White v. State

HARRELL, Judge. Charged with importation of cocaine (count one), possession of cocaine with the intent to distribute (count two), possession of cocaine (count three), conspiracy to import cocaine (count four), conspiracy to possess cocaine with the intent to distribute (count five), and possession of paraphernalia (count six), ¹⁵³ Sean Julian White (Petitioner) was convicted by a jury in the Circuit Court for Wicomico County of the crimes charged in counts one through five. 1 On 29 September 1999, Petitioner appealed to the Court of Special Appeals, which affirmed the lower court’s judgments. White v. State, 132 Md.App. 640 , 753 A.2d 578 (2000). We granted White’s petition for a writ of certiorari.

White v. State, 360 Md. 485 , 759 A.2d 230 (2000). The petition for certiorari presented the following questions: 1. Did the Court of Special Appeals err in determining that Petitioner could not avail himself of an unconstitutional traffic stop, even though Petitioner, as a passenger in the vehicle, did not have standing to question the search of the vehicle itself? 2. Did the Court of Special Appeals err in determining that the evidence was legally sufficient to establish constructive possession of the cocaine found in the trunk of the vehicle in which he was a passenger? 3.

Did the Court of Special Appeals err in determining that the evidence was legally sufficient to establish that Petitioner was guilty of possession of cocaine with intent to distribute, conspiracy to import cocaine into the State of Maryland, and conspiracy to possess cocaine with intent to distributee?] 2 ¹⁵⁴ We shall answer a question embedded in issues two and three in the affirmative and reverse. We shall not reach any of Petitioner’s other issues. I. While on routine patrol the evening of 21 January 1999, two Maryland State troopers, Sergeant Michael Lewis and Corporal Gary Bromwell, observed three vehicles traveling southbound on Route 13 in Wicomico County, Maryland, approximately five miles from the Delaware state line, in what appeared to the troopers to be a procession. The troopers stopped the middle and end vehicles for following too closely for safe operation during inclement weather. 3 The troopers each attended to an automobile: Corporal Bromwell gave the driver of the end vehicle a warning and allowed him to continue on his way.

The present case arises from the series of events that occurred during the interaction of mainly Sergeant Lewis with the driver, Kendrick Charity, Petitioner’s co-defendant, and the passenger, Sean Julian White (Petitioner), of the middle automobile. After informing Charity why he was stopped, Lewis requested his driver’s license and vehicle registration. Charity provided a North Carolina license and registration. 4 Observing that Petitioner was sitting in the front passenger seat, but not wearing a seat belt, Lewis asked Petitioner for his driver’s license as well. 5 Petitioner proffered to Lewis a New York ¹⁵⁵ driver’s license. During this interaction, Lewis noticed a Chesapeake Bay Bridge tunnel toll receipt, with a date of 20 January 1999 and a time of 20:09 hours (8:09 PM), on the center console, and an overwhelming pine scent emitted by dozens 6 of pine tree-shaped air fresheners hanging from the car’s rear view mirror.

Testifying that he “stood near the driver’s door for a very short period because [he] was literally having difficulty talking because of the overwhelming odor,” Lewis asked Charity to step to the rear of the car. Once there, Lewis proceeded to question him about his immediate journey. Charity indicated that he and Petitioner had just spent a week “up north” and were on their way to Charlotte, North Carolina. Observing that Charity avoided eye contact with him, Lewis also remarked that he “could see [Charity’s] carotid pulse pounding in his neck.

His chest was palpitating. ... I could actually see his heart pounding through his shirt.” Lewis testified that, while questioning Charity, he also took note of Petitioner’s conduct as he sat in the car. Noticing that Petitioner rolled down his passenger-side window and left it open despite the heavy rain outside, 7 Lewis ultimately approached Petitioner and asked about his and Charity’s journey. Petitioner replied that they were coming from New York, where they had stayed for a few days, and that they were driving to Chesapeake, Virginia, to attend a relative’s funeral. 8 Petitioner then pointed to clothing in the backseat of ¹⁵⁶ the car that he said he was going to wear to the funeral.

During this interaction, Lewis observed that Petitioner looked straight ahead or at the side view mirror 9 to watch Charity standing behind the vehicle, but not at Lewis. Noting that both of the vehicle’s occupants exhibited what Sergeant Lewis considered to be “nervous” behavior and that their stories were inconsistent with each other, as well as with the implication of the toll receipt, Lewis returned to speak with Charity. Wanting to continue the questioning in his patrol car because the rain storm was worsening, 10 Lewis, as a precaution, asked Charity if he could conduct a pat-down. Charity agreed; during the pat-down, Lewis felt a suspicious object in one of Charity’s pockets, leading Lewis to ask Charity what it was.

