Cook v. State

Scanlan, J., delivered the opinion of the Court. The appellant, William Leroy Cook, II, following a jury trial before Judge Basil A. Thomas in the Criminal Court of Baltimore, was found guilty of distributing marijuana, maintaining a common nuisance, possession of narcotics paraphernalia and simple possession of methamphetamine and lysergic acid diethylamide (L.S.D.). He received concurrent sentences totaling five years. This appeal raises the question whether the trial court improperly denied the appellant the twenty (20) peremptory challenges which Rule 746 a 1 assures a defendant who “is subject, on any single count, to a sentence of . . . twenty years or more of imprisonment. . . .” For the reasons stated below, we hold that the court below erred in not affording appellant the twenty (20) peremptory challenges he requested and to which he was entitled by virtue of Rule 746 a l. 1 ³⁹⁷ Count four of Indictment 2344 alleged that the appellant “unlawfully did POSSESS a certain Controlled Dangerous Substance of Schedule II, to wit: Methamphetamine, which is a Narcotic Drug, in sufficient quantity to reasonably indicate under all the circumstances an INTENT to Manufacture and Distribute such Controlled Dangerous Substance.” (Emphasis added.) Count six of the same indictment alleged that the appellant “unlawfully did POSSESS a certain Controlled Dangerous Substance of Schedule I, to wit: L.S.D. also known as Lysergic Acid Diethylamide, which is a Narcotic Drug, in sufficient quantity to reasonably indicate under all the circumstances an INTENT to Manufacture and Distribute such Controlled Dangerous Substance.” (Emphasis added.) Article 27, Section 286 (a) (1) makes it unlawful for any person: “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.” Article 27, Section 286 (b) (1) provides that any person who violates Section 286 (a) with respect to a “substance classified in Schedules I or II which is a narcotic drug shall, upon conviction, be deemed guilty of a felony, and sentenced to a term of imprisonment for not more than twenty (20) years . . .

(Emphasis added.) On the other hand, the penalty provided where the violation is with respect to “any other controlled dangerous substance classified in Schedules I, II, ³⁹⁸ Ill, IV or V . . is imprisonment for a term of not more than five (5) years. Section 286 (b) (2). Article 27, Section 277 (q) sets forth an abstruse definition of “narcotic drug.” Specifically, it provides that: “ ‘Narcotic drug’ shall mean any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis; and which have been found to present an extreme danger to the health and welfare of the community because of their addiction-forming and addictive-sustaining liabilities: (i) “ ‘Opiate’ which shall mean any dangerous substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having such addiction-forming or addiction-sustaining liability; and the ‘opium poppy’ which shall mean the plant of the species Papaver somniferum L., except the seeds thereof and the ‘poppy straw’ which shall mean all parts, except the seeds, of the opium poppy, after mowing; and coca leaves which shall mean cocaine and any compound, manufacture, salt, derivative, mixture or preparation of coca leaves, except derivatives of coca leaves which do not contain cocaine, ecgonine or substances from which cocaine or ecgonine may be synthesized or made; (ii) “A compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or opiates; (Si) “A substance and any compound, manufacture, salt, derivative, or preparation thereof which is chemically identical with any of the substances referred to in clauses (1) [(i)] and (2) [(ii)], except that the words ‘narcotic drug’ as used in this [section] include decocainized coca leaves or ³⁹⁹ extracts of coca leaves, which extracts do not contain cocaine or ecgonine.” The appellant’s position on the issue which confronts us is simple and, on the facts of this case, persuasive. He argues that counts four and six of Indictment 2344 specifically charged him with possession of, with intent to distribute, “methamphetamine and lysergic acid diethylamide, ‘narcotic drugs, in sufficient quantity to reasonably indicate under all the circumstances an intent to manufacture and distribute such controlled dangerous substance.’ ” The record indicates that the appellant made a timely request of the trial judge that he be allowed twenty (20) peremptory challenges by virtue of Rule 746 a 1.

This request was denied with the trial judge limiting him to four (4) peremptory challenges. The record is silent concerning the reasons which prompted the court’s ruling. At no time, either prior to or during the trial, was Indictment 2344 amended to specify that methamphetamine and L.S.D. were “non-narcotic,” in contrast to their identification as “narcotic drugs” in the indictment. The record shows that no evidence was introduced of the non-narcotic nature of the two drugs in question until testimony to that effect was given by one of the State’s expert witnesses during the trial.

