Price v. State

Decision Date25 January 2007
Docket NumberNo. 983, September Term, 2005.,983, September Term, 2005.
PartiesLawrence PRICE, Jr. v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Michael R. Malloy (Nancy S. Forster, Public Defender, on brief), for appellant.

Gary E. O'Connor (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel EYLER, JAMES R., SHARER and WOODWARD, JJ.

EYLER, JAMES R., J.

Lawrence Price, Jr., appellant, was convicted by a jury in the Circuit Court for Baltimore City of possession of heroin, possession of cocaine, possession of marijuana, and possession of a firearm under sufficient circumstances to constitute a nexus to a drug trafficking crime. The jury acquitted appellant of fourteen other related counts.1 Subsequently, the court sentenced appellant to eight years imprisonment on the possession of heroin conviction, with a consecutive eight years imprisonment on the possession of cocaine conviction, two years imprisonment concurrent on the possession of marijuana conviction, and another twelve years imprisonment consecutive on the possession of a firearm conviction.

Appellant raises four questions for our consideration on appeal:

(1) Whether the evidence was sufficient to sustain appellant's convictions;

(2) Whether the court erred by refusing to ask an impaneled juror, who was later dismissed, whether he had discussed the reason for his dismissal with any of the other jurors;

(3) Whether the court erred by doubling appellant's sentences for all three drug possession convictions pursuant to Maryland Code (2002 Repl.Vol.), § 5-905 of the Criminal Law ("C.L.") Article;

(4) Whether the court erred by allowing the jury to convict appellant of possession of a handgun in connection with drug trafficking, and acquit him of all other drug trafficking charges.

As to questions 1, 2, and 4, we affirm. As to question 3, we shall vacate the sentences and remand to circuit court for resentencing consistent with this opinion.

Factual Background

Appellant was tried jointly with Damien Tucker ("Tucker"). The following is a summary of the evidence adduced at trial pertinent to this appeal.

Officer Richard Pollock of the Baltimore City Police Department, who was qualified as an expert in the identification, packaging, and sales of controlled dangerous substances, testified that on November 20, 2002, he and Sergeant William Harris were conducting surveillance in the 2300 block of Winchester Street in the Winchester Apartment community, an area where drugs are "commonly sold." Officer Pollock and Sergeant Harris were in an unmarked vehicle using binoculars to observe several individuals who were standing in the breezeway of an apartment building. Appellant and Tucker were later identified as two of the individuals standing in the breezeway. During surveillance, Officer Pollock observed at least fifteen people "drive into the area and park ... walk up to the group [standing in the breezeway], and Mr. Tucker was seen receiving U.S. currency in bill form, and then a small object unknown at that time was handed to that person, which they would take and reenter their vehicles if they drove up and then leave the area." At some point, Officer Pollock and Sergeant Harris exited their vehicle and radioed for backup. When backup arrived in the area, Officer Pollock and Sergeant Harris began to approach the group. As they approached, Officer Pollock observed three or four people on the landing between floors of the building. When those individuals saw the officers approaching, "everyone started running."

Officer Pollock observed two of the individuals, appellant and Tucker, run "up the stairs," and observed Tucker "dropping an item which [Officer Pollock] recovered [and] which was [he] believe[d] a blue ziplock, small ziplock bag containing a brown substance of suspected heroin." Officer Pollock followed appellant and Tucker to the third floor, but before he could reach them, they had entered an apartment and shut and locked the door. Officer Pollock could see underneath the door and observed "people running all throughout the apartment."

While Officer Pollock waited outside of the apartment, one of the backup officers who had arrived at the scene, Sergeant Dorsey McVicker, retrieved a key to the apartment from the rental office. When the officers opened the apartment door, Officer Pollock observed "three gentlemen inside the apartment. They ran towards the back bedroom . . . . [and][o]ne of those persons jumped out of the third floor window and ran off down the apartment parking lot." Detective David Schuster, the second backup officer who had arrived at the scene, apprehended Tucker, and Officer Pollock apprehended appellant, "who threw a brown bag to the ground, and that contained a handgun and U.S. currency."

