Taylor v. State

ADKINS, J. Md.Code (2002, 2006 Cum.Supp.), section 5-608 of the Criminal Law Article (Crim.) establishes mandatory minimum sentences for second, third, and fourth drug crimes. This cross-appeal by the State requires us to decide whether a repeat drug offender, who was convicted on the same day of two predicate drug felonies, but was not sentenced as a second offender under section 5-608(b) and has not served 180 days of his sentences for those crimes, may be sentenced on a subsequent conviction under the mandatory minimum 10-year sentence enhancement for second offenses. In the circumstances presented here, we hold that a subsequent offender who has not served the requisite 180 days on his second drug crime conviction to qualify for the 25 year minimum sentence for third offenses, but who has not previously been sentenced to the 10-year mandatory minimum sentence for second offenses, should be sentenced as a subsequent offender under Crim. section 5-608(b). FACTS AND LEGAL PROCEEDINGS Baltimore City Police Officer Brian Shutt testified that on the afternoon of November 9, 2004, he and Officer Anthony Maggio were passengers in an unmarked police car driven by Officer Frank Nellis.

They were traveling in an area known for frequent drug trafficking when they observed pedestrians scattering as they approached. Shutt got out of the car and found a “covert” hiding place where he could observe the area. Maggio and Nellis left the area and waited for Shutt in the vehicle. ¹⁵⁸ Shutt testified as an expert in the field of observation, detection, identification, and packaging of street level narcotics. From a distance of approximately 40 feet, Shutt used binoculars to see what he believed was “an illegal narcotics transaction.” He observed a black female approach one of the males, speak with him and then hand him money.

That male then spoke with appellant William Taylor (aka Tavon Getrightson), who responded by jogging down Curley Street and then up some steps of a vacant house. He reached down. He pulled out a plastic bag and from what I could see, I couldn’t tell exactly what was in the plastic bag but it was the size and shape ... that’s consistent with illegal narcotics that are sold in that area, either in gel capsules or in small vials. He reached into the bag and pulled his hand out.

He put the bag down, back to where he got it. He came back to where this female was waiting and he handed her whatever he took out of the bag----It was small, the item was ... larger than a tee; it was smaller than a cigarette and it could be cupped in [Taylor’s] hand and he gave it to this female like this and the female left the area in a very hurried manner. Officer Shutt then called his partners to pick him up. By the time they arrived, Taylor was the only person still in the vicinity of the transaction.

Officer Nellis retrieved the bag that Taylor handled, from behind the steps of the vacant house. Subsequent chemical analysis indicated that the bag contained 22 gel capsules of heroin and 44 glass vials of cocaine. Taylor was arrested at the scene. A jury in the Circuit Court for Baltimore City convicted Taylor of two counts of possession and two counts of possession with intent to distribute controlled substances.

After merging the possession offenses into the distribution offenses, the court sentenced Taylor to concurrent terms of 12 years for each conviction, but declined to impose the enhanced mandatory penalties for either second or third offenders under Crim. section 5-608. Taylor raises one question in his appeal: ¹⁵⁹ I. Was the evidence sufficient to support the convictions? The State raises the following question in its cross-appeal: II. Did the sentencing court err in not imposing a mandatory enhanced sentence for second offenders under section 5 — 608(b)?

We find sufficient evidence for the convictions. We shall remand for re-sentencing, however, because the trial court erroneously believed that the ten-year second offender sentencing enhancement under Grim, section 5-608(b) could not be imposed on Taylor. DISCUSSION I. Sufficiency Of Evidence Taylor argues that the evidence was insufficient to convict him on any charge. He offers three reasons that “Shutt’s testimony is neither credible nor sufficient to establish that Mr. Taylor possessed drugs, whether with the intent to distribute them or otherwise.” We find none of these persuasive.

