Rivers v. State

HARRELL, J. On 22 June 2004, Donald Marcell Rivers, Sr., Petitioner, was convicted by a jury in the Circuit Court for Washington County of one count of possession of a noncontrolled substance ⁵⁷² with the intent to distribute as a controlled dangerous substance (“CDS”) and one count of distribution of a noncontrolled substance that he had represented as a CDS, in violation of Maryland Code (2002), Criminal Law Article, § 5-617(a). 1 Petitioner timely appealed to the Court of Special Appeals, which affirmed Petitioner’s convictions in an unreported opinion. Petitioner filed with this Court a Petition for Writ of Certiorari, which we granted, Rivers v. State, 390 Md. 284 , 888 A.2d 341 (2005), to consider the question, rephrased for clarity: Whether the evidence was sufficient to establish that the substance Petitioner distributed was a noncontrolled substance where (1) witnesses testified that Petitioner sold the substance as crack cocaine; (2) a forensic chemist accepted by the trial court as an expert witness testified without objection that, judging from the form of the substance, it could not be any controlled substance other than cocaine; and (3) a single chemical test established that the substance was not cocaine. 2 We affirm the judgment of the Court of Special Appeals and hold that there was sufficient evidence to establish that the substance was not a controlled dangerous substance. I. The basic facts of this cáse are undisputed. The Court of Special Appeals aptly described them: Late on the night of December 5, 2003, in a parking lot in downtown Hagerstown, Maryland, [Rivers] and Vincent Watson were sitting in a parked Honda when a second car, ⁵⁷³ driven by Joseph Tomlin, pulled into the lot.

While Tomlin remained seated in his vehicle, Rivers and Watson exited theirs and approached him. Each sold Tomlin a product that Tomlin believed was crack cocaine. The bag sold by Rivers contained one “rock,” and the one sold by Watson contained two. In exchange for the rocks, [Rivers] asked Tomlin for $30 and Watson asked for $40.

Because Tomlin had only twenty-dollar bills, Tomlin paid [Rivers] and Watson $40 each. Tomlin told [Rivers] that he could consider the extra $10 “a loan.” Unbeknownst to Watson, Tomlin was a paid informant employed by the Hagerstown Police Department. On that night, the police had sent him out to purchase drugs, using twenty-dollar bills that had been previously photocopied for the purpose of verifying the receipt by drug sellers of proceeds from their sale of drugs to Tomlin. After making the purchase of what Tomlin thought was crack cocaine from Rivers and Watson, Tomlin signaled nearby police officers that he had just bought drugs from the two men.

The officers arrived at the parking lot, while [Rivers] and Watson were still in Tomlin’s sight. [Rivers] was standing on the passenger’s side of a vehicle and Watson was standing on the opposite side when the police officers arrived. The police arrested both men and recovered four of the twenty-dollar bills, whose serial numbers had been prerecorded. Two of the twenty-dollar bills were on the ground near [Rivers’] feet, and the other bills were found on the driver’s side of the vehicle that the arrestees had just occupied. Upon searching the car, the police recovered what appeared to be a drug pipe, as well as a third plastic bag that contained what appeared to be five rocks of crack cocaine.

After the arrests, Officer David Russell and another officer field tested the substance found in the bag sold by Rivers and in the bag found on the driver side of the car. All tested negative for the presence of cocaine. These same negative results were reproduced through later testing con ⁵⁷⁴ ducted by Susan Blankenship, a forensic scientist employed by the Hagerstown Police Department. During trial, the State introduced the above evidence through the testimony of Officer David Russell, Joseph Tomlin, and Ms. Blankenship.

