Cook v. State

BLOOM, Judge. Appellants, Martin Cook and William Darby, together with other persons, were charged in the Circuit Court for Baltimore City with various violations of the controlled dangerous substances laws and other offenses. After charges against Cook for assault and possession of a handgun and charges against Darby of possession of marijuana were severed, appellants were tried and convicted by a jury on all four counts of an information charging them jointly with possession of cocaine in an amount sufficient to indicate an intent to distribute it; conspiracy to distribute cocaine; conspiracy to possess cocaine in an amount sufficient to indicate an intent to distribute it; and maintaining a dwelling house as a common nuisance. As to each appellant, the two conspiracy convictions were merged.

Cook was sentenced to three concurrent 15 year terms and a $5,000 fine; Darby was sentenced to three concurrent 5 year terms and a $2,000 fine. This appeal from those judgments presents us with the following issues: 1. Did the trial court err in denying their motions to sever the cases for trial? 2. Did the trial court err in admitting evidence of other crimes as to both appellants? 3.

Was the evidence presented sufficient to sustain appellants’ convictions? ¹²⁷ 4. Did the trial court err in permitting a police officer to offer expert opinion as to the roles of each appellant in the drug distribution ring? We find no error in the denial of appellants’ motion for severance or in admitting the evidence that appellants’ characterize as “other crimes evidence.” The evidence adduced at trial was clearly sufficient to sustain appellants’ convictions on all counts. We hold, however, that the court erred in permitting a police officer to state his opinion as to the role each appellant played in a drug distribution operation, thereby, in effect, rendering an “expert” opinion that appellants were, in fact, guilty of the crimes charged.

Facts On 7 October 1988, Baltimore City Police Officers Charles Trogdon and Edward Bochniak obtained a search and seizure warrant for a house at 429 Pittman Place in Baltimore City. Immediately following the issuance of the warrant, Officer Trogdon checked the premises “to make sure that CDS was [still] coming from the house.” Observing a man identified as Johnny Harris make two sales from the house, Trogdon decided to execute the warrant that day. He returned to the police station to finalize plans for a raid in execution of the warrant. The raid involved seven officers, Trogdon being the “lead” and “recovery” officer, that is, the first to enter the premises and the officer responsible for taking possession of all drugs, weapons, or other property found.

As Trogdon and Bochniak drove up to the premises, they observed Johnny Harris standing outside. While Bochniak arrested Harris for the sales he had made earlier that day, the other officers conducted the raid. Trogdon broke down the front door with a maul and burst into the living room, yelling “Police!” Other members of the raiding party entered right behind him. According to a diagram drawn by Trogdon, in a corner of the room to the right of the door was a chair; appellants’ co-defendant ¹²⁸ Bernard Oliver was either in or near it.

Further along the wall to Trogdon’s right were two tables and another chair. To Trogdon’s left was a couch on which appellants were seated, Darby being closer to the door than Cook. Immediately upon entering the room, Trogdon observed Cook get to his feet, draw a handgun, and point it in the direction of Trogdon and Officer Michael Snow, who was immediately behind Trogdon. Trogdon drew his own service revolver and grabbed Cook’s hand.

In the struggle to disarm Cook, Trogdon wrestled him to the floor. Cook, Darby, and Oliver were arrested. On one of the tables in the living room the police found a black change purse containing 27 vials of cocaine, a $5 bill with heroin on it, several empty ziplock baggies, a plastic sandwich bag containing 50 vials of cocaine, a brown paper bag containing 34 vials of cocaine, a plastic baggie containing 4.57 grams of cocaine, and a soda cup containing 50 empty vials. There were also 12 vials of cocaine strewn on the floor near the table.

A brown bag containing 4 empty vials and a sandwich bag with 2 vials of cocaine and assorted baggies and pipes were found upstairs, in a drawer in a bedroom in which Patricia Rankin and her two children were sleeping. A plastic bag containing 5 ziplock bags and 2 small plastic bags containing marijuana were found on appellant Darby’s person. Appellant Cook had $124 on his person. Various documents seized by the police identified the premises as belonging to or leased to Patricia Rankin.

Appellant Cook denied that he had a gun or that he pointed a gun at Officer Trogdon. He testified that he saw the gun for the first time when Trogdon pulled him off the floor and believed it must have come from the chair where Oliver had been sitting. Cook stated that he and Darby had purchased the marijuana previously and were smoking it when the police arrived. Darby had no money on him when the police arrived.

He testified that he was involved with Patricia Rankin and had ¹²⁹ gone to the house to visit her. He had arrived about one-half hour prior to the raid, had some beer, and smoked one or two joints of marijuana with Cook. They were about to test some of Oliver’s heroin when the raid began. Darby testified that the five packages of marijuana had been purchased elsewhere earlier that evening, for his own use.

