Perkins v. State

Lowe, J., delivered the opinion of the Court. Oliver F. Perkins was convicted by a jury of the Caroline County Circuit Court for unlawful distribution of marijuana, conspiracy to violate the controlled dangerous substance laws and of maintaining a common nuisance. The indictment contained nine counts; five of distributing marijuana, one of conspiracy and three charging common nuisance. Appellant was arrested by warrant prior to the issuance of any indictment or information.

A preliminary hearing ⁵²⁸ thereafter resulted in a finding that there was insufficient evidence of probable cause to justify the detention of the accused on all but two counts, 1 viz. 4 and 5 charging distribution to Trp. Davis and conspiracy with Kermit Rogers. Despite the outcome of the preliminary hearing, the State three weeks later charged appellant by means of criminal information, Md. Rule 708 with the same series of crimes for which he was originally arrested. Appellant evidently preferred the result of the preliminary hearing and, when arraigned, pled only to Counts 4 and 5.

Two months later an indictment was handed down by the grand jury charging appellant with all nine counts, for each of which the petit jury found him guilty. The sentence imposed was three years on each of counts 2 and 3 to run consecutively and “fine of $500.00 on each count; sentence suspended generally under remaining counts.” It is thus obvious why appellant strenuously contends that: “I Having chosen to charge the accused by criminal information and preliminary hearing, . . . the State [was] prevented by collateral estoppel from thereafter obtaining a grand jury indictment.” The record does not reflect that appellant requested a preliminary hearing; however, he contends that having been granted one, the State is estopped from proceeding against him on any matters therein dismissed. Presumably, his reasons are grounded upon both double jeopardy which he raised by reference to Benton v. Maryland, 395 U. S. 784 and collateral estoppel by reliance upon Ashe v. Swenson, 397 U. S. 436 , and Waller v. Florida, 397 U. S. 387 . We find these last two authorities inapposite, however, since each deals with collateral estoppel to litigate an issue previously determined by a valid and final judgment between the same ⁵²⁹ parties.

A preliminary hearing is obviously not a final judgment in any sense. The double jeopardy argument, while equally unpersuasive, is not so readily dismissed, although both the Supreme Court and the Maryland Court of Appeals have decided that jeopardy does not attach to the findings of a district court at the preliminary hearing level. United States v. Serfass, 420 U. S. 377 , 43 LW 4315; Wampler v. Warden, 231 Md. 639 . Double jeopardy applies only after jeopardy has attached, Cf.

Blondes v. State, 273 Md. 435 , and that occurs when the defendant is “put to trial before the trier of the facts. . . United States v. Jorn, 400 U. S. 470 . In United States ex rel. Rutz v. Levy, 268 U. S. 390, 393 , the Supreme Court said: “Under state law it has uniformly been held that the discharge of an accused person upon a preliminary examination for want of probable cause constitutes no bar to a subsequent preliminary examination before another magistrate.

Such an examination is not a trial in any sense and does not operate to put the defendant in jeopardy.” In Wampler, 231 Md. at 648 the Court of Appeals wrote: “Maryland practice has always, so far as we are informed, been in accord with the [Rutz] rule above stated; indeed this appears to be the first time that the rule has ever been challenged in this Court. The absence of any prior decision of this Court on the point indicates the long and general acceptance of the rule, for there have been many instances in which indictment and prosecution have followed the discharge of an accused person following a preliminary hearing before a magistrate. We adhere to the general and well settled rule.” 1 Wharton, Criminal Law and Procedure, § 137 is in accord: “No jeopardy arises when the first proceeding is merely a preliminary investigation which is ⁵³⁰ dismissed in favor of the accused, who is then later indicted in spite of such earlier disposition of the matter.” When charging a prospective defendant with a felony, other than a felony within the jurisdiction of the District Court, the State may proceed by way of criminal information, subject to the defendant’s right to a preliminary hearing, Art. 27, § 592 (a). When an accused waives his preliminary hearing right by not requesting it within the prescribed 10 day period, Art. 27, § 592 (b) (1), or the preliminary hearing results in a finding of probable cause, the Prosecutor’s information consummates the charging process.

Md: Rule 708. In the case at bar, the appellant’s preliminary hearing resulted in the opposite finding: no probable cause and the dismissal of most charges. At that point the State was obviously without authority to charge a Circuit Court felony by way of information. Had the State left it at that, appellant might have had an argument.

