Price v. State

EYLER, JAMES R., J. Lawrence Price, Jr., appellant, was convicted by a jury in the Circuit Court for Baltimore City of possession of heroin, possession of cocaine, possession of marijuana, and possession of a firearm under sufficient circumstances to constitute a nexus to a drug trafficking crime. The jury acquitted appellant of fourteen other related counts. 1 Subsequently, the court sentenced appellant to eight years imprisonment on the possession of heroin conviction, with a consecutive eight years imprisonment on the possession of cocaine conviction, two years imprisonment concurrent on the possession of marijuana conviction, and another twelve years imprisonment consecutive on the possession of a firearm conviction. Appellant raises four questions for our consideration on appeal: (1) Whether the evidence was sufficient to sustain appellant’s convictions; (2) Whether the court erred by refusing to ask an impaneled juror, who was later dismissed, whether he had discussed the reason for his dismissal with any of the other jurors; (3) Whether the court erred by doubling appellant’s sentences for all three drug possession convictions pursuant to ³⁶⁷ Maryland Code (2002 Repl.Vol.), § 5-905 of the Criminal Law (“C.L.”) Article; (4) Whether the court erred by allowing the jury to convict appellant of possession of a handgun in connection with drug trafficking, and acquit him of all other drug trafficking charges. As to questions 1, 2, and 4, we affirm.

As to question 3, we shall vacate the sentences and remand to circuit court for resentencing consistent with this opinion. Factual Background Appellant was tried jointly with Damien Tucker (“Tucker”). The following is a summary of the evidence adduced at trial pertinent to this appeal. Officer Richard Pollock of the Baltimore City Police Department, who was qualified as an expert in the identification, packaging, and sales of controlled dangerous substances, testified that on November 20, 2002, he and Sergeant William Harris were conducting surveillance in the 2300 block of Winchester Street in the Winchester Apartment community, an area where drugs are “commonly sold.” Officer Pollock and Sergeant Harris were in an unmarked vehicle using binoculars to observe several individuals who were standing in the breezeway of an apartment building.

Appellant and Tucker were later identified as two of the individuals standing in the breezeway. During surveillance, Officer Pollock observed at least fifteen people “drive into the area and park ... walk up to the group [standing in the breezeway], and Mr. Tucker was seen receiving U.S. currency in bill form, and then a small object unknown at that time was handed to that person, which they would take and reenter their vehicles if they drove up and then leave the area.” At some point, Officer Pollock and Sergeant Harris exited their vehicle and radioed for backup. When backup arrived in the area, Officer Pollock and Sergeant Harris began to approach the group. As they approached, Officer Pollock observed three or four people on the ³⁶⁸ landing between floors of the building.

When those individuals saw the officers approaching, “everyone started running.” Officer Pollock observed two of the individuals, appellant and Tucker, run “up the stairs,” and observed Tucker “dropping an item which [Officer Pollock] recovered [and] which was [he] believe[d] a blue ziplock, small ziplock bag containing a brown substance of suspected heroin.” Officer Pollock followed appellant and Tucker to the third floor, but before he could reach them, they had entered an apartment and shut and locked the door. Officer Pollock could see underneath the door and observed “people running all throughout the apartment.” While Officer Pollock waited outside of the apartment, one of the backup officers who had arrived at the scene, Sergeant Dorsey McVicker, retrieved a key to the apartment from the rental office. When the officers opened the apartment door, Officer Pollock observed “three gentlemen inside the apartment. They ran towards the back bedroom.... [and][o]ne of those persons jumped out of the third floor window and ran off down the apartment parking lot.” Detective David Schuster, the second backup officer who had arrived at the scene, apprehended Tucker, and Officer Pollock apprehended appellant, “who threw a brown bag to the ground, and that contained a handgun and U.S. currency.” On cross-examination, Officer Pollock testified that, [i]n [the Winchester Apartment] area, there’s a constant flow sometimes where there may be four or five people and then other people come up and they’re communicating and talking with others even while sales are going on, but that doesn’t necessarily mean that they’re involved in the actual sales.

