Folk v. State

• Decision Date: 31 March 1971
• Docket Number: No. 229,229
• Citation: 275 A.2d 184,11 Md.App. 508
• Parties: Lillie Mae FOLK v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 508

11 Md.App. 508

275 A.2d 184

Lillie Mae FOLK v.STATE of Maryland.

No. 229.

Court of Special Appeals of Maryland.

March 31, 1971.

Richard E. Zimmerman, Frederick, with whom was William S. Kalis, Frederick, on brief, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Robert S. Rothenhaefer, State's Atty., Frederick County, on brief, for appellee.

Argued before ORTH, THOMPSON and MOYLAN, JJ.

MOYLAN, Judge.

The appellant, Lillie Mae Folk, was adjudged to be a delinquent child, within the provisions and intent of Article 26, Sections 70 to 70-26, of the Annotated Code of Maryland, by Judge Samuel W. Barrick, in the Circuit Court for Frederick County, sitting as a juvenile court.

On appeal she raises two contentions:

(1) That the trial judge improperly admitted into evidence an inculpatory statement made by one Jack Goodman and

(2) That the evidence was legally insufficient to sustain the finding of delinquency against her.

Chapter 432 of the Acts of 1969 made significant and sweeping changes in the law concerning the operation of and procedures in the juvenile courts in the State of Maryland.Those changes are now codified as Article 26, Sections 70 to 70-26, of the Annotated Code of Maryland.Those changes became effective on June 1, 1969, ¹ and apply therefore to the appellant whose adjudication of delinquency occurred on May 20, 1970, and whose allegedly delinquent conduct occurred on April 7, 1970.

Article 26, Section 70-1(h), provides:

"Delinquent child' means a child who commits a delinquent act and who requires supervision, treatment, or rehabilitation.'

Article 26, Section 70-1(g), provides:

"Delinquent act' means an act which is in violation of Article 66 1/2 of this Code, any other traffic violation, or an act which would be a crime if done by a person who is not a child.'

The petition of the State's Attorney of Frederick County alleged that the appellant:

'* * * on or about the 7 day of April, 1970, in the County of Frederick, State of Maryland, did: unlawfully have in her possession a certain narcotic drug, to wit, cannabis: unlawfully have under her control a certain narcotic drug, to wit, cannabis.'

Article 26, Section 70-18(a), provides, inter alia:

'A determination that a child is delinquent must be based upon allegations proven beyond a reasonable doubt * * *.'

In considering, therefore, the appellant's second contention, the sufficiency vel non of the evidence, we measure the State's case in terms of that quantum of evidence which would be necessary to convict the appellant of the crimes of possession or control of cannabis, were she an adult and convicted of those crimes.

Beginning sometime at approximately 9:15 p. m. on the evening of April 7, 1970, Corporal Carl R. Harbaugh of the Maryland State Police, operating in civilian clothing and in an unmarked vehicle, undertook the surveillance of a red Valiant automobile on the western outskirts of the city of Frederick.Some fifteen to twenty minutes later Corporal Harbaugh and another State Trooper who had joined him approached the red Valiant as it was parked on a secluded, overgrown and abandoned baseball diamond just beyond the western fringe of the city.The lights were off, the motor was off and the windows were tightly shut.As Corporal Harbaugh approached the driver's side, the left front window was suddenly rolled down and Corporal Harbaugh, whose expertise in narcotic investigation was well-established, detected the strong odor of marihuana coming from the closed car.All of the occupants were ordered out of the automobile and placed under arrest.One of the occupants, exiting on the right-hand side of the vehicle, attempted to throw an object into the surrounding grass and underbrush.That object was immediately recovered and determined to be a small black plastic container which contained what later laboratory analysis proved to be marihuana.

The appellant was one of the six occupants of the automobile.The evidence did not establish that she was ever in direct physical possession of the contraband marihuana.The evidence was clear, however, that some person or persons in that automobile were in possession of the contraband marihuana.

