McCuen v. State

PER Curiam. Harold McCuen, the appellant, an inmate of the Maryland Penitentiary, was tried before Judge J. Harold Grady, sitting without a jury in the Criminal Court of Baltimore, on charges of possession and of control of barbiturates. He was convicted ⁷⁴ of having a barbiturate under his control and sentenced to a term of nine (9) months consecutive to the sentence for rape which he was currently serving. On March 3, 1967, Lt.

Lyles, a correctional officer at the Penitentiary assigned to narcotics investigation, received information that McCuen was selling secobarbitals, a barbiturate. On the same day he went to McCuen’s cell which he alone had occupied for approximately three (3) months. Jerry Hunt, a visiting fellow prisoner, was in the cell with McCuen who was standing to the rear of the cell near the wash bowl. Lt.

Lyles asked Hunt to step outside the cell, searched him and found one secobarbital capsule on his person. He then ordered Mc-Cuen out of the cell and searched him finding nothing. Lt. Lyles testified that at that time McCuen “appeared to be under some type of stimulant, his speech was impaired and disorderly .staggering like he couldn’t maintain his balance too' well.” Lt.

Lyles then instructed Sgt. Nagel, who was in charge of the cellblock, to search McCuen’s cell. The search, which immediately followed, produced a packet containing forty secobarbital capsules secreted under the edge of the wash basin. Sgt.

Nagel testified that prisoners are instructed to close their cell doors upon leaving their cell, that closing of the cell door will automatically lock it. There is a security check to insure that cells are locked when the occupant is out. On cross-examination, Nagel stated that it was possible that an inmate assigned to a cell in McCuen’s area could enter his cell unobserved if the door was not closed. McCuen and fellow inmate, Gene Thompson, testified that there were occasions when McCuen’s cell was entered by his-friend Thompson in McCuen’s absence when “the door was closed but not all the way.” Thompson also stated that another inmate friend “used to come down there [to McCuen’s cell], Mr. Shaney.” It was not suggested that Messrs.

Thompson or Shaney had any knowledge of the secobarbital capsules. The only question presented for our determination concerns, the sufficiency of the evidence to support the conviction. On these facts we cannot say that the trial judge was clearly erroneous in finding McCuen guilty, Maryland Rule 1086. In Hayette v. State, 199 Md. 140, 144 , 85 A. 2d 790 , 792 in ⁷⁵ discussing a similar subject the Court of Appeals said as follows : “In the second case appellant’s