Dawkins v. State

ELDRIDGE, Judge. The issue in this case is whether “knowledge” is an element of the offenses of possession of a controlled dangerous substance and possession of controlled parapherna ⁶⁴⁰ lia under Maryland Code (1957, 1987 Repl.Vol.), Art. 27, § 287(a) and (d). 1 I. The defendant, Leonard C. Dawkins, was arrested in a hotel room in Baltimore City and charged with possession of heroin and possession of controlled paraphernalia. At the defendant’s jury trial in the Circuit Court for Baltimore City, the police testified that when they entered the hotel room, the defendant held a tote bag in his hand. The police proceeded to search the tote bag, and they found in it narcotics paraphernalia and a bottle cap containing heroin residue.

The police also testified that men’s clothes were found in the bag. The defendant testified that the tote bag belonged to his girlfriend, Ms. Demistrius Sharp, and that Ms. Sharp had asked him to carry the bag to her hotel room. The defendant further testified that he was unaware of the contents of the bag at the time. According to the defendant, he had only been in the room a few minutes when the police knocked on the door.

He did not open the door, nor did the police enter at that time. They returned and entered the room twenty minutes later. The defendant testified that when the police entered the room, the tote bag was on a table and not in the defendant’s possession. He also testified that when the police searched the bag, they found women’s clothing rather than men’s clothing.

In addition, at the trial Ms. Sharp produced a receipt for the purchase of the tote bag, and she indicated that she owned the bag. ⁶⁴¹ Following the evidentiary portion of the trial, the court instructed the jury on the elements of possession under § 287(a) and (d). The instruction omitted any reference to knowledge being an element of the offenses. Before the jury retired to deliberate, defense counsel objected to the instructions on grounds unrelated to the issue before us. 2 After the start of its deliberations, the jury sought reinstruction on the elements of possession. At that time, defense counsel asked the judge to instruct the jury that knowledge is an element of possession.

The judge declined, ruling that knowledge is not an element of the possession offenses under § 287. The judge’s reinstruction made no reference to knowledge, and it was objected to on this ground. The jury convicted the defendant on both counts. The court subsequently sentenced the defendant to a total of five years imprisonment: four years on the possession of controlled substances charge and one year, to be served consecutively, on the possession of controlled paraphernalia charge.

The Court of Special Appeals affirmed the conviction in an unreported opinion, holding that the failure to give the requested instruction was not error because proof of scienter is not required. The defendant filed a petition for a writ of certiorari, presenting the question of whether knowledge is an element of the § 287 offenses. The State filed a cross-petition for a writ of certiorari, claiming that the instruction issue was not properly preserved for appellate review. We granted both petitions.

II

Initially we reject the State’s argument that the jury instruction issue is not properly before this Court. The ⁶⁴² State argues that, because defense counsel did not object to the original jury instructions on the ground that knowledge is an element of the offenses, the point is not preserved for appellate review under Maryland Rule 4-325. According to the State, defense counsel’s request for an instruction and his objection at the time the jury sought reinstruction came too late. The State’s argument is flawed for two reasons.

First, we believe that, under the circumstances, the defendant’s objection to the supplemental instructions was timely. Rule 4-325(a), in addition to requiring that the trial court instruct the jury at the conclusion of evidence and before closing arguments, also authorizes the court to give supplemental instructions at a later time when appropriate. 3 In this case the trial court did give supplementary instructions; the defendant objected to them, and it is the supplementary instructions which are challenged on appeal. Rule 4-325(e) states that, in order to preserve an instruction issue for appellate review, the party must object to the instruction or failure to instruct “promptly after the court instructs the jury____” 4 See Johnson v. State, 310 Md. 681, 684-689 , 531 A.2d 675 (1987). Nothing in the language of Rule 4-325(e) requires, where there are supplemental instructions, that the objection nonetheless must always be made after the initial instructions.

If the instruction ⁶⁴³ claimed to be error occurs during supplemental instructions, and the party promptly objects after the supplemental instructions, Rule 4-325(e) appears to entitle that party to challenge the supplemental instructions on appeal. We have so applied the rule. Battle v. State, 287 Md. 675, 678-679 , 414 A.2d 1266 (1980). See also People v. Lewis, 116 A.D.2d 16 , 499 N.Y.S.2d 709, 711 (1986).

