Collins v. State

ROSALYN B. BELL, Judge. Robin Lee Collins was convicted by a jury in the Circuit Court for Prince George’s County of possession of cocaine with intent to distribute. Because she had previously been convicted of a drug offense, she was sentenced under the mandatory sentencing provisions of Md.Code Ann. Art. 27, § 286(c)(1) (1957, 1987 Repl.Vol., 1991 Cum.Supp.), to a 20-year prison term. Of that term, the trial judge suspended 10 years.

Collins has appealed and presents three questions for our review: —Was there sufficient evidence to support her conviction for possession with intent to distribute cocaine? —Did the trial judge commit plain error in his instructions to the jury? —Did the trial judge err in sentencing her as a subsequent offender under the mandatory sentencing provisions when the State never offered proof of her prior conviction at the sentencing hearing? We find no merit in Collins’s first and second contentions. We also hold that, while the trial judge could properly sentence Collins under the mandatory sentencing provisions, the trial judge erroneously believed he had no discretion to direct that Collins be committed for drug treatment in lieu of a mandatory prison sentence. Hence, we will vacate the judgment and remand for resentencing.

The facts of this case are quite simple. On February 23, 1990, members of the Prince George’s County Police Action Squad observed a woman, later identified as Collins, and an unidentified male standing in front of the Eastern Carryout in Hyattsville. The two then got into a car and left for about five minutes. When they returned, two other women approached Collins.

According to the police, one of the women handed Collins a $20 bill and Collins gave a “piece of something” in return. Collins and the male were arrested, but the police did not stop the other two women. ²⁷⁷ When she was arrested, Collins had two $20 bills and two $1 bills in her possession, along with a 0.1 gram rock of crack cocaine and two homemade pipes. At trial, Collins testified that she was not selling cocaine, but had gone out to purchase some for her personal use. She was directed to the two women to see if they had some crack.

She originally wanted to buy $60 worth, but the women did not have that much. Instead, Collins testified that she bought a small rock for $8, handing one of the women a $10 bill and receiving two $1 bills in change. 1 The police then arrested her. She was subsequently charged with possession of a controlled dangerous substance, possession with intent to distribute and possession of drug paraphernalia. THE SUFFICIENCY OF THE EVIDENCE Appellant first contends that the evidence at trial was not sufficient to support her conviction on the distribution charge.

She contends that the only permissible inferences that can be drawn from the evidence adduced at trial indicate that she was purchasing, rather than selling, crack cocaine for her own personal consumption. While the evidence supporting an inference that appellant was selling was by no means overwhelming, we hold that it was sufficient to support her conviction. In determining the sufficiency of the evidence, the appropriate inquiry is not whether the reviewing court itself believes that the evidence at trial established guilt beyond a reasonable doubt, but rather, “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 448 U.S. 307 , 319, 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979) (emphasis in original). In accordance ²⁷⁸ with this standard, it is the responsibility of the trier of fact, and not the reviewing court, “fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319 , 99 S.Ct. at 2789 .

Moreover, judging the credibility of witnesses is a task for the trier of fact. Bryant v. State, 49 Md.App. 272, 283 , 431 A.2d 714 , cert. denied, 291 Md. 782 (1981), cert. denied, 456 U.S. 949 , 102 S.Ct. 2020 , 72 L.Ed.2d 474 (1982). Whether a defendant possessed a controlled dangerous substance with an intent to distribute is also a question for the trier of fact. Gipe v. State, 55 Md.App. 604, 618 , 466 A.2d 40 (1983).

The element of intent is generally proved by circumstantial evidence. See Waller v. State, 13 Md.App. 615, 618 , 284 A.2d 446 (1971), cert. denied, 264 Md. 752 (1972). In this case, viewing the evidence in the light most favorable to the prosecution, Corporal Toles, the police officer who observed appellant’s actions prior to her arrest, testified that he saw her pass “a piece of something” to one of the women and receive back a $20 bill. As appellant contends, there is certainly some doubt as to whether Toles could see as well as he claimed; he was looking from 30 feet away, through a window, without the benefit of binoculars. 2 Nevertheless, Toles testified that he saw a drug transaction take place.

