Moseley v. State

Maurice Malik Moseley v. State, No. 0137 of the 2019 Term, Opinion by Moylan, J. HEADNOTE: UNLAWFUL POSSESSION OF AMMUNITION – THE CONTENTIONS – AN EVIDENTIARY ADDENDUM – ODDITY OF ODDITIES – CONSTRUCTIVE POSSESSION – THE JIGSAW PUZZLE OF 5 PEBBLE DRIVE – DRAMATIS PERSONAE – CONTRABAND: WHAT AND WHERE – CIRCUMSTANTIAL PROOF OF POSSESSION – PROXIMITY: WHERE AND WHEN – VIEW OR KNOWLEDGE – THE TIME FACTOR – THERE WAS NO CLEAR VIEW – THE MALE OCCUPANT OF THE BACK BEDROOM – MARYLAND CASELAW – OWNERSHIP OR OTHER POSSESSORY CONTROL OF THE PREMISES – MUTUAL USE AND ENJOYMENT OF AMMUNITION – OUT OF NOTHING, NOTHING – POSTSCRIPT Circuit Court for Anne Arundel County Case No. D-07-CR-18-006774 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0137 September Term, 2019 _____________________________________ MALIK MAURICE MOSELEY V. STATE OF MARYLAND Kehoe, Arthur, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), _____________________________________ Opinion by Moylan, J. _____________________________________ Filed: April 8, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-07-20 15:12-04:00 Suzanne C. Johnson, Clerk The most unexciting of cases may occasionally possess a hidden analytic gravitas that it would be imprudent to ignore. The seeming insignificance may arise from the fact that the case does not go to the hard core of criminality but lies only on the fringe of criminality (or, more precisely, on the fringe of proof of criminality). In dealing, as we are herein, with a possessory crime, mere constructive possession lacks much of the drama of actual possession.

We lack eyewitness testimony, and are fed only the thin gruel of permissive inferences arising out of surrounding circumstances. A real bird in the hand is always more exciting than two constructive birds in the bush. This slippage of serious attention is aggravated exponentially, moreover, when the object of possession is not of the primary contraband that drives the investigation and the prosecution but is only secondary or coincidental contraband left over as so much trial detritus. When, as in the case now before us, all issues with respect to the unlawful possession of contraband narcotics had been resolved and the lustre of the trial had faded, we were left only with the unlawful possession of ammunition.

What hidden significance, if any, might lurk therein? The appellant, Malik Maurice Moseley, was convicted in the Circuit Court for Anne Arundel County by a jury, presided over by Judge Glenn L. Klavans, of the unlawful possession of ammunition. He was sentenced by Judge Klavans to the maximum term of one year’s imprisonment. The Contentions On appeal, he raises three contentions: 1.

The evidence was not legally sufficient to support the conviction for the possession of ammunition; 2. The State, in closing argument to the jury, misstated the law with respect to constructive possession; and 3. Judge Klavans erroneously failed to give a supplemental instruction following two questions by the jury. The appellant failed, by way of timely objection, to preserve for appellate review either the second or the third contention.

Maryland Rule 8-131(a) provides that “the appellate court will not decide any other issue (other than the jurisdiction of the trial court) unless it plainly appears by the record to have been raised in or decided by the trial court.” We are not inclined, moreover, to overlook non-preservation by way of noticing plain error. We will deal, therefore, only with the first contention. An Evidentiary Addendum Our exclusive focus will be on the legal sufficiency of the evidence to support the conviction for the unlawful possession of ammunition by a prohibited person 1. Our focus is at best slightly skewed, however, by two factors.

The first is that ammunition, as a forbidden contraband, was not the primary focus of the trial. It was, at most, something only in the peripheral vision of the trial. The case was, from start to finish, about drugs and drug paraphernalia and drug addicts. It was triggered by two fatal drug overdoses that brought emergency medical personnel and the police to a trailer home twice in little more than 24 hours.

Its centerpiece 1 “Prohibited person” is an awkward usage. The appellant nonetheless was, by stipulation, a “prohibited person.” 2 was a search and seizure warrant for narcotic drugs. The presence of some ammunition in the middle of a cornucopia of drugs and drug paraphernalia was simply an unexpected evidentiary addendum. The addendum, however, is all we have.

