Doswell v. State

• Decision Date: 04 February 1983
• Docket Number: No. 753,753
• Citation: 455 A.2d 995,53 Md.App. 647
• Parties: Anthony Curtis DOSWELL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 647

53 Md.App. 647

455 A.2d 995

Anthony Curtis DOSWELL v. STATE of Maryland.

No. 753.

Court of Special Appeals of Maryland.

Feb. 4, 1983.

John L. Kopolow, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender of Maryland on the brief, for appellant.

Jillyn K. Schulze, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William A. Swisher, State's Atty. for Baltimore City and Olga Bruning, Asst. State's Atty. for Baltimore City on the brief, for appellee.

Submitted before WILNER, WEANT and ALPERT, JJ.

WILNER, Judge.

On July 13, 1981, while on routine patrol in an unmarked police car, Baltimore City police officer Mark Labonta observed appellant, whom he knew to be a heroin addict, in the company of another individual known as "Little Rock." Labonta saw appellant hand Little Rock an envelope. "Almost simultaneously," according to Labonta, the two spotted the unmarked car. Little Rock dropped the envelope and he and appellant walked away, appellant entering a nearby carryout shop.

Labonta retrieved the envelope, in which were nine smaller glassine envelopes containing a white powder that Labonta suspected (and a laboratory report later confirmed) to be heroin. Labonta thereupon entered the carryout shop, arrested appellant, and proceeded to search him. In one of appellant's socks, Labonta found a hypodermic syringe (consisting of a barrel and a plunger) and a ten-dollar bill. No needle or connective device by which a needle could be attached to the syringe was found on appellant.

As a result of this episode, appellant was charged in an eight-count indictment with a variety of offenses under the controlled dangerous substance laws including, as count four, that he "unlawfully did POSSESS certain Controlled Paraphernalia, to wit: a hypodermic syringe which was adapted for the administration of Controlled Dangerous Substances by hypodermic injection said POSSESSION being under circumstances which reasonably indicate an intention to use such Controlled Paraphernalia, for the purpose of illegally administering Controlled Dangerous Substances...."

Following trial, the State decided to press only four of the eight counts, three involving appellant's alleged possession and attempted distribution of the heroin found in the envelope and the fourth, quoted above, charging the possession of controlled paraphernalia. The jury acquitted appellant of the heroin charges, but convicted him on the fourth count. From that conviction and the four-year prison sentence imposed thereon, appellant brings this appeal, complaining:

"I. The evidence was insufficient to sustain the conviction for possession of controlled paraphernalia.

II. The trial judge erroneously instructed the jury in response to a jury question asking for further explanation of the charge of possessing the hypodermic syringe."

We find no error, and shall therefore affirm.

(1) Sufficiency of Evidence

Unlike most complaints about the sufficiency of evidence, the issue raised by appellant involves more a question of statutory construction than a debate over the quantum of proof presented at trial. His conviction rested on the fact that, under the circumstances related above, he was found in possession of a hypodermic syringe sans needle and connective device for attaching a needle. He claims that that is not enough--that possession of the syringe alone, absent such attachments as would cause it to be actually usable for hypodermic injection, is not a criminal act.

The relevant statute, upon which count four of the indictment rested, and to which it referred, is Md.Code Ann. art. 27, § 287(d)(i). The statute provides:

"Except as authorized by this subheading, it is unlawful for any person:

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(d) To possess or distribute controlled paraphernalia which shall mean (i) a hypodermic syringe, needle or other instrument or implement or combination thereof adapted for the administration of controlled dangerous substances by hypodermic injections under circumstances which reasonably indicate an intention to use such controlled paraphernalia for purposes of illegally administering any controlled dangerous substance...." (Emphasis supplied.) ¹

The precise question is whether the italicized language--"adapted for the administration of controlled dangerous substances by hypodermic injections"--modifies "hypodermic syringe" and "needle," or only the phrase that follows--"or other instrument or implement or combination thereof." Appellant's "sufficiency" argument is premised on the supposition that the language modifies all three coordinates, whence springs his contention that, as a syringe alone is not "adapted" for the administration of illegal drugs, its possession is not illegal under § 287. We think that he is misreading the statute.

