Anderson v. State

WILNER, J. There is substantial evidence that petitioner, Jesse Anderson, sold heroin to two undercover Baltimore City detectives. The question is whether, because of the way the State chose to proceed in the case, Anderson may be prosecuted for those offenses. The answer is “no.” BACKGROUND Anderson was the target of a sting operation conducted by Detectives Clasing, Barnes, and Butler. The operational scenario, as described by Detective Clasing, was to send one or more undercover detectives to purchase drugs from the target, to wait until those detectives, after purchasing the drugs, left the area, and then to have another detective accost the target in order to ascertain his identity.

So as not to compromise the continued effectiveness of the undercover officers, charges against the target are normally delayed for a time. ¹²⁶ In furtherance of that scheme, at 1:55 p.m. on October 1, 2002, Detective Barnes approached Anderson in the 1500 block of Myrtle Avenue and purchased two capsules of heroin from him for $20. Anderson removed the capsules from a cigarette pack he was holding. With the purchase complete, Barnes left the area. Five minutes later, Detective Butler approached Anderson, in the same place, and he, too, purchased two capsules containing heroin for $20 and then left the area.

Those capsules also were removed from the cigarette pack. After making their respective purchases, Barnes and Butler called Detective Clasing and gave him a description of Anderson. At about 2:30 p.m., Detective Clasing approached Anderson in order to conduct what he referred to as a “field interview.” After directing Anderson to sit down on the curb, Clasing saw him throw a red object under a parked car. Clasing retrieved the object and found it to be a cigarette pack containing 25 capsules of suspected heroin.

Clasing arrested Anderson and, the next day — October 2, 2002 — filed a Statement of Charges against him in the District Court. The Statement of Charges accused Anderson of one count of possession of heroin on October 1, 2002, at 1500 Myrtle Avenue. Eight days later, October 10, Anderson appeared in District Court and, either on a plea of guilty or a plea of not guilty with an agreed statement of facts — which of the two is not entirely clear — he was found guilty and sentenced to a term of nine months in the Baltimore City Jail, which he began serving immediately. 1 ¹²⁷ On November 4, 2002, nearly four weeks after the District Court proceeding, the State obtained an indictment based on ¹²⁸ the sale to Detective Butler. The indictment charged Anderson with possession with intent to distribute heroin and with distribution of heroin to Butler.

The date and place of those offenses were alleged to be October 1, 2002, at 1500 Myrtle Avenue. On November 12, the State obtained a second indictment, based on the sale to Detective Barnes. That indictment charged Anderson with possession of heroin, possession with intent to distribute heroin, and distribution of heroin to Detective Barnes. The date and place of those offenses were alleged to be October 1, 2002, at 1500 Myrtle Avenue.

Anderson moved to dismiss the two indictments on the ground of double jeopardy. He averred that the offenses charged in the indictments and that charged in the District Court case all arose at about the same time and place and involved the same cigarette pack, and he argued that his conviction in the District Court barred further prosecution. The court indicated that the argument may have had merit under the holding in Grady v. Corbin, 495 U.S. 508 , 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990) but observed that the Supreme Court had later overruled that decision. See United States v. Dixon, 509 U.S. 688 , 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993).

The applicable test for double jeopardy purposes, the court found, remained that enunciated in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). To constitute double jeopardy under that test, the court declared, the multiple offenses must arise from incidents that occur at the same time and place, but it found that the charges embodied in the two indictments arose from incidents that occurred at a different time than the incident underlying the District Court charge. For that reason, the motion was denied. Anderson filed an immediate appeal to the Court of Special Appeals.

See Bunting v. State, 312 Md. 472, 477-78 , 540 A.2d 805, 807-08 (1988) and cases cited there, recognizing the right under the collateral order doctrine to take an immediate appeal from the denial of a motion to dismiss a criminal charge on double jeopardy grounds. The intermediate appel ¹²⁹ late court, in an unreported opinion, agreed that, because all of the possession charges, in both the indictments and the Statement of Charges, “relate to the same quantity of CDS under appellant’s control on the day of his arrest,” double jeopardy barred the possession and possession with intent to distribute charges in the two indictments. Relying on Hawkins v. State, 11 Md.App. 338, 550 A.2d 416 (1988), however, the court held that the distribution charge arose from “separate acts unrelated to the possession offenses which resulted in appellant’s arrest by Detective Clasing.” It noted that the distribution offenses had already occurred prior to Clasing’s observation of Anderson discarding the cigarette pack and that the District Court conviction therefore had no bearing on the earlier distributions. We granted certiorari to review that decision.

DISCUSSION As a contextual preface to our consideration of the double jeopardy issue, it is helpful to note that, subject to certain exceptions, the District Court has exclusive initial jurisdiction over a charge of simple possession of a controlled dangerous substance in violation of Maryland Code, § 5-601 of the Criminal Law Article (CL). See Maryland Code, §§ 4-301(b)(1) and 4-302(d)(2) of the Cts. & Jud. Proc. Article (CJP).

