White v. State

MOYLAN, Judge. The appellant, Sean Julian White, was convicted by a Wi-comico County jury, presided over by Judge D. William Simpson, of 1) the importation of cocaine into Maryland, 2) the possession of cocaine with intent to distribute it, 3) conspiracy to import cocaine into Maryland, and 4) conspiracy to possess cocaine with the intent to distribute it. On this appeal, he raised the three contentions 1) that Judge Simpson erroneously failed to strike two potential jurors for cause; 2) that he was unlawfully seized when the traffic stop of the vehicle in which he was riding was unconstitutionally protracted; and ⁶⁴² 3) that the evidence was not legally sufficient to establish constructive possession on his part of contraband cocaine found in the trunk of the automobile in which he was riding. The Failure to Strike Two Potential Jurors for Cause The appellant’s contention that Judge Simpson erroneously failed to strike two potential jurors for cause is presented to us in an unilluminating half a page, with no citation to any appellate decision or any other legal authority.

There is no factual recitation detailing what occurred in the course of the jury selection process and there is no legal argument as to any reversible error occurring in the course of that process. The two potential jurors in question, identified by the appellant only in a subheading, never sat on the jury. They were both subjected to peremptory strikes by the appellant. The appellant does not even tell us whether his peremptory strikes were exhausted at the end of the jury selection process.

Although this contention does not tell us, the key State’s witness was Trooper Mike Lewis of the Maryland State Police. Although this contention does not tell us, the two potential jurors in question indicated that they had known Trooper Lewis when they were in high school with him. Both potential jurors, however, indicated that that would not in any way affect their ability to render fair and impartial verdicts. Several other potential jurors also had an acquaintanceship with Trooper Lewis and indicated that that fact might affect their judgments; they were struck for cause.

Were the merits of this contention before us, we would see no abuse of discretion in Judge Simpson’s refusing to strike these two jurors for cause. What is absolutely dispositive of the contention, however, is that at the end of the jury selection process, defense counsel indicated that the jury was acceptable to the defense. Under precisely the same circumstances, Judge Rodowsky ⁶⁴³ held for the Court of Appeals in White v. State, 300 Md. 719, 729 , 481 A.2d 201 (1984), that such an announcement of satisfaction with the jury is a waiver of any challenge with respect to the jury selection process: We have also held that a claim of error in the denial of a challenge for cause was waived by defense counsel’s announcing satisfaction with the jury after all peremptory challenges had been exhausted. In Calhoun v. State, 297 Md. 563, 579 , 468 A.2d 45 (1983), Judge Smith announced for the Court of Appeals a similar conclusion: The trial judge overruled a challenge for cause.

One of Calhoun’s peremptory challenges was then exercised. Calhoun contends that the refusal of the trial judge to grant his challenge for cause effectively reduced the number of his peremptory strikes from twenty to nineteen. There is both a short and a long answer to Calhoun’s contentions. The short answer is that counsel said, “[W]e are satisfied!,]” after the last juror was sworn subsequent to the exhaustion of Calhoun’s peremptory challenges.

The State then announced its satisfaction. Thus, the point is waived. The Claim of Unconstitutional Detention The appellant’s contention that he was unconstitutionally detained is significant more for what it is not than for what it is. The appellant absolutely is not contending that the search of the automobile in which he was riding, which search produced 194 grams of cocaine, was a violation of his Fourth Amendment rights. 1 Indeed, the appellant begins this very ⁶⁴⁴ contention by reiterating his earlier concession that he had no standing to challenge the search of the automobile in which he was riding: While Appellant conceded that he had no standing to challenge the search of Charity’s vehicle, because he had no possessory interest therein, he nevertheless was the subject of an unlawful seizure of his person pursuant to the actions of Trooper Lewis.

(Emphasis supplied). At the brief suppression hearing on August 10, 1999, that part of it in which the appellant was involved is covered by a bare three-and-a-half pages of the transcript. At the outset, the State challenged the appellant’s standing to object to the search of the codefendant’s automobile. In an apparent tactical effort to distance himself as far as possible and as quickly as possible from any interest in that automobile, the appellant leaped at the opportunity to concede the lack of standing: [Appellant’s counsel]: Your Honor, if the State is willing to concede that Mr. White had no possessory interest in the vehicle, ergo he would not have standing, we will concede it.

