Smiley v. State, 1622

• Decision Date: 04 June 2001
• Docket Number: No. 1622,1622
• Parties: Troy Jerell SMILEY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

773 A.2d 606

138 Md. App. 709

Troy Jerell SMILEY v. STATE of Maryland.

No. 1622, Sept. Term, 2000.

Court of Special Appeals of Maryland.

June 4, 2001.

Bradford C. Peabody, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief) Baltimore, for appellant.

Gary E. Bair, Asst. Atty. Gen. and Michelle W. Cole, Staff Atty. (J. Joseph Curran, Jr., Atty. Gen., Baltimore and Davis R. Ruark, State's Atty. for Wicomico County, Salisbury, on brief) for appellee.

Submitted before SALMON, JAMES R. EYLER and KRAUSER, JJ.

JAMES R. EYLER, Judge.

A jury sitting in the Circuit Court for Wicomico County convicted appellant, Troy Jerell Smiley, of possession of cocaine with intent to distribute, possession of cocaine with intent to distribute within 1,000 feet of a school, and possession of cocaine.¹ Appellant raises one legal question but presents it as two issues. Specifically, appellant inquires:

I. Did the trial court err in declining to instruct the jury that he must have known that he was in a school zone in order to convict him of possession with intent to distribute in a school zone?

II. Was there sufficient evidence that he intended to distribute in a school zone to sustain his conviction for possession with intent to distribute within 1,000 feet of a school?

We shall affirm the court's judgments.

FACTS

Around 3:15 p.m. on Friday, March 24, 2000, Fruitland City Police Officers Anthony Myers and Andrea Robinson arrived at the Summit Apartments to investigate a report of drug trafficking. The apartments are in a residential area and within 1,000 feet of Fruitland Elementary School. Officer Myers saw appellant, whom he knew from previous contacts, standing near three other men.

Officer Myers approached appellant and asked to speak with him. Appellant nodded to the officer indicating that he would speak to him a couple of feet away. Appellant then took off his camouflage jacket and handed it to one of the men. Officer Myers asked appellant whether he had drugs in his coat and appellant dropped his head. Believing that appellant's actions suggested that he did have drugs in his coat, Officer Myers reached into a pocket of the coat and pulled out a plastic baggie that contained a white powdery substance. After appellant was placed under arrest, the police also recovered "Phillie blunt" cigars from his coat pocket. Subsequently, appellant gave a written statement explaining that a man had given him the cocaine and told him to "bring back $100."

At trial, Fruitland City Police Officer Matt Brown was accepted as an expert in the sale, packaging, and use of controlled dangerous substances. After detailing his experience as a narcotics investigator, Officer Brown opined that the cocaine found on appellant, which weighed 2.5 grams, had a street value of between $250 and $500. He testified that an addict would purchase only forty or sixty dollars worth of cocaine at a time and that some "chunks" of cocaine were larger than those normally seen on the streets. Based on his training and experience, the officer testified that the amount of cocaine was inconsistent with personal use.

Appellant testified that the cocaine was for his personal use and denied that he intended to sell or share it.

DISCUSSION

I.

Appellant argues that the trial court erred in instructing the jury on the elements of possession with intent to distribute cocaine within 1,000 feet of a school. Appellant argues that the court's instruction should have included the requirement that a defendant have actual knowledge that he was within a school zone at the time he possessed the cocaine with intent to distribute.² Maryland courts have not addressed that question. We hold there is no such requirement; accordingly, we perceive no error in the trial court's instructions.

Maryland Rule 4-325(c) provides that a trial "court may, and at the request of any party shall, instruct the jury as to the applicable law [.]" An appellate court must make three determinations in deciding whether the trial court was required to give an instruction: (1) whether the requested instruction constituted a correct statement of the law; (2) whether it was applicable under the facts and circumstances of the case; and (3) whether it had been fairly covered in the instructions actually given. Mack v. State, 300 Md. 583, 592, 479 A.2d 1344 (1984). It is the first determination that we are concerned with here.

"The guiding principle of statutory construction requires that we ascertain and effectuate the legislative intent." Velez v. State, 106 Md.App. 194, 207, 664 A.2d 387 (1995). That is, we review the words of the statute itself and give the words their "ordinary and popularly understood meaning." Id. "If the language of the statute is plain and clear and expresses a meaning consistent with the statute's apparent purpose, further analysis is not ordinarily required." Id. at 208, 664 A.2d 387. "[W]e approach the analysis of the language from a commonsensical, rather than a technical, perspective, always seeking to avoid giving the statute a strained interpretation or one that reaches an absurd result." Id. (quoting Dickerson v. State, 324 Md. 163, 171, 596 A.2d 648 (1991) (citations omitted)).

