Mason v. State

• Decision Date: 11 August 1971
• Docket Number: No. 429,429
• Citation: 12 Md.App. 655,280 A.2d 753
• Parties: Roger MASON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 655

12 Md.App. 655

280 A.2d 753

Roger MASON v. STATE of Maryland.

No. 429.

Court of Special Appeals of Maryland.

Aug. 11, 1971.

Thomas A. Lohm, Wheaton, for appellant.

James F. Truitt, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Linthicum, Jr., State's Atty., Walter H. Madden and John M. King, Asst. State's Attys., Montgomery County, on brief, for appellee.

Argued before ORTH, THOMPSON and MOYLAN, JJ.

MOYLAN, Judge.

On January 14, 1970, combined law enforcement teams representing five separate agencies-including the Maryland State Police, the Montgomery County Police and the United States Bureau of Narcotics and Dangerous Drugs-culminated six months of investigation, covering the states of Maryland, Delaware, Pennsylvania and the District of Columbia, into the wholesale manufacturing and distribution of hallucinogenic drugs. Search warrants were on that day simultaneously executed on two Montgomery County residences, one 'health food' store in Montgomery County, another 'health food' store in the District of Columbia, an automobile in Montgomery County and a farm in Easton, Maryland. Confiscated were significant amounts of marijuana, hashish, opium and LSD, as well as large amounts of another hallucinogenic drug known as 'PCP.' Also confiscated was equipment for the processing of drugs. Recovered as well were chemicals which had a potential yield of 250,000 doses of 'PCP,' 20,000,000 doses of LSD and 3,000,000 doses of another hallucinogenic drug known as MDA.

As a result of these raids, on February 4, 1970, a series of indictments were returned against the appellant, Roger Mason, by the Grand Jury for Montgomery County. Five of those, over his objection, were consolidated for trial. The eight-day trial before a jury, presided over by Judge Ralph G. Shure, began on Monday, May 25, 1970, and concluded on Thursday, June 4, 1970.

On Indictment No. 10827, the jury found the appellant guilty of possession of opium. On Indictment No. 10828, the jury found him guilty of possession of hashish. On Indictment No. 10829, the jury found him guilty of possession of marijuana. On Indictment No. 10830, the jury found him guilty of possession of LSD. On Indictment No. 10832, the jury found him guilty of unlawfully manufacturing, compounding and processing an hallucinogenic drug, commonly known as 'PCP.' Under the second count of the same indictment, the appellant was found guilty of conspiring with David Macklar and Allison C. Land to manufacture, compound and process 'PCP.'

On Indictment No. 10827, the appellant was sentenced to two years imprisonment and a fine of $200, the sentence to run consecutively with that he received on Indictment No. 10832. On Indictment No. 10828, the appellant was sentenced to one year imprisonment and a fine of $200, the sentence to run consecutively with the sentencers received on Indictment Nos. 10832 and 10827. On Indictment No. 10829, the appellant was given a generally suspended sentence. On Indictment No. 10830, the appellant was sentenced to one year imprisonment and a fine of $100, the sentence to be served consecutively with those received on Indictment Nos. 10832, 10827 and 10828. On Indictment No. 10832, the appellant was sentenced to a term of five years imprisonment and a fine of $5,000 on the first count and to a term of four years imprisonment on the second count, the two sentences to run consecutively with each other.

Upon this appeal, the appellant raises a grand total of fourteen contentions.

Lack of Instruction on Accomplice's Testimony

One of the State's witnesses in this case was James D. Macklar, who was named as a co-conspirator with the appellant in Indictment No. 10832. There is no question but that Macklar was, in fact, an accomplice to the appellant, with respect to Indictment No. 10832. The appellant requested an instruction to the effect that the testimony of Macklar, as an accomplice, 'should be reviewed with suspicion and must be corroborated.' Judge Shure declined to give such an instruction with the following statement:

'I don't see how we can call this a circumstantial evidence case at all when we have the evidence that is in this case, nearly 300 exhibits. All of the matter that was found and what have been in his home and where he had been placed in his place of business where he was apprehended. I don't think this requires me to go into what we would in some cases with the uncorroborated testimony of an accomplice, because there is much corroboration in this case. I don't follow you on that.'