As a threshold matter, we agree with the State that Taylor failed to preserve his sufficiency challenge for appellate review. In moving for a judgment of acquittal at the close of the State’s case, Taylor’s counsel stated as grounds for the motion: “I don’t believe the State has satisfied its burden of ... providing sufficient evidence to go any further than this.” After resting Taylor’s case, defense counsel simply “[rjenewed my motion.” In moving for a judgment of acquittal, “[t] he defendant [must] state with particularity all reasons why the motion should be granted.” Md. Rule 4-324(a). Moreover, under Maryland rules and precedent, “review of a claim of insufficiency is available only for the reasons given by appellant in his motion for judgment of acquittal.” Whiting v. State, 160 Md.App. 285, 308 , 863 A.2d 1017 (2004), aff'd on other grounds, 389 Md. 334 , 885 A.2d 785 (2005). When no reasons ¹⁶⁰ are given in support of the acquittal motion, this Court has nothing to review.

Having failed to challenge the State’s evidence on the particularized grounds he now asserts in this appeal, Taylor did not preserve his challenge to the sufficiency of that evidence. Even if he had done so, we would not reverse the convictions. 1 See, e.g., Rivers v. State, 393 Md. 569, 580 , 903 A.2d 908 (2006) (court’s task in reviewing sufficiency of evidence is to determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt). As Chief Judge Joseph F. Murphy, Jr. explained for this Court in Archie v. State, 161 Md.App. 226, 244-45 , 867 A.2d 1120 , cert. denied, 387 Md. 462 , 875 A.2d 767 (2005), [i]n order to “possess” a controlled dangerous substance, a person must “exercise actual or constructive dominion or control over [the substance].” Possession need not be immediate and direct but may be constructive. Knowledge of the presence and illicit nature of narcotics may be proven by inferences from the circumstances as a whole.

The fact that drugs were not found on the person of the defendant does not prevent the inference that the defendant had possession and control of those drugs. The following factors are relevant to the issue of whether the evidence was sufficient to show that appellant possessed the drugs in question: (1) proximity between the defendant and the contraband, (2) the fact that the contraband was within the view or otherwise within the knowledge of the defendant, (3) ownership or some possessory right in the premises or the automobile in which the contraband is found, or (4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the contraband. (Citations omitted.) ¹⁶¹ See also State v. Suddith, 379 Md. 425, 432 , 842 A.2d 716 (2004)(“the mere fact that the contraband is not found on the defendant’s person does not necessarily preclude an inference by the trier of fact that the defendant had possession of the contraband”); Veney v. State, 130 Md.App. 135, 144 , 744 A.2d 1094 (drugs found in “close proximity” to the defendant, when accompanied by evidence that the defendant was aware of them and had access to them, can provide a sufficient connection to support an inference of possession), cert. denied, 358 Md. 610 , 751 A.2d 472 (2000). Taylor’s threshold challenge to Officer Shutt’s credibility rests on his assertion that Officer Shutt “was so far removed from the key events he claims to have observed that he relied on binoculars ... part of the time” and “could not see the currency that Mr. Taylor received” or what Taylor gave to the unidentified black female.

Neither the 40 feet between Shutt and the transaction he observed, nor Shutt’s use of binoculars so undermined the credibility of the officer’s testimony that it must fail as a matter of law. Cf., e.g., McCoy v. State, 118 Md.App. 535, 537-38 , 703 A.2d 237 (1997)(testimo-ny by officer who observed drug transaction through binoculars from 75 ft. away was sufficient to convict), cert. denied, 349 Md. 235 , 707 A.2d 1329 (1998); Garrison v. State, 88 Md.App. 475, 477 , 594 A.2d 1264 (1991)(evidence that officer observed drug transaction from 45 feet away was sufficient to convict), cert. denied, 325 Md. 249 , 600 A.2d 418 (1992). Nor is reversal required simply because Taylor does not live in the house used in the transaction. Here, possession of the contraband reasonably may be inferred from evidence that an officer trained as an expert in street level drug transactions observed Taylor access and store drugs behind exterior steps to a vacant rowhouse, precisely where police presently recovered such drugs.

