Herbert v. State

• Decision Date: 02 February 2001
• Docket Number: No. 3008,3008
• Citation: 136 Md. App. 458,766 A.2d 190
• Parties: Michael Sean HERBERT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

766 A.2d 190

136 Md. App. 458

Michael Sean HERBERT v. STATE of Maryland.

No. 3008, Sept. Term, 1999.

Court of Special Appeals of Maryland.

February 2, 2001.

Arthur A. DeLano, Jr., Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore for appellant.

Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Jason F. Trumpbour, Staff Attorney, Baltimore, and Michael C. Maloney, State's Attorney for Dorchester County, Cambridge, on the brief), for appellee.

Submitted Before MOYLAN,¹ KENNEY, VICTOR K. BUTANIS, (Specially Assigned), JJ. MOYLAN, Judge.

The appellant, Michael Sean Herbert, was convicted in the Circuit Court for Dorchester County by Judge Donald F. Johnson, sitting without a jury, of 1) the possession of marijuana with the intent to distribute and 2) the possession of drug paraphernalia. On this appeal he raises the two contentions

1. that the evidence was legally insufficient to support the verdicts, and

2. that his motion to suppress the physical evidence was erroneously denied.

Legal Sufficiency of the Evidence

We hold that the evidence was legally sufficient to support the verdicts. The appellant's argument as to evidentiary insufficiency is two-fold. Primarily, he challenges the proof of his criminal agency generally. Secondarily, he challenges the establishment of the aggravating or incremental mens rea that the possession of the marijuana was with the intent to distribute it. We will address that secondary challenge first.

Inference of an Intent to Distribute

When the search and seizure warrant was executed at Apartment A of 219 Willis Street in Cambridge on March 1, 1999, the police recovered, inter alia, 28.8 grams of marijuana. With respect to the significance of such an amount, Patrolman David Satterfield of the Narcotics Enforcement Team of the Cambridge Police Department testified:

Just one other thing is this amount of marijuana found would be more than, through my training and experience, what a normal drug user would possess, and it was my belief that it was for distribution purposes.

Although the bulk of the marijuana was found in the living room, there was also a small amount of marijuana found in a cabinet in the kitchen. Next to it was a set of electronic scales. Marijuana residue was on the scales. Based on his "experience as a police officer trained in narcotics," Office Satterfield also concluded with respect to the scales:

[T]he scale would be used to weigh out narcotics which drug dealers would use to weigh their narcotics and then package them for selling—to be able to have a price for the sale.

In the bedroom of the apartment, moreover, there was found, "lying loose on the bed," $500 in cash. Underneath the "box spring inside this bedroom" was found a further $12,000 in cash, wrapped neatly in packets of $1,000 each.

The appellant chooses to focus exclusively on the amount of marijuana recovered:

One ounce of marijuana was found in a single baggie secreted under the pillow of the living room couch. The single one ounce baggie of marijuana was far more consistent with personal use than with an intent to distribute.

Although the quantity was legally sufficient, in and of itself, to permit an inference of the aggravating intent, it was not, to be sure, overwhelming. What the appellant conveniently ignores, however, is the $12,500 in cash and the electronic scales with marijuana residue. Pertinent is our observation in Anaweck v. State, 63 Md.App. 239, 254-55, 492 A.2d 658 (1985):

The appellants were convicted not of simple possession, but of possession of cocaine with intent to distribute or dispense. There are various ways to prove such intent. The statutory language itself strongly suggests one route to the permitted inference of intent when it speaks of possession "in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance." Art. 27, § 286(a)(1). The quantity of narcotics possessed, however, is not an end in itself; it is but evidence of intent. It is the intent itself that is critical....

Thus, even a large quantity of drugs might not yield a finding of intent to distribute, if other circumstances indicated large private consumption. Conversely, a much smaller quantity might yield such finding of intent, if evidence other than the quantity possessed showed that intent.

(Emphasis supplied). See also Collins v. State, 89 Md.App. 273, 279, 598 A.2d 8 (1991)

.

Here there was "evidence other than the quantity possessed [that] showed that intent." The incremental mens rea of an intent to distribute on the part of SOMEONE was abundantly established in this case.

The Linkage Between The Appellant and the Contraband

The appellant's primary challenge is that the evidence was not legally sufficient to permit a finding that he was that SOMEONE. He seeks to distance himself from what was found in the search of 219 Willis Street.

When the police arrived to execute the search warrant at 5:40 p.m. on March 1, 1999, the appellant was one of two persons present on the premises. The other, Purnell Robert Bailey, had been sitting in the living room, smoking a marijuana cigar, immediately prior to the police arrival. Bailey bolted for the door, jettisoning the lighted cigar as he went, but was stopped in mid-flight. Both he and his cigar were taken into custody. The appellant had also been seated in the living room as the police arrived and as Bailey attempted to leave.

Our analysis begins with the principle that unlawful possession may be constructive as well as actual and may be joint as well as exclusive. As we observed in Folk v. State, 11 Md.App. 508, 511-12, 275 A.2d 184 (1971):

It is well-settled that the proscribed possession of marijuana 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 title." Jason v. State, 9 Md.App. 102, 111, 262 A.2d 774. See also Munger 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....

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.

(Emphasis supplied).

In Anaweck v. State, 63 Md.App. at 242-43, 492 A.2d 658, this Court described the broad embrace of the crime of criminal possession:

The appellants were not caught with the contraband in their hands. That, of course, is not legally fatal to proof of possession, but it does at least make the burden of persuasion a heavier one. Henson v. State, 236 Md. 518, 525, 204 A.2d 516(1964); Bryant v. State, 229 Md. 531, 537, 185 A.2d 190 (1962). "Appellant's argument that the mere fact that narcotics were found in his apartment does not establish beyond a reasonable doubt that he put them there or that they were in his possession is without force." Armwood v. State, 229 Md. 565, 570, 185 A.2d 357 (1962). "That the narcotics were not on his person but in the house of which he was a resident did not prevent the inference the police and the trial court drew—that he had possession and control of narcotics—from properly and permissibly being drawn." Henson v. State, supra, 236 Md. at 524-525, 204 A.2d 516

. It is also "well-settled that the proscribed possession... of narcotic drugs under the Maryland law need not be sole possession." Folk v. State, 11 Md.App. 508, 511, 275 A.2d 184 (1971). "[T]here may be joint possession and joint control in several persons."

(Emphasis supplied).

Before going on to the more significant linkage between the appellant and the premises of 219 Willis Street generally, we will linger for a moment on the contraband found in the living room alone. It was there that Purnell Bailey had been smoking the marijuana cigar. There were also recovered from that room "several burnt marijuana cigars." There was also in that room "some marijuana lying in plain view." In Folk v. State, supra,

we surveyed a number of cases where convictions were sustained on the basis of constructive and/or joint possession of contraband. At 11 Md.App. at 518,

275 A.2d 184, we summarized:

The common thread running through all of these cases affirming joint possession is 1) proximity between the defendant and the contraband, 2) the fact that the contraband was within the view or otherwise within the knowledge of the defendant, 3) ownership or some possessory right in the premises or the automobile in which the contraband is found, or 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the contraband.

A. Proximity:

With respect to the proximity factor, the living room was small, there were only several chairs and other items of furniture in it, and the distance between the appellant and the various items of contraband was minimal. In comparable circumstances, we observed in Folk v. State, 11 Md.App. at 518, 275 A.2d 184:

In the case at bar, the proximity between the appellant and the marihuana could not be closer, short of direct proof that the appellant herself was in exclusive physical possession of the marihuana. She was ... literally within arm's length of every other occupant of that automobile. The

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