In response, Charity emptied his pockets and removed, among other things, what Lewis thought to be a small bag of marijuana (later confirmed to be just that). Upon seeing the suspected drugs, Lewis, suspecting Petitioner and Charity were involved in criminal activity, 11 informed ¹⁵⁷ Charity that finding drugs “authorizes me to conduct a full-blown search of your vehicle.” Lewis asked Petitioner to get out of the car and to stand at the rear of the vehicle alongside Charity and Corporal Bromwell 12 while Lewis searched the vehicle. Lewis searched both the passenger compartment and the trunk of Charity’s car. While searching the passenger compartment, Lewis found the “funeral” clothes that Petitioner had referred to earlier and two additional receipts: one, from The “Original” Guaranteed Used Tire Company, dated 20 January 1999; the other, from the Queens Mid.

Tunnel, issued on 21 January 1999 at 18:20 hours (1:20 PM). While searching the vehicle’s trunk, Lewis found two travel bags, one belonging to Petitioner and one to Charity, and a large, apparently factory-sealed box containing pots and pans. Lewis removed the box from the car so that he could continue to search the trunk. When he returned his attention to the box, he noticed that the factory packaging tape on the bottom of the box appeared to have been re-taped.

Lewis removed the tape, opened the box, and found pots and pans in their original packaging. Upon closer inspection inside the box, however, Lewis found a large duct-taped package containing what proved to be 194 grams of cocaine. Lewis and Bromwell promptly arrested Charity and Petitioner. Petitioner was charged on 5 April 1999 with importation of ¹⁵⁸ cocaine (count one), 13 possession of cocaine with the intent to distribute (count two), 14 possession of cocaine (count three), 15 conspiracy to import cocaine (count four), 16 conspiracy to possess cocaine with the intent to distribute (count five), 17 and possession of paraphernalia (count six). 18 Petitioner was con ¹⁵⁹ victed by a jury in the Circuit Court for Wicomico County of counts one through five. 19 On 29 September 1999, following sentencing, Petitioner appealed the trial court’s judgments to the Court of Special Appeals.

In his brief to the Court of Special Appeals, Petitioner raised three issues: whether the trial judge erroneously failed to strike two potential jurors for cause; whether Petitioner was unlawfully seized when the traffic stop of the vehicle in which he was riding was unconstitutionally protracted; and whether the evidence was legally sufficient to establish constructive possession on Petitioner’s part of the contraband cocaine found in the trunk of the automobile in which he was riding. On 8 June 2000, finding no merit in White’s argument, the intermediate appellate court affirmed the lower court’s judgments. White v. State, 132 Md.App. 640 , 753 A.2d 578 (2000). Petitioner petitioned this Court for a writ of certiorari, which we granted on 11 September 2000.

White v. State, 360 Md. 485 , 759 A.2d 230 (2000).

II

Petitioner, paraphrasing in his brief a question framed also in his petition for writ of certiorari, argues that his person was illegally seized in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States. Although in his brief he discusses meaningfully virtually no case law to support this assertion and concedes that he has no standing to challenge the search of Charity’s vehicle because he had no possessory interest in it, Petitioner maintains that he was, nonetheless, the subject of an unlawful seizure of his person when Lewis asked him to exit Charity’s vehicle. Be ¹⁶⁰ cause we shall decide this case on another ground, we need not decide this contention.

III

A. In his brief, Petitioner melds issues two and three of his certiorari petition by asserting that the evidence in the record was insufficient to sustain convictions for importation, possession of cocaine with intent to distribute, possession of cocaine, conspiracy to import, and conspiracy to possess with intent to distribute. Specifically, Petitioner submits that the State failed to meet its burden of proving, beyond a reasonable doubt, that Petitioner “knowingly and intentionally possessed, either actually or constructively, [194 grams of cocaine] in such a manner as to indicate his clear intent to exercise dominion and control over same .” 20 Arguing that the State’s evidence proved at most that he was a passenger in a vehicle owned by Charity, Petitioner finds support in the facts that the cocaine was located in a sealed box in the vehicle’s trunk, out of plain view, and that there was no odor of drugs emanating from the trunk with which he could be charged with detecting. As to the “dozens” of air fresheners Lewis testified were inside the passenger compartment of the vehicle, Petitioner questions why those air fresheners, representing part of the circumstances that heightened Lewis’s suspicions that the vehicle might be transporting controlled substances, were not submitted in evidence. Arguing that there was sufficient evidence in the record to sustain Petitioner’s convictions, the State finds succor in McDonald v. State, 347 Md. 452 , 701 A.2d 675 (1997), where we were asked to consider, among other issues, whether the evidence was sufficient to support the appellant’s convictions of possession of a controlled substance with the intent to distribute and possession of marijuana.

