Manuel v. State
| Decision Date | 02 September 2021 |
| Docket Number | 1495-2019 |
| Parties | ALEXANDER L. MANUEL v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Harford County Case No. C-12-CR-18-000210
Arthur, Wells, Woodward, Patrick L. Senior Judge, Specially Assigned), JJ.
A Harford County jury convicted appellant Alexander L. Manuel of two counts of distribution of heroin and two counts of distribution of fentanyl. The circuit court had previously granted his motion for judgment of acquittal on a charge of knowingly distributing a mixture containing heroin and fentanyl.
The court sentenced Manuel to an aggregate term of 50 years of incarceration. Manuel appeals his convictions, presenting the following questions, which we have reordered:
We shall affirm the convictions.
A grand jury indicted Manuel on two counts of distribution of heroin and two counts of distribution of fentanyl in violation of Maryland Code , § 5-602 of the Criminal Law Article ("Crim. Law"). The grand jury also indicted Manuel on two counts of "knowingly" distributing a mixture containing heroin and fentanyl in violation of Crim. Law § 5-608.1.
At trial, the defense did not challenge the evidence that Manuel distributed heroin. Instead, it focused on the lack of evidence that Manuel knowingly distributed fentanyl.
In his opening statement, defense counsel told the jury that the defense was "not going to dispute much" of the evidence, which he said was "pretty strong for the State." Defense counsel conceded that Manuel had conversations and meetings with an undercover detective, but pointed out that they had discussed heroin, not fentanyl. Defense counsel added that Manuel never knowingly possessed or distributed fentanyl, which he explained was similar in appearance to heroin. In conclusion, defense counsel stated "We're very confident that you will find Mr. Manuel not guilty of distributing the fentanyl."
Detective Ryan Nelson, who was assigned to the Harford County Narcotics Task Force and worked on the undercover investigation of Manuel, testified that he contacted Manuel by telephone and made arrangements to purchase $150 worth of heroin. On April 5, 2018, Detective Nelson met Manuel at a convenience store to complete the transaction, which was recorded on covert audiovisual equipment. The recordings of the transactions between Manuel and Detective Nelson were admitted into evidence without objection and were played for the jury.
Detective Brian Wyszga was involved in the undercover investigation and was assigned to conduct surveillance of Manuel before the transaction on April 5, 2018. Detective Wyszga followed Manuel as Manuel left his place of employment in the passenger seat of a car. The car stopped at a house. Manuel went into the house for less than two minutes and returned to the car, which proceeded to the convenience store, where the transaction took place. Detective Wyszga observed as Manuel walked over to the driver's side window of Detective Nelson's car, made contact with him, and departed in less than a minute, which Detective Wyszga stated was "a common activity consistent with a drug transaction[.]"
Upon receiving the package from Manuel, Detective Nelson confronted Manuel about the quantity, saying that it appeared to be "light." Manuel responded that he would "double it the next time" to make up for the shortage. The package contained a white, rock-like substance that was later tested and found to contain cocaine, heroin and fentanyl.
On April 10, 2018, Detective Nelson arranged a second controlled purchase of $150 worth of heroin from Manuel. That transaction was also recorded. Manuel handed Detective Nelson a package that consisted of three items: a clear plastic bag containing a white powder that was later tested and found to contain heroin and fentanyl; and two small plastic bags containing a brownish substance that were found to contain fentanyl alone.
Detective Nelson, who had been involved in approximately 100 undercover narcotics investigations, stated that "[i]t is just known on the street" that fentanyl is added to heroin to make it more potent. He testified that, during one of the transactions, Manuel said that "this was not his normal product[, ]" which Detective Nelson interpreted to mean that "it might be stronger" than the normal product.
On cross-examination, Detective Nelson agreed that not every street product contains fentanyl, and he confirmed that he asked Manuel only for heroin. Detective Nelson acknowledged that it is visually difficult to distinguish heroin from fentanyl.
Senior Trooper John Stevens of the Maryland State Police testified that he had nine years of experience in narcotics investigations and had been involved in over 500 drug cases. He explained that it is "more common than not to have heroin adulterated with fentanyl now because fentanyl is a lot less expensive" (apparently than heroin). "[W]hen someone orders heroin," he said, "a lot of times that is a generic term for fentanyl since a lot of people who are buying drugs are not versed in the difference." He added that heroin and fentanyl were "interchangeable term[s]."
At the close of the State's case, defense counsel moved for judgment of acquittal on all counts, asserting that the State had not met its burden of proving that Manuel knew that the substance he sold to Detective Nelson contained fentanyl. Defense counsel's argument did not address the merits of the motion for judgment of acquittal on the two counts concerning the distribution of heroin.
The court granted the motion for judgment of acquittal on the counts for knowingly distributing a mixture containing heroin and fentanyl, finding that the State had presented no evidence that showed that Manuel knew that the substance he was distributing contained fentanyl. The court denied the motion on the counts for distribution of heroin and the counts for distribution of fentanyl.
The defense rested without presenting any evidence. Defense counsel renewed the motion for judgment of acquittal after the defense rested. The court denied the motion, again.
In discussing jury instructions with the court, defense counsel argued that, although Manuel had been acquitted of the charges of knowingly distributing a mixture containing heroin and fentanyl in violation of Crim. Law § 5-608.1, the jury should be instructed that knowledge is an element of the crime of distribution of fentanyl in violation of Crim. Law § 5-602. The court declined to give the requested instruction, reasoning that Manuel was no longer subject to the penalty in § 5-608.1 for knowingly distributing fentanyl.
Defense counsel then requested that the court include a "general intent" instruction, stating, "any criminal offense requires mens rea[;] it requires intent[.]" The court concluded that the instruction was not warranted because it was not included in the pattern jury instruction for distribution of a controlled dangerous substance.
In accordance with the pattern jury instructions, the court charged the jury as follows:
After the court instructed the jury, the court asked counsel, "[I]s there any reason that you need to approach on the jury instructions?" Defense counsel responded, "No."
In closing argument, defense counsel appeared to concede that Manuel was guilty of distribution of heroin, but argued that the State had not met its burden of proving that Manuel distributed fentanyl:
During jury deliberations, the court received a note from the jury, and the following colloquy ensued:
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