The jury could reasonably conclude from this evidence that Taylor was using this location to conceal contraband between drug sales, even if he had no “possessory” connection to that property. ¹⁶² Taylor’s next complaint, about lack of “physical evidence linking Mr. Taylor to any controlled substances,” is similarly without merit. Possession may be established on the basis of eyewitness testimony such as the testimony here by a surveilling police officer. See, e.g., Jackson v. State, 82 Md. App. 438, 446-47 , 572 A.2d 567 (1990) (possession and distribution convictions were supported by evidence that police officers conducting drug surveillance observed defendant and accomplice repeatedly deliver small baggies containing white substance to persons exhibiting physical characteristics of drug addicts upon payment in currency), aff'd, on other grounds, 322 Md. 117 , 586 A.2d 6 (1991). In addition to testimony that police found illegal drugs precisely where Officer Shutt observed Taylor access them, this record includes an authenticated photograph with a hand-drawn arrow pointing to this location.

A reasonable juror could conclude that the discovery of drugs where Taylor repeatedly went to retrieve something for a paying customer, shortly after engaging in such transactions, provided the requisite link between Taylor and the drugs.

II

Sentencing Enhancement For Subsequent Offenders Crim. section 5-608(b) mandates enhanced sentencing for subsequent offenders 2 convicted of certain felony drug crimes. It creates a tiered sentencing scheme for first, second, third, and fourth offenders, with mandatory minimum terms of sentencing for each succeeding conviction. In this manner, the legislature requires increasing punishment when the defendant’s recidivism warrants such enhancement. Cf.

Simms v. State, 83 Md.App. 204, 218 , 574 A.2d 12 (recognizing same legislative intent for statute enhancing sentences of ¹⁶³ repeat violent offenders), cert. denied, 321 Md. 68 , 580 A.2d 1077 (1990). The statute provides, in pertinent part: (a) In general. — Except as otherwise provided in this section, a person who violates a provision of §§ 5-602 through 5-606 of this subtitle with respect to a Schedule I or Schedule II narcotic drug is guilty of a felony and on conviction is subject to imprisonment not exceeding 20 years or a fine not exceeding $25,000 or both. (b) Second time offender. — (1) A person who is convicted under subsection (a) of this section ... shall be sentenced to imprisonment for not less than 10 years ... if the person previously has been convicted once: (1) under subsection (a) of this section or § 5-609 of this subtitle---- (2) The court may not suspend the mandatory minimum sentence to less than 10 years. (3) Except as provided in § 4-305 of the Correctional Services Article, the person is not eligible for parole during the mandatory minimum sentence.

(c) Third time offender. (1) A person who is convicted under subsection (a) of this section ... shall be sentenced to imprisonment for not less than 25 years ... if the person previously: (1) has served at least one term of confinement of at least 180 days in a correctional institution as a result of a conviction under subsection (a) of this section, § 5-609 of this subtitle, or § 5-614 of this subtitle; and (ii) has been convicted twice, if the convictions arise from separate occasions: 1. under subsection (a) of this section or § 5-609 of this subtitle.... (2) The court may not suspend any part of the mandatory minimum sentence of 25 years. ¹⁶⁴ (3) Except as provided in § 4-305 of the Correctional Services Article, the person is not eligible for parole during the mandatory minimum sentence. (4) A separate occasion is one in which the second or succeeding crime is committed after there has been a charging document filed for the preceding crime.

(Emphasis added.) Crim. § 5-608. Pursuant to Md. Rule 4-245(e), 3 the State filed notice of its intent to seek a mandatory 10-year penalty against Taylor under section 5-608(b), based on his two August 12, 2004 convictions for possession of heroin and cocaine and possession with intent to distribute those drugs. At the sentencing hearing, the State argued that, although there is no case law precedent for the circumstances presented by this case, Taylor’s 2004 convictions should be treated as a single first conviction for purposes of the second offender enhancement under section 5-608(b). It’s the State’s position that ... the conviction on August 12th, 2004 under both of the case numbers ... equals one conviction---- [T]hey occurred on the same date by the same judge, under the same plea agreement.

The Defendant was given the same concurrent sentences and the same period of probation was all run concurrently by Judge McCurdy on that day. He was given a sentence of seven years suspend all but six months and two years ... of supervised probation. Your Honor, it’s the State’s position that that would equal one prior conviction.... Gargliano v. State .... indicates that the legislative intent behind the enhanced penalty ¹⁶⁵ statute is that when a defendant is given an opportunity under one conviction ... to reform himself after he has been convicted once of a CDS felony.... [T]he Defendant did not avail himself of the opportunities that were afforded to him.. and continued to re-offend....

