Rosenberg v. State

Orth, J., delivered the opinion of the Court. The Indictment The offense which a jury in the Circuit Court for Montgomery County was convinced beyond a reasonable doubt had been committed by Richard P. Rosenberg was that he kept and maintained a common nuisance on 28 February 1970. Not the common law misdemeanor of common nuisance recognized in Maryland for which the penalty is fixed by statute, Code, Art. 27, § 125 and which we defined and discussed in Ward v. State, 9 Md. App. 583, 586-587 , but the statutory felony of common nuisance under Code, Art. 27, § 291, wherein it was defined, and Art. 27, § 300 wherein it was classified and the penalty for its violation fixed. Section 291 read: “Any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by narcotic drug addicts for the purpose of using narcotic drugs or which is used for the illegal keeping or selling of the same, shall be deemed a common nuisance.

No person shall keep or maintain sueh common nuisance.” 1 ²³ So a place is a common nuisance when it is: (1) resorted to by narcotic drug addicts for the purpose of using narcotic drugs; or (2) used for the illegal (a) keeping, or (b) selling of narcotic drugs. The charge of which appellant was convicted was the 2nd count of the indictment returned against him. It alleged that on 28 February 1970 he “* * * unlawfully did keep and maintain as a common nuisance a building, to wit, a garage, located at 13814 Parkland Drive, Rockville, Montgomery County, Maryland, for the purpose of illegal selling of narcotic drugs, to wit, ‘Robitussin A-C’, in violation of Article 27, Section 291, of the Annotated Code of Maryland, * * * 2 It is obvious that the Grand Jury was attempting to allege that the garage kept and maintained by appellant was a common nuisance because it was “used for the illegal selling” of narcotic drugs. However, in drafting the allegation, language of the statute applicable only to that part we have above designated (1), namely, “for the purpose of”, was used to allege that part which we have ²⁴ above designated (2) (b), so that instead of presenting that the garage was a common nuisance as “used for the illegal selling of narcotic drugs”, the applicable language of the statute, the allegation was that it was “for the, purpose of illegal selling of narcotic drugs.” Appellant does not claim that he was misled but he argues that as drawn the count does not charge a proscribed offense.

The general rule is that an indictment is sufficient if it describes the offense in the words of the statute, Baker v. State, 6 Md. App. 148 . Appellant urges that the language of the statute was not used. “Maintaining a garage for the purpose of illegal sale is not the equivalent of maintaining a garage which has not been so used. A garage * * * may be maintained for the purpose of selling narcotics without ever having been so used. Under the indictment, no actual use is required whereas the statutory offense clearly includes actual use as a necessary element or as an essential ingredient of the offense.” We find the language of Murphy, C.J., speaking for the Court in Ward v. State, supra, apposite: “Contrary to appellant’s contention, we think the information in this case properly charged an offense over which the court had jurisdiction.

The rule which seems to be generally recognized draws a line of demarcation between an indictment or information which completely fails to state an offense and one which alleges all the elements of the offense intended to be charged and apprises the accused of the nature and cause of the accusation against him, even though it is defective in its allegations or is so inartfully drawn that it would be open to attack in the trial court. Putnam v. State, 234 Md. 537 ; Baker v. State, [supra].” The count here specified that appellant unlawfully did keep and maintain a garage as a common nuisance in vio ²⁵ lation of Code, Art. 27, § 291. Whether the facts alleged were such as constituted a nuisance within the meaning of the statute was a matter of evidence. At most the count was open to challenge on sufficiency grounds — not that it failed to state an offense — but that it did so imperfectly by failing on its face to inform sufficiently the accused of the precise nature of the nuisance with which he was charged, thus entitling him prior to trial to move to dismiss the count under Maryland Rule 725 b or to a bill of particulars under Rule 715. 3 But this was not the ground upon which appellant sought dismissal of the charge.

He claimed, at the close of evidence offered by the State, that it failed to state an offense. We think it did; it stated the statutory offense of common nuisance. The Sufficiency of the Evidence Appellant claims that the trial court erred in denying his motion for judgment of acquittal made at the close of all the evidence because the evidence and rational inferences therefrom were not sufficient for the jury to be convinced beyond a reasonable doubt that the garage was used for the illegal selling of narcotic drugs. Williams v. State, 5 Md. App. 450 .

