Lucas v. State

WENNER, Judge. Appellant, Kevin Earl Lucas, was convicted by a jury in the Circuit Court for Baltimore County of possession of cocaine with intent to distribute and several related offenses. After merging appellant’s convictions for the related offenses with his conviction for possession of cocaine with intent to distribute, sentence was imposed, and this appeal followed. On appeal, appellant complains that the trial judge 1. incorrectly instructed the jury defining the crime of possession of cocaine, in failing to inform the jury that in order to convict appellant it was necessary for them to find that he knew that what he possessed was illicit; 2. gave the jury an incomplete instruction concerning circumstantial evidence; and, ⁵⁶² 3. erred in admitting the “trophy photographs” into evidence.

Although we agree that the trial court erred in instructing the jury regarding the knowledge necessary to convict for possession of cocaine, it was harmless error. As we believe appellant’s remaining complaints are without merit, we shall affirm the judgments of the circuit court. FACTS In October 1994, the Baltimore County Police Department began an investigation of appellant and his brother, Michael. The Lucases were suspected of being drug dealers.

The officers learned that, although he resided in another location, appellant frequently visited an apartment at 6319 Monica Place in Baltimore County, which they found was leased by Michael Lucas, and determined it to be a “stash house.” According to the State’s expert witness, a stash house is used by mid-level drug dealers to store, process, and package drugs for distribution. Generally, drug dealers do not sell their products from, nor do they permit customers to consume drugs at stash houses. The location of a stash house is kept secret from family and friends, and is generally known only to an “elite few” in any given drug organization. The police began surveilling the Monica Place apartment in April 1995.

The surveillance team consisted of officers who visited the area periodically, and watched the apartment. Detective Griffin, one of the officers who participated in the surveillance, testified that he visited the Monica Place apartment on a number of occasions, and that he saw appellant there on seven or eight of these occasions. Detective Griffin observed that, upon visiting the Monica Place apartment, appellant seemed always to follow a similar pattern of behavior. Appellant would arrive at and enter the apartment.

A few minutes later, Michael would arrive. They would remain in the apartment for twenty to thirty minutes, then leave. Eventually, the police gathered sufficient information to obtain a search warrant for the apartment. On 23 May 1995, ⁵⁶³ Detective Griffin and a search team went to the Monica Place apartment to execute the warrant.

After surveilling the apartment for a period of time, appellant and a second man arrived. Although the officers had not seen him previously, the second man was later identified as Donald Page. Page was carrying a brown paper bag. Appellant was empty-handed.

The two men entered the apartment. After the search team had waited for about an hour, and no one else arrived, they entered the apartment to execute the search warrant. Upon entering the apartment, the search team set off a type of firecracker known as a flash bang, which makes a bright light. Its purpose is to stun the occupants for a few seconds, providing the entering officers sufficient time to gain control of the premises.

Donald Page attempted to escape through a plate glass window. Unfortunately for Page, he was apprehended by one of the officers stationed outside the apartment. Page was injured and transported to a local hospital for treatment. Nevertheless, Page subsequently escaped and was apparently unavailable for appellant’s trial.

Appellant made no effort to leave the apartment, and was quickly apprehended. After apprehending appellant, the search team first noticed that his hands were covered with cocaine powder. During the search incident to his arrest, a set of keys was found on appellant. One of them was for the lock to the Monica Place apartment.

During a thorough search of the apartment, the officers found a bathroom toilet that had just been flushed and was still running. Powdered cocaine was found on the toilet seat. The officers also searched the kitchen and found the garbage disposal unit to be running. When they peered inside the garbage disposal unit, they found a large piece of crack cocaine.

Also found in the kitchen was a set of scales, valued at approximately $150, wet paper towels, baking soda, benzoeaine (a cutting agent), and a microwave oven. The microwave oven had been turned off with 33 seconds remaining on the display, and a white powdery substance inside. In addition, the officers found plastic baggies containing cocaine residue. All of these items indicated to the search team that, ⁵⁶⁴ at the time they entered the apartment, powdered cocaine was being processed into crack cocaine.