Apparently, however, the State realized its error and proceeded to obtain an indictment. Since the information coupled with a probable cause hearing is simply an alternative to grand jury indictment which the prosecutor may or may not choose to utilize, a deficiency in the information has no bearing on the validity of a subsequent indictment. In attempting to expedite criminal trials while preserving an accused’s right to grand jury indictment — a process not acclaimed for expedition — the General Assembly by statute, Art. 27, § 592, and the Court of Appeals by Rules 708 and 709, enlarged the State’s prerogative of charging by information, but tempered that authority with the prerequisite of a finding of probable cause at a preliminary hearing, 1 * or a waiver of that hearing. Prior to the expansion of the State’s information authority, the primary purpose of the preliminary hearing was to protect the accused from a unilateral decision to ⁵³¹ arrest with the accompanying likelihood of incarceration while awaiting grand jury action, or as the Court of Appeals phrased it, of: “insuring him against being committed for action by the grand jury on charges which are groundless.” [Emphasis added], Williams v. State, 214 Md. 143, 154 . 2 The liberal provisions which now exist for release of an accused on his own recognizance prior to trial, Art. 27, § 638A while not preventing the arrest, frequently prevent the commitment.

Conspiracy Appellant questions the sufficiency of the evidence to prove that a conspiracy existed between appellant and one Kermit Rogers. The difficulty arises from the exclusion of testimony of conversations with, and statements by, appellant’s alleged co-conspirator. The exclusions left us with but inferential evidence of circumstances from which a jury could determine the existence of a conspiracy. Jones v. State, 8 Md. App. 370, 377-378 .

The State’s case included two segments of testimony from which an inference of conspiracy could arise. One undercover officer testified that he asked the alleged co-conspirator Rogers if he had any “pot.” An objection to the balance of the conversation was sustained; however, the witness was permitted to say that: “A conversation took place between the occupant of the vehicle that I was in [Rogers] and Mr. Perkins, concerning purchase of a quantity of marijuana.” ⁵³² There followed an evidentiary colloquy among court and counsel which we omit. The witness then continued: “A. After the conversation, Perkins went to the trunk of his — at the rear of his 1970 Pontiac and opened the trunk and removed a clear plastic bag, containing what appeared to be — appeared to me to be marijuana. And he got it from the trunk, he brought it over to the car and he handed it to me.

And I was examining the contents of the bag and after looking at the substance, and I was pretty sure in my mi-nd it was, in fact, marijuana, I gave the Defendant, Mr. Perkins, $20.00 bill in US currency. And this took place approximately 7:50 P.M. And a short time after this transaction took place, contact with the Defendant was terminated. Q. And how long were you and Mr. Perkins in each other’s sight or in contact with each other on this date? A. It was approximately five or ten minutes.

Q. Was there any particular reason you only paid him $20.00 on this occasion whereas you paid him forty the preceding week? A. Well, because I only purchased one ounce of marijuana this time and the previous time, it was two. Q. How far from your vantage point was the vehicle from which he obtained this substance? A. He parked right adjacent to the vehicle that I was in.

I was seated in the driver’s side and he parked right next to the — to the driver’s side. The Court: Did he recognize you? A. No sir, I don’t believe he did. At the time.

The Court: This having been a customer on a prior occasion. A. Well, he — he knew other people that were in the car. The Court: Knew other people in your car? ⁵³³ A. Yes sir. The Court: Well, who was in the car with you?

A. Kermit Rogers was in the car and another person by the name of Anthony. The Court: MMMm — He came over and spoke to them? A. Yes sir, he did. The Court: What did he say?

A. Kermit — The Court: No, what did Perkins say to them? A. Well, he was asked if he had any marijuana and the Defendant said, Yeh, how many do you want? And I told him just one. Meaning one ounce of marijuana.

The Court: What did he say to that? A. He then — he then — I can’t remember what he said then, but he went to his — then he went to the rear of the Pontiac and opened the trunk and obtained the ounce of marijuana and brought it back over to me and at that time, I gave him the $20.00.” The second instance involved the testimony of another undercover officer: “A. On November 20th, I returned to Denton, Caroline County and was at the area known as Truxton’s Bar, when I met with another subject, named Kermit — George Kermit Rogers. Mr. Rogers advised me that he did not have — Mr. Hairston: Objection to what Mr. Rogers advised him. The Court: You can’t testify to what Rogers said.

A. Yes sir. The Court: At this point, anyway. Q. After talking to Mr. Rogers what did you do? A. Drove to an address on High Street and Third here in Denton, Caroline County.

