Johnson v. State

ELDRIDGE, Judge. We granted a petition for a writ of certiorari in this case to decide if the Circuit Court for Talbot County erred in allowing the State to amend a criminal information, charging violations of the controlled dangerous substances laws, by substituting “cocaine” for “marijuana” when the defendant did not consent to the amendment. I. The petitioner, Steve Eugene Johnson, was arrested on June 20, 1997, by Officer Mark Waltrup of the Easton Police Department. According to Officer Waltrup, he observed Johnson approach a motor vehicle, while clasping something in his right hand which Waltrup believed to be crack cocaine, and state, “What you want?

What you need?” When Waltrup and two fellow officers approached Johnson from behind, he allegedly swallowed the object in his right hand and “kicked and flailed,” at which point the officers subdued him with pepper spray in order to accomplish the arrest. A search following the arrest resulted in the seizure of a loaded “Tech-9” semiautomatic pistol in Johnson’s backpack and a bag containing four grams of crack cocaine in his pocket. In the statement of charges filed by the police, Johnson was accused of possession of crack cocaine in sufficient quantity to indicate an intent to distribute, possession of crack cocaine, possession of a firearm in violation of Maryland Code (1957, 1996 Repl.Vol.), Art. 27, § 281A, possession of controlled paraphernalia, and resisting arrest. Johnson waived his right ³⁸⁶ to a preliminary hearing in District Court.

In August 1997 a criminal information was filed against Johnson in the Circuit Court for Talbot County by the State’s Attorney. The information, however, differed from the charges filed by the police. Count one of the information charged that Johnson “did unlawfully possess a Schedule I non-narcotic controlled dangerous substance, to wit: marijuana, in sufficient quantity to reasonably indicate ... an intent to distribute.... ” In count two of the information, he was charged with the unlawful possession of marijuana. The remaining charges in the information were the same as the charges filed earlier by the police.

In December 1997 the State filed a motion to amend the information so that counts one and two would allege that the controlled dangerous substance involved was cocaine and not marijuana. Johnson refused to consent to the proposed amendment, and a hearing on the motion was held in January 1998. At the hearing, Johnson argued that the proposed amendment would violate Maryland Rule 4-204 because it changed the character of the offense charged and therefore required his consent. The State argued that the amendment did not change the character of the offense.

The Circuit Court agreed with the State and granted the motion to amend. At his jury trial in January 1998, Johnson testified in his own defense. He admitted that he was in possession of the gun but denied that he possessed any drugs. With regard to the resisting arrest charge, he stated that he struggled because the police officers approached him from behind without identifying themselves.

The jury found Johnson guilty on all counts. On count one, the court sentenced Johnson to incarceration for 20 years, with 5 years suspended, and with the 15 years to be served without the possibility of parole. No sentence was imposed on the count two conviction because of merger. On count three, possession of paraphernalia, Johnson was fined $100.

For the weapon offense, count four, a consecutive 10 year sentence was imposed. Finally, on count five, resisting ³⁸⁷ arrest, Johnson received a concurrent sentence of one year imprisonment. On appeal, the Court of Special Appeals upheld the Circuit Court’s decision to grant the motion to amend, but reduced the non-parolable portion of the sentence on count one from 15 years to 10 years. The intermediate appellate court reversed the conviction for possession of controlled paraphernalia based on insufficiency of the evidence.

The Court of Special Appeals affirmed the judgments on counts four and five. Johnson v. State, 124 Md.App. 434 , 722 A.2d 435 (1999). Johnson filed a petition for a writ of certiorari which this Court granted. Johnson v. State, 353 Md. 268 , 725 A.2d 1067 (1999).

The State did not file a cross-petition.

II

The only question presented in the certiorari petition is whether the trial court erred in permitting the State to amend counts one and two of the criminal information by substituting “cocaine” for “marijuana” when the defendant did not consent to the amendment. The amendment of a charging document is governed by Maryland Rule 4-204, which provides (emphasis supplied): “On motion of a party or on its own initiative, the court at any time before verdict may permit a charging document to be amended except that if the amendment changes the character of the offense charged, the consent of the parties is required. If amendment of a charging document reasonably so requires, the court shall grant the defendant an extension of time or continuance.” The pertinent language, whether “the amendment changes the character of the offense charged,” has been in effect since 1979, when Rule 713, the immediate precursor to Rule 4-204, was amended. Prior to 1979, the text of the Rule alternated between the present “character of the offense” language and language allowing an amendment “as to matter of form, but not as to matter of substance.” 1 Consequently, depending ³⁸⁸ upon the language of the Rule in effect at the time, this Court has conducted either a “character of the offense” analysis or a “matter of substance” analysis to determine if unconsented amendments to charging documents have been permissible.

Regardless of the exact rule language in effect, however, this Court’s analysis has been essentially the same, the fundamental criterion being whether the amendment constitutes merely a “matter of form.” See Busch v. State, 289 Md. 669, 672 , 426 A.2d 954, 956 (1981); Brown v. State, 285 Md. 105, 109 , 400 A.2d 1133, 1135-1136 (1979); Thanos v. State, 282 Md. 709, 716 , 387 A.2d 286, 290 (1978); Corbin v. State, 237 Md. 486, 489-490 , 206 A.2d 809, 811 (1965). For example, in Thanos v. State, supra, 282 Md. 709 , 387 A.2d 286 , this Court interpreted both Maryland Rule 713(a), which called for the “matter of substance” test, and Maryland District Rule 713(a), which called for the “character of the offense” test. In that case, the amendment was held to be improper under either test because it was not “simply a matter of form.” Thanos, 282 Md. at 716 , 387 A.2d at 290 . The defendant in Thanos was charged with the shoplifting offense set forth in Code (1957, 1976 Repl.Vol., 1977 Cum.

Supp.), Art. 27, § 551(a). That offense could be committed by a number of different acts, as the statute made it unlawful to “alter, remove, or otherwise disfigure any label or price tag” with the intent to deprive the owner of its use or value. Thanos, 282 Md. at 711 , 387 A.2d at 287 . The trial court ³⁸⁹ allowed the State to amend the charging document, without the defendant’s consent, by substituting the word “remove” for the word “alter” in the description of what the defendant allegedly did to a price tag.

In summarizing the law under either test, Judge J. Dudley Digges stated for the Court ( 282 Md. at 716 , 387 A.2d at 290 ): “We thus think it clear that there is a change in the character of the offense charged where the amendment ‘changefs] the basic description of the offense,’ Gray v. State, [ 216 Md. 410, 416 , 140 A.2d 643, 646 (1958) ]; it is equally clear that the basic description of the offense is indeed changed when an entirely different act is alleged to constitute the crime. We also observe that, whether one applies the ‘matters of substance’ test or the ‘character of the offense’ test, there are constitutional limitations which constrict the determination of whether an amendment to a charging document may be construed as constituting simply a matter of form. * * * We think it elementary that where a specific criminal act has been charged, another may not be substituted for it on the theory that it is simply a matter of ‘form.’ ” The holding in Thanos was reiterated in Brown v. State, supra, 285 Md. 105 , 400 A.2d 1133 , in which this Court held that the amendment of a charging document changing the identity of the property allegedly obtained by the defendant, by false pretenses, was impermissible. In Brown , the trial court allowed the State to substitute “one Ford Automobile” for “$5462.80” (the alleged cash value of the automobile) as the property obtained by the defendant in passing a bad check. As the amendment went to “the essential