They’re just there in the area as it goes on, as was the case that I thought with [appellant]. He also acknowledged that in his surveillance, he did not see appellant receive currency, distribute anything that looked like narcotics, or do anything that resembled drug dealing. He stated again, however, that when he entered the apartment and started chasing after the three men, he saw appellant ³⁶⁹ throw a bag which was recovered and found to have a handgun and a large amount of U.S. currency in it. Detective Schuster, qualified as an expert in the identification, packaging, and street level sale of controlled dangerous substances, testified that he grabbed Tucker as he was trying to escape through the window.

As Detective Schuster was pulling Tucker off of the window ledge, Tucker threw a brown bag into the corner of the room. Later, Detective Schuster recovered the brown bag, which contained “numerous amounts of suspected CDS,” including “numerous gelatin capsules [and] a white powder substance which [he] believed to be heroine [sic].” Detective Schuster stated that the amount and packaging of the drugs indicated that they were intended for sale. He also stated that based on “[t]he fact that [the handgun] was less than five feet away [from] the amount of drugs that we recovered based on [Detective Schuster’s] experience it indicates a level — it indicates an intent to protect the [drug] operations they had going on.” After the jury was sworn, the court instructed them “not to discuss the case ... amongst yourselves____,” and “not to discuss the case with anyone or let anyone discuss it with you. That includes other jurors.... ” The court also instructed the jurors that if “anything questionable occurs ..., write it down on a piece of paper and we’ll address it appropriately.” At the conclusion of testimony on the first day of trial, January 24, 2005, the court instructed the jury to “please not discuss this case with anyone by and amongst yourselves or with anyone else.” After the jury was excused for the day, the following transpired.

THE COURT: Okay. Fair enough. Any other preliminary matters that we can address? There is one and it’s significant, and I want to raise it to you.

I did receive a note from juror number four at 4 o’clock. It was supplied to my court clerk during a very short five-minute recess. It says as follows: I live three and a half blocks away from the apartments. I don’t want any decision I make to put my family in danger.

I drive past every day when I go to ³⁷⁰ work. That’s the note that the court received in connection with these proceedings. * * * I’ll ask the [Sjtate how it wishes the court to proceed in light of this note. THE STATE: My problem is two-fold, Your Honor. First, if the defendant — if the juror is not going to make a decision based on the evidence based on fear, then that scares the [Sjtate because not knowing anything about the defendants if the witness (sic) says I can’t find these guys guilty because I’m scared of what’s going to — any reprises, that’s a juror that’s already (inaudible), and as far as — and I’m going to make a defense argument.

It’s clear he already has a preconceived notion about these defendants, that they’re the type of people who would do this. I think both sides— THE COURT: Well, just speak for your side, sir, at this point. THE STATE: Okay. Then like I said, Your Honor, if he’s scared to make a decision he’s clearly biased against the [Sjtate.

THE COURT: I’ll be happy to hear from both defense counsel. APPELLANT’S COUNSEL: May I see the note, Your Honor? THE COURT: Sir, I actually just read the note the exact way it is. Tell me why you want to see it.

APPELLANT’S COUNSEL: Just to see how it’s written, Your Honor. I’m not doubting the court. However, I believe the case law is pretty clear that if I request to see it it’s the court’s obligation to allow me to. THE COURT: Let the record show that I’m showing it to you.

APPELLANT’S COUNSEL: Thank you, Your Honor. My only — I’ll submit, Your Honor. THE COURT: Okay. [Tucker’s counsel], your position? ³⁷¹ TUCKER’S COUNSEL: Your Honor, I’d ask that the juror be stricken and the alternate be seated. THE COURT: And that’s consistent with what you’re asking for, [State]?

THE STATE: Yes. THE COURT: Okay. What I’d like to do is take it up tomorrow morning. That’s why I waited until this point in the proceedings.

When I received the note at 4:00, let the record reflect that it’s 4:45, I’m inclined to do just that, just that being striking juror number four and seating the alternate in place of juror number four, but I would like to reserve on the issue until tomorrow. THE STATE: Thank you. THE COURT: And we’ll address the proceeding tomorrow morning after we have all jurors present. APPELLANT’S COUNSEL: Okay.

Your Honor, there’s one additional thing. THE COURT: Sure. APPELLANT’S COUNSEL: I would ask that an inquiry be made whether this juror has spoken with any of the other jurors regarding the neighborhood, if he has this sort of knowledge that he’s in fear that there will be reprisals. THE COURT: I’ve made it clear.

