McMorris v. State

⁶⁶² Menchine, J., delivered the opinion of the Court. Lee Andrew McMorris was indicted on July 22, 1974 on three counts charging: (1) conspiracy on 23 January 1973 with Herman Green and Walter Smith to distribute heroin; (2) conspiracy on 23 January 1973 with Herman Green and Walter Smith to violate the controlled dangerous substance laws; and (3) distribution of heroin. Brought to trial under Count 2 and Count 3 in the Circuit Court for Baltimore County, McMorris was convicted by a jury as to both. He was given a general sentence of eight years imprisonment, consecutive with a sentence then being served for an unrelated offense.

On appeal he contends: 1. That the court’s charge was erroneous; 2. That his trial counsel was incompetent; 3. That the court and jury were prejudiced against him; 4.

That his sentence was cruel and unusual, and 5. That the trial court erred in rejecting his motion for judgment of acquittal, in that: (a) the evidence was not legally sufficient to convict for either offense, and (b) the prosecution for conspiracy was barred by the statute of limitations. The first four contentions, wholly without merit, may be disposed of summarily. No exception to the court’s charge was taken.

The suggested error is not before us. Maryland Rule 1085. The suggested incompetency of trial counsel was not raised below. It thus is not an issue on direct appeal.

White v. State, 17 Md. App. 58 , 299 A. 2d 873 . The suggested prejudice of court and jury is without factual support of record. The sentence imposed was well below the maximum authorized by law. There is nothing in the record to show that it was dictated by passion, prejudice, ill will or other unworthy motive.

Minor v. State, 6 Md. App. 82, 91 , 250 A. 2d 113, 118 . ⁶⁶³ Sufficiency of the Evidence There was evidence tending to show the following: On January 23, 1973, Officer Kenneth Redding, in an undercover assignment, was in a parked automobile with two other persons. The appellant approached the vehicle and asked “if they were looking,” street terminology meaning, “are you looking for drugs.” Receiving an affirmative answer, appellant then said: “I have a contact and we’ll see what we can do for you. ” (Emphasis supplied). Appellant thereupon called Herman Green to the car. Appellant there told Green that Officer Redding was “looking” for “smack” (Heroin).

Appellant previously had informed Redding that the cost could be $12.00 per bag. Green thereupon gave instructions that the vehicle be driven to another location and the appellant entered the Redding vehicle for that movement. Green then talked to Walter Smith. Later, Green approached the Redding vehicle at its new location, collected $72.00 from Redding, and then walked over to and conversed with Smith.

Smith thereupon approached the Redding vehicle and handed six glassine bags containing white powder to Redding. The white powder was shown to be heroin. The Redding vehicle then returned to its initial parking site, where the appellant alighted from the vehicle. We defined the offense of conspiracy in Wilson, Valentine and Nutter v. State, 8 Md. App. 653, 671 , 262 A. 2d 91, 101 , as follows: “* * * Conspiracy is a combination by two or more persons to accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means.” We pointed out in Silbert v. State, 12 Md. App. 516, 528 , 280 A. 2d 55 , 63: “* * * it is not necessary that there be any formal agreement manifested by formal words, written or spoken; it is enough if the parties tacitly come to an understanding in regard to the unlawful purpose ⁶⁶⁴ and this may be inferred from sufficiently significant circumstances.” The evidence, summarized above, was legally sufficient to prove the conspiracy of the accused with Green and Smith beyond a reasonable doubt.

The evidence showed as well that heroin was in fact distributed. Although appellant was not shown to have been in actual possession of the drug, he was an aider and abettor in its distribution and thus responsible as a principal in the second degree. Handy v. State, 23 Md. App. 239 , 326 A. 2d 189 . A criminal conspiracy is distinct from the substantive crime and when the latter actually is carried out, separate offenses are shown.

Jones v. State, 8 Md. App. 370 , 259 A. 2d 807 . Limitations Undisputed in the record are the facts: (a) that the conspiracy began and ended on January 23, 1973, and (b) that appellant was indicted for conspiracy on July 22, 197L Appellant contends that the statute of limitations was a bar to his conviction and that his motion for a judgment of acquittal should have been granted upon that ground. It was early held that the crime of conspiracy was a misdemeanor subject to the statute of limitations. Archer v. State, 145 Md. 128 , 125 A. 744 .

Its status as such a misdemeanor was held not to be affected by passage of Article 27, § 38, whereby the permissible sentence for conspiracy had been made coequal with punishment for the offense one conspired to commit. State v. Michael, 2 Md. App. 750 , 237 A. 2d 782 . The statute of limitations in effect on the date of the conspiracy (January 23, 1973) was Article 57, § 11 of the Annotated Code of Maryland (1972 Replacement Volume) and reads, in appropriate part, as follows: “No prosecution or suit shall be commenced for any fine, penalty or forfeiture, or any misdemeanor, except those punished by ⁶⁶⁵ confinement in the penitentiary, unless within one year from the time of the offense committed; * * *” The statute in effect on the date of the indictment (July 22, 1974) appears in Courts & Judicial Proceedings Article § 5-106 and reads, in appropriate part, as follows: “§ 5-106. Prosecution for misdemeanor.

(a) One Year. — Except as provided by this section, a prosecution for a misdemeanor not made punishable by confinement in the penitentiary by statute shall be instituted within one year after the offense was committed.” 1 We perceive no legislative intent to change the effect and meaning of the statute of limitations in the recodification. Thus the decisions in Archer and State v. Michael, both supra, continue viable, so that prosecution for conspiracy will be barred unless commenced or instituted within one year from the date of the end of the conspiracy. Mills v. State, 12 Md. App. 449, 461 , 279 A.2d 473, 481-82 , certiorari denied 92 S. Ct. 2411 , 406 U. S. 967 , 32 L.Ed.2d 666 . Appellant contends that because the conspiracy began and ended on January 23, 1973 and McMorris was not indicted until July 22, 1974, eighteen months later, his prosecution was barred by the statute.

We hold that under the facts of this case, the contention is without merit. The record shows that an arrest warrant was issued out of the District Court of Maryland for Baltimore County by a judicial officer on August 21, 1973 — within a year of the offense. 2 The record also shows that immediate efforts to ⁶⁶⁶ serve the warrant and effect the arrest of McMorris were ineffectual. The warrant then was delivered to the fugitive squad of Baltimore County Police Department but was not actually served by Detective Sergeant Gomeringer until ⁶⁶⁷ June 14, 1974. As previously noted, McMorris was indicted on July 22,1974.

In Wharton, Criminal Law and Procedure (Anderson, 1957) § 184, it is said at 425-26: “Statutes of limitation are suspended when proceedings are begun or brought against the defendant, but the statutes differ as to what action is to be taken against the defendant. The statutes may be classified in three groups: (1) statutes which provide that an indictment must be found and returned within a specified time after the commission of the offense charged; (2) statutes which do not refer to the time of the finding of an indictment or the filing of information, but merely provide that prosecutions must be commenced within a specified time; and (3) statutes which provide that if an indictment is quashed, set aside, dismissed, or otherwise fails, and a new indictment is found or a new information is filed, the time elapsing between the return or filing of the two indictments or informations, respectively, shall not be counted as part of the period of limitations; or that a new indictment may be found and returned or a new