Williams v. State , 924

CourtCourt of Special Appeals of Maryland
Citation24 A.3d 210,200 Md.App. 73
Docket NumberSept. Term,2010.,No. 924,924
PartiesGregory WILLIAMSv.STATE of Maryland.
Decision Date11 July 2011

200 Md.App. 73
24 A.3d 210

STATE of Maryland.

No. 924

Sept. Term


Court of Special Appeals of Maryland.

July 11, 2011.

[24 A.3d 212]

Philip H. Armstrong and Catherine Woolley, Rockville, MD, for appellant.Susannah Prucka (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.Panel: GRAEFF, KEHOE, and WATTS, JJ.WATTS, J.

[200 Md.App. 77] Following a trial held from April 19, 2010, through April 20, 2010, in the Circuit Court for Montgomery County, a jury convicted Gregory Williams, appellant, of possession of cocaine, and fleeing and eluding. See Md.Code § 5–601 of the Criminal Law Article (“C.L.”) (possessing or administering controlled dangerous substance); Md.Code § 21–904(c) of the Transportation Article (“T.A.”) (fleeing on foot). On May 18, 2010, the circuit court imposed a sentence of four years' incarceration, with all but eighteen months suspended and three years' supervised probation as to possession of cocaine, and one year concurrent as to fleeing and eluding. On June 9, 2010, appellant noted this timely appeal and set forth the following issues, which we quote:

I. Under the facts and theory of this case, did the trial court err in determining that possession of a controlled dangerous substance is a lesser included offense of distribution of a controlled dangerous substance and so instructing the jury?

II. Did the trial court err by deciding, on its own initiative, without request by either party, to instruct the jury on a lesser included offense of possession of a controlled dangerous substance?

III. Did the trial court err in its instruction to the jury on fleeing and eluding by including incorrect captions as an element of the offense and determining that the statutory requirement of “a vehicle appropriately marked as an official police vehicle” is not an element of the offense?

IV. Was the evidence insufficient to sustain a conviction for fleeing and

[24 A.3d 213]

eluding in violation of section 21–904(c) of the Transportation Article?

For the reasons set out below, we answer Questions I and II in the negative and therefore shall affirm the judgment of the circuit court as to appellant's conviction for possession of cocaine, in violation of C.L. § 5–601. We answer Question IV in the affirmative and shall reverse the judgment of the circuit [200 Md.App. 78] court as to appellant's conviction for fleeing and eluding, in violation of T.A. § 21–904(c). We need not address Question III.


We draw the following pertinent facts from the evidence adduced at trial.

Police Officer Britta Thomas of the Montgomery County Police Department testified that on November 25, 2009, she was conducting surveillance of a Shell gas station opposite the Montgomery Mall in Bethesda, Maryland. At approximately 11:30 p.m., Officer Thomas noticed a white Jeep, with two occupants, in the gas station parking lot, near the convenience store. Officer Thomas testified that she observed the Jeep for about five minutes, before the driver of the Jeep exited the vehicle and entered the store. The driver of the Jeep was subsequently identified as Ricky Mendez (“Mendez”).

As Mendez exited the convenience store, appellant approached him. According to Officer Thomas, appellant and Mendez had a brief conversation outside the store and walked together toward a silver sedan, subsequently identified as appellant's vehicle. Officer Thomas observed Mendez enter the right rear passenger seat of the vehicle.

As a witness for the State, Mendez testified that he had arranged to meet appellant, known to him as “Mean,” at the Shell gas station to buy cocaine from him, in exchange for $200.00. Mendez testified that when he approached appellant's vehicle, appellant informed him that the “stuff is back there” and instructed him to enter the back seat of the vehicle. According to Mendez, there was another person in the front passenger seat of appellant's car, but he did not speak with this person nor see his face. This person was subsequently identified as appellant's friend, John Sullivan (“Sullivan”). Mendez entered the back seat of the car and saw a baggy of white powder wrapped in a paper towel on the seat. Upon seeing the baggy of white powder Mendez “dropped it” in his [200 Md.App. 79] hand and, in exchange, placed $200.00 on the back seat of the car.

Appellant then entered the driver's seat of the car, drove around the station and dropped Mendez off near his Jeep. Mendez immediately exited the gas station in his vehicle. At trial, Mendez testified that he knew the person who sold the drugs to him only as “Mean” and indicated that he did not see “Mean” in the courtroom.