We agree that under the statute for the garage to be deemed a common nuisance the State must establish that it was in fact used for the illegal selling of narcotic drugs. By statutory definition “ ‘sale’ includes barter, exchange or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant or employee.” Code, Art. 27, § 276 (k). The dictionary definition of each of these words encompasses the receipt of something in return ²⁶ for the goods sold, bartered or exchanged as distinguished from a gift. 4 Officer Richard A. Bias, assigned to the Narcotics Section of the Metropolitan Police Department, testified that he went to 13814 Parkland Drive about 3:30 P.M. on 28 February 1970 to search a garage on the property under the authority of a search warrant. “We met with other officers and agents of the Federal Bureau of Narcotics, and we found the garage.” In the garage were 87 cases, each containing 24 four ounce bottles labeled Robitussin A.C. Cough Syrup and 24 cartons, each containing a one-gallon jug of the same prescription. Fourteen of the cartons had the word “ACTING” stamped on them under the horizontal bar in the letter “H” in the name “A.H.Robbins” on the cartons.

There were no other markings on the cartons. “All of them had been peeled to the point where there was no other markings on them.” The bottles and jugs were taken to the Office of the Bureau of Narcotics and Dangerous Drugs. On 11 February Bias placed the Petworth Pharmacy, 4201 Georgia Avenue, N.W., under surveillance. It was not until 8:55 P.M. on 13 February that he observed any unusual activity. At that time a delivery man came out of the pharmacy pushing a large hand truck on which were about 11 cases like those later found in the garage; they had the name A.H.Robbins on the top of them and “the remainder of the labels peeled off outside of the cartons.” He placed the cartons in the trunk of a ’69 or ’70 Rambler Hornet parked beside the store.

He put three loads of about 11 cases each and a fourth load of about 7 cases in the car. He then drove it away about 9:35 P.M. The police followed the car but lost contact ²⁷ with it. Surveillance on the pharmacy was continued. On 25 February the delivery man again brought cartons from the store, placing them in a dark green Rambler with the name of the pharmacy stencilled on the doors.

Four hand truck loads of cartons were put in the car, some in the trunk, some in the rear of the car, stacked all the way even with the windows. The name A.H.Robbins was on the cartons, but other labels had been peeled off. About 10:25 P.M. when the store closed, appellant drove away in the Rambler. He went to 13814 Parkland Drive, backed the car up the driveway to the garage, took the cartons out of the car and put them in the garage.

There were also other cartons in the garage. On 27 February, Bias had 13814 Parkland Drive under surveillance. About 10:45 P.M. the Rambler drove up, parked in front of the house and appellant got out and entered the house. Three to five minutes later a dark colored Mercury pulled up in front of the house.

Its lights went out and it was backed up the driveway to the garage. Three “negro males” got out of the car. Appellant came out of the house and several cases from the garage were loaded in the Mercury. The lights in the garage were on but the windows were painted “so you can’t see through them.” But through the garage door Bias saw appellant hand at least three cartons to the other men to load in their car.

The three men drove away in the Mercury. The officers followed it. On route 108 about a mile west of route 29, after traveling at a high rate of speed it suddenly pulled into a bar or restaurant on the right side of the road. The police proceeded past, turned around and came back.

The car and the men were still by the bar. The police drove by and went down the road to turn around. As they were coming back the car left the bar at a high rate of speed. They lost it.

Officer Edmund K. Mackinnon of the Metropolitan Police Department assigned to the Narcotics Section testified that on 20 February while checking various wholesalers he “personally marked 25 cases of Robitussin A.C. ²⁸ which were scheduled for shipment to the Petworth Pharmacy” by stamping the word “ACTING” on them “on the crossbar of the ‘H.’ in ‘A.H.Robbins’ which was printed on each carton.” He saw 25 cases he had marked loaded on a truck, followed it to Petworth Pharmacy and observed the cases being unloaded and taken into the store. He said that appellant “is listed as the Vice President of the corporation, trading as Petworth Pharmacy” and, to the best of his knowledge, appellant “is not a pharmacist.” Mackinnon and John R. Panetta, special agent of the Justice Department, Bureau of Narcotics and Dangerous Drugs observed the activities of appellant on 25 February as recounted by Bias. Special Agent Charles W. Cecile, Jr. of the Bureau of Narcotics and Dangerous Drugs, United States Department of Justice, testified that he removed “a portion of the bottles from the random selection of the boxes” seized in appellant’s garage “and turned them over to the chemist” for the Bureau for analysis. He submitted 74 four ounce bottles and 6 gallon jugs to the chemist.

It was stipulated that each bottle received by the chemist, which contained Robitussin A-C, had therein not more than one grain of codeine per fluid ounce and that codeine was listed as a narcotic drug in Code, Art. 27, § 276. It is patent that there was no direct evidence that money or something of equal value was received in exchange for the Robitussin stored in the garage. The question is whether the evidence adduced supported a rational inference that the garage was used for selling the cough syrup containing the narcotic drug, codeine. The lower court addressed itself directly to the issue.