Although Toles was unable to identify what the “something” was that appellant passed in return for the $20, it was certainly reasonable for the jury to infer that appellant had passed cocaine. 3 This inference ²⁷⁹ is supported by the uncontroverted and admitted fact that appellant possessed an additional quantity of cocaine when she was arrested. Taken together, this circumstantial evidence permits, although does not demand, an inference that appellant intended to distribute the remaining rock of crack cocaine. Appellant also contends that “[possession of two pipes and a 0.1 gram piece of crack can only infer possession for personal use.” We do not agree. In Maryland, no specific quantity of drugs has been delineated that distinguishes between a quantity from which one can infer and a quantity from which one cannot make such an inference.

Gipe, 55 Md.App. at 617-618 , 466 A,2d 40 . The quantity of drugs possessed is circumstantial evidence of intent. Anaweck v. State, 63 Md.App. 239, 255 , 492 A.2d 658 , cert. denied, 304 Md. 296 , 498 A.2d 1183 (1985). While the quantity of cocaine in this case did not, in and of itself, demonstrate an intent to distribute, other circumstantial evidence may be introduced to prove intent.

Anaweck, 63 Md.App. at 255 , 492 A.2d 658 . Toles’s observations, as discussed above, were sufficient circumstantial evidence to support appellant’s conviction. We hold that the evidence adduced at appellant’s trial was sufficient to support her conviction on the charge of possession of a controlled dangerous substance with intent to distribute. THE TRIAL JUDGE’S INSTRUCTIONS Appellant next contends that the trial judge erred in his instructions to the jury by usurping the jury’s fact finding function and by incorrectly stating the State’s burden of proof in a criminal case.

We do not agree. As an initial matter, appellant concedes that her trial counsel failed to object to any of the trial judge’s instructions. As such, these objections are normally held to be waived. Rule 4-325(e).

Despite this concession, appellant asks us to review the trial judge’s instructions pursuant to the “plain error” provision of Rule 4-325(e), which states: ²⁸⁰ “An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object.” The language of the above quoted Rule makes clear that review of plain error is not a right but is rather within the discretion of the appellate court. Brown v. State, 14 Md.App. 415, 418 , 287 A.2d 62 (1972). “[Ajbsent the existence of compelling circumstances, the failure of a defendant to register an objection to a jury instruction pursuant to Rule 756 f [now Rule 4-325(e)] bars our consideration of the matter.” Squire v. State, 280 Md. 132, 135 , 368 A.2d 1019 (1977). In exercising this discretion, “[t]he only hard and fast rule is that there are no hard and fast rules.” Williams v. State, 34 Md.App. 206, 216 , 366 A.2d 399 (1976) (Moylan, J., concurring). See Sine v. State, 40 Md.App. 628, 632 , 394 A.2d 1206 (1978) (“[TJhere are no constant and immutable guidelines controlling the exercise of the appellate court’s discretion in this area.”) In this case, we find no compelling circumstances which move us to exercise our discretion to review errors not objected to at trial.

With respect to two of the three “errors” raised for the first time on appeal, we do not see the error alleged. Appellant first contends that the trial judge usurped the jury’s fact finding function when he instructed the jury: “Now, she has admitted on the stand that she possessed the substance, so the State, really, has met, by the defendant’s admission, its burden of proof of that one element of that first offense, possession.” This instruction accurately summarized appellant’s own testimony; appellant at trial chose to admit that she possessed cocaine and paraphernalia, choosing to fight the case on the ground that she did not intend to distribute the cocaine found on her at the time of her arrest. A trial judge is permitted to summarize the testimony in his or her instructions to the jury, so long as he or she tells both sides of the ²⁸¹ story and instructs the jury that “it is the sole judge of the facts, the weight of the evidence, and the credibility of the witnesses.” Rule 4-325(d). While in this case there was no “other side” to tell, the trial judge later instructed the jury that it was the “sole determiner of the facts.” Therefore, the challenged instruction wholly complied with the Rule and was not erroneous.