I’ve said three times not to discuss this matter by and amongst yourselves. If anyone — I can’t say it anymore times than that. APPELLANT’S COUNSEL: I know, Your Honor. THE COURT: I am not inclined to do that at this time, but I’ll hold it under advisement and we can address it tomorrow.

The next morning, the following transpired. THE COURT: Are there any preliminary matters before we call for the jury? THE STATE: Your Honor, the — oh. APPELLANT’S COUNSEL: Your Honor____The one issue of the juror that sent the note yesterday. ³⁷² THE COURT: And I was going to take that up with you.

I’ll be happy to address it now, and as I understand it there’s a[sic] agreement between counsel to dismiss juror number four and to replace that juror with alternate number one. Is that correct, [State]? THE STATE: That is the State’s position. THE COURT: Is that correct, [Tucker’s counsel]?

TUCKER’S COUNSEL: On behalf of Mr. Tucker that is our request, Your Honor. THE COURT: And on behalf of [appellant]? APPELLANT’S COUNSEL: Yes, Your Honor. Yesterday submitted to the court.

I will again submit to the court’s judgment on that issue. I did make a request of the court yesterday to inquire as to whether you’d discuss as to whether he’d discussed the neighborhood with the other jurors. The court denied that request just so that the record is clear. THE COURT: Right.

I don’t believe that was appropriate. I asked and I’ve advised the jury at every recess not to speak to anyone, so I don’t believe it’s necessary to address that with the juror. I’m not going to dismiss and seat the alternate unless there’s an agreement between all sides. * * * Following this exchange, appellant’s counsel agreed to have the juror dismissed. The court then advised the juror that he was being excused, stating: Let me be very clear about one thing.

Sir, you are not to have any contact with anyone, not to discuss this case with anyone, your members of your veneer panel or anything. Please do not tell them why you were excused or discuss anything about the case, and at 12:30 you can be paid in Room 239 of this courthouse. At the conclusion of the evidence, the court instructed the jury, in pertinent part, as follows. ³⁷³ Ladies and gentlemen, the defendants are charged with the crime of possessing a firearm during and in relation to drug trafficking crimes. Possession with the intent to distribute heroin, cocaine and marijuana, conspiracy to distribute heroin, cocaine and marijuana, and conspiracy to possess with the intent to distribute heroin, cocaine and marijuana are drug trafficking crimes.

You may not consider the crime of possessing a firearm during and in relation to a drug trafficking crime unless you found the defendant guilty of possession with the intent to distribute heroin, cocaine and/or marijuana, conspiracy to distribute heroin, cocaine and/or marijuana, or conspiracy to possess with the intent of distributing heroin, cocaine and/or marijuana. If your verdict on those charges is not guilty you must find the defendant not guilty of possession of a firearm in the commission of a drug trafficking crime. In order to convict the defendant the [S]tate must prove, one, that the defendants committed the crime of possession with the intent to distribute heroin, cocaine and/or marijuana, conspiracy to distribute heroin, cocaine [and/or] marijuana, and/or conspiracy to possess with the intent to distribute heroin, cocaine and/or marijuana; two, that the defendants possessed a firearm during and in relation to the crime; and three, that there was a connection between the defendant’s possession of the firearm and the crime. Ultimately, appellant was convicted of possession of a firearm under sufficient circumstances to constitute a nexus to a drug trafficking crime, although he was acquitted of possession with the intent to distribute heroin, cocaine and/or marijuana, conspiracy to distribute heroin, cocaine and/or marijuana, or conspiracy to possess with the intent of distributing heroin, cocaine and/or marijuana in contravention of the court’s instructions.

On April 6, 2005, a sentencing hearing was held. At that hearing, the following ensued. ³⁷⁴ APPELLANT’S COUNSEL: Thank you, Your Honor. I’ll begin with the drug trafficking — handgun in the commission of drug trafficking because there is a legal argument, Your Honor. * * * APPELLANT’S COUNSEL: As referenced to the proceedings shown as the court went through, [appellant] was found guilty of three misdemeanor possessions. THE COURT: Found guilty of possession of heroin, possession of cocaine, and possession of marijuana.