It is well-settled that the proscribed possession of marihuana or of narcotic drugs under the Maryland law need not be sole possession.'(T)here may be joint possession and joint control in several persons.And the duration of the possession and the quantity possessed are not material nor is it necessary to prove ownership in the sense of the title.'Jason v. State, 9 Md.App. 102, 111, 262 A.2d 774, 779.See alsoMunger v. State, 7 Md.App. 710, 256 A.2d 888.Davis and Napier v. State, 7 Md.App. 667, 256 A.2d 819;Scott v. State, 7 Md.App. 505, 256 A.2d 384;Hernandez v. State, 7 Md.App. 355, 255 A.2d 449;Haley v. State, 7 Md.App. 18, 253 A.2d 424;Williams v. State, 7 Md.App. 5, 252 A.2d 880.

Nor is it necessary, in order to be found in joint possession of a contraband drug, that the appellant have a 'full partnership' in the contraband.It is enough that she controlled so much of it as would be necessary to permit her to take a puff upon a marihuana cigarette.SeeAnderson v. State, 9 Md.App. 639, 646, 267 A.2d 302, for an analogous situation involving the joint possession, even in minor measure, of heroin and of narcotics paraphernalia.

The Court of Appeals and this Court have on a number of occasions reviewed, on the sufficiency of the evidence, convictions of defendants who were not proved to be in direct physical possession or control of contraband drugs but were held to be in joint possession of those drugs.In some of those cases the convictions were affirmed; in others, they were reversed.A brief survey of those cases falling on either side of that legal sufficiency line is in order to determine on which side of the line the case at bar appropriately falls.

In Haley v. State, supra, we reversed the convictions of three defendants who had been held to be in joint possession of contraband marihuana.In that case the evidence properly before the court showed only that marihuana was found in a premises 1) in a dresser in a bedroom under some clothing, 2) under a mattress in another bedroom, and 3) in a closet in the kitchen.The defendants in that case were all arrested in the living room.None of them had any proprietary interest in the premises or lived there.None of them had any proven prior association with the premises.This Court held that since they were not found in close proximity to the marihuana uncovered by the search and since there was no direct evidence that they were engaged in any violation of the narcotics laws, no reasonable inference could be drawn that they had any measure of joint control or dominion over the contraband.

In Wimberly v. State, 7 Md.App. 302, 254 A.2d 711, we reversed the conviction of the appellant there for the control of marihuana and for the control of amphetamines and barbiturates.In that case a house, in which Wimberly had no proprietary interest, was searched pursuant to a search warrant.Wimberly was one of approximately twelve youths found in the house.He was apprehended coming from a bathroom.In that bathroom was found a broken vial containing what laboratory analysis proved to be methadone.In reversing Wimberly's conviction, this Court pointedly did not disassociate him from possession or control of the methadone found in the bathroom from which he was seen coming, but pointed out, rather, that he had not been convicted for possession or control of methadone.We noted that the only marihuana, amphetamines or barbiturates found in the premises were found 1) in a pipe with aluminum foil over the bowl in the kitchen on the drainboard of the sink, 2) in a cabinet located in the kitchen, 3) in a dresser in a bedroom used by the owner of the home, and 4) on the persons of several individuals arrested in the living room.In reversing, this Court said at p. 308, 254 A.2d at p. 714:

'Since no prohibited drugs were found in the physical possession of the appellant, since the only drug proved to have been found in the bathroom did not support the allegations of the charges of which he was convicted, since we cannot say that the appellant was in control of the drugs found in the kitchen or bedroom or on the person of others arrested, and since there was no sufficient evidence of drugs being found in the living room other than on the person of others in the living room and since in any event the appellant had been taken into the living room by the police and seated by them by the picture window, the evidence, either considered in its totality or item by item, did not show directly nor did it support a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the guilt of the appellant of the offenses of which he was convicted.'

In Scott v. State, supra, we did not reverse the conviction of the appellant there because of the harmless error doctrine.We did, however, hold that the appellant there could not be deemed responsible for heroin which was found on his premises but in a pocketbook belonging to his sister, particularly where that pocketbook was situated in a part of the premises which was occupied by the sister.

The common thread running through all of these cases negating joint possession is 1) the lack of proximity between the defendant and the contraband, 2) the fact that the contraband was secreted away in hidden places not shown to be within his gaze or knowledge or in any way under his control, and 3) the lack of evidence from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use of the contraband.

On the other hand, in Henson v. State, 236 Md. 518, 204 A.2d 516, the Court of Appeals sustained the conviction of the defendant there for...