Oddity of Oddities As this investigation unfolded, moreover, the appellant himself never appeared to have been the central character of the story. As fans of Alfred Hitchcock over the years can verily attest, the moviegoer has very little to go on in assessing the significance of one who appears only fleetingly in a no more than cameo role. What we actually know about the appellant, Malik Maurice Moseley, in this case casts him as little more than an extra. The conviction itself was for a misdemeanor of relatively modest gravity.

In this film noir in a trailer park, the lead villain was the crime of possession of cocaine with intent to distribute. Solid supporting roles were filled by the possession of amphetamine and the possession of narcotic paraphernalia. In this narrative at least, the possession of ammunition was no more than a cameo appearance. The police had contact with 5 Pebble Drive on essentially three occasions, the latter two overlapping.

On June 12, 2018, officers responded to a call for emergency medical assistance for a possibly fatal drug overdose. It was a fatal overdose. When Detective Joseph Goldberg arrived on the scene, he spoke to several other police officers and to a couple of civilians who were standing in the driveway in front of 5 Pebble Drive. One of them was the appellant.

The appellant told Detective Goldberg that he lived at 5 Pebble Drive. No further information was developed at that time with respect to the appellant. He was simply someone standing on the edge of the scene. 3 The second contact occurred on the following day, June 13, 2018 at about 5:30 p.m., when the police received yet another call for emergency medical assistance, an apparent drug overdose that turned out to be another fatal overdose. For the obvious reason that he was then in police custody for an unrelated reason (a traffic stop), the appellant was not even present at 5 Pebble Drive on that second occasion.

Based upon inculpatory evidence observed during that second visit, however, the police requested a search warrant for 5 Pebble Drive. At approximately midnight, a search warrant was issued and a search of the premises followed immediately during the early morning hours of June 14, 2018. During that search, which we will designate as the third contact, the appellant was once again completely absent. The only observation of the appellant at 5 Pebble Drive had been on the first police visit of June 12 and that was outside on the driveway along with others.

He was never seen inside of 5 Pebble Drive. He was never seen going into or coming out of 5 Pebble Drive. Ordinarily, the quintessence of a cameo appearance is that it is innocuous. The incongruity now before us is that it was the cameo appearance that ultimately won the Oscar.

Constructive Possession A second slightly complicating factor is that this case is built entirely on circumstantial evidence. At the end of the trial, five counts against the appellant went to the jury. Each charged the unlawful possession of a form of contraband. The charges going to the jury were: Count 3: Possession of Cocaine with Intent to Distribute Count 4: Possession of Cocaine 4 Count 8: Possession of Amphetamine Count 9: Possession of Ammunition Count 10: Possession of Drug Paraphernalia With respect to each of those counts charging unlawful possession, the State’s only evidence went to the establishment of constructive possession.

There was in the entire trial not a scintilla of evidence pointing to the direct or physical possession of any of the items of contraband. At no time was the appellant ever observed with any of the charged items of contraband in his hand or under his control or even in his immediate physical presence. When the police first observed the contraband, the appellant was in police custody at the station house.2 The only form of possession involved in this case was constructive possession. That, by definition, brings us into the kaleidoscopic world of circumstantial evidence.

Circumstantial evidence, of course, once admitted, is just as valid as direct eyewitness evidence. It does, however, implicate an additional mental step— the drawing of the permitted inference from the proved predicate facts. In Anaweck v. State, 63 Md.App. 239, 242 , 492 A.2d 658 (1985), this Court spoke of the two-step process. The appellants were not caught with the contraband in their hands.