Rivers introduced no evidence. Officer Russell testified that he sent Tomlin to an area known for illegal drug transactions, that Tomlin told him that he purchased the substance from Rivers, and that the appearance of the substance Tomlin purchased was consistent with a $40.00 piece of crack cocaine: Q. Alright, now, when the informant was equipped with the microphone and the money, and had been searched, where did he go? A. We released him from the parking lot of the police department, and, uh, he went into the downtown area. I believe his parameters that night, that I had set them where I want him to go, was Washington Street, Cannon Avenue, Franklin Street, and, Potomac Street.

Q. So, a rectangular area of about ... A. Yes. Q .... four city blocks? A. That’s correct.

Q. Is this an area where, in your experience, you’ve conducted successful investigations previously? A. Yes. Q. And, those have been drug investigations? A. Yes.

M« Ms Ms Q. Very good. So, after you saw the informant, uh, post transaction, across Franklin Street, what did you do? A. Uh, he came across the street to me, and, uh, in one hand he had two pieces, two small, like rock, like objects wrapped in, wrapped in plastic, um, that was consistent with the appearance of crack cocaine. Um, he handed me those two, and he pointed to Mr. Watson and stated he had ⁵⁷⁵ bought those two items from Mr. Watson for $40.

In the other hand, separate he had one piece, "wrapped in plastic, the same, same substance. He pointed to Mr. Rivers and advised that he had purchased that from Mr. Rivers for $40. Q. And, are you familiar with the size and shape of a $40 piece of crack cocaine from your experience since August? A. Yes.

Q. And, is that consistent with what you know to be ... [DEFENSE COUNSEL]: Objection. Q.... a $40 piece of cocaine? THE COURT: Overruled. You have a right to cross-examine.

Overruled. A. Yes, it is. Tomlin testified that he acted as an police informant for more than a decade and, in that capacity, purchased crack cocaine several hundred times. He further stated that he purchased the rocklike substance from Rivers because it appeared to him to be crack cocaine: Q. And, did there come a time on December 5, 2003, where you acted as a confidential narcotics informant for the Street Crimes Unit?

A. Yes, sir, that’s correct. Q. And, have you operated in this capacity previously? A. Yes, sir. Q. About how frequently?

A. I do, possibly a month, possibly, maybe, 10. Q. Ten (10) a month? A. Yes, sir. Q. For how long a period?

A. Been doing it for 12 years. Q. Okay. And, what’d [Rivers] do? ⁵⁷⁶ A____he told me he could really hook me up with a $30 piece, and, uh, I told him I’d like, like to see it. He said, “Wind your window just halfway down.” I said, “Well, I’m scared I might get robbed or something.” So, then, I took my window all the way down then and, um, I told him all I had was $40, then he gave me the piece he had, and I told him he would just owe me $10.

On recross, the following exchange occurred between defense counsel and Tomlin: Q.... You purchased crack cocaine on the streets many, many times, it that right? A. Yes, sir. Q. How many times would you say you have?

A. In my life? Q. Yes. THE COURT: If you know. A. I, I’d give an estimate, maybe, 450, with crack cocaine. * * Q. And, and, you’re really not concerned what [the substance] is, you were gonna buy it that night, is that right A. No, sir.

Q.... under those circumstances? A. No, sir. No, sir. It appeared to be crack cocaine to me.

That’s why I bought it, as of. Q. When you say it “appeared to be crack cocaine,” how well did you analyze this before you purchased it? A. WTien you’re on the streets, when you’re buying drugs, you don’t sit and open the stuff up, and pinch it off, you want to get out. The person sells you, the want to go their way.

It’s like a rush-rush. Ms. Blankenship testified that, as part of her scientific analysis, she visually inspected the rocklike substance before ⁵⁷⁷ conducting chemical tests, which later determined that the substance was not cocaine: Q. According to the standards that you, uh, abide by as a forensic chemist, is a physical examination part of those standards? A. Yes, it is. Q. Is it the first step in those standards?

A. Yes, it is. Q. And, have you had occasion to obey those standards in examination of a wide variety of controlled dangerous substances. A. Yes, I have. Q. And, have you seen a wide variety of controlled dangerous substances?

