Garrison v. State

• Decision Date: 28 June 1974
• Docket Number: No. 301,301
• Citation: 321 A.2d 767,272 Md. 123
• Parties: Shirley A. GARRISON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 123

272 Md. 123

321 A.2d 767

Shirley A. GARRISON v. STATE of Maryland.

No. 301.

Court of Appeals of Maryland.

June 28, 1974.

Michael E. Kaminkow, Assigned Public Defender, Baltimore, for appellant.

David B. Allen, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

The appellant, Shirley A. Garrison, following a non-jury trial in the Criminal Court of Baltimore (Sodaro, J.), was convicted (under the first count of an indictment of possession of heroin, in sufficient quantity to reasonably indicate under all the circumstances an intent to distribute such controlled dangerous substance. Maryland Code (1957, 1971 Repl.Vol.) Art. 27, § 286(a) (1). On appeal she challenged only the sufficiency of the evidence to sustain her conviction. The Court of Special Appeals in an unreported per curiam, Shirley A. Garrison v. State (No. 237, Sept. Term, 1973), concluded that the evidence permitted a finding that the appellant and that she was in joint exclusive control of the contraband heroin under the holdings in Watson v. State, 18 Md.App. 184, 196-197, 306 A.2d 599, 607 (1973). We granted a writ of certiorari.

The appellant was jointly indicted with her grandmother, Nelly O. Reed; the second and third counts charged as well the possession of heroin and of certain paraphernalia, i. e., two (2) hypodermic syringes and four (4) hypodermic needles. ¹

On May 25, 1972, upon the applications and affidavit of Officer Vincent Cole of the Baltimore City Police Department, a District judge issued three (3) search and seizure warrants respectively for (a) a 1969 black and white Oldsmobile sedan, (b) the premises 1525 Leslie Street and (c) the premises 1553 Leslie Street. The applications and affidavit were predicated upon information from an informer-the basis for whose reliability was set forth in the affidavit-who reported that one 'Piggy' (Ernest T. Garrison) and his wife 'Shirley' were selling heroin from the 1969 Oldsmobile and from the two designated residences; that he had visited the home of 'Piggy' and 'Shirley' at 1525 Leslie Street where he observed 'Piggy' packaging heroin, following which 'the wife 'Shirley' took part of the drugs and took them to her gandmother's house and stored them there without the grandmother's knowledge'; that he had been upon those premises (1525 Leslie Street) on numerous occasions and had there observed heroin and paraphernalia; he further reported having made a purchase of heroin from 'Piggy' as he sat in the parked Oldsmobile sedan.

The affidavit further set forth that the officers arranged for the informant to make two (2) 'controlled purchases' of heroin, sending him first to 1525 Leslie Street, where he was admitted by 'Piggy' and whence upon his return to his rendezvous with the police stated that he had purchased the glassine bag of heroin from 'Piggy' and that 'his wife 'Shirley' was on the premises with their two children.' The second 'controlled purchase' of heroin by the informant was made from the parked 1969 Oldsmobile and (the police) observed a female seated in the automobile with 'Piggy.' Upon his return to his second redezvous with the police the informant reported that the two subjects in the Oldsmobile were respectively 'Piggy' and 'his wife 'Shirley" and that 'Shirley had the drugs down in her blouse.'

At the commencement of the trial counsel on behalf of the codefendant Nelly O. Reed filed a motion to suppress, under Maryland Rule 729, based upon the contention that the informant's statement that 'Shirley took part of the drugs and took them to her grandmother's house and stored them there without the grandmother's knowledge,' was a conclusion without a factual foundation, and could not afford a basis for finding 'probable cause' to issue the warrant for 1553 Leslie Street. After considering the affidavit the trial court denied the motion; the State then 'withdrew' the affidavit 'from any consideration at this point by the court (since it) was only for the motion.'

On May 26, 1972, at 8:15 A. M., when Officer Cole, pursuant to the warrant for 1525 Leslie Street, forcibly entered the premises, an unidentified male and female-not charged-were sitting in the living room; he and other officers proceeded directly to the second floor of the two-story house. Upon entering the rear bedroom Officer Cole observed Ernest Garrison ('Piggy') standing in an adjacent bathroom and saw him discard a plastic bag into the commode and flush it. Retrieving this jetsam he found it contained 173 glassine bags of heroin. Another officer, who proceeded to the front bedroom, found the appellant, nude, in bed, under the covers. Access to the bathroom was only through the rear bedroom.

