Price v. State, 19 September Term, 2007.

• Citation: 405 Md. 10,949 A.2d 619
• Decision Date: 09 June 2008
• Docket Number: No. 19 September Term, 2007.,19 September Term, 2007.
• Parties: Lawrence PRICE, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

949 A.2d 619

405 Md. 10

Lawrence PRICE, Jr. v. STATE of Maryland.

No. 19 September Term, 2007.

Court of Appeals of Maryland.

June 9, 2008.

Michael R. Malloy, Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore, MD), on brief, for Petitioner.

Gary E. O'Connor, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen., Baltimore, MD), on brief, for Respondent.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, JJ., and JOHN C. ELDRIDGE, ALAN M. WILNER and DALE R. CATHELL, JJ. (Retired, Specially Assigned).

JOHN C. ELDRIDGE, Judge (Retired, Specially Assigned).

In this criminal case, we granted the defendant's petition for a writ of certiorari to re-examine the Maryland common law principle that inconsistent jury verdicts are normally permissible in criminal jury trials. We also granted the State's petition for a writ of certiorari which presented the issue of whether Maryland Code (2002), § 5-905 of the Criminal Law Article, authorizes the enhancement of sentences for multiple counts arising from the same criminal transaction.

I.

The State's evidence at the trial can be summarized briefly as follows. On November 20, 2002, Officer Richard Pollock and Sergeant William Harris, of the Baltimore City Police Department, were conducting surveillance at an apartment complex in Baltimore City located on Winchester Street. Known to the police officers as an area where drugs are "commonly sold," Officer Pollock and Sergeant Harris initially observed the apartment complex from their unmarked police car with binoculars. During this time, they witnessed several people standing in a breezeway. Among the group in the breezeway were the defendant Price and Damien Tucker. The police officers saw about fifteen people, at different times, drive into the parking lot of the apartment complex and then approach the group in the breezeway. Upon meeting the group, the police officers witnessed Tucker receive cash and then each visitor, in turn, was handed a small object. Although Price was one of the individuals standing in the breezeway, the police officers did not see Price receive money, distribute anything, or engage in conduct that appeared to be drug dealing. Officer Pollock later 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 in the area as it is going on, as was the case that I thought with [Price]."

After observing a series of transactions, Officer Pollock and Sergeant Harris called for back up. Once additional police officers arrived, the officers exited their vehicle and approached the group in the breezeway. Seeing the officers approaching, everyone started to run. Officer Pollock followed Price and Tucker upstairs, and Tucker dropped a bag containing suspected controlled dangerous substances. Price and Tucker ran up to a third floor apartment, entered, and locked the door. Officer Pollock followed them, and waited outside the apartment until a backup officer arrived with a key to the apartment from the rental office. When the officers entered the apartment, they saw three men. The three men ran to a back room, where one of them jumped out of a window and ran. One officer apprehended Tucker, and Officer Pollock apprehended Price who threw a bag containing a handgun and U.S. currency to the ground.

Price was charged in 18 counts with various drug offenses and three firearms offenses. Three of the substantive drug charges fell into the category of a "drug trafficking crime" as defined in Maryland Code (2002), § 5-621 of the Criminal Law Article. Those offenses were possession of heroin with intent to distribute it, possession of cocaine with intent to distribute it, and possession of marijuana with intent to distribute it. Nine of the counts charged that Price engaged in conspiracies with Tucker to distribute, or to possess with intent to distribute, or to possess heroin, cocaine, and marijuana. The three firearms offenses charged were (1) possessing a firearm during and in relation to a drug trafficking crime, under sufficient circumstances to constitute a nexus to the drug trafficking crime, in violation of § 5-621(b)(1) of the Criminal Law Article,¹ (2) possessing a regulated firearm having been convicted of a prior disqualifying felony, and (3) unlawfully carrying or transporting a handgun. The three firearms charges were based on the same incident of Price throwing to the ground a bag containing a handgun. Finally, Price was charged in three counts with simple possession of heroin, cocaine, and marijuana.

