Mason v. State

Moylan, J., delivered the opinion of the Court. On January 14, 1970, combined law enforcement teams representing five separate agencies — including the Maryland State Police, the Montgomery County Police and the United States Bureau of Narcotics and Dangerous Drugs —culminated six months of investigation, covering the states of Maryland, Delaware, Pennsylvania and the District of Columbia, into the wholesale manufacturing and distribution of hallucinogenic drugs. Search warrants were on that day simultaneously executed on two Montgomery County residences, one “health food” store in Montgomery County, another “health food” store in the District of Columbia, an automobile in Montgomery County and a farm in Easton, Maryland. Confiscated were significant amounts of marijuana, hashish, opium and LSD, as well as large amounts of another hallucinogenic drug known as “PCP.” Also confiscated was equipment for the processing of drugs.

Recovered as well were chemicals which had a potential yield of 250,000 doses of “PCP,” 20,000,000 doses of LSD and 3,000,000 doses of another hallucinogenic drug known as MDA. As a result of these raids, on February 4, 1970, a series of indictments were returned against the appellant, Roger Mason, by the Grand Jury for Montgomery County. Five of those, over his objection, were consolidated for trial. The eight-day trial before a jury, presided over by Judge Ralph G. Shure, began on Monday, May 25, 1970, and concluded on Thursday, June 4,1970.

On Indictment No. 10827, the jury found the appellant guilty of possession of opium. On Indictment No. 10828, the jury found him guilty of possession of hashish. On ⁶⁶⁰ Indictment No. 10829, the jury found him guilty of possession of marijuana. On Indictment No. 10830, the jury found him guilty of possession of LSD.

On Indictment No. 10832, the jury found him guilty of unlawfully manufacturing, compounding and processing an hallucinogenic drug, commonly known as “PCP.” Under the second count of the same indictment, the appellant was found guilty of conspiring with David Macklar and Allison C. Land to manufacture, compound and process “PCP.” On Indictment No. 10827, the appellant was sentenced to two years imprisonment and a fine of $200, the sentence to run consecutively with that he received on Indictment No. 10832. On Indictment No. 10828, the appellant was sentenced to one year imprisonment and a fine of $200, the sentence to run consecutively with the sentences received on Indictment Nos. 10832 and 10827. On Indictment No. 10829, the appellant was given a generally suspended sentence. On Indictment No. 10830, the appellant was sentenced to one year imprisonment and a fine of $100, the sentence to be served consecutively with those received on Indictment Nos. 10832, 10827 and 10828.

On Indictment No. 10832, the appellant was sentenced to a term of five years imprisonment and a fine of $5,000 on the first count and to a term of four years imprisonment on the second count, the two sentences to run consecutively with each other. Upon this appeal, the appellant raises a grand total of fourteen contentions. Lack of Instruction on Accomplice’s Testimony One of the State’s witnesses in this case was James D. Macklar, who was named as a co-conspirator with the appellant in Indictment No. 10832. There is no question but that Macklar was, in fact, an accomplice to the appellant, with respect to Indictment No. 10832.

The appellant requested an instruction to the effect that the testimony of Macklar, as an accomplice, “should be reviewed with suspicion and must be corroborated.” Judge Shure ⁶⁶¹ declined to give such an instruction with the following statement: “I don’t see how we can call this a circumstantial evidence case at all when we have the evidence that is in this case, nearly 300 exhibits. All of the matter that was found and what have been in his home and where he had been placed in his place of business where he was apprehended. I don’t think this requires me to go into what we would in some cases with the uncorroborated testimony of an accomplice, because there is much corroboration in this case. I don’t follow you on that.” It is true that it is incumbent upon the court, when requested in a criminal case, to give an advisory instruction on every essential question or point of law supported by the evidence.

Gaskins v. State, 7 Md. App. 99, 105 ; Halcomb v. State, 6 Md. App. 32 ; Gordon v. State, 5 Md. App. 102 ; Malloy v. State, 4 Md. App. 420 ; Huber v. State, 2 Md. App. 245 ; Tipton v. State, 1 Md. App. 556 ; Maryland Rule 756b. In declining to give the instruction, the trial court apparently relied upon another well-settled principle of law that a request for an instruction is properly refused where there is no evidence to support it. Duffin v. State, 229 Md. 434 ; Wiley v. State, 237 Md. 560 . A proper application of that principle would be, we feel, restricted to a situation where there is no supporting evidence that a witness is an accomplice.