He was found not guilty of the underlying felonies or the felonies. APPELLANT’S COUNSEL: Yes. THE COURT: Possession with the intent to distribute heroin, possession with the intent to distribute cocaine, and possession with the intent to distribute marijuana. APPELLANT’S COUNSEL: And found not guilty to the conspiracies.

THE COURT: Correct. APPELLANT’S COUNSEL: If you were charged with use of a handgun in the commission of a crime of violence there’s a case, Halford [2] (phonetic), which I gave the cite to your law clerk this morning. * * * APPELLANT’S COUNSEL: If someone is charged with use of a handgun in the commission of a crime of violence and they are found not guilty of the crime of violence that is an essential element to the underlying crime of use of the handgun in the commission of a crime of violence. What [Hoffert] says is that given that verdict the court may not sentence, the court must strike the finding because the underlying element of that crime has not been met by — the jury hasn’t found the underlying element. I understand that in many instances that juries are allowed to have ³⁷⁵ inconsistent verdicts except under where circumstances where it is an element of the trial.

THE COURT: So the argument, as I understand it, is it’s an inconsistent verdict for the jury to have found [appellant] convicted of the possession of a firearm under indictment 077 if they, in fact, acquitted him of the felony in the indictment ending in 075. APPELLANT’S COUNSEL: That’s correct, and that inconsistency becomes fatal. A drug trafficking crime according to the statute means a felony or conspiracy to commit a felony involving controlled dangerous substance. There is — the verdict itself is fatally inconsistent.

It has not met the elements to allow the court to proceed to sentence [appellant] under that handgun because they’re just not there. Had they found him guilty of a felony, had they found him guilty of a conspiracy there would be a sufficient basis, but based on the fact it’s not there the court lacks the ability to sentence under that. * * * APPELLANT’S COUNSEL: [.Hojfert ] deals directly with use of a handgun in the commission of a crime of violence. I could find no case law for the drug trafficking charge. However, the language is consistent and it discusses in 5-621 use of a weapon as a separate crime where it goes through the conspiracy and what has to be shown.

The drug trafficking has to be the felony or the conspiracy to commit a felony, so based on that I believe the court lacks the jurisdiction to sentence and that verdict has to be stricken and we just proceed on the three misdemeanors, the possession of cocaine, the possession of heroin, possession of marijuana.... THE COURT: Here’s what the court is going to do____ The court is going to require the following: I will set this matter in for ... May 5. I will entertain the sentencing at that time on May 5. ³⁷⁶ Prior to that, [appellant], you will submit a memoranda in writing to the court ... outlining the legal position that you espouse.

Thereafter, [the State], you will file a responsive memoranda.... On June 14, 2005, a second sentencing hearing was held. Before sentencing appellant, the court ruled on appellant’s motion to reverse his conviction on the possession of a firearm under sufficient circumstances to constitute a nexus to drug trafficking count. The court denied the motion, stating: In light of the fact that the [appellant] was acquitted of all of the underlying felony drug counts and related conspiracy counts.

It was argued by the Defense that the verdict must be vacated because it is inconsistent with the other verdicts ____ * * * I’ve reviewed both documents submitted by the defense and the State as well as the case relied upon by both parties. Respectfully, none of the cases are directly on point as I think both parties acknowledged. The argument presented by the defense does not account for the special role of the jury in our judicial system. And the regard to which their decisions must be respected.

One of the cases cited by the defense, [Hoffert] v. State, which the [c]ourt has reviewed at 319 Md. 377 , 572 A.2d 536 , the Court of Appeals noted that inconsistent verdicts are often tolerated. The Court in [Hoffert ] noted that “Due to the singular role of the jury in the criminal justice system, there is a reluctance to interfere with the results of unknown jury interplay at least without proof of an actual irregularity.” The general law is that inconsistencies may be the product of lenity, mistake or compromise to reach unanimity and that continual correction of such matters would undermine the historic role of the jury as the arbiter of questions put to it. And that’s a quote directly from that case. The [c]ourt further notes that in State v. Johnson, 367 Md. 418 , 788 A.2d 628 , Judge Battaglia wrote for the Court in ³⁷⁷ the context of two inconsistent verdicts for two codefendants that different trials commonly lead to different results.