When the State, looking ahead to its trial responsibility of proving joint possession, refused to make any mutual concession, the appellant took the stand and, in half a page, disclaimed any possessory interest or ownership in the vehicle. 2 ⁶⁴⁵ The colloquy between Judge Simpson and defense counsel immediately concluded: [Appellant’s counsel]: I think as to Sean White, Your Hon- or, there is no possessory interest . .. The Court: Well, do you agree then there is no standing? [Appellant’s counsel]: I ivill agree. The Court: All right. There is no standing for Mr. White.

(Emphasis supplied). At that point, the appellant withdrew from the suppression hearing. The hearing went on as to the codefendant, Charity, alone. In any event, the appellant is not raising any issue with respect to that suppression hearing or with respect to Judge Simpson’s ruling on the search of the trunk of the automobile.

In some vague and amorphous way, the appellant is generally complaining, for the first time on appeal, that when the traffic stop of the driver of the automobile was protracted beyond the time reasonably necessary to serve the purpose of that stop, that prolongation of the stop amounted to a coincidental detention of the appellant himself. He cites no case law or other authority and makes no legal argument in support of the proposition that such a coincidental detention amounts to a violation of his Fourth Amendment right. More directly to the point, however, is that the appellant points to no fruits flowing from such a detention. Even if, arguendo, such a coincidental detention were a Fourth Amendment violation, the appellant makes no argument that it produced anything that in any way prejudiced him.

We are ⁶⁴⁶ not about to make arguments for him in that regard that he does not make for himself. There was no post-detention frisk of his person or search incident to arrest which produced any physical evidence taken from him and no such evidence was introduced. The search of the trunk of the automobile, the only investigative event of any significance in this case, directly resulted from the marijuana found on the person of the driver when he was frisked. The detention of the appellant, even if assumed to have been unconstitutional, was not the cause of the search of the trunk.

The appellant points to no fruits to be suppressed. It is a contention that goes nowhere. Equally dispositive of the contention now advanced is that it was never raised in any way before Judge Simpson. At the suppression hearing, the appellant never argued with respect to this coincidental detention of his person.

At trial, the appellant at no time made any objection that any evidence was the product of such an allegedly unconstitutional detention. However meritless the contention may be in hindsight, it has not been preserved for appellate review. Legal Sufficiency of the Evidence As to Joint Possession of Contraband As a deliberate trial tactic, the appellant has chosen to pitch the battle almost exclusively on the ground of the legal insufficiency of the evidence to connect him to the contraband. His argument is that he was a mere passenger in the automobile in which the contraband was found.

At the time the car was stopped, the appellant was in the right front seat. The contraband was concealed in a box in the trunk. The appellant claims that there was nothing to indicate that he had any knowledge of the cocaine that the driver was carrying in the trunk of his car. Unlawful possession, however, need not be direct nor need it be exclusive.

It may be constructive and it may be joint. As we explained in Folk v. State, 11 Md.App. 508, 511-12 , 275 A.2d 184 (1971): ⁶⁴⁷ It is well-settled that the proscribed possession of marihuana or of narcotic drugs under the Maryland law need not be sole possession. “[Tjhere may be joint possession and joint control in several persons. And the duration of the possession and the quantity possessed are not material, nor is it necessary to prove ownership in the sense of title.” Jason v. State, 9 Md.App. 102, 111 , 262 A.2d 774 . See also Munger v. State, 7 Md.App. 710 , 256 A.2d 888 ; Davis and Napier v. State, 7 Md.App. 667 , 256 A.2d 819 ; Scott v. State, 7 Md.App. 505 , 256 A.2d 384 ; Hernandez v. State, 7 Md. App. 355 , 255 A.2d 449 ; Haley v. State, 7 Md.App. 18 , 253 A.2d 424 ; Williams v. State, 7 Md.App. 5 , 252 A.2d 880 .

See also Rich v. State, 93 Md.App. 142, 149-51 , 611 A.2d 1034 (1992). And see McDonald v. State, 347 Md. 452, 473-75 , 701 A.2d 675 (1997); Pearson v. State, 126 Md.App. 530, 536-43 , 730 A.2d 700 (1999); Hall v. State, 119 Md.App. 377, 392-94 , 705 A.2d 50 (1998). The State’s case was based exclusively on the testimony of Maryland State Police Sergeant Michael Lewis. Sergeant Lewis was a 15-year veteran with the State Police and was, at the time of the stop, assigned to the Criminal Interdiction Unit.