Appellant has a similar complaint on another instruction which gives us greater pause. The trial judge instructed the jury: “There would be no justification for you to conclude that the defendant was not guilty of the second count, since she has taken the stand, and admitted that she possessed both the cocaine and the pipes to smoke the cocaine.” This instruction amounted to a directed verdict of guilty on the possession of cocaine charge and can be read similarly with respect to the possession of paraphernalia charge. Because it usurps the fact-finding function of the jury, such an instruction is clearly error, United States v. Martin Linen Supply Co., 430 U.S. 564, 572-573 , 97 S.Ct. 1349, 1355-1356 , 51 L.Ed.2d 642 (1977); United Brotherhood of Carpenters & Joiners v. United States, 330 U.S. 395, 408 , 67 S.Ct. 775, 782 , 91 L.Ed. 973 (1947), but in the circumstances of this case, it is of no consequence. As stated above, appellant’s trial counsel made a conscious tactical decision to concede that she was guilty of the two possession charges, and chose to contest only the possession with intent to distribute charge, specifically the intent element.

Therefore, the jury most assuredly would have returned a guilty verdict on the two possession charges, regardless of the trial judge’s erroneous instruction: “In determining whether an error is harmless, we look to see whether the ‘erroneous ruling, in relation to the totality of the evidence, played a significant role in influencing the rendition of the verdict, to the prejudice of the appellant.’ Unless we, ‘upon [our] own independent re ²⁸² view of the record, [are] able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated.’ ” Garrett v. State, 59 Md.App. 97, 107 , 474 A.2d 931 , cert. denied, 300 Md. 483 , 479 A.2d 372 (1984), quoting Dorsey v. State, 276 Md. 638, 653 , 350 A.2d 665 (1976). Based on our independent review of the record, we conclude that, under the circumstances of this case, the trial judge’s erroneous instruction was harmless beyond a reasonable doubt. Finally, appellant contends that the trial judge committed plain error when he instructed the jury: “[P]utting those in your mind aside for a moment to think of the issue, again, the issue in this case is very simple and very narrow. “The defendant has put that issue in this case, whether or not Corporal Toles and Sergeant Ford and Corporal Michaelis were telling accurate accounts of what occurred, or was the defendant’s account the true and accurate account. “If you believe the account of the officers, then you would be justified in believing that the State had proven its case beyond a reasonable doubt. “If you don’t believe them, then you would be justified in concluding that they did not prove their case beyond a reasonable doubt, and you would acquit the defendant of the first account [sic] only.” Appellant’s argument is not totally clear to us for two reasons. First, the challenged instruction essentially mirrors the closing argument of defense counsel; and second, appellant’s argument in her brief on this point is general rather than specific: “Appellant asserts that this represents an inaccurate definition of the State’s burden of proof beyond a reasonable doubt and again improperly interjected the court into the jury’s role in making factual findings.” ²⁸³ Appellant has failed to make any specific arguments as to how the trial judge’s instruction was inaccurate or how it interjected him into the jury’s fact-finding function.

Unlike the “directed verdict” instruction discussed supra, this instruction merely permitted, rather than commanded, the jury to find appellant guilty if the jury believed the State’s witnesses. Furthermore, and as stated supra, the trial judge is allowed to summarize the evidence in giving his instructions, so long as he also instructs the jury that it is the sole judge of the facts. Rule 4-325(d). The trial judge adhered to this principle.