Second, even if the defendant’s objection were not timely, Rule 4-325(e) authorizes the Court of Special Appeals, in its discretion, to reach the merits of an instruction issue despite a party’s failure at trial to object. In this case the Court of Special Appeals, exercising its discretion under the Rule, did reach the merits of the issue and decided that knowledge was not an element of the offenses. Under the circumstances, the only question under Rule 4-325(e) that can properly be raised before this Court is whether the Court of Special Appeals abused its discretion in reaching the merits. State v. Hutchinson, 287 Md. 198, 202-204 , 204 n. 1, 208, 411 A.2d 1035 (1980).

See Squire v. State, 280 Md. 132, 134 , 368 A.2d 1019 (1977); Dempsey v. State, 277 Md. 134, 142 , 355 A.2d 455 (1976). In the case at bar, the State makes no argument that the Court of Special Appeals abused its discretion. Moreover, under the circumstances, it is clear that there was no abuse of discretion.

III

A. At common law, a crime occurred only upon the concurrence of the individual’s act and his guilty state of mind. See, e.g., Morissette v. United States, 342 U.S. 246, 251-252 , 72 S.Ct. 240, 243-244 , 96 L.Ed. 288, 294 (1951). As Bishop stated, “[t]here can be no crime, large or small, without an evil mind. In other words, punishment is the sequence of wickedness____ It is, therefore, a principle of our legal system ... that the essence of the offense is the wrongful intent, without which it cannot exist.” 1 Bishop’s Crim.

Law, § 287 (9th ed. 1923). ⁶⁴⁴ Nevertheless, during the nineteenth century, legislative bodies both in this country and in England began to create strict liability criminal offenses designed to protect the public health and welfare. As the Supreme Court of the United States explained in Morissette v. United States, supra, 342 U.S. at 254, 72 S.Ct. at 245 , this trend paralleled the rise of the industrial revolution: “Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.” See Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55, 67-70 (1933).

See also Jenkins v. State, 215 Md. 70, 74-75 , 137 A.2d 115 (1957). “Public Welfare Offenses” are generally regulatory in nature. The earliest cases involved liquor and adulterated milk. See, e.g., Barnes v. State, 19 Conn. 398 (1849); Commonwealth v. Boynton, 2 Allen 160 (Mass.1861). Later cases expanded the doctrine to apply to violations of traffic regulations and motor vehicle laws, sales of misbranded articles, and sales or purchases in violation of anti-narcotics laws.

See, Sayre, supra, 33 Colum.L.Rev. at 73. These offenses commonly involve light fines or penalties. Morissette v. United States, supra, 342 U.S. at 256, 72 S.Ct. at 246 . As Sayre notes, “... the penalty in such cases is so slight that the courts can afford to disregard the individual in protecting the social interest.” Sayre, supra, 33 Colum.L.Rev. at 70.

See also, Walker v. State, 356 So.2d 672, 673 (Ala.1977); People v. Farley, 33 Cal.App.3d Supp. 1 , Supp. 5, 109 Cal.Rptr. 59 , 61 (1973); Speidel v. State. 460 P.2d 77, 79 (Alaska 1969); Model Penal Code ⁶⁴⁵ § 2.05, Explanatory Note and Comment (Official Draft and Revised Commentaries 1962) (“The theory of the Code is that noncriminal offenses, subject to no severer sanction than a fine, may be employed for regulatory purposes on the basis of strict liability.”) Additionally, the purpose of the penalty is to regulate rather than to punish behavior. See, People v. Vogel, 46 Cal.2d 798 , 801 n. 2, 299 P.2d 850 , 853 n. 2 (1956). While liability is imposed regardless of the defendant’s state of mind, the defendant is generally in a position to prevent the violation from occurring. Morissette, supra, 342 U.S. at 256 , 72 S.Ct. at 246 .