Appellant was placed under arrest and charged with possession of cocaine, possession of cocaine with intent to distribute, conspiracy with Michael Lucas, his brother, to possess cocaine, and conspiracy to possess cocaine with the intent to distribute. In September 1996, after a jury found appellant guilty on all counts, he was sentenced to term of 20 years, with all but 10 years suspended, followed by 3 years supervised probation upon his release. 1 Although appellant did not testify at trial, defense counsel’s closing argument outlined appellant’s version of the incident. According to defense counsel, appellant was aware that his brother was a drug dealer, but appellant was not involved. Although defense counsel conceded that appellant used drugs, he averred that appellant was at the apartment solely to purchase cocaine for his own use.

He explained that appellant’s hands were covered with cocaine powder because appellant was testing the product before purchasing it. Consequently, it was disputed whether appellant was merely at the apartment purchasing drugs, or whether appellant was at the apartment because he was actively engaged in selling drugs. The State introduced evidence to show that appellant was a habitual visitor to the Monica Place apartment. First, as we have previously mentioned, Detective Griffin testified that, in his frequent visits to the apartment, appellant had been there on seven or eight occasions.

Second, the State introduced evidence that the Monica Place apartment was a “stash house.” 2 The State also introduced evidence that a number of personal items belonging to appellant were found in the ⁵⁶⁵ apartment. These items included a sales receipt, a letter addressed to appellant, some of appellant’s school papers, and photographs, referred to by the State as “trophy photographs.” We will later explain these trophy photographs in greater detail. After being convicted and sentenced, appellant noted this appeal. I. Jury instruction on Possession of a Controlled Dangerous Substance Initially, appellant contends the trial judge erred in instructing the jury on the definition of the crime of possession of cocaine.

At the close of the trial, the trial judge instructed the jury on this matter by telling them: You are further instructed that possession means the act or condition of knowingly having on one’s person or taking into or having under one’s control. Possession need not be immediate and direct, but may be constructive or indirect. Possession may be by one person or there may be joint possession by others. The duration of the possession and the quantity possessed are not material for the State to prove ownership in the sense of title in order to prove possession.

A defendant not in actual direct possession of a substance who knowingly has both power and the intention to exercise some control over the substance, either personally or through another person, has indirect possession. Defense counsel objected on the grounds that the instruction was incomplete because “knowledge,” as defined in Dawkins v. State, 313 Md. 638 , 547 A.2d 1041 (1988), was not explained. In Dawkins , the Court of Appeals held that in order to convict an accused of possession of a controlled dangerous substance, the State must prove three things: (1) the substance was a controlled dangerous substance, (2) the accused had knowledge of the presence of the substance, and (3) the accused had knowledge of the “general character or illicit nature of the substance.” Id, at 651, 547 A.2d 1041 . Although the instruction complained of covered the first two requirements, it did not cover the third, knowledge of the ⁵⁶⁶ substance’s illicit nature.

Accordingly, we must now determine whether this omission is fatal. “A trial judge is required to give a requested instruction which correctly states the applicable law and which has not been fairly covered in instructions actually given____” Lansdowne v. State, 287 Md. 232, 239 , 412 A.2d 88 (1980); Md. Rule 4-325. On the other hand, a trial judge is not required to instruct a jury on matters not generated by the evidence. Hemingway v. State, 76 Md.App. 127, 138 , 543 A.2d 879 (1988). ■ In the case at hand, there was no question that appellant knew that what he possessed was illicit, because defense counsel told the jury that appellant was in the apartment to purchase cocaine, and that when he heard the police entering, he “grabbed what he could, he tossed it, and sat in the bedroom and waited.” Appellant’s version of the incident is that he had cocaine powder on his hands because he was testing it before deciding whether to purchase it. In fact, defense counsel conceded in his closing argument to the jury that “possession is what he ought to be found guilty of; nothing more, but nothing less.” As it is thus obvious that appellant knew that the powdered substance found on his hands and throughout the apartment was cocaine, the trial court’s failure to include the element of knowledge in the definition of possession of cocaine does not constitute reversible error.