A. I have seen, um, multiple substances from every single one of the schedules, one through five. Q. And, so, it’s, is it ... do you know what those items look like initially on examination? A. Um, they come in multiple different forms, most of them, but, uh, the main forms we get in are either tablets, capsules, powders, plantlike substance, or rocklike substance. Q. And, of the rocklike substances, what’s ... withdraw the question.

Which category does this substance fit into? A. This is a rocklike substance. Q. Alright. So, it’s not a capsule?

A. No, it’s not. Q. It’s not a plant substance? A. No, it’s not. Q. It’s not a powder?

A. No, it’s not. Ms. Blankenship further testified that the rocklike substance, in her expert opinion, could not be any other form of controlled dangerous substance: ⁵⁷⁸ Q. And, does this rocklike appearance limit the number of controlled dangerous substances that this could possibly be? A. Yes, it does. Q. And, is that part of your scientific analysis, just, basically, eyeballing of the substance?

A. Yes, it is. Q. Alright. Now, based on your experience and your training in the scientific method of examining it, could this be any other substance beside what you did the (inaudible) chemical tests for? [DEFENSE COUNSEL]: Objection, Your Honor. THE COURT: Overruled.

You’ll have a right in a cross, which I’m sure you’ll do. Q. Mean, meaning a controlled dangerous substances. Not, it’s, obviously, is another substance, my question is this, could it be any other controlled dangerous substance? A. No, the only controlled dangerous substance that comes into our laboratory as controlled, that appears to be a rocklike substance, is cocaine base.

Q. Alright. And, this isn’t cocaine base? THE COURT: Food for cross-examination. A. No, it is not.

The jury found Rivers guilty of both possession of a noncontrolled substance with the intent to distribute as a CDS and distribution of a noncontrolled substance that he represented as a CDS, in violation of § 5-617(a). The trial court merged the two convictions for sentencing purposes and sentenced Rivers to four and one-half years in prison. On appeal to the Court of Special Appeals, Rivers contended that his convictions should be reversed because, among other reasons he advanced, the trial court denied erroneously his motion for a judgment of acquittal due to the lack of evidence showing that the substance sold was noncontrolled. He asserted that a chemist could not have determined reliably that a substance was a noncontrolled substance solely by conducting a combination of visual inspection and a single chemical ⁵⁷⁹ procedure testing for the presence of cocaine.

The Court of Special Appeals rejected Rivers’ contention, holding that: As to [the question whether the State presented sufficient proof that the substance sold was a noncontrolled dangerous substance], the State did present such proof through Ms. Blankenship’s unobjected-to opinion testimony/ ] (Footnote omitted.) The Court of Special Appeals noted Ms. Blankenship’s qualifications and expertise in forensic science: Susan Blankenship was accepted by the court as an expert in the chemical analysis of controlled dangerous substances (“CDS”). Ms. Blankenship holds a Master’s degree in forensic science from George Washington University. Since 1991 she has been regularly employed as a forensic scientist-four years with the federal Drug Enforcement Agency and approximately nine years with the Hagerstown Police Department. Her primary duties in these jobs have been to identity CDS’s.

Noting that the trial court accepted Ms. Blankenship as an expert in the chemical analysis of controlled dangerous substance, the Court of Special Appeals also rejected Petitioner’s contention that “a well-trained expert like Ms. Blankenship cannot exclude a substance as a particular type of controlled dangerous substance by sight.” For example, it is obvious from the evidence that a forensic scientist like Ms. Blankenship who works with controlled dangerous substance every day could look at a plant-like substance (e.g., a leaf of lettuce) and tell that it is not marijuana. In fact, Ms. Blankenship’s unrebutted testimony was that the first action a forensic scientist takes before conducting tests is to observe the “physical form of the substance.” She further testified, uncontradictedly, that the only type of CDS that comes in “rock-like form” is cocaine. This being so, no chemical tests were needed to eliminate the many other drugs that appear on the five schedules listing all other types of CDS.[] (Footnote omitted.) ⁵⁸⁰ II. The appellate standard for reviewing challenges to the sufficiency of the evidence is well established.