He had extensive training in enforcement of the narcotics laws and had participated in between 600 and 800 felony drug arrests. He was on duty in an unmarked State Police cruiser on the evening of Thursday, January 21, 1999, when he stopped a 1993 Nissan Maxima for a minor traffic violation. The Nissan Maxima was southbound on U.S. Route 13 as it bypassed the City of Salisbury. The point of the stop was approximately five miles from the Delaware state border.

The Nissan Maxima was occupied by two individuals. The driver and owner of the automobile was one Kendrick Orlando Charity. The appellant was the lone passenger and was seated in the right front passenger seat. Ultimately recovered from the trunk of the car were 194 grams of powdered cocaine.

Sergeant Lewis testified that if turned into crack cocaine, the 194 grams would have a street value of approximately $38,000. ⁶⁴⁸ Before we recount in further detail the evidence showing that the appellant was at least in joint constructive possession of the narcotics, we would note the opinion of this Court in Middleton v. State, 10 Md.App. 18 , 267 A.2d 759 (1970). In that case, Middleton was one of two persons in control of a 1968 white Plymouth which had been stolen in South Carolina. A search of the trunk of the stolen Plymouth by Baltimore City police officers revealed, inter alia, narcotics and narcotics paraphernalia. Although in Middleton , to be sure, the appellant was just as much in control of the car as was his companion, whereas in this case the companion was the driver and registered owner,-we nonetheless find some significance in the holding of Middleton .

It concluded from the fact that the defendant there was one of two persons in control of the vehicle that he could be charged with knowledge of the prohibited drugs being carried in the trunk of the vehicle: These convictions were predicated on finding prohibited narcotics ... in the South Carolina vehicle on March 6. As appellant was shown by the evidence to be, at least, in joint exclusive possession of the vehicle -with Galliard, we cannot say that the trial judge was clearly erroneous in finding appellant guilty of these offenses. 10 Md.App. at 31 , 267 A.2d 759 . In Middleton , as in this case, the defendant deliberately declined to attack the legality of the search of the vehicle in a tactical effort to open up as much distance as possible between himself and the vehicle. As Chief Judge Robert C. Murphy noted for this Court, 10 Md.App. at 31 n. 5, 267 A.2d 759 : Appellant’s trial tactics, carried over on appeal, were to disavow any and all connection with the South Carolina car; it was apparently for this reason that he declined to attack the legality of the search of that vehicle.

In this case, as the appellant vigorously points out, the contraband was found in an automobile registered not to the appellant but to his traveling companion. What is required by way of proof, however, is not direct possession but only constructive possession, not exclusive control but only joint ⁶⁴⁹ control. In that regard, we find the opinion for this Court by-Judge Wilner in Butler v. State, 41 Md.App. 677 , 398 A.2d 514 (1979), helpful. In that case, the contraband was found in a satchel carried not by the defendant but by a traveling companion.

A Maryland State Trooper there observed Butler and a companion arrive together at the Baltimore-Washington International Airport. The two men were about ten feet apart as they walked away from the airplane. Butler was carrying a clothing bag. His companion was carrying the tan satchel which contained the contraband.

Inside the terminal building the two men stopped at the information booth and had a 10-to-15-second conversation. They left the terminal and were attempting to enter a cab together when they were stopped by the police. With respect to Butler’s attempt to disclaim joint constructive possession, Judge Wilner held: Appellant’s first argument is that, as the lactose and quinine were found in the satchel carried by Davis, there was no evidence to show that they were ever in his possession. Possession of contraband to be criminal, however, need not be exclusive or actual.

There may be joint possession and constructive possession, either of which will suffice to sustain a conviction. The proximity of the two men— leaving the plane, conversing in the terminal, and attempting to enter the same cab — coupled with the presence of prescription drugs with appellant’s name on them in the satchel, more than sufficed to establish a joint or constructive possession of the contraband. 41 Md.App. at 679 , 398 A.2d 514 (citations omitted). The evidence of joint participation in a common enterprise was strong in the case now before us. The route being traveled by the two men was not without significance.

The evidence was that on January 20, 1999, the two occupants of the vehicle had left the area of Norfolk, Virginia; had passed through the Chesapeake Bay Bridge-Tunnel to the Delmarva Peninsula; and had driven north to New York City. The ⁶⁵⁰ evidence further showed that on the next day, January 21, they were on their southbound journey from New York City back to the Norfolk area when they were stopped just outside Salisbury. The evidence thus showed at least a two-day overnight round-trip of approximately 600 miles from Southern Virginia to New York City and back again. On