That, of course, is not legally fatal to proof of possession, but it does at least make the burden of persuasion a heavier one. “Possession and control need not be immediate and direct but may be constructive.” (Emphasis supplied.) 2 To be in police custody away from the crime scene is truly to enjoy an “ironclad alibi.” 5 What is involved, of course, is not the proof of a single direct fact but the proof of a series of predicate facts and then an induction from these predicate facts. A single eyewitness, lucky enough to catch a culprit red-handed, can in a few sentences easily prove sole and actual possession of contraband. The proof of joint or constructive possession, on the other hand, is frequently more circuitous and frequently involves a set of predicate circumstances from with the inference of joint or constructive possession may permissibly arise. 63 Md.App. at 243 . (Emphasis supplied.) When a fortuitous snapshot of the very happening of the corpus delicti, to wit, an eyewitness, is not available, then to survey the surrounding predicate facts and to observe the scene over a longer time span permits us to paint on a circumstantial canvas.

What then is the palette with which we work? What then are the ways in which to paint a picture of constructive possession? Like Elizabeth Barrett Browning, let us count the ways. There is, of course, the place.

There are possible sub-divisions of that place. There may, moreover, be people in or about that place. There are goods and chattels in that place. From the concatenation of all of those predicate facts, there may emerge the discernible mosaic of the crime that probably transpired in that place.

Inference can be an amazingly powerful technique. The Jigsaw Puzzle Of 5 Pebble Drive Prominent among those predicate facts is the geography of the place where the alleged possession occurred. The place in question is 5 Pebble Drive. At the very least, there is a kitchen in 5 Pebble Drive.

There is also, to be sure, a back bedroom with a closet. There is as well a front bedroom, also with a closet. Both the appellant’s brief and the State’s brief describe 5 Pebble Drive as having “multiple bedrooms, a kitchen, and other 6 areas.” In ordinary usage, the adjective “multiple” suggests three or more. At one point in the cross-examination of Detective Daniel Rodriguez, the detective replied to the counsel for the appellant: [DEFENSE COUNSEL]: Now there are two bedrooms in this house, isn’t that correct? [RODRIGUEZ]: I would say three bedrooms, ma’am.

(Emphasis supplied.) As the photographs of the crime scene further reveal, both the front bedroom and the rear bedroom have closets that appear to be tightly packed (indeed, overflowing) with clothing, both male and female. The photographic survey did not reveal the presence or the possible contents of a possible closet in the third bedroom. Neither, to be sure, did it reveal the absence of such a closet. Circumstantial evidence can be ambiguous.

And ambiguity, of course, helps the party who was spared the burden of proof. Dramatis Personae Who owns 5 Pebble Drive? Who possesses 5 Pebble Drive? Who simply “lives” there and how regularly does such living occur?

Where precisely do they live within the larger place? Who else may live there? Who else visits regularly? All of these are pieces of the jigsaw puzzle we would like, if possible, to fit together.

A reliable census, however, was not available. In the surrounding circumstances, there was a lot of guesswork and a lot of uncertainty. If the stolen Maltese Falcon or a smoldering marijuana joint had been sitting in the middle of the dining room table, who, if anyone, could be deemed to have been in 7 unlawful contact with one or both? Involved is the art of inducing constructive possession.

Unlike eyewitness observation of direct physical possession, it is an art. The appellant, Malik Maurice Moseley, was clearly one person associated with 5 Pebble Drive. When Detective Joseph Goldberg arrived on the scene at approximately 5:30 p.m. on June 12, 2018, he saw the appellant and one or two other persons standing on the driveway outside of 5 Pebble Drive. In a very brief conversation, the appellant informed Detective Goldberg that he lived at 5 Pebble Drive.

That is essentially the sum total of the police contact with the appellant on June 12. On the afternoon of the next day, June 13, 2018, the appellant was in police custody after being arrested for a traffic infraction. At the station house, Detective Daniel Rodriguez spoke to him briefly. In that conversation, the appellant again acknowledged that he lived at 5 Pebble Drive.

There was one other item of evidence connecting the appellant to 5 Pebble Drive. When the search and seizure warrant was executed during the early morning hours of June 14, 2018, there was found in the back bedroom, a document addressed to “Malik Moseley, 4147 Audrea Avenue, Baltimore, Maryland.” The police believed that the correct and intended address was actually “Audry Avenue,” a street address in the nearby Brooklyn area of upper Anne Arundel County. Somewhat ambiguously, the document both connects the appellant with 5 Pebble Drive but also suggests that his legal address may have been elsewhere, albeit in the general area, and that his “living” connection with 5 Pebble Drive may have been in some sense informal or sporadic. Although the location of the document connects the appellant with 5 Pebble Drive, its address derogates from the likelihood that 8 the appellant had any significant proprietary or possessory interest in 5 Pebble Drive.