One of the exceptions to that exclusive initial jurisdiction, provided for in CJP § 4 — 302(d)(2)(ii), is that the Circuit Court may try a charge of simple possession if the defendant “[i]s charged with another offense arising out of the same circumstances that is within a circuit court’s jurisdiction.” (Emphasis added). Distribution of a controlled dangerous substance and possession with intent to distribute such a substance are felonies. See CL §§ 5-602 and 5-607(a). As such, and because they are not within the ambit of CJP § 4-302(a), those charges must originate and be tried in the Circuit Court.

Thus, if a distribution or possession with intent charge arises from the “same circumstances” as a simple possession charge, the latter may be joined with the former and filed and tried in the Circuit Court. That has a significant utility, for at least two ¹³⁰ reasons. First, even if one or more of the crimes charged is a lesser included offense of another, subject to any collateral reason for severance, all may be prosecuted together, and any double jeopardy problem that arises from multiple convictions may be resolved by merging the lesser and greater convictions and imposing sentence only on the greater offense. That allows the State to punish the defendant for the most serious crime.

Second, joinder in the Circuit Court avoids the prospect of the kind of double jeopardy problem that has arisen in this case. Subject to the authority granted to the State Prosecutor in title 9, subtitle 12 of the State Government Article, it is the statutory duty of the State’s Attorney to “prosecute ... on the part of the State, all cases in which the State may be interested.” See Maryland Code, Art. 10, § 34; also Babbitt v. State, 294 Md. 134 , 448 A.2d 930 (1982). Police officers, however, on their own and apparently without consulting the prosecutors in the State’s Attorney’s Office, are permitted to file criminal charges in the District Court. Maryland Rule 4-202(b) reflects that practice by permitting a Statement of Charges to be signed only by a peace officer or District Court Commissioner, rather than by a prosecutor.

If left unknown to, or unattended by, the prosecutor, however, the District Court case can create coordination problems that can lead to the very situation now before us. Both the Federal Constitution, through the Fifth and Fourteenth Amendments, and Maryland common law prohibit the State from placing a person twice in jeopardy for the same offense. That prohibition provides a dual protection — against prosecuting a person for an offense after that person has already been prosecuted for, and either convicted or acquitted of, the “same offense,” and against imposing multiple punishments for the “same offense.” See Brown v. Ohio, 432 U.S. 161 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); Purnell v. State, 375 Md. 678 , 827 A.2d 68 (2003). With respect to both protections, the issue most often raised is whether the second ¹³¹ prosecution or additional punishment is, in fact, for the “same offense.” That issue can arise in at least two contexts — where there are two or more separate statutes or common law provisions that embrace the same criminal conduct, and where a single statute may be read as creating multiple units of prosecution for search and conduct.

Depending on the context, the issue can turn on whether (1) the two or more offenses charged, in fact, arise from the same incident or course of conduct and thus are the same in fact, or (2) if so, despite a facial distinction between the offenses, as defined in the statutes or by the common law, the relationship between them is such that they are the same in law for double jeopardy purposes. See Jones v. State, 357 Md. 141, 158 , 742 A.2d 493, 502 (1999). Both questions — sameness in fact and sameness in law — are relevant here. In Blockburger v. United States, supra, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 , the Supreme Court held that the standard to be used in resolving the sameness in law issue for purposes of the Constitutional prohibition was the “required evidence” test, and we have adopted and adhered to that standard as well in applying the common law prohibition.

See Newton v. State, 280 Md. 260 , 373 A.2d 262 (1977); Purnell v. State, supra, 375 Md. at 693 , 827 A.2d at 77 . In Thomas v. State, 277 Md. 257, 267 , 353 A.2d 240, 246-47 (1976), we defined that test as follows: “The required evidence test is that which is minimally necessary to secure a conviction for each ... offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct of episode. But where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes.” ¹³² See also Middleton v. State, 318 Md. 749, 757-58, 569 A.2d 1276, 1279-80 (1990).

That test focuses on the relationship between the offenses, rather than on whether the multiple offenses arise from the same conduct or incident; indeed, it assumes sameness in fact. See Blockburger, 284 U.S. at 304 , 52 S.Ct. at 182 , 76 L.Ed. at 309 . The question here, in that regard, is whether, under a Blockburger analysis, possession of a controlled substance is the “same offense” as possession with intent to distribute or actual distribution of the substance. In State v. Woodson, 338 Md. 322, 329 , 658 A.2d 272, 276 (1995), we reached the necessary conclusion that, because every element of the crime of possession is also an element of the crime of possession with intent to distribute and only the latter offense contains an element — intent to distribute — not contained in the former, the two offenses “are deemed the same offense for double jeopardy purposes.” In Hankins v. State, 80 Md.App. 647 , 565 A.2d 686 (1989), the Court of Special Appeals correctly concluded that the same result pertains with respect to possession and distribution.