Maryland Code Annotated, Article 27, section 286D(a) (1996 Repl.Vol., 2000 Supp.), provides in pertinent part:

A person who manufactures, distributes, dispenses, or possesses with intent to distribute a controlled dangerous substance... is guilty of a felony if the offense occurred:

(1) In, on, or within 1,000 feet of any real property owned by or leased to any elementary school, secondary school, or school board, and used for elementary or secondary education ... whether:

(i) School was in session at the time of the offense; or

(ii) The real property was being used for other purposes besides school purposes at the time of the offense[.]

The statute's words and phrasing clearly show that proof that a defendant have actual knowledge that he is within a school zone is not an element of the crime. The statute states that "[a] person who ... possesses with intent to distribute [cocaine]... is guilty of a felony if the offense occurred: (1) In, on, or within 1,000 feet of any ... elementary school[,]" regardless of whether the school was in session. The intent part of the crime, i.e., possession with an intent to distribute, is separated from the 1,000 foot requirement by several words and ideas. Moreover, the plain words of the statute evidence its intent to create a safe haven on or near school grounds. The statute makes irrelevant who the intended buyer is or the time of day a drug sale takes place. Requiring the State to also prove that the seller knew he was on or near school grounds would clearly contravene the clear purpose of the statute. This view of the clear language of the statute is supported by its legislative history.

In Dawson v. State, 329 Md. 275, 284-85, 619 A.2d 111 (1993), the Court of Appeals

reviewed the legislative history of the above section, and stated:

Based on the legislative history of § 286D and the New Jersey statute from which it was derived, it is clear the General Assembly sought to enact a preventative measure designed to assure the safety of school children. First, the General Assembly sought to halt the proliferation of drug use among school-age children....

In addition, the General Assembly also sought to limit schoolchildren's exposure to the violent crime and demoralizing environment associated with the drug trade. Section 286D was thus an attempt to shield children from the direct and indirect effects of drug trading, including observing drug sales and the commission of violent crimes which may accompany drug trading. See id.; Testimony of Sen. Young on S.B. 289 ("The `drug-free school zone ['] seeks to establish not only the psychological mind set of a clean environment, but backs it up with the muscle needed to insure that environment."); cf. State v. Brown, 227 N.J.Super. 429, 547 A.2d 743, 747 (Law Div.1988)

(New Jersey "drug free zone" statute was intended to protect children from both sale of drugs and indirect harm from exposure to an unsafe environment.).

As to proof of intent, we have stated that an

[i]ntent to distribute controlled dangerous substances is `seldom proved directly, but is more often found by drawing inferences from facts proved which reasonably indicate under all the circumstances the existence of the required intent.' Likewise, an intent to distribute may be indicated by the very quantity of narcotics possessed.

Hippler v. State, 83 Md.App. 325, 338, 574 A.2d 348 (1990) (quoting Salzman v. State, 49 Md.App. 25, 55, 430 A.2d 847 (1981)) (in turn quoting Waller v. State, 13 Md.App. 615, 618, 284 A.2d 446 (1972)).

The purpose of the statute is to protect children from the "direct and indirect effects of drug trading." Dawson, 329 Md. at 285, 619 A.2d 111 (emphasis added). Thus, appellant's argument that "the mere presence on his person of a sufficient quantity to indicate an intent to distribute would not involve any of the evils cited in Dawson as the target of the statute" is plainly wrong.

Appellant cites to three cases to support his position that the State must prove that he knew he was in a school zone: Taylor v. State, 346 Md. 452, 697 A.2d 462 (1997); Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988); and Davis v. State, 9 Md.App. 48, 262 A.2d 578 (1970). Those cases, however, are easily distinguishable for they concern the constructive knowledge requirement for possession of an illegal substance. See Taylor, supra

(evidence which established only that the appellant was present in the room where marijuana was recently smoked and that he was in proximity to the concealed container containing marijuana but belonging to another was insufficient to sustain appellant's conviction for possession); Dawkins, supra (appellant was entitled to an instruction that knowledge of the presence and illicit...