In his instructions to the jury, the trial judge told the jury that Price could only be convicted of possession of a firearm, during and in relation to a drug trafficking crime, under circumstances constituting a nexus to drug trafficking, if Price was also convicted of one of the drug trafficking crimes. The judge stated, in pertinent part, as follows:

"Ladies and gentlemen, the defendants are charged with the crime of possessing a firearm during and in relation to drug trafficking crimes. Possession with intent to distribute heroin, cocaine and marijuana, and conspiracy to possess with the intent to distribute heroin, cocaine and marijuana are drug trafficking crimes.

"You may not consider the crime of possessing a firearm during and in relation to a drug trafficking crime unless you found the defendant guilty of possession with the intent to distribute heroin, cocaine and/or marijuana, conspiracy to distribute heroin, cocaine and/or marijuana, or conspiracy to possess with the intent of distributing heroin, cocaine and/or marijuana.

"If your verdict on those charges is not guilty you must find the defendant not guilty of possession of a firearm in the commission of a drug trafficking crime."

The jury acquitted Price of all drug trafficking charges. Thus, Price was found not guilty of possession with intent to distribute heroin, cocaine, and marijuana. Moreover, Price was found not guilty on all nine conspiracy counts. In addition, the jury acquitted Price on the two firearms counts charging possession of a regulated firearm having been convicted of a prior felony, and unlawfully carrying or transporting a handgun. Despite the trial judge's instructions and the acquittals, the jury found Price guilty of possession of a firearm during and in relation to a drug trafficking crime, under circumstances constituting a nexus to the drug trafficking crime. In addition, the jury convicted Price of simple possession of heroin, cocaine, and marijuana.

Price's attorney moved to strike the guilty verdict on the count charging possession of a firearm during and in relation to a drug trafficking crime, under § 5-621(b)(1) of the Criminal Law Article, on the ground that it was inconsistent with the acquittals. More specifically, defense counsel argued that commission of a drug trafficking crime is an "essential element" of the firearms offense under § 5-621(b)(1) of the Criminal Law Article, and that the jury had determined that Price did not commit a drug trafficking crime. The prosecuting attorney agreed that the guilty verdict on the § 5-621(b)(1) firearms count was inconsistent with the acquittals on the drug trafficking counts, but he argued that such inconsistent verdicts were permissible. After receiving legal memoranda from the parties, the trial judge denied the motion to strike on the ground that the cases in this Court, as well as some federal cases, have held that inconsistent verdicts are allowable. The trial judge, at the sentencing hearing, sentenced Price to twelve years imprisonment for the firearms conviction under § 5-621(b)(1), consecutive to any other sentence, with the first five years to run without parole.

Pursuant to § 5-601 of the Criminal Law Article, Price's convictions for possession of heroin and cocaine each carried a maximum of four years imprisonment or a fine not exceeding $25,000 or both.² His possession of marijuana conviction subjected Price to a maximum sentence of one year in prison or a fine not exceeding $1000, or both. The trial court judge sentenced Price to the maximum imprisonment penalty for each of his possession convictions, and then doubled each sentence under the apparent authority of § 5-905 of the Criminal Law Article. Section 5-905(a) states that "[a] person convicted of a subsequent crime under this title is subject to ... a term of imprisonment twice that otherwise authorized...." Price had a previous conviction in November 2002 for possession with intent to distribute a controlled dangerous substance. As a result, Price was sentenced in this case to eight years imprisonment for possession of heroin, a consecutive eight years for possession of cocaine, and two years concurrent for the possession of marijuana.

Price appealed to the Court of Special Appeals, arguing, inter alia, that the Circuit Court erred when it refused to strike the conviction for possession of a firearm during and in relation to a drug trafficking crime because the conviction was inconsistent with the acquittals on all counts charging drug trafficking crimes. In addition, Price argued that the trial court erred by doubling his prison sentences for all three of his drug possession convictions. Price contended that the trial judge misconstrued § 5-905 of the Criminal Law Article, and that doubling of sentences under that section is limited to "one count only." Section 5-905 provides in relevant part as follows:

"§ 5-905. Repeat offenders.

(a) In general. — A person convicted of a subsequent crime under this title is subject to:

(1) a term of imprisonment twice that otherwise authorized;

(2) twice the fine otherwise authorized; or

(3) both.

(b) Rule of interpretation. — For purposes of this section...