He claimed that he did not see Cook with a gun; he first saw the gun on the floor as the police arrested Cook. I Appellants’ first contention is that the court erred in refusing to sever their cases for trial, because evidence as to Cook’s possession of a gun and assault on the policemen was prejudicial to Darby and evidence of Darby’s possession of marijuana was prejudicial to Cook in that both bits of evidence improperly allowed the jury to infer guilt by association. Maryland Rule 4-253(c) states: (c) Prejudicial Joinder. — If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires. As the Rule indicates, the decision to sever is discretionary.

McKnight v. State, 280 Md. 604, 608 , 375 A.2d 551 (1977); Baumgartner v. State, 21 Md. App. 251, 253 , 319 A.2d 592 cert. denied, 272 Md. 737 (1974); DiNatale v. State, 8 Md.App. 455, 458 , 260 A.2d 669 (1970); Jennings v. State, 8 Md.App. 312, 315 , 259 A.2d 543 (1969). We have recognized that joinder of defendants raises the possible threat of substantial prejudice through the transference of evidence of guilt from one defendant to another and the “spillover” effect giving rise to the possibility of guilt by association. Shingleton v. State, 39 Md.App. 527, 544 , 387 A.2d 1134 cert. denied, 283 Md. 738 (1978); Erman v. State, 49 Md.App. 605, 615 , 434 A.2d 1030 (1981), ¹³⁰ cert. denied, 456 U.S. 908 , 102 S.Ct. 1756 , 72 L.Ed.2d 165 (1982); Sye v. State, 55 Md.App. 356, 365 , 468 A.2d 641 , cert. denied, 299 Md. 425 , 474 A.2d 218 (1983). Nevertheless, joinder of defendants for trial is favored for reason of judicial economy, Erman, supra, 49 Md.App. at 611 , 434 A.2d 1030 , and is appropriate “where most, if not all, of the evidence admitted at trial would have been admissible in each trial if the several defendants had been tried separately.” Stevenson v. State, 43 Md.App. 120, 130 , 403 A.2d 812 , aff'd, 287 Md. 504 , 413 A.2d 1340 (1979).

Thus, the question for the trial court is whether the need for judicial economy in conserving time and resources of the court and witnesses outweighs the prejudicial effect of the evidence. McKnight v. State, supra. Here, there was no prejudice to either appellant in the refusal to sever their trials on the charges lodged against them jointly. Any evidence that was admissible against either appellant on those charges would be admissible against both.

So far as prejudicial joinder was concerned, they were both amply protected by the severance of the separate assault and weapon charges against Cook and the marijuana charge against Darby from the cocaine, conspiracy, and common nuisance charges lodged against both of them jointly. Whatever complaint Darby might have about the admission of evidence pertaining to Cook’s possession of a gun and his use of it to assault two police officers, and whatever complaint Cook might have about the admission of evidence that Darby possessed marijuana, do not involve an issue of prejudicial joinder; what are involved are matters pertaining to the relevancy of evidence, which are more properly addressed under appellants’ second issue, to which we now turn. II Appellants complain that the court erroneously admitted evidence of other crimes. In support of that proposition they limit their argument to the evidence of Cook’s posses ¹³¹ sion of a handgun and assault on the police officers.

They contend that this evidence was inadmissible as to either defendant on the four charges for which they were being tried. Since the assault and handgun charges against Cook had been severed, they assert, any evidence relating to those charges was irrelevant to the charges of possession of cocaine, conspiracy to possess and distribute cocaine, and common nuisance. The only purpose for the introduction of the evidence, appellants aver, was to show Cook’s criminal character “and to paint Darby with the same brush.” We disagree. It is well settled that evidence of “other crimes” may be admitted if it is substantially relevant to a contested issue in the case and is not being offered merely to prove the defendant’s guilt based on a propensity to commit crime or his character as a criminal.

State v. Faulkner, 314 Md. 630, 634 , 552 A.2d 896 (1989). Thus, “other crimes” evidence may be admitted to establish motive, intent, absence of mistake, a common scheme or plan, identity, opportunity, preparation, knowledge, or accident. Id. After determining that the evidence is admissible for a purpose other than to show a defendant’s propensity to commit crime or a defendant’s character for crime, the trial judge must weigh the necessity for and the probative value of the “other crimes” evidence against any undue prejudice likely to result from allowing it into evidence.

Id., at 634-35 , 552 A.2d 896 . Appellants were charged with possessing cocaine with an intent to distribute it, conspiring to possess and distribute cocaine, and maintaining a common nuisance, that is, keeping a place used for the illegal storage or distribution of controlled dangerous substances. It was the State’s theory, as testified by Officer Trogdon, that Cook was the leader of the group of conspirators and, as such, possessed the gun to protect the drugs and the operation. Therefore, his attempted use of the gun — the assault on the officers— was in furtherance of the conspiracy and the conspirators’ ¹³² joint possession of the drugs and maintenance of the common nuisance.

