White v. State
| Decision Date | 08 June 2000 |
| Docket Number | No. 1948,1948 |
| Citation | 132 Md. App. 640,753 A.2d 578 |
| Parties | Sean Julian WHITE v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
William P. Robinson, Jr. (Robinson and Anderson, on the brief), Norfolk, for appellant.
Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and David R. Ruark, State's Atty. for Wicomico County, Salisbury, on the brief), for appellee.
Argued before MOYLAN, WENNER and BYRNES, JJ.
The appellant, Sean Julian White, was convicted by a Wicomico County jury, presided over by Judge D. William Simpson, of 1) the importation of cocaine into Maryland, 2) the possession of cocaine with intent to distribute it, 3) conspiracy to import cocaine into Maryland, and 4) conspiracy to possess cocaine with the intent to distribute it. On this appeal, he raised the three contentions
1) that Judge Simpson erroneously failed to strike two potential jurors for cause;
2) that he was unlawfully seized when the traffic stop of the vehicle in which he was riding was unconstitutionally protracted; and
3) that the evidence was not legally sufficient to establish constructive possession on his part of contraband cocaine found in the trunk of the automobile in which he was riding.
The appellant's contention that Judge Simpson erroneously failed to strike two potential jurors for cause is presented to us in an unilluminating half a page, with no citation to any appellate decision or any other legal authority. There is no factual recitation detailing what occurred in the course of the jury selection process and there is no legal argument as to any reversible error occurring in the course of that process.
The two potential jurors in question, identified by the appellant only in a subheading, never sat on the jury. They were both subjected to peremptory strikes by the appellant. The appellant does not even tell us whether his peremptory strikes were exhausted at the end of the jury selection process.
Although this contention does not tell us, the key State's witness was Trooper Mike Lewis of the Maryland State Police. Although this contention does not tell us, the two potential jurors in question indicated that they had known Trooper Lewis when they were in high school with him. Both potential jurors, however, indicated that that would not in any way affect their ability to render fair and impartial verdicts. Several other potential jurors also had an acquaintanceship with Trooper Lewis and indicated that that fact might affect their judgments; they were struck for cause. Were the merits of this contention before us, we would see no abuse of discretion in Judge Simpson's refusing to strike these two jurors for cause.
What is absolutely dispositive of the contention, however, is that at the end of the jury selection process, defense counsel indicated that the jury was acceptable to the defense. Under precisely the same circumstances, Judge Rodowsky held for the Court of Appeals in White v. State, 300 Md. 719, 729, 481 A.2d 201 (1984), that such an announcement of satisfaction with the jury is a waiver of any challenge with respect to the jury selection process:
We have also held that a claim of error in the denial of a challenge for cause was waived by defense counsel's announcing satisfaction with the jury after all peremptory challenges had been exhausted.
In Calhoun v. State, 297 Md. 563, 579, 468 A.2d 45 (1983), Judge Smith announced for the Court of Appeals a similar conclusion:
The appellant's contention that he was unconstitutionally detained is significant more for what it is not than for what it is. The appellant absolutely is not contending that the search of the automobile in which he was riding, which search produced 194 grams of cocaine, was a violation of his Fourth Amendment rights.1 Indeed, the appellant begins this very contention by reiterating his earlier concession that he had no standing to challenge the search of the automobile in which he was riding:
While Appellant conceded that he had no standing to challenge the search of Charity's vehicle, because he had no possessory interest therein, he nevertheless was the subject of an unlawful seizure of his person pursuant to the actions of Trooper Lewis.
(Emphasis supplied).
At the brief suppression hearing on August 10, 1999, that part of it in which the appellant was involved is covered by a bare three-and-a-half pages of the transcript. At the outset, the State challenged the appellant's standing to object to the search of the codefendant's automobile. In an apparent tactical effort to distance himself as far as possible and as quickly as possible from any interest in that automobile, the appellant leaped at the opportunity to concede the lack of standing:
[Appellant's counsel]: Your Honor, if the State is willing to concede that Mr. White had no possessory interest in the vehicle, ergo he would not have standing, we will concede it.
When the State, looking ahead to its trial responsibility of proving joint possession, refused to make any mutual concession, the appellant took the stand and, in half a page, disclaimed any possessory interest or ownership in the vehicle.2 The colloquy between Judge Simpson and defense counsel immediately concluded:
(Emphasis supplied).
At that point, the appellant withdrew from the suppression hearing. The hearing went on as to the codefendant, Charity, alone. In any event, the appellant is not raising any issue with respect to that suppression hearing or with respect to Judge Simpson's ruling on the search of the trunk of the automobile. In some vague and amorphous way, the appellant is generally complaining, for the first time on appeal, that when the traffic stop of the driver of the automobile was protracted beyond the time reasonably necessary to serve the purpose of that stop, that prolongation of the stop amounted to a coincidental detention of the appellant himself. He cites no case law or other authority and makes no legal argument in support of the proposition that such a coincidental detention amounts to a violation of his Fourth Amendment right.
More directly to the point, however, is that the appellant points to no fruits flowing from such a detention. Even if, arguendo, such a coincidental detention were a Fourth Amendment violation, the appellant makes no argument that it produced anything that in any way prejudiced him. We are not about to make arguments for him in that regard that he does not make for himself. There was no post-detention frisk of his person or search incident to arrest which produced any physical evidence taken from him and no such evidence was introduced. The search of the trunk of the automobile, the only investigative event of any significance in this case, directly resulted from the marijuana found on the person of the driver when he was frisked. The detention of the appellant, even if assumed to have been unconstitutional, was not the cause of the search of the trunk. The appellant points to no fruits to be suppressed. It is a contention that goes nowhere.
Equally dispositive of the contention now advanced is that it was never raised in any way before Judge Simpson. At the suppression hearing, the appellant never argued with respect to this coincidental detention of his person. At trial, the appellant at no time made any objection that any evidence was the product of such an allegedly unconstitutional detention. However meritless the contention may be in hindsight, it has not been preserved for appellate review.
As a deliberate trial tactic, the appellant has chosen to pitch the battle almost exclusively on the ground of the legal insufficiency of the evidence to connect him to the contraband. His argument is that he was a mere passenger in the automobile in which the contraband was found. At the time the car was stopped, the appellant was in the right front seat. The contraband was concealed in a box in the trunk. The appellant claims that there was nothing to indicate that he had any knowledge of the cocaine that the driver was carrying in the trunk of his car.
Unlawful possession, however, need not be direct nor need it be exclusive. It may be constructive and it may be joint. As we explained in Folk v. State, 11 Md. App. 508, 511-12, 275 A.2d 184 (1971):
It is well-settled that the proscribed possession of marihuana or of narcotic drugs under the Maryland law need not be sole possession. Jason v. State, 9 Md.App. 102, 111, 262 A.2d 774. See also Munger v. State, 7 Md.App. 710, 256 A.2d 888; Davis and Napier v. State, 7 Md.App. 667, 256 A.2d 819; Scott v. State, 7 Md.App. 505, 256 A.2d 384; Hernandez v. State, 7 Md. App. 355, 255 A.2d 449; Haley v. State, 7 Md.App. 18, 253 A.2d 424; Williams v....
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