Criminal Law Art. § 5-601(a)(l) makes it unlawful to possess a controlled dangerous substance. The word “possess” is defined in § 5-101(u) as to “exercise actual or constructive dominion or control over a thing by one or more persons.” Section 5-602(1) makes it unlawful to distribute a controlled dangerous substance. The word “distribute,” with respect to a controlled dangerous substance, is defined in § 5 — 101(i) as “to deliver other than by dispensing.” “Dispense” is defined in § 5-101(k) as to deliver “by or in accordance with the lawful order of an authorized provider” as defined in § 5 — 101(d). “Deliver” means “to make an actual, constructive, or attempted transfer or exchange from one person to another whether or not remuneration is paid or an agency relationship exists.” § 5 — 101(h). Putting these various definitions together, distribution occurs when a controlled dangerous substance is delivered, either actually or constructively, other than by lawful order of ¹³³ an authorized provider.

It is not possible, under these statutes, to “distribute” a controlled dangerous substance in violation of § 5-602 unless the distributor has actual or constructive possession (dominion or control) of the substance. Thus, possession of the substance distributed is necessarily an element of the distribution. The crime of distribution obviously contains an element not contained in the crime of possession— the distribution — but there is no element in the crime of possession not contained in the crime of distribution. Upon the same analysis used in Woodson , therefore, possession and distribution are the “same” offenses for double jeopardy purposes.

It follows, then, that possession of the heroin distributed to Detectives Barnes and Butler is a lesser included offense of the respective distributions to the detectives, as charged in the two indictments, and that it is therefore the “same offense” as the distribution for double jeopardy purposes. The sameness in law prong is clearly established. The issue thus becomes whether the possession offense charged in the District Court and the distribution offenses charged in the indictments arose as part of the same course of conduct — whether they are the same in fact. Anderson, of course, urges that they did arise from the same course of conduct — that the heroin that he possessed when arrested by Detective Clasing he also possessed when the capsules were sold to Detectives Butler and Barnes and, indeed, came from the same cigarette pack.

The State looks at the matter differently. Relying on Hawkins v. State, 77 Md.App. 338 , 550 A.2d 416 (1988), it asserts that, when arrested by Detective Clasing, Anderson no longer had possession of the capsules sold to the detectives, so the possession could not be the same. Possession of the four capsules sold to the detectives ended when the capsules were sold. When arrested by Clasing, he had only the 25 capsules.

Anderson focuses on the situation at the moment of the first distribution; the State focuses on the situation at the time of Anderson’s arrest. ¹³⁴ Hawkins does, indeed, support the State’s position. In that case, a police officer observed Hawkins remove some aluminum foil packets from a plastic bag, hand one to another individual, and accept money from that individual. She then alerted other officers and directed them to arrest Hawkins. As an officer approached, Hawkins fled.

While running, he reached into his pocket and discarded the plastic bag containing the aluminum foil packets, which packets, it was later shown, contained marijuana and PCP. Hawkins was convicted of both possession and distribution, and the question arose whether he could be sentenced for both. Relying on a number of out-of-State cases, the Court of Special Appeals held that the multiple sentences could stand because the crimes “spawned from separate acts.” That was so, the court held, because the distribution had been completed before the discard of the bag observed by the arresting officer. There have been a number of cases in which this issue has been addressed.

The cases arise from a wide variety of fact situations, and, not surprisingly, they reach different results. We start with the proposition that, absent a clear statutory direction to the contrary, the uninterrupted possession of an item of contraband is ordinarily regarded as one continuing offense under Maryland law. See Duncan v. State, 282 Md. 385, 389 , 384 A.2d 456, 458-59 (1978) where, in dicta, we observed that “[w]hen mere possession of a prohibited article is a crime, the offense is a continuing one because the crime is committed each day the article remains in possession, as there is a continuing course of conduct.” See also Webb v. State, 311 Md. 610 , 536 A.2d 1161 (1988) where we applied that doctrine to the possession of a handgun and precluded separate convictions and sentences for the uninterrupted possession of the same handgun on two occasions three hours apart. The doctrine of continuing possession is both unremarkable and necessary; otherwise, what would the unit of prosecution be— each minute the item is possessed, each hour, each day?

We noted in Webb , however: “It may be that were the wearing, carrying, or transporting of the handgun by Webb interrupted by some lawful posses ¹³⁵ sion of it ... a subsequent unlawful wearing, carrying, or transporting of it would constitute another violation of the statute. And it may be that had Webb removed the weapon from his actual or constructive possession, it would be a separate violation when he retrieved it and wore it again on his person. And it may be that if it was shown that the handgun involved in the first incident was a different weapon from that involved in the second incident, there would be two violations.” Id. at 618 , 536 A.2d at 1165 . These hypotheses illustrate that, when the possession that underlies the first incident ends before the second incident-— when the possession is interrupted in some way and is not continuous —