We are unable to detect the error in this instruction. THE MANDATORY SENTENCE When the State initially brought the charges against appellant in this case, it also provided notice to appellant that it intended to prosecute her as a subsequent offender under Md.Code Ann. Art. 27, § 286(c) (1957, 1987 Repl.Vol., 1991 Cum.Supp.). Following appellant’s conviction for possession with intent to distribute, the State at sentencing stated that it was prepared to prove beyond a reasonable doubt that appellant had previously been convicted for distribution of a controlled dangerous substance, thus making her subject to a mandatory sentence of 10 years. In response, appellant’s counsel argued that the trial judge had the discretion to have appellant committed for drug treatment in lieu of the mandatory sentence and proffered several witnesses to support his argument that appellant should be committed for drug treatment pursuant to Md. Health-Gen.Code Ann., § 8-507 (1982, 1990 Repl.Vol.).

Holding that he had no such discretion, and not waiting for the State to present any evidence of the prior conviction, the trial judge sentenced appellant to a 20-year prison term and suspended 10 years. Appellant contends that the trial judge erred (1) in sentencing her to a mandatory prison term when the State offered no evidence of her prior conviction; and (2) in holding that he had no discretion to commit appellant for drug treatment in lieu of the mandato ²⁸⁴ ry sentence. We reject the first contention, accept the second, and therefore vacate and remand for resentencing. —The Sentence Under Art. 27, § 286(c)— Because the State never formally offered proof of any' kind of appellant’s prior conviction at sentencing in this case, she contends that her mandatory sentence must be reversed. Under the circumstances of this case, we do not agree.

In this case, following her conviction for possession with intent to distribute cocaine, the State sought to have appellant sentenced to a mandatory ten-year prison sentence as a second offender under Art. 27, § 286(c). At the sentencing hearing, the prosecutor stated that she was ready to go forward with proof of the prior conviction, but the trial judge, following a lengthy discussion of the court’s discretion to commit appellant for drug treatment, proceeded to sentence appellant without proof of the prior conviction having been offered by the State. Proof of that prior conviction, however, was set forth in the presentence investigation report provided to appellant’s counsel. We deal here with an enhanced penalty statute: “Where the General Assembly has required or permitted enhanced punishment for multiple offenders, the burden is on the State to prove, by competent evidence and beyond a reasonable doubt, the existence of all of the statutory conditions precedent for the imposition of enhanced punishment.” Jones v. State, 324 Md. 32, 37 , 595 A.2d 463 (1991).

See Sullivan v. State, 29 Md.App. 622, 631 , 349 A.2d 663 (1976) (statement by a prosecutor that his records showed that defendant had been convicted of a prior handgun offense not sufficient evidence). Two of this Court’s earlier cases presented circumstances similar to the facts here. In Ford v. State, 73 Md.App. 391 , 534 A.2d 992 (1988), although the prosecutor stated that he had a certified copy of the defendant’s prior conviction, it was never offered into evidence. Ford, 73 Md.App. at 402 , ²⁸⁵ 534 A.2d 992 .

No presentence investigation report was prepared. Ford, 73 Md.App. at 403 , 534 A.2d 992 . We said in that case: “The record discloses only the bare assertion from the prosecutor that appellant had previously been convicted of a handgun violation. That statement by the prosecutor does not satisfy the State’s burden of proving that appellant was previously convicted of a qualifying crime.” Ford, 73 Md.App. at 403 , 534 A.2d 992 .

When the State fails to prove the qualifying conviction with sufficient evidence, it is not permitted a second “bite at the apple”; a defendant on resentencing may not be subject to a mandatory or enhanced sentence. Butler v. State, 46 Md.App. 317, 324 , 416 A.2d 773 , cert. granted, 288 Md. 732 , dismissed on motion of the State (1980). In Hall v. State, 69 Md.App. 37 , 516 A.2d 204 (1986), like Ford , the prosecutor failed to offer formal proof of the defendant’s prior conviction. Unlike Ford , however, a presentence investigation (PSI) was prepared in Hall , and this Court held that such evidence was sufficient: “[The presentence investigation] report, which is part of the record, discloses the