See California v. Horton, 163 Cal.App.2d 63 , 328 P.2d 783 (1958); Bieber v. State, 8 Md.App. 522 , 261 A.2d 202 (1970); Illinois v. Chupich, 53 Ill.2d 572 , 295 N.E.2d 1 (1973).

II

Jury Instructions regarding circumstantial evidence, Appellant also claims the trial court erred in instructing the jury concerning circumstantial evidence. In this regard, the trial court gave the following instruction: Any person who is accused of a crime comes into court with a presumption of innocence and that presumption remains with him throughout the trial____ Unless the prosecution has proven the accused guilty beyond a reasonable doubt based upon the legal evidence presented in this case, the ⁵⁶⁷ presumption of innocence alone is sufficient to acquit the accused. Now, there are two types of evidence which you the jury may consider in this case. There is direct evidence and circumstantial evidence.

Direct evidence is ... [and] circumstantial evidence is.... Circumstantial evidence may be used to prove any element of the crime, including the criminal agency of the accused. Thus, a conviction may rest on circumstantial evidence alone, or on direct evidence alone, or on a combination of circumstantial and direct evidence. No greater degree of certainty is required when the evidence is circumstantial than when it is direct provided you, the jury, are convinced on the basis of all the evidence presented beyond a reasonable doubt of the guilt of the Defendant, and if you arre not so convinced you must find the Defendant not guilty.

(Emphasis added.) Appellant excepted to this instruction, and asked the trial court to give the following instruction, which he had submitted: A conviction may be based solely on circumstantial evidence, but only when the circumstances, taken together, are inconsistent with or such as to exclude every reasonable hypothesis or theory of innocence. Thus, while a conviction may rest on direct or circumstantial evidence alone, or a combination of both, the accused is entitled to every favorable inference from the evidence. 3 As we will explain, we conclude that the trial court correctly instructed the jury. According to appellant, Hebron v. State, 331 Md. 219, 224 , 627 A.2d 1029 (1993), requires reversal in the case sub judice. ⁵⁶⁸ In Hebron , the defendant requested an instruction similar to that sought by appellant. The instruction requested by appellant included that if all the circumstances taken together did not exclude every theory of innocence the jury should acquit him.

The defendant in Hebron requested that the jury be instructed, “[i]f you can draw more than one reasonable inference from the circumstantial evidence, the [defendant] must be found not guilty.” Id. at 222 , 627 A.2d 1029 . The Court of Appeals said that such an instruction essentially instructs “the jury to perform a function not entrusted to it and, indeed, to encourage it to perform such function.” Id. at 234 , 627 A.2d 1029 . The Hebron Court held that “where the defendant posits that the State’s evidence consists of a single strand of circumstantial evidence that is not inconsistent with a reasonable hypothesis of innocence, he is effectively charging that the evidence is legally insufficient”, and this is to be decided by the trial court in a motion for judgment of acquittal. “If the motion is denied, the court must instruct on reasonable doubt, but should not supplement that instruction with any special focus on hypotheses arising from circumstantial evidence.” Id. at 224 , 627 A.2d 1029 (quoting Hebron v. State, 92 Md.App. 508, 519-20 , 608 A.2d 1291 (1992), aff'd, 331 Md. 219 , 627 A.2d 1029 ). Nonetheless, we find no error.

We agree with the United States Supreme Court in Holland v. United States, 348 U.S. 121, 139-40 , 75 S.Ct. 127, 137 , 99 L.Ed. 150 (1954), that “where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect[.]” Upon reviewing the entire instruction, especially that which we have underlined, we believe the trial court correctly instructed the jury.

III

Admission of the Trophy Photographs Appellant next contends the trial court erred in admitting the so-called “trophy photographs” into evidence. As we said earlier, two sets of photographs were contested on appeal. The first are virtually identical. They are photographs of appellant and an unidentified male kneeling before stacks of ⁵⁶⁹ money and a backdrop that appears to contain large illustrations of twenty and one hundred dollar bills.