The principle was not, we feel, intended to be applied to a situation where the witness was arguably, let alone clearly, an accomplice but where there was no supporting evidence that the testimony of that witness was uncorroborated. The appellant was entitled to the instruction, particularly because it had some significance with respect to the credibility of the accomplice-witness and the resultant weight of his testimony, above and beyond the question of corroboration. ⁶⁶² There remains to be considered, however, the question of whether this omission constituted reversible error or whether it may, in the context of this particular case, be deemed harmless error. The language of both Hardison v. State, 226 Md. 53 , and Gaskins v. State, supra, is broad enough to make the appellant’s contention here arguable. In both of those cases, convictions were reversed for failure to give requested instructions on the skepticism with which accomplice testimony should be viewed.

Because the literal holdings of those cases, however, arose out of narrow factual contexts not even remotely analogous to that before us here, we feel that neither Hardison nor Gaskins is dispositive of the case at bar. They teach us, to be sure, that the instruction should have been given. They did not deal with circumstances wherein harmless error vel non was the issue to be determined. In both Hardison and Gaskins , the allegedy accomplice testimony represented the almost exclusive evidence of guilt.

Those cases inevitably stood or fell upon the view taken by the jury of the testimony of the possible accomplice. Such is not, however, the situation at bar. The testimony of Macklar was a relatively minor factor in the massive accumulation by the State of inculpatory evidence. The premises at 312 Willington Drive in Silver Spring was owned and occupied by the mother and father of the appellant.

The appellant had been living there until some months before his arrest. There was testimony that the appellant secreted some of his contraband above the heat ducts in the basement of his parents’ home. The police recovered from that area significant amounts of marijuana, hashish, LSD and opium. The appellant was the lessee of the property at 7214 Carroll Avenue in Takoma Park which he operated as Nature’s Restaurant.

The police there found no evidence of an operating restaurant but did find large numbers of chemicals, chemical books, chemical equipment and chemical formulae. ⁶⁶³ One Gregory Jelly testified that he made his living selling drugs for the appellant and that on one occasion he had observed the appellant deliver 1,000 PCP tablets to one Vicki Ford. Vicki Ford testified that she sold PCP for the appellant, that on occasion she helped him prepare PCP, that she had seen him conceal “dope” above the heating ducts at 312 Willington Drive and that she had gone with him to the National Library of Medicine to help him find hallucinogenic formulae. She further testified that the chemical processing equipment located at 13023 Turkey Branch Parkway, a residence occupied by James David Macklar and Allison Land, was owned by and used by the appellant for the manufacturing of PCP. The police recovered from 13023 Turkey Branch Parkway numerous chemicals and chemical equipment which represented over 200 exhibits at the trial.

An employee of the Arthur H. Thomas Pharmaceutical Company of Philadelphia, Pennsylvania, testified that the appellant, under the assumed name of R. M. Wallace, purchased chemicals from that company on five or six occasions between July 11, 1966, and November 28, 1969. The appellant was ostensibly purchasing these chemicals in the name of Biotechnical Products. The total sales came to $1,088. All transactions were in cash.

The manager of North Strong, Inc., a chemical distributing firm in Rockville, identified the appellant as a frequent purchaser of chemicals from her company. She testified that he purchased the chemicals under the name of R. M. Wallace. The general manager of the Wilmington Telephone Answering Service testified that the appellant was a subscriber to her company’s telephone answering and mail service. He there used the name of Charles Harris.

The company to which mail was sent for him was the Wilmington Research Company. She testified that the appellant picked up from her at her office many boxes and drums. Numerous letters were admitted into evidence which ⁶⁶⁴ were addressed to the appellant from all over the country. Many were addressed to him as a “Dr. Wallace” from learned writers in the field of LSD and related drugs.