The control over narcotics paraphernalia was introduced into the Maryland law in 1935, when the General Assembly adopted a modified version of the newly proposed Uniform Narcotic Drug Act. ² See Acts of 1935, ch. 59. Section 285S, which was added to art. 27 of the (1924) Code, provided:

"No person except a manufacturer or a wholesaler or a retail dealer in surgical instruments, pharmacist, physician, dentist, veterinarian, nurse or interne, shall at any time 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, unless such possession be authorized by the certificate of a physician issued within the period of one year prior hereto."

The section remained in the law as originally enacted until 1970 when, as part of a general revision of the State's narcotic laws, it was reenacted in its present form.

The 1970 Act repealed the thirty-five year old Uniform Narcotic Drug Act and replaced it with what became the precursor of the Uniform Controlled Substances Act. ³ Although major changes were made in those aspects of the law relating to the various drugs sought to be controlled, and the list of controlled paraphernalia was expanded to include containers and diluting agents (see footnote 1, ante ), very little change was made to the basic proscription of old § 285S (then § 297). ⁴ Indeed, the only significant change in that section, as it pertained to implements usable for hypodermic injection, was the clear substitution of an objective test for determining the possessor's intent; and, in light of the judicial construction of the old law, the significance of that change may have been more apparent than real.

From 1935 to the present, no Maryland court has examined critically the precise issue now before us. Until 1971, convictions for possession of paraphernalia usable for hypodermic injections were routinely sustained without discussion as to whether the various implements in question--needles, syringes, "improvised" syringes, "home made" syringes--were, in fact, "adapted" for the use or administration of illegal drugs. See, for example, Reed v. State, 225 Md. 566, 171 A.2d 464 (1961), cert. den. 368 U.S. 958, 82 S.Ct. 402, 7 L.Ed.2d 390 (1962); Peachie v. State, 203 Md. 239, 100 A.2d 1 (1953); Brown v. State, 3 Md.App. 90, 238 A.2d 147 (1968); Anderson v. State, 9 Md.App. 639, 267 A.2d 302, cert. den. 259 Md. 729 (1970); Jason, Johnson and Moore v. State, 9 Md.App. 102, 262 A.2d 774, cert. den. 258 Md. 728, 729 (1970); and cf. Stevens v. State, 202 Md. 117, 95 A.2d 877 (1953), and Clark v. State, 202 Md. 133, 96 A.2d 253 (1953).

The first case to give particular mention to the "adapted for the use ..." language was Downes v. State, 11 Md.App. 443, 274 A.2d 663, cert. den. 262 Md. 746 (1971). The defendant there, arrested in connection with a reported breaking and entering, was carrying "a little paper bag" which "contained a hypodermic syringe and needle." It is not clear from either the briefs or the opinion in the case whether the syringe and the needle were connected. In response to an argument that the evidence was insufficient to sustain the conviction under § 285S (then § 297 of art. 27), we said, simply (pp. 450-51):

"There was evidence that the bag containing a hypodermic syringe and needle were in appellant's possession. The court found that the syringe and needle were 'narcotic paraphernalia.' We cannot say that the court's judgment that the hypodermic syringe and needle were 'adapted for the use of habit-forming drugs by hypodermic injections' and were possessed by appellant 'for the purpose of administering habit-forming drugs' was clearly erroneous. In the circumstances this was a rational inference."

In Boyd v. State, 15 Md.App. 275, 289 A.2d 834 (1972), we sustained a conviction under the new law (§ 287(d)(i)) based on evidence that the defendant was found in possession of "two plastic tubes containing 'two 26 gauge 3/4 inch hypodermic needles.' " Id. at 279, 289 A.2d 834. Boyd was an inmate at the House of Correction. The items were found in a laundry bag he was carrying, and there was evidence that the needles "were of the type used for 'injecting of a drug into the body, usually a heroin derivative.' " Id. No syringe or other device usable as a syringe was found in the defendant's possession, and there was no evidence that controlled substances could be hypodermically injected without such a syringe or device.

Because Boyd appeared to represent the first prosecution under the new law to reach a reported Opinion of this Court, we took the opportunity, in a footnote on page 278, to make a brief comparison of the two laws. In that context, we unfortunately stated that "[b]oth the former law and the present law prescribe that the paraphernalia be 'adapted' for the use of prohibited substances 'by hypodermic injections.' " That statement was not necessary to the result reached in the case, and, indeed, it seems inconsistent with that result in light of the evidence upon which the conviction was...