Anderson v. State

ROSALYN B. BELL, Judge. Paul William Anderson was convicted at a bench trial in the Circuit Court for Baltimore County of four counts of unlawful distribution of lysergic acid diethylamide (LSD) under Md.Code Ann. Art. 27, § 286(a) (1957, 1987 Repl.Vol., 1991 Cum.Supp.), and one count of distribution of 1,000 dosage units of LSD under Art. 27, § 286(f) (1957, 1987 Repl.Vol., 1991 Cum.Supp.). He was sentenced to two years imprisonment on each count of unlawful distribution, and a mandatory five years imprisonment pursuant to § 286(f) for distribution of 1,000 dosage units, with all sentences to run concurrently. He has appealed, contending: —Art. 27, § 286(f)(l)(v), which provides a minimum sentence for distribution of 1,000 dosage units of LSD, is unconstitutionally vague as to what constitutes a “dosage unit”; —the trial court erred in failing to merge the unlawful distribution convictions with the conviction for distributing 1,000 dosage units; and —there was insufficient evidence to sustain his conviction under § 286(f) for distribution of 1,000 dosage units of LSD. ⁷¹⁶ Over the course of several months, in four separate transactions, Anderson sold various quantities of LSD to Richard Lisko, an undercover Baltimore County Police detective.

In total, Anderson sold the officer three-and-one-half small food coloring bottles of liquid containing LSD and 10-and-V2 sheets of LSD-treated blotter paper containing 1,046 individual perforated squares. The final two sales, of two-and-one-half bottles and 10 sheets containing 996 squares, took place within a period of 90 days in November 1989 and January 1990. Anderson was then arrested. At the outset of the trial, Anderson contested the constitutionality of Art. 27, § 286(f)(l)(v), specifically the term “dosage unit.” Counsel thereafter deferred argument on the issue and raised a continuing objection to the use of the term.

The sole witness for the prosecution was Detective Lisko. In addition to Lisko’s testimony concerning the purchases from Anderson, Lisko provided expert testimony concerning the quantity of LSD purchased and the chain of custody. In support of Lisko’s qualification as an expert in drug identification, the prosecution offered testimony that Lisko had been employed by the Baltimore County Police Department for five-and-one-half years and that he had participated in courses conducted by the Baltimore City Police, Baltimore County Police Department, Maryland State Police, and the Drug Enforcement Administration. Lisko was questioned extensively at trial with respect to what would constitute a “dosage unit” of LSD.

At the close of all the evidence, the trial court held the issue of the constitutionality of § 286(f)(l)(v), sub curia, pending briefing by counsel. After extensive briefing and argument, the court held that the statute was not unconstitutionally vague and subsequently convicted Anderson. Anderson then brought this appeal. We do not find Art. 27, § 286(f)(l)(v) constitutionally vague or infirm.

We do, however, hold that Anderson’s ⁷¹⁷ convictions for two counts of distribution were lesser included offenses and, as such, should have merged into his five-year mandatory § 286(f)(l)(v) sentence. Thus, we will remand the case for resentencing. We explain. THE VAGUENESS CHALLENGE Appellant first asserts that the trial court erred in failing to hold Art. 27, § 286(f)(l)(v), unconstitutionally vague.

The touchstone in determining whether a statute is impermissibly vague is whether “persons of common intelligence need reasonably guess at its meaning.” Broadrick v. Oklahoma, 418 U.S. 601 , 607, 98 S.Ct. 2908 , 2913, 37 L.Ed.2d 830 (1973). A law is not vague simply because it requires conformity to an imprecise normative standard. “The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Eanes v. State, 318 Md. 486, 459 , 569 A.2d 604 , cert. denied, — U.S. —, 110 S.Ct. 8218 , 110 L.Ed.2d 665 (1990), quoting Colten v. Kentucky, 407 U.S. 104, 110 , 92 S.Ct. 1953, 1957 , 82 L.Ed.2d 584 (1972). In Eanes, 318 Md. at 460 , 569 A.2d 604 , the Court of Appeals stated: “[A] statute is not vague when the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning.” Section 286(f)(l)(v) is part of the “Drug Kingpin Act” of 1989. 1 The impetus for the bill, SB 400/HB 502, came from the Governor’s office.

