Baldwin v. State

GETTY, Judge. This case commenced in 1978, five years later it is still with us. Hugh Hartman Baldwin, appellant, was charged with various drug related offenses. His original convictions on seven of the eight charges placed against him were overturned on appeal.

Baldwin v. State, 45 Md.App. 378 , 413 A.2d 246 (1980). Upon retrial he was convicted on four ⁵³³ counts and these convictions were reversed on appeal because appellant was required to proceed without counsel. Baldwin v. State, 51 Md.App. 538 , 444 A.2d 1058 (1982). Appellant’s third trial resulted in convictions for maintaining a common nuisance; possessing phencyclidine (PCP) with intent to distribute; and possessing equipment adapted for the production and sale of controlled dangerous substances.

On January 3, 1983, the court imposed consecutive five year sentences on each of the three convictions with one year of each sentence suspended. Additionally, appellant was fined $15,000.00 on the charge of possessing PCP with intent to manufacture and distribute. This appeal was filed on January 11, 1983. Appellant raises seven issues, namely: I Was the evidence sufficient to sustain the conviction for maintaining a common nuisance at the Route 662 farmhouse?

II Were the promissory notes payable to appellant properly admitted into evidence? III Did the court err in admitting testimony relating the quantity of PCP seized to that seized in previous investigations? IV Did the court err in admitting the limited prior testimony of Agent McGeehan in view of his unavailability at trial? V Was appellant properly convicted of separate offenses and sentenced to consecutive sentences?

VI Was appellant’s sentence based on improper considerations? VII Was evidence seized pursuant to the search of appellant’s home, car, and bank safe deposit box properly admitted into evidence? FACTS In May, 1978, appellant became the subject of an investigation being conducted by agents of the Maryland State ⁵³⁴ Police Narcotics Section and the Federal Drug Enforcement Administration. On May 19, 1978, Corporal Spicer, a member of the Maryland State Police, followed appellant from the Atlantic Glass Company in Easton to a farmhouse on State Route 662.

Later that day Spicer trailed appellant to the campus of Washington College in Kent County and from the college to the Kent Plaza Shopping Center. Agent McGeehan of the Federal Drug Enforcement Administration met Spicer at the shopping center and handed him a paper bag containing three or four plastic baggies holding a green residue. Spicer stated that he received the paper bag from McGeehan “several minutes” after he observed appellant in the shopping plaza. McGeehan’s prior testimony was read to the jury, over objection, stating that he observed appellant place the bag in the shopping center trash can.

Upon analysis the green substance was determined to be parsley adulterated with PCP. Trooper William 0. Murphy of the Maryland State Police was involved in the surveillance on May 19. He observed appellant depart from the farmhouse at 10:00 A.M. and go to the Washington College campus.

Appellant carried a large paper bag into a dormitory and reappeared several minutes later without the bag. Murphy followed appellant from the college campus to the shopping center. Trooper Murphy lost contact with appellant who left the shopping center at 11:58 A.M., but he saw McGeehan retrieve the brown bag from the trash can at the shopping center approximately fifty minutes after appellant had departed. On May 22, 1978, a search and seizure warrant was executed at the farmhouse.

Among the items seized from a shed were a fifty gallon can, a five gallon bucket, and two scoops, all containing PCP. Other items confiscated included cans of benzene and potassium cyanide, a bag of parsley flakes, a bottle of methanol, several measuring cups, a chemical thermometer, a triple beam balance and filter papers. ⁵³⁵ J. James Rivera, an agent of the Federal Drug Enforcement Administration, testified that the ninety-three pounds of PCP powder seized is not an amount one would use for his own consumption. Testimony from a state police chemist, John J. Tobin, established that potassium cyanide is one of the compounds from which PCP is synthesized, and that the powdered product is often dissolved in benzene for spraying on parsley flakes. On May 24, 1978, search and seizure warrants were executed on a safe deposit box in the Maryland National Bank in Easton and upon the home of appellant’s parents in Easton, including the vehicle appellant had been operating during the earlier surveillance.

The safety deposit box contained $11,477.00 in currency. The box was rented by Atlantic Canvas Products; appellant was the vice-president thereof. Items seized from the house and car included several guns, $5,080.00 in currency, chemical formulas, a drug index, a key to the farmhouse shed and two promissory notes payable to appellant. The notes were signed by one Jack Long and were in amounts of $10,000.00 and $50,000.00.

I Article 27, Sec. 286(a)(5) prohibits the keeping or maintaining of: “any common nuisance which means any dwelling house . . . building ... or any place whatever which is resorted to by drug abusers for purpose of illegally administering controlled dangerous substances or which is used for the illegal manufacture, distribution, dispensing, storage or concealment of controlled dangerous substances or controlled paraphernalia . . .. ” Appellant contends that the evidence shows that the appellant alone frequented the premises, and because it was not open to the public a common nuisance is not proved, citing Tucker-Smith v. State, 19 Md.App. 39 , 308 A.2d 696 (1973). We disagree. Tucker’s conviction for maintaining a common nuisance was reversed because the evidence in Tucker ⁵³⁶ showed that he was a drug addict who used premises which he occupied as a residence to conceal drugs for his personal use. In contrast, appellant herein did not use the premises as a residence and did not store drugs for his own use.

The jury found that appellant manufactured drugs in such quantity as to indicate that the drugs would be distributed to others. The legislature intended the phrase “common nuisance” to have its common law meaning. Skinner v. State, 16 Md.App. 116 , 293 A.2d 828 (1972). At common law a common nuisance was defined as something “hurtful to the public” — “an outrage against common decency and common morality [which] could have no other effect than the corruption of the morals, honesty and good habits of the people.” Beard v. State, 71 Md. 275 , 17 A. 1044 (1889); Tucker, supra.

Keeping the premises open to the public may be a requisite for houses of ill repute, but such is not a requirement in a charge of manufacturing, storing or concealing controlled dangerous substances. The statute and this Court’s interpretation of it make clear that the essence of the common nuisance offense as it relates to the manufacture of illegal drugs is the potential danger to the public by the continuing and recurring character of the offense on such premises. II Of the items seized from the automobile used by appellant, only the two promissory notes were the subject of an objection. The other items included a key to the shed, cash, firearms, instructions for manufacturing drugs, a notebook relating alleged drug transactions, personal checks and bank records.

The trial court admitted the notes and required the state to produce other evidence showing a business relationship between appellant and Long, the maker of the notes. This showing, the court reasoned, permitted appellant to argue that the notes were part of a legitimate business transaction. ⁵³⁷ We disagree; the notes were not admissible. First, the appellant need not argue anything and cannot be placed in the position of being required to argue the legitimacy of evidence that was not shown to be connected to the drug offenses. Secondly, the real test of admissibility of evidence in a