Theodore Hondoga, a special agent for the Federal Bureau of Narcotics and Dangerous Drugs, testified that on three occasions he made discreet observations of the appellant picking up packages from the Arthur H. Thomas Company in Philadelphia. Thomas King, another special agent for the Federal Bureau of Narcotics and Dangerous Drugs, testified that on four occasions he observed the appellant picking up packages at the Arthur H. Thomas Company in Philadelphia. Richard Fox, a forensic chemist for the Federal Bureau of Narcotics and Dangerous Drugs, testified to the fact that the items recovered from 312 Willington Drive were marijuana, hashish, opium and LSD. He also testified that recovered from 13023 Turkey Branch Parkway were large amounts of PCP, some hashish, some LSD, as well as equipment for the manufacturing of PCP.

He also testified that recovered at that address was a formula for the manufacture of LSD and a formula for the manufacture of PCP and MDA. The appellant himself admitted on the stand that he had a thorough knowledge of chemistry. He admitted that he had made PCP at one time. He admitted that he checked the Federal Register every week and that he compiled extensive literature on all phases of psilocybin drugs (mind-altering drugs).

The appellant testified that he established a dummy corporation, Biotechnical Products, to enable him to do corporately what he could not do individually, i.e., purchase chemicals and obtain research papers. The appellant also admitted that he was in the business of mailing LSD formulae to anyone who wished them for $1. In view of this massive evidence of the appellant’s guilt, there is no question but that the testimony of Macklar was amply corroborated many times over. In view of the proportionately small factor which Macklar’s testimony represented in the over-all equation of ⁶⁶⁵ guilt, we hold that the omitted instruction, as to the light in which that purely cumulative testimony should be viewed, was, in the totality of this case, harmless error.

Instruction on Marijuana Control Chapter 237 of the Acts of 1970 passed the General Assembly as an emergency measure and, as a result, became effective on April 15, 1970. Section 2 of that Act provided that it “shall apply to any proceedings not finally adjudicated on the effective date of the Act.” The trial in this case was held from May 25, 1970, to June 4, 1970. The provisions of the emergency measure, therefore, apply to this case. See Oberlin v. State, 9 Md. App. 426 ; Nutt v. State, 9 Md. App. 501 .

Prior to April 15, 1970, marijuana was included within the definition of a “narcotic” drug by Article 27, Section 276. Section 277 made it a crime, inter alia, “to possess” and “to have under [one’s] control” any “narcotic” drug as defined by Section 276. Section 300 then pronounced all violations of Section 277 to be felonies and prescribed the maximum penalty for a first offense as a fine of not more than $1,000 and/or imprisonment for not more than five years. The emergency measure, operative as of April 15, 1970, amended Article 27, Section 300, so as to do away with all punishments for conduct under Section 277 in which marijuana was involved.

Having wiped the slate clean, it then proceeded to provide a new penalty for conduct proscribed by Section 277 where marijuana was involved. It made the penalty for a first offense a maximum fine of $1,000 and/or imprisonment of one year. It also reduced the grade of the crime of possession of marijuana from felony to misdemeanor. Significantly for present purposes, it spelled out that what was thereafter proscribed were violations of Section 277 “with regard to the possession or use” of marijuana, Section 300 (b), and “with regard to the sale, dispensing, giving away, or otherwise disposing” of marijuana, Section 300 (c).

The Act did not expressly pre ⁶⁶⁶ scribe a penalty for having marijuana “under control.” The question then presented itself: Was “control” of marijuana still a felony under the old provision of Section 277 as not having been superseded by a replacement provision? or, alternatively, Was “control” of marijuana no longer a crime by virtue of not having a penalty provided for it? We held in Nutt v. State, supra, that the notion of “control” was comprehended within the broad definition of “possession,” which includes as “constructive possession” anything which under the older cases could have been deemed “control.” As a result, the mitigating features of the emergency measure applied to conduct which could be deemed “control of marijuana.” All marijuana-related unlawful behavior, other than selling, dispensing, or giving marijuana away, was, therefore, reduced from felony to misdemeanor status. The court below gave, nevertheless, the following instruction, to which the appellant then took and now takes exception: “Possession of marijuana is no longer a felony. It is, however, still a felony to have marijuana under your control as distinguished from possession.” The State concedes that this excerpted portion of the instruction was error under Nutt v. State, supra, but contends that it was harmless error.