The State, on the other hand, contends that neither methamphetamine nor L.S.D. are in fact narcotic drugs, and that the term “narcotic drug,” as used in counts four and six of Indictment 2344, is surplusage, since the indictment identified the two drugs and the Schedules in which they are listed. From this the State moves to the conclusion that the appellant could reasonably have determined that methamphetamine and L.S.D. are non-narcotic drugs, and, ergo, appellant was not entitled to the twenty (20) peremptory challenges which he sought at the outset of the trial. The assumptions on which the State’s argument rests do not withstand close scrutiny. We start with the unquestioned proposition that the peremptory challenges to which an accused is entitled by virtue of Rule 746 a 1 ⁴⁰⁰ represents an important right “vital to the conduct of a criminal cause in this State.” Johnson v. State, 9 Md. App. 143, 149 , 262 A. 2d 792, 796 (1970).

Thus, if any count of Indictment 2344 charged an offense which would subject the appellant, if found guilty, to a sentence of twenty (20) years or more of imprisonment, he had an “unfettered” right to twenty (20) peremptory challenges, Brice v. State, 264 Md. 352, 366 , 286 A. 2d 132, 134 (1972), and the court below erred in limiting him to only four such challenges. As stated, the State concedes that the fourth and sixth counts of Indictment 2344 identified methamphetamine and lysergic acid, respectively, as a “narcotic drug.” This designation, it argues, however, was “surplusage.” Examination of the fourth and sixth counts show that both were typed on a printed form. One space on that form is left blank, to be filled in with the name of the drug with which an accused is charged with possession with intent to manufacture, etc. Immediately following this space there is language reading in part “which is/is not a narcotic drug.” In both the fourth and sixth counts of Indictment 2344 the phrase “is not” has been stricken out by three x-marks. Yet, if the term “narcotic drug” as used in counts four and six of the indictment was merely surplusage, as the State contends, it is difficult to understand why the phrase “is not” was deliberately stricken from the indictment form.

Similarly, we are not impressed by the State’s contention that the appellant should have known the non-narcotic nature of the two drugs of which he was accused of having in his possession with intent to manufacture and distribute because each was specifically designated by name in the indictment and, additionally, the Schedule in which each was listed also set forth therein. Turning to Schedule I and II, as found in Article 27, Section 279, we find methamphetamine is listed in Schedule II (Sec. 279 (b)4c) and lysergic acid diethylamide is listed in Schedule I (Sec. 279 c 6). The listing of these two drugs in the respective Schedules, however, establishes only that they “are controlled dangerous substances.” Their listing in the Schedules per se provides no clue to whether or not they are narcotic drugs. ⁴⁰¹ It is true that the controlled dangerous substances listed on Schedule I, including L.S.D., are substances which have been found to have a “high potential for abuse,” “no accepted medical use in the United States,” and a “lack of accepted safety for use under medical supervision.” Section 279 (a) (1), (2) and (3). The drugs listed in Schedule II, including methamphetamine, have been found to have a “high potential for abuse,” “are currently accepted for medical use in the United States” and their abuse “may lead to severe psychic or physical dependence.” 279 (b) 1, 2 and 3.

The mere listing of a substance in Schedule I or II, however, does not inform the reader, including a criminal defendant or his counsel, as to whether or not the particular substance is a narcotic or a non-narcotic drug. As we have indicated, “narcotic drug” is defined in Article 27, Section 277 (q) (i), (ii) and (iii). The first paragraph of Section (q) reads: “ ‘Narcotic drug’ shall mean any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis; and which have been found to present an extreme danger to the health and welfare of the community because of their addiction-forming and addictive-sustaining liabilities.” There then follow in subparagraphs (i), (ii) and (iii) of paragraph (q) quoted, the several categories of narcotic drugs, including an “opiate.” The latter is defined to include “any dangerous substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having such addiction-forming or addiction-sustaining liability . . . .” In the light of the potentially broad reach of the statutory definition of “narcotic drug,” the State’s argument that the appellant could reasonably have determined, by reading the indictment and then referring to the statute, that methamphetamine and lysergic acid diethylamide are non-narcotic drugs lacks merit. The appellant is not a ⁴⁰² chemist.

When the State charged appellant with possession of a drug identified in the indictment as a “narcotic drug,” he was entitled to take the State at its word at least until evidence to the contrary was produced. Such evidence was not introduced until halfway through the trial when, through the testimony of one of its experts, the State disclosed the non-narcotic nature of both methamphetamine and L.S.D. That disclosure, however, cannot be applied retroactively. The number of peremptory challenges to which the appellant was entitled must be determined on the face of the counts of the indictment and the right to exercise those challenges arises prior to the jury being sworn. Rule 746 c; and see Brice v. State,