Brown v. State

Thompson, J., delivered the opinion of the Court. Calvin Brown, the appellant, complains of a conviction for two separate sales of narcotics and two separate convictions for the possession and control of narcotics after a jury trial in the Criminal Court of Baltimore before Judge Joseph Carter. The allegations as to errors will be hereinafter set out. Officer Walter Zimmerer, acting as an undercover agent, in cooperation with the Federal Bureau of Narcotics, was introduced to Brown on August 26, 1965, through an intermediary known only to Officer Zimmerer as “Catfish.” Brown, in exchange for ten dollars, produced packages of a white powder represented to be narcotics.

Laboratory tests established that the white powder was heroin hydrochloride. The following day, on August 27, 1965, Officer Zimmerer again met with Brown and gave him nine dollars to procure a second package of narcotics. Another person, not here involved, returned with a bag of white powder which he handed to Officer Zimmerer. A subsequent chemical test showed that the package contained a non narcotic.

Thereafter, the same day, Officer Zimmerer found Brown and explained that the items which he had purchased turned out not to be narcotics, and requested that he procure for him the “real stuff.” Brown requested that he give him all ⁵⁷⁴ the additional money he had, fifty cents, and Officer Zimmerer complied. Within a short time, Brown returned with a small bag of white powder which he gave to the officer. A subsequent chemical analysis established that this was heroin hydrochloride. Brown was arrested pursuant to a warrant which was procured and served on November 12, 1965.

I At a hearing on motions to suppress the evidence and to dismiss the indictment, and at the trial the appellant stated that on November 12 he could not remember what he had done on August 26 and August 27, and that he was therefore prejudiced by the delay in procuring the warrant. Officer Zimmerer testified that he had delayed in procuring the warrant because he was engaged in other undercover work and the warrant would jeopardize his usefulness in other cases. Brown further testified that although he did not know what he had done on August 26 and August 27, he had not sold narcotics to anyone on those dates. Brown relies on a case in the United States Court of Appeals for the District of Columbia Circuit, Ross v. United States, 349 F. 2d 210 , wherein the court found that the delay in procuring the warrant had prejudiced the defendant.

While that case could be distinguished on its facts, it does not represent the law of this state. We find that there were ample reasons for the officer to delay making the arrest, and the Court of Appeals of Maryland approved similar conduct in Lane v. State, 226 Md. 81 , 172 A. 2d 400 . With the exceptions, not pertinent herein, the rule established in Maryland is that the statute of limitations establishes the period in which a prosecution may be instituted, Price v. State, 235 Md. 295 , 201 A. 2d 505 , Miller v. State, 239 Md. 136 , 210 A. 2d 394 . II Brown alleges error because the trial judge refused his motion for removal based on alleged prejudice of the trial judge because of a discussion at the arraignment concerning the appointment of counsel.

The record discloses that when Brown objected to counsel appointed by the court, the court offered to appoint additional counsel until one was finally selected who ⁵⁷⁵ met with Brown’s stated