Quaglione v. State

Carter, J., delivered the opinion of the Court. The appellant, Dominic Anthony Quaglione, was convicted by a jury in the Criminal Court of Baltimore of unlawfully conspiring with William D. Jones “to violate the Narcotic Laws of the State of Maryland” and sentenced to five years in prison. He appeals from this judgment contending that the trial court committed prejudicial error in (1) admitting evidence against him that was procured by an unlawful search and seizure, (2) ⁵⁷³ failing to restrict the sentence within the maximum of one year for conspiracy to possess marijuana under provisions of Chapter 273 (b) of the Acts of 1970 and Md. Code, Art. 27, § 38, (3) failing to grant the appellant’s motion for a mistrial on account of the prosecutor’s statement to the jury in his closing argument that a witness was in Canada, and (4) failing to grant appellant’s motion to set aside the verdict because of its inconsistency with another verdict returned by the jury. FACTS The evidence of the State as developed by police testimony showed that Officer Foertschbeck was in charge of an undercover police investigation into the unlawful sale of marijuana and LSD in the Southeastern Police District of Baltimore City during January and February 1970.

During this period a reliable informer introduced him to William D. Jones (hereafter referred to as Danny) as a person from whom he could purchase narcotic drugs. On January 26, 1970, Officer Foertschbeck met Danny on Eastern Avenue and ordered two glassine bags of powdered hashish (a form of marijuana). Officer Gray who was a part of the investigative team observed Danny and Officer Foertschbeck conversing at this time, saw Danny depart from the scene, and followed him to Irvins Department Store. There he observed Danny go into the basement and meet with the appellant.

Both the appellant and Danny then walked into a storeroom located off from the shoe sales area where he lost sight of them. In a short time Danny came up the stairs and proceeded to Eastern Avenue where he met Officer Foertschbeck. Officer Foertschbeck testified that when Danny returned a few minutes after their original transaction, he delivered to him the two glassine bags of powdered hashish 1 for which the officer had previously paid Danny $20. Officer Foertschbeck further testified that he ⁵⁷⁴ later obtained warrants for the arrest of the appellant and Danny which were duly served on February 13, 1970.

Danny testified for the State. His testimony showed that he had known the appellant since January 1970 when he met him in the shoe department of Irvins Department Store. At that time there were other persons present including Brenda Osborne and Harold Zeller (hereafter referred to as Canary). All of them agreed to try to raise bail money to get Brenda’s husband out of jail by selling narcotics (hashish and LSD) which they were to obtain from the appellant at the store.

He further stated that pursuant to the agreement the appellant kept the drugs in a shoe box inside the storage room adjoining the shoe department. Under this arrangement Danny retained a commission of 50 per cent of the purchase price of the drugs sold and the remaining 50 per cent was paid to the appellant. Danny’s commissions, were turned over to Brenda to help finance her husband’s bail fees. Pursuant to this plan Danny had procured hashish from the appellant on several occasions and in two instances had sold it to Officer Foertschbeck.

Officer Gray, assisted by Officer Smalley, served arrest warrants on Danny and the appellant on February 13. On the evening of February 13 Officer Smalley was stationed in the basement of the store with instructions to signal Officer Gray when a transaction took place between the appellant and Danny. On this date Officer Gray followed Danny as far as the head of the stairs leading to the basement, received a signal from Officer Smalley, and arrested Danny at the head of the stairs as he was on his way out of the store. After his arrest a search of Danny’s person revealed a packet of hashish wrapped in tin foil.

Officer Gray then went down into the basement and arrested the appellant. Immediately thereafter Officer Gray explained the Miranda rights to the appellant and the appellant said he understood them. The manager of the store then arrived in the basement at which time Officer Gray explained that he had arrested Danny and the appellant for violations of the narcotic laws and ⁵⁷⁵ requested the manager’s permission to search the premises for narcotics. The manager then informed the officer that he was not only privileged to search the premises but it would be appreciated if he would do so.

At that point Officer Gray advised the appellant that they were going to search the premises and stated that if he knew where any drugs were kept, it would save a lot of time if he would advise him of their location. The appellant replied, “Go ahead, I don’t have any drugs here.” Officer Gray then proceeded to enter the small storage room adjoining the sales area of the shoe department. There in an open shoe box on a shelf they observed what appeared to be narcotics. The contents of the box consisted of several cigarette papers used for smoking marijuana, hashish, hashish pipes, hashish inside aluminum foil, a Methadone bottle with the appellant’s name on it, a plastic bottle containing hashish and small pills which appeared to be LSD, and car keys which the appellant later identified as his.

When Officer Gray confronted the appellant with these items, he asked him if there were more drugs in the store. The appellant replied, “There isn’t any more; that’s all there is.” The contents of the shoe box were introduced in evidence over the appellant’s objection. 2 The testimony of the appellant showed that he was a 22 year old University student who was working as a part-time clerk in the shoe department of Irvins Department Store. He had been a user of narcotics and had been a participant in the Man Alive Program for treatment of his addiction since 1969. He was introduced to Danny Jones the last of January 1970 by some mutual friends.

