Handy v. State
| Decision Date | 31 August 2007 |
| Docket Number | No. 1072, Sept. Term, 2005.,1072, Sept. Term, 2005. |
| Citation | 930 A.2d 1111,175 Md. App. 538 |
| Parties | Richard D. HANDY v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Bradford C. Peabody (Nancy Forster, Public Defender, on the brief), Baltimore, for appellant.
Carrie J. Williams (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.
Panel: HOLLANDER, DEBORAH S. EYLER, and WOODWARD, JJ.
A jury in the Circuit Court for Wicomico County convicted Richard D. Handy, appellant, of numerous drug and weapons charges. His appeal presents two thorny issues. The first pertains to the sufficiency of the evidence with respect to convictions arising from appellant's presence in the home of another during a police raid. The second requires us to determine whether the court was entitled to impose separate sentences for each gun "possessed" by the defendant in regard to a single drug trafficking conviction. In turn, we must ascertain, in a case of possession of a firearm in connection with a drug trafficking offense, whether the unit of prosecution is the gun or the drug trafficking offense.
In particular, Handy was convicted of possession of marijuana with intent to distribute, in violation of Md.Code (2002, 2005 Supp.), § 5-602 of the Criminal Law Article ("C.L.") (Count 2); possession of marijuana, in violation of C.L. § 5-601(c)(1) (Count 4); possession of "controlled paraphernalia," in violation of C.L. § 5-620 (Count 6); possession of drug paraphernalia, proscribed by C.L. § 5-619 (Counts 7 and 8); four counts of possession of a firearm "during and in relation to a drug trafficking crime" (Counts 9, 11, 12, 13), in violation of C.L. § 5-621(b)(1); possession of a regulated firearm by a person under 21 years of age (Counts 20, 22, 23, 24), in violation of Md.Code (2003, 2005 Supp.), § 5-133(d) of the Public Safety Article ("P.S."); and altering the serial number on a firearm (Count 26), in violation of P.S. § 5-142(a).1 As to the four firearms that appellant was convicted of possessing in relation to the single drug trafficking offense, the court imposed four sentences, two of which were consecutive and two of which were concurrent to the drug trafficking crime.2 In total, appellant was sentenced to twenty-five years' imprisonment, with all but fifteen years suspended.
On appeal, Handy presents two questions, which we quote:
1. Was the evidence sufficient to sustain the convictions?
If a defendant is convicted of a single drug trafficking crime, and possession of several firearms during and in relation to drug trafficking, and if a single violation of Criminal Law Article § 5-621(b)(1) occurs, are multiple consecutive sentences for each firearm illegal?
For the reasons that follow, we shall reverse three of appellant's convictions and sentences under C.L. § 5-621 for possession of a firearm in relation to a drug trafficking crime (Counts 11, 12, 13), but affirm the remaining convictions and sentences.
The incident occurred on February 7, 2005. Appellant, who was born on October 22, 1986, was eighteen years old at the time of the occurrence and at the trial, held in June 2005.
At approximately 8:30 p.m. on February 7, 2005, Salisbury City Police Detective Brian Tilghman, along with other members of the Wicomico County Narcotics Task Force (the "Task Force"), executed a search and seizure warrant at 115 Delaware Avenue in Salisbury. Because the officers had information that "there were numerous subjects inside the residence," they used a "break and go" entry method, by which they broke a window located about "six or seven feet" from the side door. Detective Tilghman explained that the distraction gave the officers "a little bit of time to get through the door and kind of have a little bit of the element of surprise." Tilghman was the third officer of the 12-person team to enter through the side door into a small hallway leading from the outer door to the kitchen. The first two officers "continued into the living room," which was adjacent to the kitchen.
Detective Tilghman estimated the kitchen to be "maybe a 15-foot room." Upon entering the kitchen, appellant was one of two subjects "running" through the kitchen, "directly at" Tilghman. Appellant took "four or five steps" across the length of the room. As he ran, "[h]e was in arms reach of at least four firearms which were clearly visible upon [Detective Tilghman's] entry to the residence." Two of the weapons were located on the kitchen table and the other two were located on a pair of stools "right beside the table," which were around three feet tall. Detective Tilghman testified:
Immediately upon entering the kitchen, it was — they were large, three of the weapons were large revolvers, kind of like you see back in the wild, wild west days.
