Byrd v. State

Gilbert, J., delivered the opinion of the Court. Richard Elmo Byrd, appellant, was convicted by a jury in the Circuit Court for Montgomery County, of distributing a controlled dangerous substance, videlicet, heroin, in violation of Md. Ann. Code Art. 27, § 286(a) (1). Appellant was sentenced to seven years incarceration under the jurisdiction of the Division of Correction. Appellant assails the judgment of conviction in a fourfold manner.

He asserts the trial judge erred in: 1. refusing to allow, at State expense, the rendition of a chemist to test the alleged controlled dangerous substance. 2. failing to dismiss a defective indictment. 3. refusing to instruct the jury on the law of entrapment. 4. improperly instructing the jury as to the meaning of “reasonable doubt.” On November 15, 1971, Detective Corporal Harold L. Fremeau of the Montgomery County Police Department, went to a parking lot in Montgomery County where he ³⁹³ met Corporal Starkey of the Takoma Park City Police Department, Jerry Heurich and Thomas Grasso. Fremeau, together with Heurich and Grasso, drove to the rear of 1006 Quebec Terrace, the residence of the appellant. Grasso alighted from the automobile and went into appellant’s apartment. When he exited the apartment he was in company with the appellant, and both entered the motor vehicle.

According to Fremeau’s testimony, Heurich then asked the appellant if he had “the dope.” The response was “yes” and appellant handed two small aluminum packages to Heurich in exchange for $20.00 Fremeau then purchased two small aluminum packages from the appellant in exchange for two $10.00 bills. Appellant was asked if the dope was good; whereupon he replied that the packages were “fat dimes.” 1 When asked if he, Fremeau, could get more, appellant responded that he had “plenty.” Appellant then left the automobile and went back to his apartment. Fremeau said that all the packages, including those sold to Heurich, never left Fremeau’s vision. Fremeau conducted a field test on one of the packages.

It was found to contain heroin. The Federal Bureau of Narcotics and Dangerous Drugs substantiated the finding of heroin. Appellant took the stand and admitted selling heroin to Corporal Fremeau and to Heurich, although he denied any conversation relating to the quality of the heroin, and further denied that he had “plenty of good dope.” He stated, however, that he was “in the business of selling heroin merely to support my own habit.” I Prior to the trial, appellant filed a “Motion for Discovery and Other Relief” in which he requested that the trial judge order the State to “[p]roduce or permit [the appellant] to inspect and test, by a privately retained ³⁹⁴ chemist, the alleged controlled dangerous substance which is the subject of the charges herein, with costs to be paid by the State.” The trial judge refused to pass such an order. Appellant argues that the denial of his motion is violative of his constitutional rights under the Fourteenth Amendment.

He asserts that the case of United States v. Hrubik, 280 F. Supp. 481 (D. Alaska, 1968) and Maryland Rule 728 support his position. Hrubik is inapposite. It is concerned solely with the right of discovery, and not the appointment of an expert witness. Rule 728 provides in pertinent part: “a.

Generally. Upon motion of a defendant and upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable, the Court, at any time after indictment, may order the State’s attorney or other person pursuant to an order to be passed as provided by section b of this Rule: 1. Objects From Defendant or by Process. To produce and permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects obtained from or belonging to the defendant or obtained from others by seizure or by process.” (Emphasis supplied).

We perceive nothing in Rule 728 that requires the trial judge to retain a chemist or other expert at the State’s expense. The language of the rule is to the effect that it is permissible for the trial judge to order the State to allow an accused to inspect tangible objects if it is both reasonable and material to the defense. Here, the State offered to allow the accused the right to “inspect” but the trial judge refused to provide the chemical expert. It is apparent from the record that counsel for the accused ³⁹⁵ was doing no more than conducting a “fishing expedition.” He did not demonstrate to the trial judge’s satisfaction any necessity for the appointment of the chemist, nor did he show that the expert upon whom the State relied was unqualified or not impartial.

In Foster v. Commonwealth, 209 Va. 297 , 163 S.E.2d 565 (1968), the Supreme Court of Appeals of Virginia considered a case wherein shortly after a defendant’s arrest, his clothes were taken from him and submitted to a series of tests by the Federal Bureau of Investigation. Those tests revealed that paint chips on the clothing were identical to chips from a safe involved in the crime of burglary with which the defendant had been charged. Counsel for the defendant moved for the appointment of an expert for the purpose of obtaining an independent chemical examination, with the chemist to be paid by the Commonwealth of Virginia. The trial court refused the appointment.

