Cooper v. State

SALMON, Judge. On June 30, 1998, appellant, Donathan Wayne Cooper, was arrested and charged with distribution of cocaine, possession of cocaine with intent to distribute, possession of cocaine, conspiracy to distribute cocaine, resisting arrest, and two charges of second degree assault. A jury trial was commenced on November 24, 1998, in the Circuit Court for Washington County. The jury found Cooper guilty of all charges, and the court sentenced appellant as follows: (1) twenty years for possession with intent to distribute cocaine; (2) twenty years for conspiracy to distribute cocaine, to be served consecutively with the sentence for possession with intent to distribute cocaine; (3) five years for resisting arrest, to be served concurrently to the sentence for distribution of cocaine; and (4) ten years for each assault conviction, one to be served concurrently to the sentence for distribution of cocaine, the other to be served consecutively to the distribution conviction.

Cooper appealed to this Court and raises five questions for our review, which we have rephrased: 1. Should the two sentences for assault be merged into the sentence for resisting arrest? 2. Was the evidence sufficient to convict appellant of conspiracy to distribute cocaine? ²⁶² 3. Was the evidence sufficient to convict appellant of resisting arrest or assault? 4.

Should the sentence for conspiracy to distribute cocaine have been merged with the conviction for distribution of cocaine? 5. Did appellant receive effective assistance of counsel at trial? I. FACTS On June 30, 1998, James Newlin, an informant for the Washington County Narcotics Task Force, was equipped with a body wire and sent by the police to make a controlled purchase of cocaine in the Jonathan Street area of Hagers-town, Maryland. The police gave Newlin one hundred dollars in marked money to make the purchase.

After arriving at the designated area shortly after 5:00 p.m., Newlin circled the block in his car, returned to the comer, and pulled over. He was approached by a man in a white tee-shirt and purple sweat pants, later identified as Reginald Walker. Walker asked, “What do you need?” and Newlin replied, “I need a hundred.” Walker told him to make a right turn onto Murph Avenue and park. When he did so, appellant and Walker followed, and Walker handed something to appellant.

Appellant then approached Newlin and handed him several pieces of crack cocaine. In turn, Newlin handed appellant one hundred dollars in marked currency. Appellant then crossed the street, and he and Walker started walking up Murph Avenue toward Jonathan Street. After the transaction, Newlin spoke into his recording device and notified Agent Wayne Ditlow, the police supervisor of the controlled buy, that the transaction was complete.

Newlin told agent Ditlow that the man with Walker was wearing black trousers with white thread and an “ordinary white tee-shirt”; he also described Walker’s attire. Using these descriptions, Agent Ditlow relayed to the “stop units” the description provided by Newlin and advised the units that the two men were walking down Jonathan Street. ²⁶³ Officer Christopher Kayser, a member of the arrest team, was hiding in an alley when he received Ditlow’s report. Kayser, who was on a bicycle, approached appellant at the intersection of Jonathan Street and Murph Avenue, which were approximately fifty yards from where Kayser had been hiding. When Kayser tried to arrest appellant, appellant pulled from Kayser’s grasp and punched Kayser repeatedly in the head.

Sergeant Mark Haltzman moved in to assist in the arrest and saw appellant strike Officer Kayser. Appellant also struck Haltzman in the face as Haltzman came to Kay-ser’s rescue. Other team members arrived, and appellant was handcuffed. Officer Kayser then caught up with Walker, who was searched.

The one hundred dollars in marked money was found in Walker’s possession. The clothing appellant was wearing after his arrest included a pair of dark blue trousers and a white tee-shirt with a Penn State logo on the front. At the police station, Newlin identified appellant as the person who handed him the crack cocaine. In a conversation with Agent Ditlow in the booking area, appellant said that the cocaine belonged to Walker and that he was selling drugs for Walker.

He also said that he gave the money to Walker after the sale. Additional facts will be added as necessary to resolve the issues presented.