In State v. Albrecht, 336 Md. 475, 478 , 649 A.2d 336, 337 (1994), we stated that “it is not the function or duty of the appellate court to undertake a review of the record that would amount to, in essence, a retrial of the case.” When reviewing a challenge to the sufficiency of the evidence, the reviewing court “view[s] the evidence, and all inferences fairly deducible from the evidence, in a light most favorable to the State.” Hackley v. State, 389 Md. 387, 389 , 885 A.2d 816, 817 (2005) (Citations omitted). We determine “whether, after viewing 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.” State v. Smith, 374 Md. 527, 533 , 823 A.2d 664, 668 (2003) (Citations omitted). Petitioner seeks review of his conviction for distributing faked controlled dangerous substance under § 5-617, which provides, in pertinent part: (a) Prohibited.—A person may not distribute, attempt to distribute, or possess with intent to distribute a noncontrolled substance: (1) that the person represents as a controlled dangerous substance; (2) that the person intends for use or distribution as a controlled dangerous substance; or (3) under circumstances where one reasonably should know that the noncontrolled substance will be used or distributed for use as a controlled dangerous substance. (b) Considerations.—To determine if a person has violated this section, the court or other authority shall include in its consideration: (1) whether the noncontrolled substance was packaged in a manner normally used to distribute a controlled dangerous substance illegally; (2) whether the distribution or attempted distribution included an exchange of or demand for money or other ⁵⁸¹ property as consideration, and whether the amount of consideration was substantially greater than the reasonable value of the noncontrolled substance; and (3) whether the physical appearance of the noncontrolled substance is substantially identical to that of a controlled dangerous substance.

(c) Penalty.—A person who violates this section is guilty of a felony and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $15,000 or both. To support a conviction under § 5-617(a), the State must prove that the substance in question is a “noncontrolled substance.” “ ‘Noncontrolled substance’ means a substance that is not classified as a controlled dangerous substance under ... this title.” Maryland Code (2002), Criminal Law Article, § 5-101(s). 3 Sections 5-401 through 406 of the Criminal Law Article collectively define the list of substances that are classified as controlled dangerous substances under this statute. Maryland Code (2002), Criminal Law Article, §§ 5-401 to -406. To prove whether a substance is controlled or non-controlled, the State may offer circumstantial evidence as well as direct evidence. 4 See Robinson v. State, 348 Md. 104 , 113—14, 702 A.2d 741, 745 (1997) (citing Weller v. State, 150 Md. 278, 282 , 132 A. 624, 625-26 (1926)) (holding that “the nature of a suspected controlled, dangerous substance, like any other ⁵⁸² fact in a criminal case, may be proven by circumstantial evidence”) (Footnote omitted).

We also have emphasized repeatedly that [а] valid conviction may be based solely on circumstantial evidence. Wilson v. State, 319 Md. 530, 537 , 573 A.2d 831, 834 (1990). The same standard applies to all criminal cases, including those resting upon circumstantial evidence, since, generally, proof of guilt based in whole or in part on circumstantial evidence is no different from proof of guilt based on direct eyewitness accounts. See Eiland v. State, 92 Md.App. 56 , 607 A.2d 42 (1992), rev’d on other grounds, 330 Md. 261 , 623 A.2d 648 (1993).

Smith, 374 Md. at 534 , 823 A.2d at 668 . If the exact chemical composition of the substance is unknown, the State may employ a process of elimination to establish that the substance is not a controlled dangerous substance. See In re Timothy F., 343 Md. 371, 374-75 , 681 A.2d 501, 503 (1996) (finding that the substance was a noncontrolled substance where “[laboratory analysis ... confirmed that the substance was not crack cocaine or any other CDS ...,” the child defendant admitted that the substance was “milk chips,” and another individual in possession of the substance said it was “soap chips.”). The Court of Special Appeals has accepted consistently the process of elimination, if properly conducted, as a rehable scientific methodology in other contexts.