Since Darby was accused of being a member of the group, one of the conspirators, the evidence was just as relevant to the charges against him as it was to the case against Cook. Of course, if the State had failed to establish that Darby was one of the conspirators — if he were, as he claimed, merely a visitor — evidence as to Cook’s possession and use of the gun would not have prejudiced him. Ill Appellants contend that the evidence was insufficient to sustain their convictions. Since they challenge the sufficiency of the evidence to prove each charge, we must address the contention as it relates to each charge.

Preliminarily, we note that, as appellants concede, our standard for review of the evidence is “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, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 , reh. den., 444 U.S. 890 , 100 S.Ct. 195 , 62 L.Ed.2d 126 (1979) (emphasis in original); State v. Rusk, 289 Md. 230 , 424 A.2d 720 (1981); Wallace v. State, 63 Md.App. 399 , 492 A.2d 970 , cert. denied, 304 Md. 301 , 498 A.2d 1186 (1985); Wildberger v. State, 74 Md.App. 107 , 536 A.2d 718 (1988). A. Conspiracy The Court of Appeals has defined criminal conspiracy as “the combination of two or more persons, who by some concerted action seek to accomplish some unlawful purpose, or some lawful purpose by unlawful means.” Mason v. State, 302 Md. 434, 444 , 488 A.2d 955 (1985), and cases cited therein. The Court noted that the essence of conspiracy is an unlawful agreement reflecting a unity of purpose and design, which need not be accompanied by an overt act. Id. ¹³³ Appellants maintain that there was no direct evidence of an agreement between appellants and with Oliver and Rankin to distribute cocaine.

Further, appellants contend that there were no facts from which it could be inferred that the parties had agreed to distribute cocaine. We disagree. The testimony of the police officers established that surveillance of 429 Pittman Place indicated that it was the base of operations for a multi-person drug distribution organization. Johnny Harris had been observed conducting what appeared to be street drug transactions from the house.

The testimony describing the actual raid on 429 Pittman Place established that appellant Cook was armed, an indication that he was the leader of the drug operation, and that appellant Darby was also present, along with Bernard Oliver, in a room in which significant amounts of cocaine and packaging materials, evidencing both ongoing and planned future cocaine distribution, were in plain view. 1 Certainly, the jury could reach a reasonable conclusion based on this evidence that a conspiracy to distribute cocaine existed and that the three men in the room with the cocaine were members of that conspiracy. B. Constructive Possession Appellants contend that there was insufficient evidence of constructive possession to support their convictions for possession with intent to distribute. They asseverate that neither of them was an occupant of the house and that neither had been seen there before the raid. They argue ¹³⁴ that their mere presence at the scene is not sufficient to establish their constructive possession over the cocaine.

Article 27, § 277(s), of the Maryland Annotated Code defines possession as “the exercise of actual or constructive dominion or control over a thing by one or more persons.” The duration of the possession is not material, neither is it necessary to prove ownership by title. Folk v. State, 11 Md.App. 508, 511 , 275 A.2d 184 (1971). It is necessary to establish that the defendant had knowledge of the presence and illicit nature of the drugs; however, such knowledge may be proven by the circumstances. Dawkins v. State, 313 Md. 638, 651 , 547 A.2d 1041 (1988).

This Court, in Folk, supra, examined various cases in which joint possession was found to exist. In analyzing these cases, we observed: The common thread running through all of these cases affirming joint possession is 1) proximity between the defendant and the contraband, 2) the fact that the contraband was within the view or otherwise within the knowledge of the defendant, 3) ownership or some possessory right in the premises or the automobile in which the contraband is found, or 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the contraband. 11 Md.App. at 518 , 275 A.2d 184 . Significantly, in the case sub judice, three of the above elements are present. When the police executed the raid, they found appellants within several feet of a table laden with cocaine and packaging paraphernalia.

The cocaine and accompanying paraphernalia were not secreted away, and one could not conclude, by any stretch of the imagination, that appellants were unaware of its presence. The house was one from which the police had observed a man exit on several occasions to conduct drug transactions. The house was sparsely furnished and was without electricity. This evidence, in the expert opinion of Officer Trogdon, indicated ¹³⁵ that the house was being used as a base for a drug operation in which the appellants played a role.

Therefore, despite the lack of proof that appellants had a proprietary or possessory interest in the house, the evidence was sufficient to permit the jury to conclude that appellants exercised joint and constructive possession of the cocaine. C. Common Nuisance Finally, appellants argue that the evidence was insufficient to prove that they “kept and maintained” a common nuisance. A common nuisance within the controlled dangerous substance law is defined in § 286(a)(5) of article 27 as any dwelling house, apartment, building ... which is resorted to by drug abusers for purposes 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____ Md.Crim.Law Code Ann., § 286(a)(5) (1987 Repl.Vol., 1989 Cum.Supp.). The evidence that we have recited throughout our analysis of this matter was sufficient to allow the jury to find that appellants, with others, engaged in an ongoing drug distribution operation over a period of time at 429 Pittman Place, thereby maintaining a common nuisance.

IV Appellants’ final contention is that the trial court erred in permitting Officer Trogdon to offer expert opinion as to the roles of appellants and others in