In opposition, Taylor asserted that his August 2004 convictions constituted separate first and second convictions, meaning that the current convictions would be his third offense. Strange as that argument might seem from a subsequent offender facing stiff mandatory sentencing enhancements, Taylor’s strategy was designed to avoid application of both the second and third offender penalties, which in turn would avoid the statutory restrictions on the sentencing court’s discretion to suspend a portion of the sentence and on the Parole Board’s discretion to grant parole before the mandatory minimum period of incarceration is served. Defense counsel admitted that “the result might not make sense but it is what the legislature said and I think that the Thomas case ... says ... that the language of the statute says second and therefore only the second conviction can be punished by ten without parole.” In Taylor’s view, because he had two prior convictions, he could not be sentenced as a second offender under subsection 5 — 608(b); moreover, because he had not served at least 180 days of confinement on either of those convictions, he could not be sentenced as a third offender under subsection 5-608(c). The State objected that the statutory construction posited by the defense would preclude sentence enhancements whenever the predicate CDS convictions occur simultaneously- 4 ¹⁶⁶ The sentencing court confirmed that the first offense date was October 28, 2003, and the second offense date was February 26, 2004, with convictions on both offenses occurring on August 12, 2004, in separately numbered cases, pursuant to a plea agreement encompassing both.

The court then agreed with Taylor that he could not be sentenced as either a second or third offender, reasoning as follows: [W]e have ... a conviction on each of two cases which occurred on the same date, at the same time, by the same judge, with the same time [i.e., term of imprisonment] being given and suspended concurrently. However, there are two separate case numbers. The evidence in one was not the evidence in the second. For all intents and purposes, these are two separate cases....

And if there’s any room for ambiguities, supposition, or guesswork, that it should be resolved in favor of the lesser penalty----[W]hat I’m going to rule is that a strict construction interpretation of the statute does not apply to this set of circumstances and therefore I am mandated by prior law, I think, to impose only that punishment which is contemplated by statute----[W]hat that means is that he is not eligible for the ten [years] without [parole] and because he has not served 180 days, he’s not eligible for the 25 without [parole]. (Emphasis added.) The State cross-appeals the sentencing court’s decision not to impose a mandatory sentence of ten years without the possibility of parole under Crim. section 5-608(b). It argues that the statute contains no language “that prohibits its application to the present case.” The court’s error, the State contends, is in narrowing this second offender provision to apply “only ‘if the person previously has been convicted once, and only once ’ of a felony offense.” 5 For the reasons set forth below, we agree. ¹⁶⁷ Application Of Section 5-608(b) We have long recognized that the legislative scheme of tiered sentencing enhancements is designed to distinguish between punishing multiple offenders via the mandatory 10-year sentencing enhancement in subsection 5 — 608(b) and punishing recidivist offenders via the 25 and 40-year enhancements in subsections 5-608(c) and (d). See State v. Polley, 97 Md.App. 192, 202 , 627 A.2d 562 (1993).

In Gargliano v. State, 334 Md. 428 , 639 A.2d 675 (1994), the Court of Appeals closely examined the provenance and purpose of the same subsection and language we are called upon to interpret here. The analytical framework in that case provides an appropriate template for our interpretation of the statute in this new context. The Gargliano Court recognized that the phrase “if the person previously has been convicted” is not clearly defined in the statute or otherwise discussed anywhere in legislative history. See Gargliano, 334 Md. at 438-42 , 639 A.2d 675 .

Because the dueling interpretations offered by the State and the defendant in that case were both reasonable, the Court “look[ed] beyond the words of the statute ... to other evidence of legislative intent to determine which interpretation of the two best furthers the legislative object or goals.” Id. at 439 , 639 A.2d 675 . Consequently, the Court analyzed the meaning of the proviso “if the person previously has been convicted” in the context of the problem it was enacted to address. In construing