There were two firearms, one large revolver and one small semiautomatic handgun on the kitchen table, and then two other large revolvers on top of two stools which were stacked up like a shelf in the kitchen.
Some of them — I would have been blind not to see them. It was that blatant.
After "a brief struggle," appellant was subdued and placed in flex-cuffs. According to Maryland State Trooper First Class Kenneth Moore, a member of the Task Force, Handy did not have any drugs, paraphernalia, weapons, or ammunition on his person, nor any significant amount of money.
Trooper Moore testified as an expert "in the valuation and identification of controlled dangerous substances" and "the common practices of users and dealers of controlled dangerous substances." He recalled that he and a fellow officer conducted a physical surveillance of the residence "for about an hour and 15 minutes" before the police made their entry. Moore was parked across the street from the house, and was "able to observe ... the front door as well as the side door." According to Moore, "the only person that came or went from that residence" was "a confidential informant" who had been sent by the police.
Before entering through the side door, Moore waited "out front until the residence was secured." At around 8:30 p.m., after Detective Tilghman's team made the initial entry, Trooper Moore entered the house and "could smell burnt marijuana." There were "eight persons total in the house." Moore did not know whether the police had announced their presence, because he "didn't make entry." But, he heard He immediately observed that appellant and Gary Simpson, a juvenile, were being detained in the kitchen, and that a "number of persons in the living room area" were also in custody. Moore also observed four handguns in the kitchen-two weapons on the table and two resting on stools.
Trooper Moore summarized his observations of the crime scene, stating:
As soon as you enter the kitchen area, you see a very small kitchen, kind of cluttersome, some small chairs just to the left as you enter the door, there is a kitchen table with a window and the blinds had fallen down on top of the table. Sitting on top of the table, you saw a revolver style handgun on the left-hand side of the table. On the right-hand side, there was a small semiautomatic style handgun.
Immediately to the left of the table, there was — I'm not sure if there was a small table or two stools. I think it may have been two stools with a box or a board or something on top of it. On top of there were two additional revolvers.
You could see that there is a small closet just to the right of the table. The two persons that had been detained are to the middle of the table, I guess, more or less in the floor just a matter of feet from the table.
* * *
The kitchen wasn't that big. It may have been 10 feet. 12 feet at the most in length and then probably 8 feet, it may have been 8 by 10 total, the entire kitchen.
* * *
In the closet, it was a partially open closet. Upon looking in that closet, there was a sawed-off shotgun ... determined to be a 16 gauge.
* * *
On top of the kitchen stove that was there, there was some U.S. currency there, two cell phones and several small bags with like letter symbols, yellow symbols on it that each contained what I believed to be marijuana. That package was taken and sent to the Maryland State Police lab for analysis.
There was also on the kitchen table a box with some dice it in [sic], some plastic bags, sandwich bags, a scale, a small digital scale. On that scale as well as a razor blade, you could see white trace amounts of a substance. To me through my initial observations, I believed it to be cocaine residue.
There was a small trash can sitting behind the kitchen table. The entire top of that was filled with partial plastic bags. What we run into in investigating drugs [sic] crimes, that persons often used [sic] the sandwich bags, reason why is it doesn't raise any eyebrows, but they take and pack the substance that they are selling via cocaine, marijuana, what have you, down to the corners of the bags, tie them and they cut it, and that's how they distribute whatever they are selling at the time.
* * *
[T]hey take the stuff and open [the bag], and stuff it in it, and then whatever they are selling as a product, the packaging gets sent down to the corners of the bag, and then that way, it [sic] can seal it off and tie it easier, and what you have left is just a partial bag, the top half of the bag with both corners gone. There was several of those bags on the immediate top of the trash can in the kitchen.
At the scene, appellant gave Trooper Moore his date of birth. At the detention center, appellant again provided the same information.4 At the scene, Moore asked Handy "if he wanted to speak ...," and appellant responded that "he didn't know shit and didn't have anything to say."5
Trooper Moore testified that "five plastic baggies" were seized from the stove. Based...
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