At that time Danny had informed him that he wanted to sell narcotics to raise money with which to get a friend out of jail. He further said that Danny wanted the appellant to keep the drugs at the store so he could get them handily when he made a sale on the street. When ⁵⁷⁶ the appellant refused to go along with this suggestion, Danny threatened to tell the appellant’s employer that he was a participant in the Man Alive Program. Thereupon the appellant, out of fear of losing his job, agreed to allow Danny to keep the drugs in the storeroom adjoining the shoe department.

The appellant stated that he received no compensation for allowing Danny this privilege and that he did not personally use any of the stored drugs. Under this arrangement Danny came to the store and picked up the drugs after he had made a sale on the street. If there were other people in the basement when Danny arrived, the appellant would go into the storeroom, procure the narcotics, and deliver them to Danny. If there were no others present, Danny himself would get the drugs from the storeroom.

He further stated that the only money he earned was from his part-time job with the store for which he was paid $30 to $35 a week. He accounted for the $200 found on his person at the time of his arrest by stating that it was money he was expecting to use to register for the second semester at the University. He also stated that the bottle of Methadone found in the storeroom was prescribed for him by the program and that his car keys were not inside the shoe box where the narcotics were found but on the shelf. He admitted that on February 13, 1970, both he and Danny went into the storeroom where he picked up some drugs from the shoe box and gave them to Danny.

He further admitted that he had procured drugs for Danny from the storeroom on three other occasions when other persons were present in the shoe department. An addict counsel with the Man Alive Program testified that routine examinations of the appellant during his participation in the program showed some use of drugs by him in violation of his commitments. An official of the University attended by the appellant testified the school records showed that a payment of $200 toward the appellant’s second semester tuition was made on January 28, 1970. The next payment made toward tuition as revealed by the records was on September 16,1970. ⁵⁷⁷ After both sides had rested their case, the appellant moved for a judgment of acquittal which the court denied.

I The appellant’s preliminary motion to suppress the evidence found in the shoe box because it was allegedly procured by an Unlawful search and seizure was denied by the trial judge. Clearly the owner of the store had a proprietary and possessory interest in it that entitled him to constitutional protection against an unreasonable search thereof. The undisputed evidence shows that the area searched was used by the store management for the storage of shoes and was in no way set aside for the private use of the appellant as an employee. In these circumstances we hold as a matter of law that the appellant had no right of privacy in the area searched.

Concededly, he had no proprietary or possessory interest in the store premises. We therefore further hold as a matter of law that he had no right in the searched premises that entitled him to constitutional protection against an unreasonable search and seizure. See Jones v. United States, 362 U. S. 257 (1960); Katz v. United States, 389 U. S. 347 (1967); Mancusi v. DeForte, 392 U. S. 364 (1968). The trial judge found that the store manager representing the store ownership had given his consent to the search.

We hold he was not in error in so finding. In Gross v. State, 235 Md. 429 (1964) the Court of Appeals said at page 443: “* * * It is established law that a search by permission of the person entitled to constitutional protection from unreasonable searches is lawful as one of the exceptions to the general rule that reasonable searches must be made as the result of valid search-warrants. * * *” See also Carter v. State, 236 Md. 450, 453 (1964); Dorsey and Gladden v. State, 2 Md. App. 40, 42 (1967). Ap ⁵⁷⁸ plying the holding in Gross, supra to the facts of this case, we conclude that Judge Harris was correct in denying the appellant’s motion to suppress and admitting the evidence seized at the trial. 3 II-A The appellant claims by his second contention that the trial court incorrectly interpreted the jury’s verdict as a finding of guilt of a conspiracy to violate the narcotic laws prohibiting the sale of controlled narcotics rather than the lesser crime of a conspiracy to unlawfully possess narcotics. The indictment charged that the appellant and William D. Jones [Danny] on January 26, 1970 “unlawfully conspired together and with each other and with certain other persons * * * to violate the Narcotic Laws of the State of Maryland.” (emphasis added.) In defining the common law crime of conspiracy, this Court said in Wilson, Valentine & Nutter v. State, 8 Md. App. 653 at page 671: “* * * 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.

The gist of conspiracy is unlawful combination and no further overt act is required to constitute it. * * *” See also Jones v. State, 8 Md. App. 370 ; Harper v. State, 6 Md. App. 1 ; Williams and McClelland v. State, 5 Md. App. 450 . In speaking of the proof necessary to establish a combination under the definition of conspiracy, this Court speaking through Chief Judge Murphy in Silbert v. State, 12 Md. App. 516 said at page 528: “* * * [T]o establish a conspiracy, it is