Lucas v. State

• Decision Date: 01 September 1996
• Docket Number: No. 1456,1456
• Citation: 116 Md.App. 559,698 A.2d 1145
• Parties: Kevin Earl LUCAS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 559

116 Md.App. 559

698 A.2d 1145

Kevin Earl LUCAS v. STATE of Maryland.

No. 1456, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Aug. 28, 1997.

Joy L. Phillips, 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, David Taube, Staff Attorney, Baltimore, and Sandra A. O'Connor, State's Attorney for Baltimore County, Towson, on the brief), for Appellee

Submitted Before WENNER, J., and JAMES S. GETTY and JOHN J. GARRITY, Judges (retired), Specially Assigned.

WENNER, Judge.

Appellant, Kevin Earl Lucas, was convicted by a jury in the Circuit Court for Baltimore County of possession of cocaine with intent to distribute and several related offenses. After merging appellant's convictions for the related offenses with his conviction for possession of cocaine with intent to distribute, sentence was imposed, and this appeal followed. On appeal, appellant complains that the trial judge

1. incorrectly instructed the jury defining the crime of possession of cocaine, in failing to inform the jury that in order to convict appellant it was necessary for them to find that he knew that what he possessed was illicit;

2. gave the jury an incomplete instruction concerning circumstantial evidence; and 3. erred in admitting the "trophy photographs" into evidence.

Although we agree that the trial court erred in instructing the jury regarding the knowledge necessary to convict for possession of cocaine, it was harmless error. As we believe appellant's remaining complaints are without merit, we shall affirm the judgments of the circuit court.

FACTS

In October 1994, the Baltimore County Police Department began an investigation of appellant and his brother, Michael. The Lucases were suspected of being drug dealers. The officers learned that, although he resided in another location, appellant frequently visited an apartment at 6319 Monica Place in Baltimore County, which they found was leased by Michael Lucas, and determined it to be a "stash house." According to the State's expert witness, a stash house is used by mid-level drug dealers to store, process, and package drugs for distribution. Generally, drug dealers do not sell their products from, nor do they permit customers to consume drugs at stash houses. The location of a stash house is kept secret from family and friends, and is generally known only to an "elite few" in any given drug organization.

The police began surveilling the Monica Place apartment in April 1995. The surveillance team consisted of officers who visited the area periodically, and watched the apartment. Detective Griffin, one of the officers who participated in the surveillance, testified that he visited the Monica Place apartment on a number of occasions, and that he saw appellant there on seven or eight of these occasions. Detective Griffin observed that, upon visiting the Monica Place apartment, appellant seemed always to follow a similar pattern of behavior. Appellant would arrive at and enter the apartment. A few minutes later, Michael would arrive. They would remain in the apartment for twenty to thirty minutes, then leave.

Eventually, the police gathered sufficient information to obtain a search warrant for the apartment. On 23 May 1995 Detective Griffin and a search team went to the Monica Place apartment to execute the warrant. After surveilling the apartment for a period of time, appellant and a second man arrived. Although the officers had not seen him previously, the second man was later identified as Donald Page. Page was carrying a brown paper bag. Appellant was empty-handed. The two men entered the apartment.

After the search team had waited for about an hour, and no one else arrived, they entered the apartment to execute the search warrant. Upon entering the apartment, the search team set off a type of firecracker known as a flash bang, which makes a bright light. Its purpose is to stun the occupants for a few seconds, providing the entering officers sufficient time to gain control of the premises. Donald Page attempted to escape through a plate glass window. Unfortunately for Page, he was apprehended by one of the officers stationed outside the apartment. Page was injured and transported to a local hospital for treatment. Nevertheless, Page subsequently escaped and was apparently unavailable for appellant's trial. Appellant made no effort to leave the apartment, and was quickly apprehended. After apprehending appellant, the search team first noticed that his hands were covered with cocaine powder. During the search incident to his arrest, a set of keys was found on appellant. One of them was for the lock to the Monica Place apartment.