Section 286(f)(l)(v) is part of “The ⁷¹⁸ Distribution of Large Quantities Component.” The Briefing Document that accompanied SB 400/HB 502 states, at p. 5: “This component recognizes that there needs to be some distinction made between the individual who handles a substantial volume of drugs as compared to the person who handles a minimal amount. It also attempts to give the courts guidance with regard to the severity of possessing a certain level of a controlled dangerous substance. To help law enforcement officers have an impact upon the volume drug dealer, this component does the following: —It distinguishes the volume drug dealer from the street corner dealer by establishing a mandatory minimum penalty of 5 years in jail for the possession of certain threshold quantities of a controlled dangerous substance. The substances identified in the legislation are the same as those currently included in the Drug Importation Statute.” Under the Maryland statute, the designated large quantity of LSD, which distinguishes the wholesale drug dealer from the individual consumer, is 1,000 dosage units.

Section 286(f)(l)(v). Appellant argues that the term “dosage unit” is vague in two specific ways. First, he argues that Detective Lisko gave contradictory testimony as to whether a dosage unit was a whole sheet of blotter paper or one of the 100 perforated squares into which each sheet is divided. At trial, during direct examination, the colloquy between the State’s Attorney and Lisko went as follows: “Q Well, in response, what do you mean by a dosage unit, if you could explain? “A A dosage unit is a sheet of blotter paper.

Sometimes they have designs. The majority of the time they do have designs, anywhere from a unicorn to a picture of a planet, Mickey Mouse to smilely faces, a variety of ⁷¹⁹ things, whoever the chemist, whatever he decides to stamp on the blotter paper. “Q That’s what blotter paper is? “A Blotter paper in general. A dosage unit is blotter paper simply treated with liquid LSD. LSD is absorbed in the blotter paper.

The paper is perforated into a hundred different squares. The section of paper is perforated so you have a hundred squares of a hundred dosage units. One square, about half the size of a postage stamp, is torn off, placed under the tongue, and allowed to dissolve, and the person is abusing LSD at that point.” Appellant claims that if Lisko, the expert, was not sure, the term must be vague. We do not conclude that Lisko was not sure; he made it clear that a sheet of blotter paper, treated with LSD and perforated into 100 squares constituted 100 dosage units.

Moreover, later during cross-examination of Lisko, the court asked for and received clarification of the meaning of “dosage unit.” “THE COURT: ... I want to know in this officer’s training, knowledge and experience what he considers to be a dosage unit. He has referred to it several times in his testimony, even over objection. [Defense counsel’s] objection to the reference was overruled. But I want to know what he considers to be a dosage unit. * # # * * * “[LISKO]: As I just stated, one square, one small stamp, if you will, of a blotter paper in paper form would be a dosage unit.

If it were in liquid form, one drop placed on a sugar cube or other soluble substance would be a dosage unit. That’s the method which I have been instructed. That’s the method that’s common on street level distribution as to the method that has been taught to me throughout my career. “THE COURT: Okay. In other words, any amount of LSD, whether it is on blotter paper or in liquid form, could be a dosage unit?

When you say one drop, a drop ⁷²⁰ could have — different drops could have different weights, could they not? “[LISKO]: Depending on what you use for a dropper, yes, sir. On that point, eye droppers are common vehicles of distribution, in this case the food coloring bottle. Something that will produce a uniform drop each time is commonly used. The sifter tubes that are used in chemistry are used on occasion, much as if a straw, has the same process, where you dip the straw, put your finger over the end of it, and you are able to drop out a consistent amount each time is considered a dosage unit.