We necessarily consent to these consequences by our common acceptance of the jury’s system. The Court goes on to say, “A symmetry of results while ideal is not necessary to ensure the attainment of justice.” The [cjourt does find that reasoning most persuasive. As [appellant’s counsel] noted, the issue has not been squarely addressed in the Maryland courts. The [c]ourt has noted that other jurisdictions have addressed it.

In two cases, which the [c]ourt has been able to unearth first, the United States v. Figueroa-Encarnacion, 343 F.3d 23 , United States Court of Appeals for the First Circuit, affirmed a conviction of the Defendant for possession of a weapon in furtherance of a drug trafficking crime in conjunction with an acquittal of an underlying drug possession crime. And in the United States v. Ramos-Rodriguez, 136 F.3d 465 , the United States Court of Appeals for the Fifth Circuit held that a conviction for carrying a firearm during and in relation to a drug trafficking crime does not require a conviction for an underlying drug offense. The Court further held that an acquittal of a predicate offense does not preclude conviction when there’s ample evidence demonstrating that a reasonable jury could have found the Defendant guilty of a predicate offense. Here there is ample evidence demonstrating that a reasonable jury could have found the Defendant guilty of the predicate offense.

The [c]ourt finds that the holdings of these other jurisdictions and as well the reasoning by the Court of Appeals is constant with the persuasive authority presented. The [c]ourt finds that that authority is more compelling than what has been presented as the defense counsel’s interpretation of the law. As a result this [c]ourt will deny [appellant’s] motion to strike the jury’s finding of guilt in count seven, possession of a firearm, under sufficient circumstances to constitute a ³⁷⁸ nexus to drug trafficking for the reason stated here on the record this morning. * * * Thereafter, the court sentenced appellant, as described above. Discussion Sufficiency of the Evidence Appellant first contends that the evidence was insufficient to sustain his convictions for possession of heroin, cocaine, and marijuana, and for possession of a firearm in connection with drug trafficking. 3 In support of this contention, appellant argues that there was no evidence that he was in actual or exclusive possession of the drugs, or that he was in any way connected to Tucker, or that the bag containing money and a gun was in any way connected to the sale of drugs.

The standard for reviewing the sufficiency of the evidence is “whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 313 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979); see State v. Smith, 374 Md. 527, 533 , 823 A.2d 664 (2003). We give “due regard to the [fact finder’s] findings of facts, its resolution of conflicting evidence, and significantly, its opportunity to observe and assess the credibility of witnesses.” Harrison v. State, 382 Md. 477, 488 , 855 A.2d 1220 (2004) (citing McDonald v. State, 347 Md. 452, 474 , 701 A.2d 675 (1997)), cert. denied, 522 U.S. 1151 , 118 S.Ct. 1173 , 140 L.Ed.2d 182 (1998) (quoting State v. Albrecht, 336 Md. 475, 478 , 649 A.2d 336 (1994)). ‘We do not measure the weight of the evidence; rather we concern ourselves only with whether the verdict was supported with sufficient evidence, direct or circumstantial, ³⁷⁹ which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.” McDonald, 347 Md. at 474 , 701 A.2d 675 (citing Albrecht, 336 Md. at 478-79 , 649 A.2d 336 ). Appellant was charged with possession of heroin, cocaine, and marijuana pursuant to Maryland Code (2002 Repl.Vol.), § 5-601 of the Criminal Law Article (“C.L.”). That section provides that a person may not “possess” a controlled dangerous substance.

Possession is defined in C.L. § 5-101(u) as “to exercise actual or constructive dominion or control over a thing by one or more persons.” Possession may be constructive, or may be joint. State v. Leach, 296 Md. 591, 596 , 463 A.2d 872 (1983) (citing Henson v. State, 236 Md. 518 , 204 A.2d 516 (1964); Garrison v. State, 272 Md. 123 , 321 A.2d 767 (1974); Rucker v. State, 196 Md. 334 , 76 A.2d 572 (1950)). To support a conviction for the offense of simple possession, the “evidence must show directly or support a rational inference that the accused did in fact exercise some dominion or control over the prohibited ... drug in the sense contemplated by the statute, i.e., that [the accused] exercised some restraining or directing