See, e.g., CSX v. Miller, 159 Md.App. 123, 204-08 , 858 A.2d 1025, 1072-74 (2004) (citing Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262-63 (4th Cir.1999)) (upholding the admissibility of a physician’s “ ‘differential diagnosis,’ ... a scientific method that laymen would refer to as the process of elimination,” in diagnosing a patient in a tort action by the patient against his employer), cert. granted, 384 Md. 581 , 865 A.2d 589 (2005), cert. dismissed as improvidently granted, 387 Md. 351 , 875 A.2d 702 (2005); Hricko v. State, 134 Md.App. 218, 269-70 , 759 A.2d 1107, 1133-34 (2000) (accepting as sufficient evidence an expert opinion formed through a process of ehmination in his analysis of the victim’s cause of death). On the other hand, “a finding of guilt based ⁵⁸³ upon a process of elimination must effectively eliminate the other reasonable possibilities.” Davis v. State, 100 Md.App. 369, 391 , 641 A.2d 941, 952 (1994) (citing Eiland v. State, 92 Md.App. 56, 69 , 607 A.2d 42, 49 (1992), rev’d on other grounds, 330 Md. 261 , 623 A.2d 648 (1993)).

III

Petitioner argues that the State failed to introduce sufficient evidence to prove that the substance he possessed and distributed was noncontrolled. Petitioner bases his argument on the proposition that, in order to prove that the substance was noncontrolled, the State must satisfy a “two-pronged” test: the State must first introduce sufficient circumstantial evidence to prove that the substance “was cocaine,” then prove by chemical analysis that it was in fact not cocaine. Proceeding from this proposition, Petitioner contends that the circumstantial evidence the State introduced through the testimonies of Tomlin, Officer Russell and Ms. Blankenship was insufficient to prove that the substance was cocaine, 5 the first prong of the test he proposes. Without first establishing with circumstantial evidence that the substance “was cocaine,” Petitioner argues, the State only proved with the single chemical test that the substance was not in fact cocaine, but failed to eliminate the possibility of the substance being one of the many other controlled substances outlined in §§ 5-401 to -406, the distribution of which falls outside the proscription of § 5-617 and does not support his conviction under that section.

In support of his contentions, Petitioner cites a number of cases that examined the sufficiency of circumstantial evidence for a conviction of distribution of controlled or noncontrolled substances, including State v. Anderson, 58 Wash.App. 135 , 791 ⁵⁸⁴ P.2d 557 (1990) (concluding that evidence was sufficient to establish that the substance was noncontrolled where “the criminalist testified that the substance was not heroin or cocaine and that he had eliminated 80 to 90 percent of all controlled substances”), Jackson v. State, 86 Ark.App. 145 , 165 S.W.3d 467 (2004) (concluding that evidence was insufficient to prove that the defendant delivered or attempted to deliver the counterfeit substance, an element of the offense as defined by the Arkansas statute), State v. Starr, 204 Mont. 210 , 664 P.2d 893 (1983) (concluding that evidence showing that the substance could be either cocaine or lidocaine did not support a conviction for the sale of a dangerous substance, because lidocaine is not a dangerous substance under Montana law), State v. Simpson, 318 Md. 194 , 567 A.2d 132 (1989) (concluding that evidence indicating that the defendant possessed either cocaine or heroine, though inconclusive as to which, was insufficient to support either or both of two separately charged offenses, one for the possession of cocaine and the other for the possession of heroin), and Copeland v. State, 430 N.E.2d 393 (Ind.App.1982) (opining that expert testimony by a drug user was insufficient to establish that the substance defendant sold him was Dilaudid, a