It said that it must reject the argument that there was not sufficient evidence to permit the trier of fact to find beyond a reasonable doubt that the garage was used for the illegal selling of narcotic drugs. It gave as the reasons for its conclusion: “One is the sheer staggering quantity itself of what was found in the garage, which, of ²⁹ course, had been reduced only the evening before by that quantity which was removed by the three men to their automobile, to the Mercury. Two, the fact that the windowpanes in the garage had been painted so as to be opaque. Three, is the transfer made only the evening before within twenty-four hours of the seizure to the three men at night, and the total circumstances under which that was described, including up to the point where the surveillance of the three men was terminated by what I think can fairly be described as and would permit an inference of evasive efforts by those three men, that is the evasive action to thwart a surveillance by the trailing police officers; and I think that when that is taken into account together with what else was described, that it is fair to —insofar as adjectives are important — characterize those actions as furtive at night; the dispatch with which shortly after the Defendant arrived and the men pulled up suggesting the precision of the appointment; and the rapidity with which this all occurred in less than ten minutes, variously described as eight to ten minutes; the fact that these three men were not from the neighborhood, and were from at least as far away as the evidence would permit Ellicott City or thereabouts; and the fact that it came sometime after ten o’clock at night; and was from the garage and not from Petworth Pharmacy; next is the quantity, of course, of the amount sold to Petworth Pharmacy by the wholesaler as shown by their records.

There is no evidence in the case of the cost of the Robitussin A.C., but under any reasonable inference — we are not talking about something which was of no value or even little value —because of the quantity in the garage, and we ³⁰ are talking about a quantity that is sufficient to supply a lot of people for 48 hours, that is the bulk quantity and the 4 oz. bottles; the fact that the labeled portion Robitussin A.C. was torn off the boxes; and the fact that there were present gallon jugs; when, for example, as the officer said, only four ounces per 48 hours was allowed without prescription; but it required no evidence of that kind to suggest that it is not within normal contemplation for it to be sold to a non-prescription customer in a jug quantity. I think it is a fair inference that the jug contents were for — contemplated to be dispensed pursuant to a prescription, that is to be handled by a pharmacist into another smaller container with a prescription label on the bottle, maybe more than four ounces. All this coupled together, being the salient points and not ignoring, of course, the totality of the evidence, are sufficient to permit a rational inference that one, it was not in the garage to be consumed by the Defendant, that it was not there as any warehouse or storage place for Petworth Pharmacy, and it was not there to be given away; and to state it positively rather than negatively are sufficient to permit an inference, a rational inference, that it was there to be sold and that whenever it left those premises it was being sold; * * We agree that in the totality of the circumstances as shown by the evidence it was a rational inference that the garage was used for selling narcotic drugs. We hold that the lower court did not err in denying the motion for judgment of acquittal.

The Jury and the Search Wwrramt State’s Exhibit A was a federal search and seizure warrant, issued by a judge of the Circuit Court for ³¹ Montgomery County, which was offered on a motion to suppress heard prior to trial and received in evidence but with the understanding of the court and all parties that it would not be submitted to the jury “due to the conclusory nature of the document with respect to certain factual matters which were very much in issue at the trial.” According to the transcript of the proceedings the court instructed the jury and counsel presented arguments to them. The jury was then sent to lunch, after being properly cautioned, attended by the bailiff. They were directed to return directly to the jury room to deliberate their verdict. The jury retired to deliberate their verdict at 1:00 P.M. and the verdict was given at 2:50 P.M. After a short discussion about the verdict, one of the defense counsel addressed the court.

The transcript reads: “MR. CROMWELL (Defense Counsel) : There was one other matter, Your Honor; and that is with respect to the Exhibit that went into the jury room. The jury returned a verdict approximately 2:50. Around 2:15 or 2:30 I came into the courtroom to inquire what Exhibits had been sent in to the jury room.

I understand from checking that among the Exhibits which were sent in to the jury room was sent in State’s Exhibit marked ‘A’ for identification, which was not in evidence. It was the search warrant in this case. I believe that under the circumstances that we would want the record to show at this point clearly that State’s Exhibit A for identification was in fact delivered into the jury in connection with their deliberations. I don’t know how it happened to get in there but in any event, it was apparently sent in to the jury. ³² THE COURT: Yes.

The Court has been informed by the bailiff that what is marked as State’s Exhibit A, which