II

ANALYSIS A. Issue I — Merger of Assault and Resisting Arrest Appellant contends that the offenses of assault and resisting arrest should be merged for sentencing purposes. Under the required evidence test, where each offense requires proof of a fact that the other does not, the two offenses cannot merge. Brooks v. State, 284 Md. 416, 423 , 397 A.2d 596 (1979); Loud v. State, 63 Md.App. 702, 709-10 , 493 A.2d 1092 (1985). But where only one offense requires proof of a fact that the other does not, separate sentences should not be imposed.

Newton v. State, 280 Md. 260, 268 , 373 A.2d 262 (1977); Thomas v. State, 277 Md. 257, 267 , 353 A.2d 240 ²⁶⁴ (1976); Johnson v. State, 56 Md.App. 205, 211 , 467 A.2d 544 (1983). In Claggett v. State, 108 Md.App. 32, 46 , 670 A.2d 1002 (1996), we said: The required evidence test focuses on the particular elements of each offense; when all of the elements of one offense are included in the other offense, so that only the latter offense includes a distinct element, the former offense is deemed to merge into the latter offense. State v. Jenkins, 307 Md. 501, 517 , 515 A.2d 465 (1986). Thus, when two offenses are based on the same act or acts, and the two offenses satisfy the required evidence test, “merger follows as a matter of course.” Williams[ v. State, 323 Md. 312, 318 , 593 A.2d 671 (1991) ].

Although the rule is clear, no Maryland case has been found dealing specifically with its application to the offenses of assault and resisting arrest. 1 We have found no precise guidance in Maryland law, and an examination of the law in other jurisdictions has not revealed a consensus as to whether the offenses should merge. 2 In the Maryland Pattern Jury ²⁶⁵ Instructions, the elements of assault are included in the elements of resisting arrest. See Maryland Pattern Jury Instructions — Criminal 4:27.1 (resisting a warrantless arrest requires proof that (1) a law enforcement officer attempted to arrest the defendant, (2) the defendant knew that a law enforcement officer was attempting to arrest him, (3) the officer had reasonable grounds to believe the defendant committed a crime, and (4) the defendant refused to submit to the arrest and resisted the arrest by force). Statutory second degree assault encompasses the common law offenses of assault, battery, and assault and battery. Md. Ann.Code art. 27, § 12(b) (1996 Repl.Vol. & 1998 Supp.); see Claggett, 108 Md.App. at 49 , 670 A.2d 1002 (“Depending on the context, then, the term ‘assault’ has become a ‘synonym’ for the term ‘battery,’ as well as for ‘assault and battery.’ ”); Lamb v. State, 93 Md.App. 422 , 613 A.2d 402 (1992) (the offense includes not only attempted batteries, but actual batteries).

The definition of assault applicable in this case is the unlawful application of force to the person of another. Snowden v. State, 321 Md. 612, 617 , 583 A.2d 1056 (1991); Anderson v. State, 61 Md.App. 436, 440 , 487 A.2d 294 (1985). This type of assault requires proof that the (1) defendant caused a harmful physical contact with the victim, (2) the contact was intentional, and (3) the contact was not legally justified. The offense of resisting arrest also requires proof that the appellant intentionally made physical contact with another and that contact was not legally justified (as it would be if there had been an unlawful arrest) but also requires ²⁶⁶ proof that the force be used to resist a lawful arrest.

Preston v. Warden of Maryland House of Correction, 225 Md. 628, 629 , 169 A.2d 407 (1961), aff'd, 325 Md. 602 , 602 A.2d 701 (1992); Barnhard v. State, 86 Md.App. 518, 525 , 587 A.2d 561 (1991). Thus, because all of the elements of assault are included in resisting arrest, the two offenses satisfy the required evidence test. And, in this case, the same act serves as the basis for appellant’s convictions for assault and resisting arrest. In Claggett , we noted that “when there is but a singular striking of one victim, and all the elements of the offense of battery coincide with some of the elements of the assault with intent to avoid lawful apprehension offense, the required evidence test has been satisfied.” 108 Md.App. at 50 , 670 A.2d 1002 .

Similarly, in Adams v. State, 86 Md.App. 377 , 586 A.2d 810 (1991), we held that convictions for assault and battery merged into a conviction for robbery where the only force applied to the victim was that essential to commit the robbery. Id. at 386 , 586 A.2d 810 . As in Claggett and Adams , the only force applied to Officers Haltzman and Kayser was that utilized by appellant to resist arrest. Therefore, the two offenses are based on the same acts.