Sergeant William Hill of the Montgomery County Police Department testified that on November 25, 2009, he too was conducting surveillance of the Shell station in plain clothes, in an unmarked car. Sergeant Hill observed appellant's vehicle “lap through slowly around” the gas station before exiting the gas station at a high rate of speed. Sergeant Hill followed appellant's vehicle onto I–270 and observed the vehicle accelerate to speeds of 70 or 75 miles per hour. Sergeant Hill initiated a traffic stop of the vehicle by turning on the police siren and flashing red and blue lights on the windshield visor of his vehicle. Sergeant Hill testified that appellant's vehicle momentarily moved toward the shoulder of the road, then moved back into the travel lane and accelerated to

[24 A.3d 214]

speeds of over 110 miles per hour. Sergeant Hill testified that appellant's vehicle came to a stop after colliding into a curb off the exit ramp for Shady Grove Road, and the vehicle slid into the grass. At this point, both the driver and the passenger of the vehicle exited the vehicle and ran toward the woods. Sergeant Hill gave chase on foot. Sergeant Hill testified that the passenger, Sullivan, tripped attempting to jump over a guardrail, at which point, Sergeant Hill drew his gun, ordered Sullivan to put his hands behind his back and placed him under arrest. Appellant had run about fifty feet ahead, into the woods, so Sergeant Hill called a canine unit and other officers to establish a perimeter.

Police Officer Sharon Sparks of the Montgomery County Police Department answered Sergeant Hill's call and arrived at the scene with her canine partner, Ben. Officer Sparks testified that upon being given a command to track for scent, [200 Md.App. 80] Ben led her over the guardrail, and through the woods to a location where appellant was lying face down, attempting to hide. Officer Sparks ordered appellant to show his hands and threatened to release Ben, at which point, appellant cooperated and was placed under arrest. Upon a search of appellant, Sergeant Hill found no drugs but found $200.00 in cash in appellant's pants pocket.

Sullivan, the passenger in appellant's car, testified as a defense witness. Sullivan testified that appellant picked him up from his home on November 25, 2009, at about 9:30 p.m., to go to a Holiday Inn. Sullivan testified that he and appellant had several drinks at the bar of the Holiday Inn and that appellant wanted to leave the bar “to get high.” Appellant and Sullivan left for the Shell gas station near Montgomery Mall to meet Ricky Mendez. Sullivan testified that he was in the front passenger seat when Mendez entered the back seat of appellant's sedan. Sullivan testified that Mendez was behind him and he did not have an opportunity to further observe Mendez. When asked on direct examination what observations he made of appellant at the time, Sullivan testified:

[SULLIVAN]: I noticed [appellant], it looked like he had something in his hand and he was looking at it. And I just noticed that he said it's a bad product.

[APPELLANT'S COUNSEL]: I'm sorry, it's bad product?

[SULLIVAN]: Bad product, yes.

[APPELLANT'S COUNSEL]: And based on that, what if anything did you observe [appellant] do?

[SULLIVAN]: Well, he turned the car on, put it in reverse, went on the other side of the Shell gas station, and let Mendez out.

Sullivan testified that he did not observe any money change hands between appellant and Mendez. Sullivan testified it was his understanding that after appellant let Mendez out of the car, he and appellant were traveling up I–270 to locate a different source for the purchase of cocaine.

[200 Md.App. 81] After Sullivan's testimony, during a bench conference with counsel, the trial court informed counsel of the court's intention to instruct the jury on the lesser included charge of possession of cocaine.1 At the close of all evidence in the case, during another bench conference with counsel, the trial court again advised counsel of his intent to instruct the jury on the lesser included offense of possession of cocaine:

[24 A.3d 215]

THE COURT: I told you about the lesser included, which I've determined to include and will. The question I have, did he give a statement?

* * *

[PROSECUTOR]: But Your Honor, the State would agree that the possession charge would be appropriate if at least what his intent was to possess cocaine according to the defense argument.

[APPELLANT'S COUNSEL]: And he did possess it for a period of time.

THE COURT: One person at a time.


[PROSECUTOR]: His own witness testified that in his opinion, [appellant] was holding that cocaine with the intent to keep it, to purchase it, and that he was in possession of the cocaine at that time.

[APPELLANT'S COUNSEL]: Under that theory, certainly—I'm sorry.

[PROSECUTOR]: I'm sorry. It certainly was in his vehicle. So he had the possession. For all intents and purposes—

THE COURT: I'm going to give it.

[APPELLANT'S COUNSEL]: May I just say that I think that is a lesser included, but that would be a separate charge and for a properly worded lesser included, you have [200 Md.App. 82] to first find possession of cocaine and then the intent to distribute. And I don't want to confuse the jury. If we're...

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