Jones v. State
| Decision Date | 16 December 1969 |
| Docket Number | No. 167,167 |
| Citation | 8 Md.App. 370,259 A.2d 807 |
| Parties | Charles Harry JONES v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
James L. Bundy, Asst. Atty. Gen., for appellee; with whom were Francis B. Burch, Atty. Gen., Julian B. Stevens, Jr., State's Atty., for Anne Arundel County, and Raymond G. Thieme, Jr., Asst. State's Atty., on the brief.
Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.
Charles Harry Jones (appellant), Alvin Rendell Carroll and Roscoe Edward Keaton were jointly indicted and charged with possession of narcotics paraphernalia (1st count) and that they 'unlawfuly conspired together to violate Section 297 of Article 27 of the Annotated Code a of Maryland' (2nd count). Appellant was separately tried by a court trial in the circuit Court for Anne Arundel County and found guilty of the offense charged in the second count. 1 On appeal the questions presented go to the sufficiency of the evidence.
At the trial there was evidence tending to show the following. On the second floor of a building at the Maryland Correctional Camp Center (Camp) are dormitories and bathrooms. Two of the dormitories, called respectively Queen Anne Dormitory and Prince George Dormitory, are connected by a common bathroom. In the center of the bathroom are showers and beside the showers are lavatories and toilet bowls. The dormitories and bathroom each have a door leading into a common hallway and each of the dormitories has a door leading into the bathroom. Jones, Carroll, Keaton and a Charles Bowman were inmates of the Camp on 13 October 1968. About 8:30 P.M. that day two officers of the Camp were making routine rounds through the building. On the second floor, as they were going down the hall, they saw Jones and Bowman, who appeared to be talking to each other. Jones, facing away from them, was leaning against the frame of the door leading from the hallway into the bathroom between the Queen Anne and Prince George's dormitories, more in the hall than in the bathroom. Bowman was in the hall. One of the officers said he had received a report earlier in the week that there 'had been some possible narcotics going on in the bathroom or dormitory.' He thought Jones was 'spotting', meaning acting as a lookout. 'It's usual to keep the hallways clear, and it's not too often the doors are unlocked to the bathroom from the hallways, but it's not often you catch somebody standing right in the doorway.' The officers ducked into the Queen Anne Dormitory through the door leading into the hall and then into the bathroom through the door leading therein from the dormitory. Jones then saw them and spun around, throwing up his hand as if to say something to somebody standing back in the bathroom. Jones then went into the bathroom. Keaton and Carroll were in the bathroom, coming toward the front from the back wall. All four inmates were taken to the control room and given a 'skin shakedown.' 2 A piece of Keaton and Bowman testified for Jones and Jones testified in his own behalf. Keaton stated 'that he was the one in the hallway talking to Bowman who was showing him pictures of his wife, that Jones was in the bathroom, that the officers brought Jones out of the bathroom and then Carroll came out of the other dormitory.' Keaton had passed through the bathroom and saw Jones sitting on a toilet just before Bowman came up. After cross- The State called a Maryland State Trooper in rebuttal apparently to impeach the credibility of Keaton. The Trooper said he had talked 'briefly' to Keaton. But Keaton told him that Jones was in the bathroom with Carroll.