We agree. In the first place, the jury returned a verdict of guilty under Indictment No. 10829 only for the possession of marijuana, not for the control of marijuana. A similar verdict was returned on Indictment No. 10828 with respect to possession of hashish, not for control of hashish. In any event, the reference to control of marijuana as a felony, rather than as a misdemeanor, was not, we feel, on the facts of this case, in any way prejudicial to the appellant.

The appellant does not even speculate as to what conceivably harmful effect might have resulted from this brief and fleeting, albeit erroneous, reference to the grade of a crime at the conclusion of eight long days of testi ⁶⁶⁷ mony and argument. We will not fantasize as to prejudice where clearly none exists, lest no long, hard-fought and complicated case should ever be final. Jury Instructions The third contention of the appellant, catalogued but not argued either upon brief or before this Court, is a scatter-shot attack upon the adequacy of the trial judge’s instructions for nine separate reasons. The fusillade of alleged errors was aimed at omission — the not following faithfully of the lengthy prayer for instructions submitted by him.

Our review is animated by the spirit of Shotkosky v. State, 8 Md. App. 492 , and Graef v. State, 1 Md. App. 161 , that the instructions to be analyzed be “taken as a whole” and that, on any point of law, no special words of art are indispensable as shibboleth or talisman, just so long as the instruction given captures the fair essence of the point to be conveyed. The appellant complains that the judge (1) did not instruct adequately on the presumption of innocence. Upon our review of the instruction, we think the subject was fairly and adequately covered. Moreover, the appellant did not, at the conclusion of the judge’s instruction, register his objection to any alleged omission.

Maryland Rules 1085 and 756 g. The appellant complains that the judge (2) did not adequately define the terms “manufacture, compound or process” and further that he (3) did not adequately define “phencyclidine.” Again, we feel that the judge adequately covered the subject matter. Again, the appellant did not register his objections. Maryland Rules 1085 and 756 g.

The appellant complains that the judge (4) did not adequately instruct on the subject of accomplice testimony. The appellant here reiterates as a subcontention of his third major contention that point which he has already listed as his first major contention. Our discussion of the point when raised hereinbefore is dispositive of its reiteration now. ⁶⁶⁸ The appellant complains that the judge (5) did not instruct the jury that “when guilt is based solely upon circumstantial evidence, the circumstances taken together must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence.” He relies on Vincent v. State, 220 Md. 232 , and Shelton v. State, 198 Md. 405, 412 . He reads Vincent and Shelton overbroadly.

In the Memorandum on Motion for Reargument in Edwards v. State, 198 Md. 132 ; Brown v. State, 222 Md. 290, 296 ; and Glaros v. State, 223 Md. 272, 281 , the Court of Appeals made it clear that the emphasis in that at-first-glance-sweeping language from Vincent and Shelton should properly be upon the words “solely” and “reasonable.” See the excellent discussion of the appropriate appraisal to be made of circumstantial evidence by Judge Orth in Nichols v. State, 5 Md. App. 340, 348-353 . In the case at bar, it is clear that the evidence against the appellant was not solely circumstantial and that the instruction he requested was, therefore, not predicated upon an appropriate factual foundation. It was properly denied. Wiley v. State, 237 Md. 560 ; Duffin v. State, 229 Md. 434 ; Bruce v. State, 218 Md. 87 .

See, however, Metz v. State, 9 Md. App. 15 . The appellant complains that the judge (6) did not instruct the jury adequately on the subject of fingerprint evidence. At the conclusion of the court’s instructions, the appellant registered no objection in this regard and there is, therefore, nothing before us for review. Maryland Rules 1085 and 756 g.

