Agee v. State

Thompson, J., delivered the opinion of the Court. David Thomas Agee, the appellant, was convicted in the Circuit Court for Prince George’s County of unlawful possession and unlawful control of a narcotic drug. Judge Samuel W. H. Meloy, presiding with a jury, imposed concurrent sentences of three years. On appeal Agee contends: (1) Md. Code, Art. 27, § 298 places an unconstitutional burden of proof upon him (2) the charge of unlawful possession merged with unlawful control. ¹⁵⁰ There was evidence from which the jury could have found: During the evening of September 10, 1968, Agee attended a dance at the Knights of Columbus Hall in Oxon Hill, Maryland.

While there he was arrested by Officer Robert E. Harewood of the Prince George’s County Police Department who testified that he was in plainclothes when he first observed Agee walking from the entrance of the dance hall toward the men’s room followed closely by Officer John A. Lew, also of the Prince George’s County Police. Agee walked into the men’s room, but came out at once. Officer Lew continued to follow and as they passed Officer Harewood, he observed Agee drop a crumpled piece of tissue to the floor. Almost immediately Officer Lew observed Ronald Proctor appear and casually bend over to pick up the tissue from the floor.

Reacting to the situation, Lew pushed Proctor away and picked up the tissue himself. Wrapped inside the tissue he found a capsule containing a white powdery substance which was later determined to be a mixture of heroin and other substances. Md. Code, Art. 27, § 298 provides as follows: “In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this subtitle, it shall not be necessary to negative any exception, excuse, proviso, or exemption, contained in this • subtitle, and the burden of proof of any such exception, excuse, proviso, or exemption, shall be upon the defendant.” Agee argues that under Leary v. United States, 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 (1969) this statute is unconstitutional. We do not think the principle applied in Leary applies here.

Leary , which held unconstitutional a statute authorizing the jury to infer from an accused’s possession of marijuana that he knew the marijuana was illegally imported, was based on the very simple proposition that the inference was not rationally connected to the facts. The statute here concerns not inferences of ¹⁵¹ fact but the burden of going forward with the evidence, which shifts during trial. At the beginning of trial, the presumption of innocence requires the State to present a prima facie case. If defendant presents no evidence after the prima facie case, he will probably be found guilty.

However, defendant may go forward and prove affirmatively that he falls within a statutory exception. Properly construed, therefore, statutes like Md. Code, Art. 27, § 298 mean simply that after the State has raised its prima fade case, the accused has the burden to produce sufficient evidence to raise a reasonable doubt as to his guilt. We have applied a similar