The document cut both ways. A second person unquestionably associated with 5 Pebble Drive was Tanya Swecker. Although his testimony was subsequently stricken as hearsay, Detective Rodriguez said that he had learned that the legal owner of 5 Pebble Drive was Debra Anderson, the mother of Tanya Swecker. In any event, it was Tanya Swecker who was in possessory control of 5 Pebble Drive and it does not matter whether she or her mother was the legal owner in fee simple.

The search of the premises, moreover, revealed a debit card belonging to Tanya Swecker on a corner dresser in the back bedroom.3 Two other names associated with 5 Pebble Drive were Michael Thomas and Yanek Ford. When the appellant was briefly questioned by Detective Goldberg on June 12, 2018, Michael Thomas was present with him in the driveway just outside 5 Pebble Drive. A log maintained by the police placed both Michael Thomas and Yanek Ford inside 5 Pebble Drive as of 5:40 p.m. on June 13, 2018. Their precise status was exasperatingly murky and that, of course, adds to the problem of constructing constructive possession.

During the 36-hour period between the late afternoon of June 12 and the early morning of June 14, moreover, the police logs indicate that a large number of persons-- as many as 25 according to one bit of testimony-- were in and out of 5 Pebble Drive. Although it was assumed that most of these were either emergency medical personnel or police 3 Tanya Swecker was initially indicted as a co-defendant of the appellant, but did not stand trial with him because she entered a guilty plea. Prior to the appellant’s sentencing, Tanya Swecker died. 9 officers, it nonetheless appears that there could have been several civilians as well. Clarification on that issue was available but sadly neglected.

Inferring constructive possession of an item of contraband from a suspect’s proximity to the contraband is a very different exercise if one or two suspects are in the room than it is if 10 or 15 suspects are in the room. Because the burden of proving the predicate facts that may give rise to a permitted inference of constructive possession is allocated to the State, it behooves the State to do all that it can to reduce the ambiguities and uncertainties that may inhibit the predicate facts. It is not for the defense to prove that other extraneous possible culprits were in the trailer; it is for the State to prove that other extraneous possible culprits were not in the trailer. Factual ambiguity only helps the defense.

It can be fatal to the State. The critical inference to be drawn must be not merely a possibility but a reasonable likelihood. The heavier the traffic, the more varied are the circumstances, and the lesser, therefore, the likelihood. Speaking of other possible visitors who might explain the presence of contraband in the trailer, let us not forget the two departed overdosers for whom the bell tolled.

During the critical hours immediately preceding the police discovery of the various items of contraband, they were both in the trailer and were self-evidently involved with narcotics contraband. One was expressly taken from a bed in one of the bedrooms. They cannot be eliminated from the equation and they obviously may influence the result. Contraband: What And Where?

And what of the chattels? The numerous police photographs of the interior of 5 Pebble Drive reveal that interior of the trailer to have been a pigsty of tatterdemalion clutter. 10 The closets were overflowing. The top of every table or stand was jam-packed with items, most of them innocuous, in chaotic disarray. A small amount of cocaine was found in a separate bedroom, but most of the contraband that led to the charges against the appellant were found in either the kitchen or the back bedroom.

One largely full box of ammunition, containing 52 cartridges, was found in the rear of a high shelf in a storage area of the kitchen. Realistically, it can be dismissed from any further consideration of constructive possession in this case. No gun was ever recovered from anywhere in 5 Pebble Drive. Also recovered from the top of a refrigerator was a digital scale.

The remaining contraband that led to the charges against the appellant was found in the back bedroom. From a drawer in a nightstand, the police recovered an unmarked bottle of four pills, which on analysis turned out to be amphetamines. The most significant amount of cocaine found in the search was in a Zip-loc bag found sitting on a coffee filter somewhere in the back bedroom. Of the five charges of unlawful possession of contraband that were submitted to the jury against the appellant, the previously described contraband accounts for four of those five charges.

