State v. Leach, 103

• Decision Date: 17 August 1983
• Docket Number: No. 103,103
• Parties: STATE of Maryland v. Stephen Vernon LEACH.
• Court: Maryland Court of Appeals

Page 591

296 Md. 591

463 A.2d 872

STATE of Maryland v. Stephen Vernon LEACH.

No. 103.

Court of Appeals of Maryland.

Aug. 17, 1983.

Jane E. Pilliod, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellant.

Gary S. Offutt, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

RODOWSKY, Judge.

Appellant, Stephen Vernon Leach (Stephen), was convicted of possession of a controlled dangerous substance, phencyclidine (PCP), and of controlled paraphernalia in violation of Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 287. ¹ The Court of Special Appeals in an unreported opinion reversed and remanded for a new trial. That court held that the address given by Stephen to the police when he was being booked was, under the circumstances of this case, a statement made by the accused which should have been disclosed by the State pursuant to Md.Rule 741. The State petitioned for certiorari, and Stephen cross-petitioned challenging the sufficiency of the evidence. Both petitions were granted. We have concluded that the evidence was legally insufficient to convict, even if the statement made at booking was properly admitted. It is therefore unnecessary to express any opinion on the questions raised in the State's petition.

Stephen was tried jointly with his brother, Michael Lawrence Leach (Michael), at a bench trial. The essential question was whether Stephen constructively possessed the PCP and paraphernalia found in a one-bedroom apartment on the second floor of a rowhouse located at 3712 Erdman Avenue, Baltimore City (the Premises). We summarize the evidence most favorable to the State.

Prior to February 27, 1980, the date of their arrest, Stephen and his brother were objects of a police investigation that included surveillance of the Premises. On February 17 at 7:00 p.m., when Sergeant Kenneth Anderson (Anderson) began a surveillance, he saw Stephen's blue Datsun parked opposite the Premises. Within a half hour Stephen left. He returned five minutes later. Later both Stephen and Michael came out at different times. At 8:00 p.m. they went back into the house. Anderson left at approximately 8:30 p.m.

Anderson resumed a surveillance on February 19 between 8:00 p.m. and 9:45 p.m. Michael's red Barracuda was parked nearby. Stephen arrived shortly after 8:00 p.m. in the Datsun. After parking the car, Stephen went to the front door and let himself in with a key. At 9:15 p.m., both brothers came out and met another person who had arrived in a van, and who subsequently went into the house with them. Later, the three came outside. The brothers assisted the third person in trying to get the van running and presumably continued to do so until at least 9:45 p.m. when Anderson left.

On February 24 Detective Walter Roberts (Roberts) observed Stephen enter the Premises at 7:24 p.m. Roberts left after one hour. Stephen was still inside.

Relying principally on information from confidential informants who did not testify at trial, the police obtained a search warrant for the Premises, for Michael's car, and for the persons of Michael and Stephen. On February 27, 1980, the police followed Michael from his place of employment to the Premises. After Michael had parked his car, and while he was approaching the front door, the police stopped him. Keys were removed from his pocket and were used by the police to gain entry for the search of the apartment.

The record contains a limited description of the floor plan of the apartment. In relation to the apartment's entrance, the living room is to the "left," the kitchen is to the "right," and the single bedroom is to the "left" of the kitchen in the rear of the floor. There was only one bed, described as "large" and located in the bedroom.

Found in the bedroom closet were a table scale, a pocket scale, a bottle of mannitol, three smoking pipes, and a green leather case holding drug cutting tools. On the dresser in the bedroom was a closed cannister which contained five individually wrapped packets of PCP having a street value of $700. A glass bottle, found in the bedroom, contained residue of a white powder that was analyzed as cocaine. Photographs seized from either the bedroom or living room included one depicting an unidentified individual standing in the living room of the apartment with Michael and Stephen in the background. Handwritten on the back of this photo were "John Potter holding greens" and "December 1979." Expert testimony was that "greens" are PCP adulterated flakes, usually parsley.

Personal papers found in the bedroom included two current bills, one for telephone service and one for gas and electricity. These bills were in Michael's name. The final items seized were a 30-X magnifier and a large table scale, both of which were found in plain view on a kitchen table. There was testimony that these items could be used in cutting and packaging drugs.

When the search was completed, Michael was arrested. Acting on a telephone call received at about the same time, the police proceeded to the 4000 block of Pourse Avenue, one and one-half miles away. There they arrested Stephen while he was walking a dog.

When the brothers were booked by the police, each gave 3712 Erdman Avenue as his address. At their appearance before a Commissioner, they apparently again gave the same address. ² The Department of Motor Vehicles reflected Stephen's address, as of May 28, 1979, to be 3712 Erdman Avenue. Stephen's employer's records showed two addresses for him--3712 Erdman Avenue and 4002 Pourse Avenue.

For the defense, Rita Cushner testified that Stephen was residing at 4002 Pourse Avenue where both she and her daughter, Stephen's friend, also lived. According to Cushner, Stephen had moved in a few weeks before Thanksgiving of 1979 and had stayed until late May of 1980. The dog with Stephen when he was arrested belonged to the witness' daughter. Neither brother testified.

During argument of counsel, the trial judge stated he was "not going to assume that two gentlemen their age who are brothers were sleeping in the same bed. That's an inference I'm not drawing ...." He found "[t]he evidence in this case [to be] abundantly clear that Michael Leach was the occupant, possessor of the apartment ...." As to Stephen the conclusion was that

[b]ased on the evidence in the case, primarily the evidence of Mr. Stephen Leach's access to the apartment, the fact he had the key to the apartment, the fact he had at one point the motorcycle registered at the apartment, the fact that he gave this apartment as his address at the time of the arrest, I believe there is sufficient evidence to justify a ... finding of guilty [of] ... possession of Phencyclindine, and, in addition, I find that this evidence is buttressed by the ... photograph in evidence bearing the date December, 1979 ....

"Possession" means "the exercise of actual or constructive dominion or control over a thing by one or more persons." Art. 27, § 277(s). The statute recognizes, as we held in Henson v. State, 236 Md. 518, 525, 204 A.2d 516, 520 (1964), that possession may be constructive. Possession may also be joint. See Garrison v. State, 272 Md. 123, 128, 321 A.2d 767, 770 (1974); Rucker v. State, 196 Md. 334, 340, 76 A.2d 572, 574 (1950).

But the "evidence must show directly or support a rational inference that the accused did in fact exercise some dominion or control over the prohibited ... drug in the sense contemplated by the statute, i.e., that [the accused] exercised some restraining or directing influence over it." Garrison, supra, 272 Md. at 142, 321 A.2d at 777.

Here the fact finding that Michael was the occupant of the Premises precludes inferring that Stephen had joint dominion and control with Michael over the entire apartment and over everything contained anywhere in it. Even though Stephen had ready access to the apartment, it cannot be reasonably inferred that he exercised restraining or directing influence over PCP in a closed container on the bedroom dresser or over paraphernalia in the bedroom closet. If one assumes that the scales and magnifier found in plain view in the kitchen at the time of the search were always kept there, still those items are intrinsically innocuous. They become significant by association with drugs or cutting agents.

The photograph adds little, if anything, to the State's case. It reflects possession of a controlled dangerous substance in December 1979 at the Premises by a third person. The flakes could have been brought there either by the third person or by the fourth person...