It is true that it is incumbent upon the court, when requested in a criminal case, to give an advisory instruction on every essential question or point of law supported by the evidence. Gaskins v. State, 7 Md.App. 99, 105, 253 A.2d 759; Halcomb v. State, 6 Md.App. 32, 250 A.2d 119; Gordon v. State, 5 Md.App. 102, 245 A.2d 401; Malloy v. State, 4 Md.App. 420, 243 A.2d 649; Huber v. State, 2 Md.App. 245, 234 A.2d 264; Tipton v. State, 1 Md.App. 556, 232 A.2d 289; Maryland Rule 756 b.

In declining to give the instruction, the trial court apparently relied upon another well-settled principle of law that a request for an instruction is properly refused where there is no evidence to support it. Duffin v. State, 229 Md. 434, 184 A.2d 624; Wiley v. State, 237 Md. 560, 207 A.2d 478. A proper application of that principle would be, we feel, restricted to a situation where there is no supporting evidence that a witness is an accomplice. The principle was not, we feel, intended to be applied to a situation where the witness was arguably, let alone clearly, an accomplice but where there was no supporting evidence that the testimony of that witness was uncorroborated. The appllant was entitled to the instruction, particularly because it had some significance with respect to the credibility of the accomplice-witness and the resultant weight of his testimony, above and beyond the question of corroboration.

There remains to be considered, however, the question of whether this omission constituted reversible error or whether it may, in the context of this particular case, be deemed harmless error.

The language of both Hardison v. State, 226 Md. 53, 172 A.2d 407, and Gaskins v. State, supra, is broad enough to make the appellant's contention here arguable. In both of those cases, convictions were reversed for failure to give requested instructions on the skepticism with which accomplice testimony should be viewed. Because the literal holdings of those cases, however, arose out of narrow factual contexts not even remotely analogous to that before us here, we feel that neither Hardison nor Gaskins is dispositive of the case at bar. They teach us, to be sure, that the instruction should have been given. They did not deal with circumstances wherein harmless error vel non was the issue to be determined.

In both Hardison and Gaskins, the allegedly accomplice testimony represented the almost exclusive evidence of guilt. Those cases inevitably stood or fell upon the view taken by the jury of the testimony of the possible accomplice. Such is not, however, the situation at bar. The testimony of Macklar was a relatively minor factor in the massive accumulation by the State of inculpatory evidence.

The premises at 312 Willington Drive in Silver Spring was owned and occupied by the mother and father of the appellant. The appellant had been living there until some months before his arrest. There was testimony that the appellant secreted some of his contraband above the heat ducts in the basement of his parents' home. The police recovered from that area significant amounts of marijuana, hashish, LSD and opium.

The appellant was the lessee of the property at 7214 Carroll Avenue in Takoma Park which he operated as Nature's Restaurant. The police there found no evidence of an operating restaurant but did find large numbers of chemicals, chemical books, chemical equipment and chemical formulae.

One Gregory Jelly testified that he made his living selling drugs for the appellant and that on one occasion he had observed the appellant deliver 1,000 PCP tablets to one Vicki Ford. Vicki Ford testified that she sold PCP for the appellant, that on occasion she helped him prepare PCP, that she had seem him conceal 'dope' above the heating ducts at 312 Willington Drive and that she had gone with him to the National Library of Medicine to help him find hallucinogenic formulae. She further testified that the chemical processing equipment located at 13023 Turkey Branch Parkway, a residence occupied by James David Macklar and Allison Land, was owned by and used by the appellant for the manufacturing of PCP.

The police recovered from 13023 Turkey Branch Parkway numerous chemicals and chemical equipment which represented over 200 exhibits at the trial.

An employee of the Arthur H. Thomas Pharmaceutical Company of Philadelphia, Pennsylvania, testified that the appellant, under the assumed name of R. M. Wallace, purchased chemicals from that company on five or six occasions between July 11, 1966, and November 28, 1969. The appellant was ostensibly purchasing these chemicals in the name of Biotechnical Products. The total sales came to $1,088. All transactions were in cash. The manager of North Strong, Inc., a chemical distributing firm in Rockville, identified the appellant as a frequent purchaser of chemicals from her company. She testified that he purchased the chemicals under the name of R. M. Wallace.

The general manager of the Wilmington Telephone Answering Service testified that the appellant was a subscriber to her company's telephone answering and mail service. He there used the name of Charles Harris. The company to which mail was sent for him was the Wilmington Research Company. She testified that the appellant picked up from her at her office many boxes and drums.

Numerous letters were admitted into evidence which were addressed to the...