The jury found the appellant not guilty on all four of those charges. The only count on which the appellant was convicted was Count Nine, charging the unlawful possession of ammunition. The ammunition found in the search of 5 Pebble Drive was found in two places. The conviction could not possibly have been based on the box of cartridges found in a relatively remote storage closet in the kitchen.

It had to have been based on eight cartridges found on top of a dresser in a corner of the back bedroom across 11 the room from the bed and the nightstand. The top of that dresser, incidentally, was cluttered with numerous other incidental items. It is of that conviction that we are called upon to assess the legal sufficiency of the evidence to support it. In any event, this is where the various items of contraband were found in 5 Pebble Drive.

The five charges of unlawful possession that went to the jury against the appellant included four separate acts of possession.4 The appellant was charged with possessing four forms of contraband: 1) cocaine, 2) amphetamine, 3) drug paraphernalia, and 4) ammunition. With respect to all of these possessory charges, there was no scintilla of evidence suggesting direct physical possession. Each of the charges involved simply proof of constructive possession. The bulk of the cocaine seems to have been found in two places: 1) loose on a coffee filter on a waist-high shelf in the front bedroom and 2) in a closed Zip- loc bag on a refrigerator or freezer in the kitchen.

The amphetamine, the drug paraphernalia, and the ammunition were all found in the rear bedroom. With regard to each of the forms of contraband, moreover, the evidentiary guidelines for proving constructive possession are precisely the same. The final tally of four verdicts of not guilty of unlawful possession and one verdict of guilty of unlawful possession was incongruously strange. Circumstantial Proof of Possession Maryland Code, Criminal Law Article, Sect 5-101(v) defines “Possess” in the following terms: “‘Possess’ means to exercise actual or constructive dominion or control over a thing by one or more persons.” Its earlier version, as Art. 27, Sect. 277(s) was 4 Count 3 charging the possession of cocaine with the intent to distribute and Count 4 charging the simple possession of cocaine involved, of course, the same act of possession. 12 verbatim.

As early as 1964, Judge Hammond had observed for the Court of Appeals in Henson v. State, 236 Md. 518, 524-25 , 204 A.2d 516 (1964): That the narcotics were not on his person but only in the house of which he was a resident did not prevent the inference the police and the trial court drew—that he had possession and control of narcotics—from properly being drawn. Possession and control need not be immediate and direct but may be constructive. (Emphasis supplied.) In Garrison v. State, 272 Md. 123 , 321 A.2d 767 (1974), the Court of Appeals reversed the conviction of Shirley Garrison for the unlawful possession of heroin, notwithstanding the fact that she was the co-lessee of the house with her husband in which the heroin was found and notwithstanding the further fact that the heroin was found in the bedroom in which she slept. Judge O’Donnell wrote for the Court: [B]efore the State may obtain a conviction it must adduce evidence to meet the test of legal sufficiency; that evidence must show directly or support a rational inference that the accused did in fact exercise some dominion or control over the prohibited narcotic drug in the sense contemplated by the statute, i.e., that she exercised some restraining or directive influence over it. 272 Md. at 142 .

(Emphasis supplied.) It was not enough just to know that it was there. See also State v. Leach, 296 Md. 591, 596 , 463 A.2d 872 (1983). One must be in dominion or control. The absence of knowledge of the presence of contraband would clearly foreclose the existence of constructive possession.

As Judge Eldridge pointed out for the Court of Appeals in Dawkins v. State, 313 Md. 638, 649 , 547 A.2d 1041 (1988): [A]n individual would not be deemed to exercise “dominion or control” over an object about which he is unaware. Knowledge of the presence of an object is normally a prerequisite to exercising dominion and control. 13 (Emphasis supplied.) Such knowledge, however, may be inferred from the predicate facts. Judge Cathell wrote for the Court of Appeals in State v. Suddith, 379 Md. 425, 432 , 842 A.2d 716 (2004): An individual’s knowledge of the contraband is a key element in finding that individual guilty of possessing it and that knowledge may be proven by inferences from the totality of the evidence, circumstantial or direct, presented to the trier of fact. (Emphasis supplied.) See also Archie v. State, 161 Md.App. 226, 245 , 867 A.2d 1120 (2005)(“Knowledge of the presence and illicit nature of narcotics may be proven by inference from the circumstances as a whole.”).