When questioned, appellant concedes that the photographs were taken by a professional. The third and fourth are of appellant and a group, including his brother, posing in and around two expensive sports cars. One of the cars was determined to be owned by appellant. These photographs were found in one of the apartment’s bedrooms.

The photographs were introduced by the State for two reasons. First, to establish appellant’s continuing interest in the Monica Place apartment, and that he was not there simply to purchase drugs. The photographs, as well as the keys to the apartment found on appellant, helped establish appellant’s connection to the apartment, particularly to the bedroom in which they were found. Second, the State’s narcotics expert testified that such photographs were of the kind referred to as “trophy photographs,” typically found in possession of mid-level drug dealers to demonstrate their success.

Such photographs are often used to encourage lower level drug dealers to work with them. The expert’s opinion, was based on the content of the photographs, as well as that they were found in a “stash house.” Appellant points out that the admission of these photographs, together with the expert’s opinion, suggests that appellant was involved in distributing drugs, and that this prejudiced his defense. Appellant goes on to present three reasons why he believes the “trophy photographs” and the related expert testimony should have been excluded: (1) the expert witness’s testimony invaded the province of the jury, (2)the “trophy photographs” were irrelevant, and (3) the money should have been redacted from the “trophy photographs.” We will first address the admissibility of the photographs, then the admissibility of the expert’s testimony. Photographs as Evidence of Appellant’s Connection to the Apartment Typically, photographs are introduced to “clarify and communicate facts to the tribunal more accurately than by ⁵⁷⁰ mere words.” Johnson v. State, 303 Md. 487, 503-504 , 495 A.2d 1 (1985), cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986).

Here, however, the “trophy photographs” presented circumstantial evidence that appellant was not merely a casual visitor to the Monica Place apartment. With this distinction in mind, the appropriate question is whether the “trophy photographs” were admissible as evidence of appellant’s connection to the stash house. Banks v. State, 84 Md.App. 582 , 581 A.2d 439 (1990), involved a similar situation. In Banks , after an undercover police officer purchased cocaine from Banks, the undercover officer provided another officer with Bank’s description.

The second officer recognized the description and exhibited two photographs of Banks to the undercover officer. The photographs were of a man holding a small handgun, one of the man admiring the small handgun in the palm of his hand, and the other of the man exhibiting the small handgun in an offensive manner. The trial court admitted these photographs into evidence for the purpose of showing how the undercover officer had identified Banks. We held that the photographs were unfairly prejudicial and should not have been admitted.

Consequently, we must test the admissibility of the “trophy photographs” under the law applied in Banks . It is well settled that ‘[t]he real test of admissibility of evidence in a criminal case is the connection of the fact proved with the offense charged, as evidence which has a natural tendency to establish the fact at issue.’ Evidence is relevant and hence, admissible, if it tends either to establish or disprove the issue in dispute. On the other hand, ‘Evidence which is ... not probative of the proposition at which it is directed is deemed ‘irrelevant.’ ’ In Pearson [v. State, 182 Md. 1, 13 , 31 A.2d 624 (1943)], the Court of Appeals explained the rationale for excluding irrelevant evidence: Evidence of collateral facts, or of those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, should be excluded, for the reason that such evidence tends to ⁵⁷¹ divert the minds of the jury from the real point in issue, and may arouse their prejudices. Such evidence may ‘[tend] to substantiate the witness on an immaterial point ... and to correspondingly discredit the defendant as to his credibility on the main issue.’ Banks, 84 Md.App. at 589-90 , 581 A.2d 439 (quoting Pearson v. State, supra, and Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976)) (other citations omitted).

The Banks Court found the photographs of Banks exhibiting a small handgun were of minimal relevance, and because of the common association of firearms with the drug culture, the photographs were extremely prejudicial, and should have been excluded. 4 In the case at hand, the trial court admitted the photographs as probative of appellant’s connection to the stash house. Appellant’s primary response was that he was merely at the stash house to purchase crack cocaine, rather than to engage in its processing and distribution. As we have said, “[e]vidence is relevant and hence, admissible, if it tends either to establish or disprove the issue in dispute.” Banks, 84 Md.App. at 589 , 581 A.2d 439 ; Md. Rule