During a thorough search of the apartment, the officers found a bathroom toilet that had just been flushed and was still running. Powdered cocaine was found on the toilet seat. The officers also searched the kitchen and found the garbage disposal unit to be running. When they peered inside the garbage disposal unit, they found a large piece of crack cocaine. Also found in the kitchen was a set of scales, valued at approximately $150, wet paper towels, baking soda, benzocaine (a cutting agent), and a microwave oven. The microwave oven had been turned off with 33 seconds remaining on the display, and a white powdery substance inside. In addition, the officers found plastic baggies containing cocaine residue. All of these items indicated to the search team that at the time they entered the apartment, powdered cocaine was being processed into crack cocaine.

Appellant was placed under arrest and charged with possession of cocaine, possession of cocaine with intent to distribute, conspiracy with Michael Lucas, his brother, to possess cocaine, and conspiracy to possess cocaine with the intent to distribute. In September 1996, after a jury found appellant guilty on all counts, he was sentenced to term of 20 years, with all but 10 years suspended, followed by 3 years supervised probation upon his release. ¹

Although appellant did not testify at trial, defense counsel's closing argument outlined appellant's version of the incident. According to defense counsel, appellant was aware that his brother was a drug dealer, but appellant was not involved. Although defense counsel conceded that appellant used drugs, he averred that appellant was at the apartment solely to purchase cocaine for his own use. He explained that appellant's hands were covered with cocaine powder because appellant was testing the product before purchasing it. Consequently, it was disputed whether appellant was merely at the apartment purchasing drugs, or whether appellant was at the apartment because he was actively engaged in selling drugs.

The State introduced evidence to show that appellant was a habitual visitor to the Monica Place apartment. First, as we have previously mentioned, Detective Griffin testified that, in his frequent visits to the apartment, appellant had been there on seven or eight occasions. Second, the State introduced evidence that the Monica Place apartment was a "stash house." ² The State also introduced evidence that a number of personal items belonging to appellant were found in the apartment. These items included a sales receipt, a letter addressed to appellant, some of appellant's school papers, and photographs, referred to by the State as "trophy photographs." We will later explain these trophy photographs in greater detail.

After being convicted and sentenced, appellant noted this appeal.

I. Jury instruction on Possession of a Controlled Dangerous Substance

Initially, appellant contends the trial judge erred in instructing the jury on the definition of the crime of possession of cocaine. At the close of the trial, the trial judge instructed the jury on this matter by telling them:

You are further instructed that possession means the act or condition of knowingly having on one's person or taking into or having under one's control. Possession need not be immediate and direct, but may be constructive or indirect. Possession may be by one person or there may be joint possession by others. The duration of the possession and the quantity possessed are not material for the State to prove ownership in the sense of title in order to prove possession. A defendant not in actual direct possession of a substance who knowingly has both power and the intention to exercise some control over the substance, either personally or through another person, has indirect possession.

Defense counsel objected on the grounds that the instruction was incomplete because "knowledge," as defined in Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988), was not explained. In Dawkins, the Court of Appeals held that in order to convict an accused of possession of a controlled dangerous substance, the State must prove three things: (1) the substance was a controlled dangerous substance, (2) the accused had knowledge of the presence of the substance, and (3) the accused had knowledge of the "general character or illicit nature of the substance." Id. at 651, 547 A.2d 1041. Although the instruction complained of covered the first two requirements, it did not cover the third, knowledge of the substance's illicit nature. Accordingly, we must now determine whether this omission is fatal.

"A trial judge is required to give a requested instruction which correctly states the applicable law and which has not been fairly covered in instructions actually given...." Lansdowne v. State, 287 Md. 232, 239, 412 A.2d 88 (1980); Md. Rule 4-325. On the other hand, a trial judge is not required to instruct a jury on matters not generated by the evidence. Hemingway v. State, 76 Md.App. 127, 138, 543 A.2d 879 (1988). In the case at hand, there was no question that appellant knew that what he possessed was illicit, because defense counsel told the jury...