toilet tissue, seen in Jones' hand by the officers on the second floor, was recovered from Jones' hand. It had 'a blood dripping on it.' There was a mark and a spot of blood on the palm of Jones' hand 'on the fleshy part near the base of the thumb.' It was the opinion of the examining officer that the mark 'looked as though an object had been used to scratch the skin rather than puncture straight through as you would in a hypodermic.' No narcotic paraphernalia was found on the person of Jones. A Maryland State Trooper,[259 A.2d 810] experienced in narcotic investigations, testified that narcotics are usually injected into muscles of the leg or arm. Asked by the court, 'Is it customary in your experience to insert the needle into the muscle of the thumb?', he replied, 'I have never run into an occasion like this before.' A similar mark and spot of blood was on Keaton's hand in the same location. A hypodermic needle and syring were found in Carroll's underwear. There was some blood in the syringe. The Trooper testified that the syringe and needle were of a type used to administer narcotics. There was no evidence as to whether it contained traces of a narcotic drug. Bowman told the officers he had stopped to show Jones some pictures. Polaroid pictures were found in Bowman's possession. At the close of this evidence adduced by the State, the court granted a motion for judgment of acquittal as to the first count of the indictment examination of Keaton, defense counsel stated that he had failed to ask the witness on direct examination about the 'injury' on his palm and asked permission to do so on redirect examination. The state objected on the ground of relevancy and the court agreed that it was not relevant. Questions were asked of the witness on the matter, objected to and the objections were sustained. Bowman said also that it was Keaton to whom he talked at the bathroom door. He denied talking to Jones in the hallway. Jones said he had been playing pool and went to the bathroom to relieve himself. The officers came in. They asked him what he was doing and he told them he was using the bathroom. One officer asked him what he had in his hand that was in his pocket and then told him 'OK, go ahead.' Carroll came from the dormitory and the officers called Jones back as he was walking away and took them all downstairs. He admitted the possession of toilet tissue and that it had blood on it. He said he had 'nicked' himself that morning while shaving and 'I just ripped a small piece off and dabbed it and I placed it in my pocket.' It was elicited on direct examination of him that he was serving a sentence of 18 months 'for narcotics.' No inquiry was made of him, either on direct or cross-examination, concerning the mark and blood spot on the palm of his hand.
The court denied a motion for judgment of acquittal. It then found a verdict of guilty as to the second count. It did not state the grounds for its decision. See Maryland Rule 742.
Jones first urges that the evidence was not sufficient to establish that he was the person in the doorway observed by the officers. It is the function of the trier of fact to resolve conflicting evidence. In doing so it determines Jones further contends that even if he was the one standing in the hallway, the evidence was not sufficient to convict him of the crime of which he was found guilty.
the weight of the evidence and the credibility of witnesses. It is not obliged to believe the explanations or denials offered by the defendant. Taylor v. State, 7 Md.App. 558, 256 A.2d 554; Rasnick v. State, 7 Md.App. 564, 256 A.2d 543; Fletcher v. State, 6 Md.App. 219, 251 A.2d 35. As there was credible evidence that it was Jones who was in the doorway talking to Bowman, an officer of the Camp positively identifying him, the court could properly so find. Rule 1086.
Simply stated, conspiracy is a combination by two or more persons to accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means. 3 In Maryland it is a common law misdemeanor. Archer v. State, 145 Md. 128, 125 A. 744; State v. Michael, 2 Md.App. 750, 237 A.2d 782. Today punishment is prescribed by statute, but only by way of limitation and applicable only when the object of the conspiracy is an 'offense.' Code, Art. 27, § 38, provides:
'The punishment of every person convicted of the crime of conspiracy shall not exceed the maximum punishment provided for the offense he or she conspired to commit.' 4
Thus it is when the object of the conspiracy is an indictable crime that the punishment for conspiracy to commit such crime may not exceed the punishment permitted for the object crime. If the object of the conspiracy is some other act with regard to which it is unlawful to conspire, the punishment is under the common law and the length of the sentence is left to the discretion of the trial court, except that it may not be cruel and unusual. See Miller v. State, 1 Md.App. 653, 232 A.2d 548.
In the context of the act to be accomplished, conspiracy is a broad crime. See State v. Buchanan, et al, 5 Har. & J. 317; 1 Wharton, supra, §§ 93-101, pp. 204-221; Clark and Marshall, supra, § 9.04, pp. 502-514. But '(n)othing is better settled in the criminal law than the doctrine that a conspiracy to commit any crime, either as the end or as the means of accomplishing an end not criminal, is a misdemeanor at common law; and it is immaterial whether the intended crime be a felony or merely a misdemeanor, and whether it be criminal at common law or by statute only.' Clark and Marshall, supra, § 9.04, p. 504. 5 Appellant was charged with conspiring with two other persons to violate Code, Art. 27, § 297, 6 which provides:
'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 a habit-forming drugs by hypodermic injections and which is possessed for the purpose of administering habitforming drugs, unless such possession be authorized by the certificate of a physician issued within the period of one year prior hereto.'
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