To constitute constructive possession, the possession need by no means be exclusive. Joint possession can be just as inculpatory. Judge Orth wrote for this Court on the subject of joint possession in Jason v. State, 9 Md.App. 102, 111 , 262 A.2d 774 (1970), cert. denied, 258 Md. 728 (1970): We find that the evidence was sufficient to sustain the convictions as to each appellant of possession of heroin, control of heroin and possession of narcotic paraphernalia as charged. We note that it is not required that there be sole possession and sole control; there may be joint possession and joint control in several persons.

And the duration of the possession and the quantity possessed are not material, nor is it necessary to prove ownership in the sense of title. (Emphasis supplied). In Folk v. State, 11 Md.App. 508 , 275 A.2d 184 (1971), this Court picked up on Jason v. State and compiled what is now widely accepted as the controlling set of guidelines for determining joint and/or constructive possession. The common thread running through all of these cases affirming joint possession is 1) proximity between the defendant and the contraband, 2) the 14 fact that the contraband was within the view or otherwise within the knowledge of the defendant, 3) ownership or some possessory right in the premises or the automobile in which the contraband is found, or 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the contraband. 11 Md.App. at 518 .

(Emphasis supplied). See State v. Gutierrez, 446 Md. 221, 234 , 130 A.3d 985 (2016); Smith v. State, 415 Md. 174, 198 , 999 A.2d 986 (2010); Hall v. State, 119 Md. App. 377, 394 , 705 A.2d 50 (1998). Folk v. State is the primary template we will use to assess the legal sufficiency of the evidence to support the appellant’s conviction for the constructive possession of ammunition. Proximity: Where And When?

The caselaw speaks of the “proximity between the defendant and the contraband.” Ordinarily, that inquiry would raise the question of “Where?” The inquiry in this case, apparently as one of first impression, raises the additional question of “When?” The police search of 5 Pebble Drive, pursuant to a search and seizure warrant, took place on the early morning of June 14, 2018, at approximately 2 a.m. It was then that the police discovered various items of contraband and took numerous photographs of that contraband at specific locations in specific rooms. Those specific locations, as of 2:00 a.m. on June 14, ordinarily would become the points of departure from which to measure proximity. Proximity?

Proximity to what? Proximity to whom? Ordinarily the defendant, on whose proximity we are focusing, would be the driver or one of the passengers in the car in which the contraband is found— or would be standing or sitting in the room (or adjacent room) in which the contraband is found. He would be there, or nearby, and a tape 15 measure would be available.

This appellant, by unique contrast, was somewhere downtown in a police stationhouse. His presence on the driveway outside 5 Pebble Drive had been established as of approximately 36 hours earlier, on the late afternoon of June 12. There was no direct evidence that he had even been at 5 Pebble Drive since then. The State, however, with the audacity and dexterity of H.G. Wells’s time traveler5, presumes to conflate the early morning of June 14 with the last night when appellant presumably slept at 5 Pebble Drive, some 24 or 48 hours before.

The State would have us measure the proximity between where the appellant probably was THEN and where the contraband (as of June 14) is NOW, assuming, of course, that the contraband has not been moved or altered in any way and is NOW exactly where it was and in the same condition that it was THEN. In terms of such a completely undisturbed scene, however, let it be remembered that the police log itself listed approximately 25 persons, emergency medical personnel and police officers plus a civilian or two, traipsing in and out of that small trailer in the intervening 36 hectic hours. “DON’T ANYBODY TOUCH ANY CONTRABAND!” It may be that the very notion of proximity does not permit the assessment the State would have us make in this case, to wit, the assessment of the proximity between two places at two different times. As a space-time phenomenon, the very passage of time would ordinarily erode proximity as surely as does distance. In such a case, we would be asked to measure the