No contraband was discovered in a search of the bedroom in which the appellant was found, but in the drawer of a combination dresser-wardrobe there was found $168 in currency, $85.18 rolled in coin wrappers, a rent card in the name of the appellant showing a tenancy beginning February 29, 1972-with the rent paid through May 16th, and a 'turn-off notice' addressed to 'Miss Shirley Annette Garrison, 1525 Leslie Street' from the Baltimore Gas and Electric Company concerning an unpaid utility bill in the amount of $22.82.

After the appellant and her husband were arrested an inspection of their arms indicated the presence of needle marks estimated to have been from ten days to two weeks in age. The officers next searched the 1969 Oldsmobile parked outside the premises-with negative results-and proceeded to serve the warrant at 1553 Leslie Street. ² No substantive evidence was offered to connect the appellant with 1553 Leslie Street, nor to identify her as an occupant of the Oldsmobile when the second 'controlled purchase' was made.

At the close of the evidence offered by the State the appellant made a motion for judgment of acquittal, which motion was granted on the count which charged her with the possession of the paraphernalia thrown out of the window at 1553 Leslie Street; the motion as to the counts charging possession of heroin was denied and the appellant elected not to offer any evidence in her own behalf. Her renewed motion as to the possessory counts was denied. ³

The trial judge found as follows:

'. . . (I)t is my finding of fact in this case that these two people were living together in the house, all of the personal papers indicate that Shirley Garrison made herself responsible, however for the payment of the rent; notices for the turn off of the gas and electricity were sent to her, and, while it is true that the narcotics were in the manual possession of Mr. Garrison, nevertheless, I find through all the circumstances in this case particularly in view of the fact that $168.00 in paper maney and $85.18 in coins was part of the contraband, I think it is reasonable, for a reasonable man to draw a reasonable inference that this money was part and parcel of the operation. I find that Mrs. Shirley Garrison was indeed not only in constructive possession but she was in joint possession of this contraband together with Mr. Ernest T. Garrison.'

In reviewing the sufficiency of the evidence to sustain a conviction in a criminal case we do not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt, State v. Devers, 260 Md. 360, 272 A.2d 794 (1971), but merely decide whether there was evidence, or probable inferences to be drawn from the evidence, upon which the trial court could find the defendant guilty beyond a reasonable doubt. Wilson v. State, 261 Md. 551, 276 A.2d 214 (1971); Drouin v. State, 222 Md. 271, 160 A.2d 85 (1960).

'Possession' is defined by Code (1957, 1971 Repl.Vol.), Art. 27, § 277(s), to mean 'the exercise of actual of constructive dominion or control over a thing by one or more persons.' The statute recognizes, as we held in Rucker v. State, 196 Md. 334, 340, 76 A.2d 572, 574 (1950), that such possession may be joint.

Watson and Harris v. State, supra, on which the Court of Special Appeals relied in upholding the appellant's conviction, is factually distinguishable. Harris had been observed by a police detective throwing a brown paper bag which contained marijuana from a window; her conduct as the sole occupant of the apartment from which the marijuana was thrown-and who was the one who threw it-constituted 'possession within the contemplation of the law.' As to the codefendant Watson, Judge Moylan, who delivered the majority opinion for the court, stated (18 Md.App. pp. 196-197, 306 A.2d p. 607): ⁴

'The appellant Watson was not present at the apartment at the time it was searched. His efforts to disassociate himself from its contents are, nevertheless, unavailing. There was evidence that he maintained two apartments-the one in question and another in the District of Columbia. There was evidence that he had been living at the Livingston Terrace apartment with the appellant Harris for between six months and one year. Watson admitted that he kept clothing ahd shoes at the apartment. This was substantiated by Harris. Watson admitted paying part of the rent. He admitted to Detective Raubaugh that he 'stayed' at the apartment. Photographs of both appellants were found in the apartment. Robert Wallace, Jr., testified, moreover, that he and the appellant Watson had been associated in the business of selling narcotics just prior to the crimes in question. There was further testimony that the appellant Watson had offered to give Wallace narcotics if Wallace would refrain from testifying against him at the trial now under revies. Under all the circumstances, we think the evidence permitted a finding that the appellant Watson had a possessory interest in the apartment and that he was in joint exclusive control of the contraband...