Accordingly, we hold that appellant’s convictions for second degree assault merge into his conviction for resisting arrest. B. Issue II — Insufficient Evidence as to Conspiracy to Distribute Cocaine When there is an issue as to the sufficiency of the State’s evidence, we must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); Burch v. State, 346 Md. 253, 272 , 696 A.2d 443 , cert. denied, 522 U.S. 1001 , 118 S.Ct. 571 , 139 L.Ed.2d 410 (1997); State v. Albrecht, 336 Md. 475, 478 , 649 A.2d 336 (1994). If, considering that evidence, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt, the appellant’s conviction must be upheld.

Jackson, 443 U.S. at 319 , 99 S.Ct. 2781 ; State v. Raines, 326 Md. 582, 588-89 , 606 A.2d 265 (1992); Webber v. State, 320 Md. 238, 248 , 577 A.2d 58 (1990). ²⁶⁷ Appellant contends that the State failed to prove that his state of mind was that required for the crime of conspiracy. This argument, however, was not raised below and is therefore not preserved for our review. See Graham v. State, 325 Md. 398, 416 , 601 A.2d 131 (1992) (failure to argue ground asserted on appeal when motion for judgment of acquittal was made waives issue); Anthony v. State, 117 Md.App. 119, 126 , 699 A.2d 505 , cert. denied, 348 Md. 205 , 703 A.2d 147 (1997) (“The issue of sufficiency of the evidence is not preserved when appellant’s motion for judgment of acquittal is on a ground different than that set forth on appeal.”). But even if the issue had been properly preserved, appellant would not prevail.

The elements of a criminal conspiracy are (1) the combination of two or more persons, (2) to accomplish some unlawful purpose. Although the essence of a criminal conspiracy is an unlawful agreement, the State is not required to offer proof of any formal arrangement; rather, a conspiracy can be inferred from the actions of the accused. Townes v. State, 314 Md. 71, 75 , 548 A.2d 832 (1988). The agreement need not be formal or spoken, provided there is a meeting of the minds reflecting a unity of purpose and design.

See id.; Silbert v. State, 12 Md.App. 516, 528 , 280 A.2d 55 (1971). In the instant case, the State presented evidence of the interactions between appellant and Walker that would allow the jury to infer that the men tacitly agreed to commit an unlawful act. Silbert, 12 Md.App. at 528 , 280 A.2d 55 . As previously mentioned, the State’s evidence showed: (1) Walker took Newlin’s order for $100 worth of drugs; (2) Walker shortly thereafter handed something to appellant; (3) appellant then handed several pieces of cocaine to Newlin; (4) Newlin gave appellant $100 in marked currency, and (5) shortly thereafter the marked money was found in Walker’s possession.

Besides this circumstantial evidence, the jury had direct evidence of appellant’s admission that the drugs belonged to Walker, that appellant sold them on behalf of Walker, and that Walker had the $100. ²⁶⁸ C. Issue III — Sufficiency of Evidence Concerning Assault and Resisting Arrest Appellant argues that the police did not have probable cause to arrest him because the description that the informant Newlin gave to the police of the individual who had handed him CDS on Murph Avenue did not match the clothing that the [appellant was wearing when he was arrested. When asked to describe what the [appellant had been wearing that evening, Newlin testified that he was wearing black trousers with white thread and an “ordinary white tee-shirt.” However when confronted with the clothing that the [appellant had actually been wearing, Newlin admitted that the trousers were blue, not black, and that the shirt was not a plain white tee-shirt but instead had a Penn State logo on it. Because Agent Ditlow testified that he had radioed to the stop team the description that Newlin had given him, and that description did not match what the [appellant was actually wearing that evening, there was insufficient probable cause for the arrest. Consequently the convictions for assault and resisting arrest must be reversed also.

(References to record deleted.) To arrest a suspect for a felony committed out of his or her presence, an officer must have probable cause to believe that the individual arrested committed the felony. 3 See Md. Ann.Code art. 27, § 594B(c) (1996 Repl.Vol. & 1998 Supp.); Williams v. State, 14 Md.App. 619,