. 172 (1890).

In this case, we believe the legislative intent is made manifest by the words of the statute, and particularly the definition of "manufacture" found in § 277(p). This statutory definition does not include the packaging or repackaging of any controlled dangerous substance. It includes only packaging or repackaging of controlled dangerous substances that have been manufactured in the manner described by the legislature. The language of § 277(p) concerning "packaging or repackaging of the substance or labeling or relabeling of its containers" refers back to the controlled dangerous substance that is produced by extraction or by means of chemical synthesis, or by both means.

The obvious legislative intent was to include packaging and labeling within the definition of "manufacture" when that packaging or labeling is in conjunction with a true manufacturing process. Although there was evidence that Davis possessed certain items for use in coating parsley with PCP, and therefore to make the PCP more readily saleable, this did not involve production of a controlled substance by extraction or by means of chemical synthesis or by a combination of those methods. There is no evidence that Davis was manufacturing PCP, and neither the application of PCP to parsley nor the packaging or repackaging of the coated parsley can properly be called manufacturing. If it is not manufacturing, it cannot fit within the statutory definition of "production". Accordingly, the evidence is lacking that Davis possessed any device adopted for the production of controlled dangerous substances.

The evidence, while sufficient to support the conviction of possession of PCP with the intent to distribute, was insufficient to support the conviction of possession of a device adopted for the production of PCP.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED IN PART; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE JUDGMENTS OF CONVICTION OF VIOLATIONS OF ARTICLE 27, § 286(a)(4) (POSSESSION OF DEVICE FOR PRODUCTION OF PCP)...