Ertwine v. State

Scanlan, J., delivered the opinion of the Court. This is an appeal from judgments entered in the Circuit Court for Baltimore County (Kenneth C. Proctor, Judge), following appellant’s convictions by a jury of violations of the narcotics laws. Specifically, the appellant, Ronald Nathan Ertwine, was convicted of: possession of marijuana ⁶²¹ with intent to distribute; possession of hashish with intent to distribute; possession of D-amphetamines, phenmetrazine, phenobarbital, and secobarbital; and operating a common nuisance. He was also found guilty of possession of marijuana and hashish, but the trial judge found that the convictions under these two counts merged into the greater crime of possession with intent to distribute.

The several concurrent and consecutive sentences imposed on the appellant by the court below totaled seven years. QUESTIONS PRESENTED In this Court, the appellant contends that there was insufficient evidence to sustain his convictions. As appears below, we find this claim to be utterly meritless. Appellant’s second argument on appeal is pressed with more force, but no more persuasion, than the first.

Here, he argues that the trial judge was “so impatient and prejudiced” against his trial counsel 1 as to deny appellant the fair and impartial trial guaranteed him by the due process clause of the Fourteenth Amendment of the United States Constitution. Despite the vigor with which it is asserted, for the reasons specified below we hold it also to be a contention devoid of merit. THE EVIDENCE WAS SUFFICIENT Although the appellant purports generally to challenge the sufficiency of the evidence to support his several convictions in the court below, in the brief which he filed with this Court he argues only that the record failed to indicate that he possessed sufficient marijuana and hashish to indicate an intent to distribute these two illegal drugs. His other convictions were for simple possession of controlled dangerous substances and a conviction for maintaining a ⁶²² common nuisance.

Appellant, therefore, has abandoned challenge to the possession and common nuisance convictions. Rule 1031 c; and see Wilkins v. State, 16 Md. App. 587, 597 , 300 A. 2d 411 (1973). In any event, the several dangerous substances which were seized, under a valid search warrant, from apartment premises leased by the appellant were amply sufficient to convict him of their possession and of maintaining a common nuisance. Henderson v. State, 13 Md. App. 384 , 283 A. 2d 418 (1971).

Seized pursuant to the same search warrant and in the police raid on appellant’s apartment referred to above were approximately a half pound of marijuana and an ounce plus of hashish. Four pipes used for smoking marijuana were also found by the police. Lieutenant Cornelia Williamson of the Baltimore County Police Department Crime Laboratory was called to testify by the State. She qualified as an expert witness over the appellant’s objection.

When asked how many smokes or dosages of marijuana could be provided by six ounces of that substance, she answered: “It is an awful lot.” She also testified that because the hashish was more potent than the marijuana, one ounce of hashish would last much longer than marijuana and could supply a considerable number of pipefuls. The jury was entitled to believe the testimony of the police expert and to infer from that evidence that the amounts of hashish and marijuana, respectively, which were seized from the appellant were sufficient to justify a finding that he was in possession of a sufficient quantity of those substances reasonably to indicate an intent to distribute a controlled dangerous substance. Williams v. State, 14 Md. 619 , 627, 287 A. 2d 803 (1972); Waller v. State, 13 Md. App. 615 , 284 A. 2d 446 (1971); Puckett v. State, 13 Md. App. 584, 587 , 284 A. 2d 252 (1971). Accordingly, there can be no serious contention made that there was not sufficient evidence on the basis of which the jury could have found the appellant guilty of the offenses with which he was charged.

The trial court properly denied his motion for judgment of acquittal. Williams and McClelland v. State, 5 Md. App. 450 , 247 A. 2d 731 (1968). ⁶²³ THE TRIAL COURT DID NOT DENY APPELLANT HIS CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL TRIAL The appellant contends that the trial judge was “so ‘impatient and prejudiced’ against defense counsel as to deny Appellant a fair and impartial trial.” He also suggests that the trial court’s refusal to allow his trial counsel to argue a motion for judgment of acquittal made at the conclusion of the evidence violated the Sixth Amendment of the Federal Constitution and Article 21 of the Declaration of Rights, both of which assure effective assistance of counsel to a criminal defendant. With respect to the motion for judgment of acquittal, appellant’s trial counsel merely asked whether the trial judge wished to hear argument on his motion. The trial court indicated that it did not and appellant did not press the point.

Thus, he waived any right he might have had to argue that motion. Garner v. State, 16 Md. App. 353, 360 , 297 A. 2d 304 (1973). Yopps v. State, 228 Md. 204 , 178 A. 2d 879 (1962), on which appellant attempts to rely, is clearly distinguishable. Yopps was a nonjury case in which the judge rendered a verdict of guilty without affording defense counsel the opportunity to present closing argument.

Moreover, in that case defense counsel immediately requested the right to be heard on the entire evidence and on the law, a