On cross-examination, Officer Pollock testified that,

[i]n [the Winchester Apartment] area, there's a constant flow sometimes where there may be four or five people and then other people come up and they're communicating and talking with others even while sales are going on, but that doesn't necessarily mean that they're involved in the actual sales. They're just there in the area as it goes on, as was the case that I thought with [appellant].

He also acknowledged that in his surveillance, he did not see appellant receive currency, distribute anything that looked like narcotics, or do anything that resembled drug dealing. He stated again, however, that when he entered the apartment and started chasing after the three men, he saw appellant throw a bag which was recovered and found to have a handgun and a large amount of U.S. currency in it.

Detective Schuster, qualified as an expert in the identification, packaging, and street level sale of controlled dangerous substances, testified that he grabbed Tucker as he was trying to escape through the window. As Detective Schuster was pulling Tucker off of the window ledge, Tucker threw a brown bag into the corner of the room. Later, Detective Schuster recovered the brown bag, which contained "numerous amounts of suspected CDS," including "numerous gelatin capsules [and] a white powder substance which [he] believed to be heroine [sic]." Detective Schuster stated that the amount and packaging of the drugs indicated that they were intended for sale. He also stated that based on "[t]he fact that [the handgun] was less than five feet away [from] the amount of drugs that we recovered based on [Detective Schuster's] experience it indicates a level — it indicates an intent to protect the [drug] operations they had going on."

After the jury was sworn, the court instructed them "not to discuss the case ... amongst yourselves ....," and "not to discuss the case with anyone or let anyone discuss it with you. That includes other jurors . . . ." The court also instructed the jurors that if "anything questionable occurs . . ., write it down on a piece of paper and we'll address it appropriately." At the conclusion of testimony on the first day of trial, January 24, 2005, the court instructed the jury to "please not discuss this case with anyone by and amongst yourselves or with anyone else." After the jury was excused for the day, the following transpired.

THE COURT: Okay. Fair enough. Any other preliminary matters that we can address? There is one and it's significant, and I want to raise it to you. I did receive a note from juror number four at 4 o'clock. It was supplied to my court clerk during a very short five-minute recess.

It says as follows: I live three and a half blocks away from the apartments. I don't want any decision I make to put my family in danger. I drive past every day when I go to work. That's the note that the court received in connection with these proceedings.

* * *

I'll ask the [S]tate how it wishes the court to proceed in light of this note.

THE STATE: My problem is two-fold, Your Honor. First, if the defendant — if the juror is not going to make a decision based on the evidence based on fear, then that scares the [S]tate because not knowing anything about the defendants if the witness (sic) says I can't find these guys guilty because I'm scared of what's going to — any reprises, that's a juror that's already (inaudible), and as far as — and I'm going to make a defense argument.

It's clear he already has a preconceived notion about these defendants, that they're the type of people who would do this. I think both sides —

THE COURT: Well, just speak for your side, sir, at this point.

THE STATE: Okay. Then like I said, Your Honor, if he's scared to make a decision he's clearly biased against the [S]tate.

THE COURT: I'll be happy to hear from both defense counsel.

APPELLANT'S COUNSEL: May I see the note, Your Honor?

THE COURT: Sir, I actually just read the note the exact way it is. Tell me why you want to see it.

APPELLANT'S COUNSEL: Just to see how it's written, Your Honor. I'm not doubting the court. However, I believe the case law is pretty clear that if I request to see it it's the court's obligation to allow me to.

THE COURT: Let the record show that I'm showing it to you.

APPELLANT'S COUNSEL: Thank you, Your Honor. My only — I'll submit, Your Honor.

THE COURT: Okay. [Tucker's counsel], your position?

TUCKER'S COUNSEL: Your Honor, I'd ask that the juror be stricken and the alternate be seated.

THE COURT: And that's consistent with what you're asking for, [State]?

THE STATE: Yes.

THE COURT: Okay. What I'd like to do is take it up tomorrow morning. That's why I waited until this point in the proceedings. When I received the note at 4:00, let the record reflect that it's 4:45, I'm inclined to do just that, just that being striking juror number four and seating the alternate in place of juror number four, but I would like to reserve on the issue until tomorrow.

THE STATE: Thank you.

THE COURT: And we'll address the proceeding tomorrow morning after we have all jurors present.

APPELLANT'S COUNSEL: Okay. Your Honor, there's...

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