B. Turning to the statutes in the instant case, § 287(a) prohibits possession of controlled substances. Section 287(d) prohibits possession of controlled paraphernalia with the intent to use the paraphernalia. Violation of either § 287(a) or § 287(d) is a misdemeanor. Each offense is punishable by up to four years in prison or a fine of up to $25,000 or both. § 287(e).

Neither § 287(a), nor § 287(d), nor § 277(s) which defines “possession” for purposes of § 287, 5 contain language indicating whether scienter is an element of the § 287 offenses. Adopted in 1970, the Maryland Controlled Dangerous Substances Act is modeled on the Uniform Controlled Substances Act. See 9 U.L.A. 187 (1979). 6 While substantially ⁶⁴⁶ adopting the text of the Uniform Act, the Maryland General Assembly made numerous changes in the Maryland Act. One difference is between the Uniform Act § 401, prohibiting possession, and § 287 of the Maryland Code.

The Uniform Act only proscribes knowing and intentional possession, while the Maryland act is silent as to this element. In surveying the law of other states that have adopted the Uniform Controlled Substances Act, we note that the overwhelming majority of states, either by statute or by judicial decision, require that the possession be knowing. In addition to Maryland, the statutes of fifteen other states plus 'the District of Columbia are silent as to the knowledge element. Even though the statutes are silent as to a scienter requirement, most of these jurisdictions have, by judicial decision, determined that knowledge is an element ⁶⁴⁷ of the crime of possession. 7 For example, the Supreme Court of Alabama in Walker v. State, supra, 356 So.2d at 673-674 , held that knowledge was an element of the crime of possession under the Alabama Controlled Substances Act.

The court reasoned that this statute differed from the typical public welfare statute, largely because of the severe penalty imposed. Id. at 673 . Similarly, the California Supreme Court held that the elements of the possession offense include knowledge of the presence and character of the drug. People v. Williams, 5 Cal.3d 211, 215, 95 Cal.Rptr. 530, 532 , 485 P.2d 1146, 1148 (1971).

See People v. Camp, 104 Cal.App.3d 244, 247-248 , 163 Cal.Rptr. 510, 512 , cert. denied, 449 U.S. 960 , 101 S.Ct. 373 , 66 L.Ed.2d 227 (1980). The Court of Appeals for the District of Columbia, in United States v. Weaver, 458 F.2d 825, 826 (D.C.Cir.1972), determined that, despite the statute’s silence, it only applied to “knowing” possession. See also, Stewart v. United States, 395 A.2d 3, 6 (D.C.1978). 8 The Supreme Court of Kansas, in State v. Flinchpaugh, 232 Kan. 831 , 659 P.2d 208 (1983), adopted a definition of “possession” that included a knowledge element. See also, State v. Metz, 107 Kan. 593, 596 , 193 P. 177, 178 (1920) (“The elements of this possession are: First, the mental attitude of the claimant, the intent to possess ...; and, second, the effective realization of this attitude”).

The North Carolina Supreme Court, in State v. Harvey, 281 N.C. 1 , 187 S.E.2d 706 (1972), held that possession includes “both the power and intent to control its disposition ⁶⁴⁸ or use.” 281 N.C. at 12 , 187 S.E.2d at 714 . See State v. Davis, 20 N.C.App. 191 , 201 S.E.2d 61 (1973), cert. denied, 284 N.C. 618 , 202 S.E.2d 274 (1974); State v. Rogers, 32 N.C.App. 274, 278 , 231 S.E.2d 919, 922 (1977). Other cases holding that the statutory words “possess” or “possession” signify “knowledge” include State v. Harris, 159 Conn. 521, 531 , 271 A.2d 74, 79 (1970), cert. denied, 400 U.S. 1019 , 91 S.Ct. 578 , 27 L.Ed.2d 630 (1971) (“ ‘ “Possess” as used in criminal statutes ordinarily signifies an intentional control of a designated thing accompanied by a knowledge of its character’ ”); Thomas v. State, 153 Ga.App. 686, 689 , 266 S.E.2d 335, 337 (1980); Sindrich v. State, 322 So.2d 589, 591 (Fla.App.1975);