Puckett v. State

Thompson, J., delivered the opinion of the Court. The principal question presented in this appeal is whether or not the trial judge was clearly erroneous in finding the appellants, Jerry Paul Puckett and Lois Ann Puckett, his wife, guilty of possession of marijuana and possession of marijuana in sufficient quantity to indicate an intent to distribute. Judge Perry G. Bowen, Jr., presiding in the Circuit Court for Calvert County, without a jury, imposed one year concurrent sentences on Mr. Puckett and a fine of $500 for each conviction. The sentences to confinement were suspended, and the fine on the second conviction was also suspended.

The sentences as to Lois Ann Puckett were for concurrent terms of one year and $500 on each conviction. The fine on the second ⁵⁸⁶ conviction was suspended but the sentences to confinement were not suspended. 1 Mr. & Mrs. Puckett’s disgruntled tenant delivered a marijuana plant to the State Police claiming to have picked it from the Puckett property. A search warrant was issued and the State Police, in executing the warrant, found sixteen marijuana plants about two to three feet in height and one foot to a foot and a half in diameter growing at the edge of a vegetable garden on the property. The garden was approximately 150 feet by 40 feet and the area containing the marijuana was approximately 10 feet by 3 or 4 feet.

The latter area was uncultivated and contained weeds in addition to the marijuana. The evidence showed that, except for the garden, the vegetation in the area adjacent to the plot containing the marijuana was mowed to a height of 2 to 3 inches. Five days after the execution of the warrant, Mr. Puckett and his attorney called one of the troopers who had executed the warrant and showed him seven other marijuana plants growing some thirty or forty yards away from the first patch. The disgruntled tenant testified that he took the plant to the State Police after Mrs. Puckett’s sister-in-law had told him that it was marijuana and that her sister-in-law smoked it.

He also testified that Mrs. Puckett had stood at the area where the first patch grew and informed him not to mow that small area while he was cutting the rest of the yard. Mrs. Puckett and Mr. Puckett denied any knowledge of the presence of the marijuana but Mrs. Puckett did state that she told the tenant not to mow a particular area, not the one in question, in order to avoid cutting her flowers. As to this point, the trial judge found the ⁵⁸⁷ tenant’s testimony more credible than Mrs. Puckett’s, saying that he did not think that the tenant would have known what the marijuana was if someone had not pointed it out to him and that he probably took it to the police in order to find out the exact nature of the “mysterious flower” which was so important not to be cut. A State Trooper testified that marijuana was not indigenous to Calvert County but that it would grow readily if planted.

The trial judge either accepted this testimony or took judicial notice of this fact and found both appellants guilty, saying that the amount of material was large enough to show an intent to distribute since a very small amount will make a cigarette; and the plants found on the premises would make a considerable number of cigarettes. While imposing sentences, the court stated he thought Mr. Puckett was probably the victim of his wife’s activities but that Mr. Puckett was co-owner of the property and the court could not help but believe that it was grown with his knowledge and consent. The court indicated that possibly the second patch of plants may have sprouted from the first, but he did not think that the first grew without human attention. In view of the undisputed presence of marijuana in sufficient quantity to make a large number of cigarettes, and the testimony accepted by the trier of the facts, that Mrs. Puckett protected the area in which the marijuana grew from being mowed along with the rest of the lawn, we cannot say that the trial judge was clearly erroneous in convicting Mrs. Puckett.

We cannot make the same finding as to Mr. Puckett. The sole evidence incriminating him consisted of the presence of the plants on the property jointly owned by the appellants and on which they made their home. Although the trial judge did not in his opinion address himself to this question, there was testimony that Mr. Puckett spent most of his time on construction work in Pennsylvania. Ownership and exclusive possession of property may in some circumstances be sufficient to create a rational inference that the owner was in possession of a prohibited substance growing ⁵⁸⁸ thereon.

However, we cannot here overlook the findings of the trial judge that Mrs. Puckett was the active party, and the total absence of evidence of Mr. Puckett’s involvement. He may well have been guilty but the proof does not support it. See Davis & Green v. State, 9 Md. App. 48 , 262 A. 2d 578 , Propst v. State, 5 Md. App. 36 , 245 A. 2d 88 . We find his convictions were clearly erroneous.

Appellants also contend the trial court committed reversible error in denying a continuance on the morning of February 9, when they requested time to employ counsel. The record shows that on February 2, 1971, the trial judge denied a motion by Dallas S. Ward, their counsel, to withdraw his appearance. The petition recited he was employed on August 16,