So it would depend on the vehicle or the instrument that you use to perform the drop.” Lisko also testified at trial, that a “dosage unit” of LSD is one “hit.” When he testified concerning his discussions with appellant during the last and largest purchase, Lisko referred to the 10 sheets he purchased from appellant as containing 996 “hits,” or dosage units. Thus, Lisko’s testimony established that a dosage unit was one “hit,” or the amount and form of LSD that would be sold on the street for individual use by the consumer. Appellant’s second specific argument is that the term “dosage unit” is vague because the actual amount of pure LSD in each dose can vary. He argues that the level of punishment can only be validly calibrated according to the actual amount of pure LSD sold, and not according to any other measure, such as the number of dosage units or “hits.” For purposes of comparison, the federal statute, 21 U.S.C. § 841 (b)(l)(A)(v) (1986), prescribes the mandatory punishment for distribution of one gram or more of any substance containing a detectable amount of LSD.

This statute has consistently been interpreted to allow consideration of the weight of the blotter paper in determining whether the enhanced sentence applies. Chapman v. United States, 500 U.S.-, 111 S.Ct. 1919, 1925 , 114 L.Ed.2d 524 (1991). ⁷²¹ In Chapman , the Supreme Court upheld the federal statute against a challenge that its enforcement leads to nonsensical results. Under the federal statute the weight of a “mixture or substance containing a detectable amount” of LSD is used when computing the sentence for a defendant convicted of distributing the drug. Chapman argued that, under the wording of the statute, “a major wholesaler caught with 19,999 doses of pure LSD would not be subject to the 5-year mandatory minimum sentence, while a minor pusher with 200 doses on blotter paper, or even one dose on a sugar cube, would be subject to the mandatory minimum sentence.” Chapman , 500 U.S. at ——, 111 S.Ct. at 1923-24 (footnote omitted).

The Supreme Court rejected this argument, however, stating that, based on a reading of the legislative history, Congress had clearly intended the dilutant, cutting agent, or carrier medium to be included in the weight of the drug for sentencing purposes. LSD is a difficult drug to measure because the amount used to achieve a “high” is too small to quantify. The Supreme Court in Chapman discussed how the drug is prepared and sold. It said: “According to the Sentencing Commission, the LSD in an average dose weighs 0.05 milligrams; there are therefore 20,000 pure doses in a gram.

The pure dose is such an infinitesimal amount that it must be sold to retail customers in a ‘carrier.’ Pure LSD is dissolved in a solvent such as alcohol, and either the solution is sprayed on paper or gelatin, or paper is dipped in the solution. The solvent evaporates, leaving minute amounts of LSD trapped in the paper or gel. Then the paper or gel is cut into ‘one-dose’ squares and sold by the dose. Users either swallow the squares, lick them until the drug is released, or drop them into a beverage, thereby releasing the drug.

Although gelatin and paper are light, they weigh much more than the LSD. The ten sheets of blotter paper carrying the 1,000 doses sold by petitioners weighed 5.7 grams; the LSD by itself weighed only about ⁷²² 50 milligrams, not even close to the one gram necessary to trigger the 5-year mandatory minimum of § 841(b)(l)(B)(v).” Chapman , 500 U.S. at-, 111 S.Ct. at 1923 . The Supreme Court then held that, because of the difficulty in quantifying LSD, it was rational for Congress to set penalties based on the chosen carrier or tool used to facilitate the distribution of the drug. In addition, the Court also held that Congress was “justified in seeking to avoid arguments about the accurate weight of pure drugs which might have been extracted from blotter paper had it chosen to calibrate sentences according to that weight.” Chapman , 500 U.S. at-, 111 S.Ct. at 1928 .

In Chapman , the Supreme Court validated a framework set up by Congress which targets the wholesale drug dealer. Maryland’s approach, invoking a mandatory minimum sentence for sale of large numbers of doses of LSD, is even more “market-oriented” than the federal scheme. Indeed, it has been recognized by some federal judges that a statute