I parked my ⁵³⁴ vehicle next to a 1970 Pontiac that was the same vehicle that I had seen Mr. Perkins operate on November the 13th. At this time, Mr. Rogers got out of my vehicle, went into the residence — a residence where the Pontiac was parked. Mr. Rogers and Mr. Perkins walked out of the residence. Mr. Perkins went to the rear of the Pontiac, opened the trunk and the trunk light was on.

I observed Mr. Perkins reach into a brown bag, bring up two plastic envelopes — plastic baggies — hand the two plastic baggies to Mr. Rogers. Mr. Rogers handed Mr. Perkins some money which Mr. Perkins put into his pocket. Mr. Perkins then took out the largé brown bag that had contained the plastic bags and took it into the residence and that was the last time I saw Mr. Perkins on that date.” These two instances provide sufficient circumstances from which a jury could properly find that a conspiracy existed. After defining conspiracy as “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,” [Chief] Judge Orth in Jones v. State, 8 Md. App. at 377 , 378 provided the answer to appellant’s concern whether that evidence of conspiracy was sufficient: “Combination results from an agreement.

But conspiracy is the combination resulting from the agreement, rather than the mere agreement itself. However, there must be a meeting of the minds — a unity of design and purpose — to have an agreement, but it is not necessary that a formal agreement be shown. It need not be manifested by any formal words, written or spoken. ‘It is enough if the parties tacitly come to an understanding in regard to the unlawful purpose, and this may be inferred from sufficiently significant circumstances, although evidence which merely creates suspicion will not be adequate.’ Perkins, supra, at p. 530. In Seidman v. State, 230 Md. 305, 322 , the Court said: ⁵³⁵ ‘A conspiracy may be shown by circumstantial evidence from which an inference of a common design may be drawn and it is not necessary to demonstrate that the conspirators met and agreed in terms to a design and to pursue it by common means.’ In Lawrence v. State, 103 Md. 17, 22 , the Court said: ‘Concurrence of action on a material point is sufficient to enable a jury to presume concurrence of sentiment, and from this the actual fact of conspiracy may be inferred.’ See also Hill v. State, 231 Md. 458, 461 , in which those principles of law were applied in finding that certain overt acts of concurrence of action by three persons, of whom defendant was one, on material points showed guilty knowledge on the part of the defendant, and that they were all acting in concert; Boddie and Brooks v. State, 6 Md. App. 523 ; Harper v. State, supra; Price v. State, 4 Md. App. 701 .

In the instant case the lower court could have properly drawn from the evidence before it an inference of a common design. . . .” Appellant concludes his conspiracy issue by arguing that “[t]his would not be a conspiracy since you cannot have a sale unless you have both a seller and a purchaser.” Wharton’s rule or the concert of action rule provides that: “ & combination to commit an offense which can only be committed by the concerted action of two persons does not amount to conspiracy if only those two are involved.” R. Perkins, Criminal Law (2d ed.) at 620. 2A Whether appellant’s argument would be correct when considered in the abstract, it has nothing to do with his case. The alleged conspirators here were not the buyer and seller, but two sellers, appellant and Kermit Rogers. ⁵³⁶ Entrapment We find it difficult to follow appellant’s argument that he was a “victim of entrapment.” Presumably he is contending that because the officers simulated smoking marijuana in his presence and an officer “lulled” and “beguiled” him into believing that the officer, like himself, acquired the smoking habit in Viet Nam, he was “entrapped.” Appellant concedes that “the question of entrapment is a jury question.” Apparently he recognizes that he had the initial burden of showing that the police did “induce the Defendant to commit the offense charged in the indictment . . .,” Simmons v. State, 8 Md. App. 355, 362 , since he asserts that the State failed to meet its responsive burden, viz., to show that he had “a predisposition to commit the offense . . . due to his own readiness. . . .” Simmons, supra. Appellant then cites Simmons, supra, and Byrd v. State, 16 Md. App. 391 as authority for his conclusion that this is a case wherein the “criminal design originates with the officials of the government, and they implant in the minds of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sherman v. United States, 356 U. S. 369, 372 . He would not merely persuade us as a matter of fact, but would also have us reach that conclusion as a matter of law, as was done in Sherman .

However, in Sherman , the entrapment defense was considered on the basis of undisputed testimony and thus was established as a matter of law. We noted in Simmons, supra, on that very subject that: “In our jurisdiction, where the jury are the-judge of the law as well as the facts, we think that both questions pertaining to the issue of entrapment must be for the jury.” Simmons, 8 Md. App. at 365, n. 7 . The two