The appellant complains that the judge (7) did not adequately instruct the jury as to the necessity of finding co-conspirators guilty in order to find the appellant guilty of the crime of conspiracy. Judge Shure initially instructed in this regard: “In the second Count you must find that he conspired with Macklar or Land or at least one of them in order to be guilty of the conspiracy. The crime of conspiracy to manufacture is a misdemeanor. Conspiracy is a combination of ⁶⁶⁹ two or more persons to accomplish a criminal or unlawful act or to do an unlawful act by criminal or unlawful means.

Conspiracy is the unlawful combination, and no further overt act is required to constitute conspiracy.” He later issued the following supplementary instruction: “On the crime of conspiracy, it, of course, requires a specific intent and necessarily involves at least two guilty parties, if you have three, you must find in addition to the Defendant one of the other two is also guilty and a required criminal intent must exist in the mind of the two or more parties to the conspiracy.” We believe this to have been a fair and adequate statement of appropriate law. Regle v. State, 9 Md. App. 346 . The appellant complains that the judge (8) did not adequately instruct the jury on the subject of “bias of a witness.” Neither in his brief nor in oral argument does he give any indication of what he means by this contention. Suffice it to say that he registered no objection and the point, whatever it means, is not preserved for review.

Maryland Rules 1085 and 756 g. The appellant finally complains that the judge (9) committed error in declining to instruct the jury that, in January, 1970, the manufacture of the drug known as JB 336 and the drug known as MDA was not a crime and did not become a crime until several weeks before the trial of the appellant’s case. The trial court had given the following instruction: “There has been much testimony of other types of drugs that the State contends through witnesses this Defendant was engaged in manufacturing or attempting to manufacture. The reason that I permitted that evidence to go in, that is that these other drugs that you will remember there was some testimony about, the rule is that evidence of other crimes is admissi ⁶⁷⁰ ble to prove a specific crime charged when such other evidence tends to be motive, or intent or absence of any mistake or act or a common plan or scheme to prove the identity of the person with the commission of a crime on trial.

That is why I permitted testimony with respect to these other drugs.” The evidence that appellant manufactured JB 336 and MDA was properly admissible to show his familiarity and expertise in this field, and as tending to establish a plan or scheme on his part to engage in the manufacture of drugs. Under these circumstances, the fact that the trial judge improperly characterized the manufacture of such drugs as a crime would not constitute reversible error. The Fine under Indictment 10832 The State concedes that under Section 313B of Article 27, the maximum fine which could have been imposed was $2,000 and that the $5,000 fine imposed upon the appellant under the first count of Indictment 10832 was excessive. 1 Accordingly, we will remand for a correction of the sentence. Consolidation of Indictments for Trial The appellant objects to the consolidation for trial of the five indictments against him.

Maryland Rule 734 provides : “The court may order two or more indictments to be tried together if the offenses and the defendants, if there be more than one, could have been joined in a single indictment.” In McLaughlin v. State, 3 Md. App. 515 , this Court explained the purpose of Maryland Rule 734: ⁶⁷¹ “The purpose [of Md. Rule 734] is to save the time and expense of separate trials under the circumstances named in the Rule, if the trial court, in its discretion, deems a joint trial proper.” P. 522. The appellant could have been charged in separate counts of a single indictment with all of the offenses here set out in the five indictments under review. Maryland Rule 716 a. All of the offenses involve substantially the same facts.

They all occurred at about the same time and at the same general place. The physical evidence in all cases was a product of the simultaneous execution on January 14, 1970, of search warrants based on a common statement of probable cause. The State would have been compelled to produce essentially the same group of witnesses to prove each of the charges individually. The offenses here are of the same general nature, form part of the same general scheme of unlawful conduct, and permit the same mode of trial.- Their joinder for trial was compellingly dictated.

See DiNatale v. State, 8 Md. App. 455 ; Sears v. State, 9 Md. App. 375 . Constitutionality of Former Section 313B The provisions of Article 27, Section 313B, under which the appellant was convicted under the first count of Indictment 10832, became law on July 1, 1968 2 The appellant now contends that this law was, in two respects, so vague and indefinite as to be in contravention of the Sixth and Fourteenth Amendments of the United States Constitution, conferring the right to be informed of the charges against him, and Articles 21 and 23 of the Maryland Declaration of Rights. He complains that under