On appeal it was contended that the refusal to appoint the expert constituted a denial of the defendant’s equal protection and due process rights afforded him by the Federal Constitution. The Virginia Court held that neither the validity of the tests nor the competency of those who performed them had been challenged. Furthermore, the F.B.I. had no special interest in the case and would be as impartial as any chemical expert employed by the defendant. This Court, in Gaither v. State, 13 Md. App. 245, 248 , 282 A. 2d 537 (1971), said: “The majority of jurisdictions, including Maryland, have held that the matter [appointment of experts] is one within the sound discretion of the trial court (See 34 A.L.R.3rd § 3(c) p. 1269-1272) ; Avey v. State, 1 Md. App. 178 (1967) ; Swanson v. State, 9 Md. App. 594 (1970).

In the exercise of this discretion, we have held that this type of pretrial service (investigators and experts) is required to be made available to indigents only when it is shown ³⁹⁶ these services are necessary to afford the accused an opportunity to fairly present his defense.” We find that the trial court, in the instant case, did not abuse its discretion when it declined to appoint an expert in the field of chemistry in order to verify or contradict the report of an apparently disinterested Federal Bureau of Narcotics chemist. II Appellant charges that the indictment in the instant case is fatally defective because it fails to specify to whom the heroin was sold. The first count of the indictment states, in pertinent part: “The Grand Jurors of the State of Maryland, for * * * Montgomery County, * * * present that Richard Elmo Byrd also known as Java Rick * * *, on the fifteenth day of November, in the year * * * nineteen hundred and seventy-one * * *, did unlawfully deliver and distribute a controlled dangerous substance of Schedule I, to wit, Heroin, a narcotic drug, in violation of Article 27, Section 286(a) (1) of the Annotated Code of Maryland * * *.” Article 21 of the Maryland Declaration of Rights provides in part: “That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defense; * * *.” We have held that an indictment is sufficient if it informs an accused of the accusation against him, and if it is made with such sufficient definiteness as to prevent the accused from being charged again with the same offense in some future prosecution. Mason v. State, 12 Md. ³⁹⁷ App. 655, 280 A. 2d 753 (1971) ; Ward v. State, 9 Md. App. 583 , 267 A. 2d 255 (1970).

The test for the sufficiency of the indictment is, thus, two-pronged: 1. The indictment must inform the accused of the offense for which he is charged, and 2. The indictment must preclude the possibility of a future prosecution for the same offense. In Baker v. State, 6 Md. App. 148, 156 , 250 A. 2d 677 (1969), we said: “The general rule is that an indictment charging an offense denounced and defined by statute should be as fully descriptive of the offense as is the language of the statute and should allege every substantial element of the offense as defined by the statute without material diversion or departure from the fair intendment of the terms of the statute, and with reasonable particularity of time, place and circumstances.” The statute that the appellant was accused of violating, Md. Ann. Code Art. 27, § 286(a) (1), provides: “(a) Except as authorized by this subheading, it shall be unlawful for any person: (1) To manufacture, distribute, or dispense, or to possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance * * *.” (Emphasis supplied).

The indictment followed the statute in that it charged the appellant with distribution on November 15, 1971 of a controlled dangerous drug, to wit, heroin. It is true that the indictment uses the words “did unlawfully deliver and distribute,” and the statute does not utilize the word “deliver.” We think the word “deliver,” as used in the indictment, to be, at most, mere surplusage and is not in any way fatal to the validity of the indictment. ³⁹⁸ Furthermore, “deliver” is but an element of “distribute.” 2 In IV Wharton’s, Criminal Law and Procedure (Anderson, 12th Ed. 1957), § 1794, p. 618, it is said: “It is not necessary that an indictment contain all the language of the statute on the subject; all that must be alleged is that which is requisite to charge the offense, or that which constitutes the essential ingredients of the offense as denounced by the statute.” (Footnotes omitted). In § 1796, ibid, pp. 622-623, it is found: “An indictment or information for such an offense is sufficient if it follows the language of the statute substantially or charges the offense in equivalent words or others of the same import if the defendant is thereby fully informed of the particular offense charged, and the court is enabled to see therefrom on