Davis v. State

Murphy, C. J., delivered the opinion of the Court. Charged jointly under two separate indictments in the Circuit Court for Baltimore County, appellants Robert Davis and Maxine Green were subsequently convicted on January 27, 1969 at a court trial of the following offenses : Green February 28, 1968 — Possession and sale of marihuana (Indictment #34298) March 23, 1968 — Possession of marihuana and possession of narcotic paraphernalia (Indictment #34297) ⁵⁰ Davis February 28, 1968 — Control of marihuana (Indictment #34298) March 23, 1968 — Control of marihuana (Indictment #34297) Appellant Green was sentenced to three years and appellant Davis to five years under the jurisdiction of the Department of Correction. Each appellant contends on this appeal that the evidence was insufficient to support his convictions. 1 The pertinent facts are these: On December 26, 1967, appellants each signed, as husband and wife, a two-year lease on an apartment in Baltimore County. On February 28, 1968, a police officer working under cover, Thomas Manzari, went to appellants’ apartment accompanied by •one Terry Diamond.

Appellant Green admitted Miss Diamond to the apartment but told Manzari to wait outside. A few minutes thereafter, Diamond emerged from the apartment and conversed with Manzari, following which Manzari returned to the apartment where he met Green, who was then standing outside of her apartment. Man.zari asked Green to sell him $50.00 worth of marihuana. ■Green agreed, went by herself into the apartment and returned with a “Read’s Drug Store bag” full of marihuana, which Manzari then bought. Subsequently, the police obtained a search warrant for appellants’ apartment which was executed at 5:15 p.m. •on March 23, 1968.

The officers entered the apartment through the unlocked door after their knock went unanswered. Appellant Green was present in the apartment; appellant Davis was not. The police observed in plain “view on the living room coffee table two small pieces of hashish and a razor blade. Appellant Davis then entered ⁵¹ the apartment.

The police continued their search of the apartment and found a metal box on top of the stereo record cabinet which, upon inspection, was found to contain suspected marihuana pipes, a bottle cap, an eyedropper, a needle, a piece of cotton still in the bottle cap, a small postal scale and an envelope containing marihuana. An examination of appellant Davis revealed needle marks on his arm and armpits of a type commonly found on narcotic addicts and made by hypodermic injection. Mrs. Dorothy Glazer, a part-time rental agent for the apartment development in which appellants had rented their apartment, testified that both appellants signed the lease in her presence. She stated that she recognized them at the trial because “They lived in the apartment right next door to me.” Isadore Davis, appellant Davis’s father, testified on his son’s behalf that he paid the rent on the apartment; that his son had appellant Green “in a family way” and he (the older Davis) was “looking to protect” Green until the baby was born; that his son resided at home with him, although he did stay with Green two nights weekly between January 1,1968 and the end of March, 1968.

There was evidence showing that during their search of the apartment, the police found some men’s slacks, shaving cream, and a razor in the apartment. In convicting Davis of having under his “control” the marihuana which Green sold to Manzari on February 28, 1968, the trial court said: “He was the tenant, one of the two tenants of that apartment. He was there two-sevenths of the time. The marijuana came from that apartment. * * * There is no question that it was not in his actual physical possession, no proof that it was, but he did have control as a tenant and as a user of the apartment and its contents.

So that, in my judgment, the State has met the burden of proving guilt beyond a reasonable doubt and to a moral certainty.” ⁵² In convicting Davis of having “control” of the marihuana and hashish found in the apartment on March 23, 1968, the trial judge said : “Testimony shows that he was a resident two-sevenths of the time, and he leased the premises here. Also he had needle marks on his arms.” We hold that the trial judge, in convicting appellant Davis of control of marihuana on February 28, 1968, was clearly erroneous in his judgment on the evidence; we think the trial judge’s conclusion that Davis had marihuana under his control on March 23, 1968 was not clearly erroneous. Maryland Code, Article 27, Section 277, makes it unlawful for any person, inter alia, to “have under his control” any prohibited narcotic drug. As used in the statute, the term “control” means “to exercise restraining or directing influence over,” viz., to relate to authority over what is not in one’s physical possession.

Franklin v. State, 8 Md. App. 134 ; Haley v. State, 7 Md. App. 18 ; Speaks v. State, 3 Md. App. 371 . To obtain a conviction for controlling a narcotic drug under Section 277, it is not necessary for the State to allege or prove scienter. Jenkins v. State, 215 Md. 70 ; Hunt v. State, 2 Md. App. 443 . In other words, the State is not required to show that the accused’s control of the narcotic drug was knowing and wilful; it is no excuse that the accused does not know that what he controls is a prohibited narcotic drug.

But before the State may obtain a conviction, it must adduce evidence to meet the test of legal sufficiency; such evidence must show directly, or support a rational inference, that the accused did in fact control the drug in the sense contemplated by the statute, namely, that he exercised restraining or directing influence over it. It has been' held that where one has exclusive possession of a home or apartment in which prohibited narcotics are found, it may be inferred, even in the absence of other incriminating evidence, that such person knew ⁵³ of the presence of the narcotics and had control of them; but where the accused has not been in such exclusive possession, it may not be inferred that he knew of the presence of the narcotics and had control of them, unless other incriminating circumstances are shown which tend to buttress such an inference. Evans v. United States, 257 F. 2d 121 (9th Cir.). See also Frank v. State, 199 So. 2d 117 (D.C.App. Fla.).

The Supreme Court of California pointed out in People v. Redrick, 359 P. 2d 255 , that no sharp line can be drawn to distinguish the congeries of facts which will, and those which will not, constitute legally sufficient evidence that a person had control of a narcotic found in a place to which he had access, but not exclusive access, and over which he had some control, but not exclusive control. In Haley v. State, supra, we reversed a conviction for control of narcotics where the evidence showed only that the defendant was found in a dwelling where prohibited narcotics were discovered. In that case, the evidence showed that the accused had no proprietary interest in the