In making this determination, we stated that ¹⁶¹ [t]o prove control, the “ ‘evidence must show directly or support a rational inference that the accused did in fact exercise some dominion or control over the prohibited ... drug in the sense contemplated by the statute, ie., that [the accused] exercised some restraining or direct influence over it.’ ” State v. Leach, 296 Md. 591, 596 , 463 A.2d 872, 874 (1983) (quoting Garrison v. State, 21 272 Md. 123, 142 , 321 A.2d 767, 777 (1974)); see Taylor v. State, 346 Md. 452, 457-58 , 697 A.2d 462, 465 (1997). The accused must have knowledge of both the presence and the general character or illicit nature of the substance. Dawkins v. State, 313 Md. 638, 651 , 547 A.2d 1041, 1047 (1988). “[S]uch knowledge may be proven by circumstantial evidence and by inferences drawn therefrom.” Id. McDonald, 347 Md. at 474 , 701 A.2d at 685 (alterations in original).

To prove that the record evidence supported the jury’s rational inference that Petitioner possessed knowledge of, and exercised dominion and control over, the cocaine in the trunk of Charity’s vehicle, the State applies the factors utilized in Hall v. State, 119 Md.App. 377 , 705 A.2d 50 (1998), by the Court of Special Appeals when it determined that there was sufficient evidence to establish joint ownership of controlled substances and paraphernalia in a defendant’s home: 1) proximity between 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. ¹⁶² Hall, 119 Md.App. at 394, 705 A.2d at 58 (quoting Folk v. State, 11 Md.App. 508, 518 , 275 A.2d 184, 189 (1971)). The State argues that the jury in White’s ease could have drawn a reasonable inference of Petitioner’s guilt from Lewis’s testimony that he was overwhelmed by the odor of the air fresheners emanating from the passenger compartment of the vehicle; he believed Petitioner’s statement as to the duration and purpose of the journey was inconsistent with Charity’s response to the same inquiry and the toll receipts; and, he was aware that Route 13 was a “major pipeline for criminal activity coming from. New York, which is the number one source city for cocaine traveling to other states.” Brief of Respondent at 11. B. When reviewing the sufficiency of the evidence, “ ‘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.’ ” McDonald, 347 Md. at 474 , 701 A.2d at 685 (citing State v. Albrecht, 336 Md. 475, 478 , 649 A.2d 336, 337 (1994)).

Our function is to review the evidence in the light most favorable to the State, see id. (quoting Albrecht, 336 Md. at 478 , 649 A.2d at 337 (citing Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979))), and to give “ ‘due regard to the [fact finder’s] finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.’ ” Id. (citing Albrecht, 336 Md. at 478 , 649 A.2d at 337 ). While we do not re-weigh the evidence, we do determine whether the verdict was supported by sufficient evidence, direct or circumstantial, which could convince a rational trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.

See id. (citing Albrecht, 336 Md. at 478-79 , 649 A.2d at 337 ). The State’s case against Petitioner rested on circumstantial evidence that Petitioner was in joint and constructive possession of the cocaine found in the pots and pans box in the vehicle’s trunk. See id.

Although a conviction may rest on circumstantial evidence alone, a conviction may not be sus ¹⁶³ tained on proof amounting only to strong suspicion or mere probability. See Taylor v. State, 846 Md. 452 , 458, 697 A.2d 462, 465 (1997) (citing Wilson v. State, 319 Md. 530, 535-36 , 573 A.2d 831, 834 (1990)). “ ‘Circumstantial evidence which merely arouses suspicion or leaves room for conjecture is obviously insufficient. It must do more than raise the possibility or even the probability of guilt. [I]t must ... afford the basis for an inference of guilt beyond a reasonable doubt.’ ” Id. (alterations in original) (quoting 1 Underhill Criminal Evidence § 17, at 29 (6th ed.1973)).

C. “Possession shall mean the exercise of actual or constructive dominion or control over a thing by one or more persons.” Md.Code (1957, 1996 Repl.Vol.), § 277(s). As the State accurately noted, [t]o prove control, the “ ‘evidence must show directly or support a rational inference that the accused did in fact exercise some dominion or control over the prohibited ... drug in the sense contemplated by the statute, i.e., that [the accused] exercised some restraining or direct influence over it.’ ” McDonald, 347 Md. at 474 , 701 A.2d at 685 (alterations in original) (quoting State v. Leach, 296 Md. 591, 596 , 463 A.2d 872, 874 (1983) (quoting Garrison v. State, 22 272 Md. 123, 142 , 321 A.2d 767, 777 (1974))); see Taylor v. State, 346 Md. 452, 457-58 , 697 A.2d 462, 465 (1997). Moreover, Judge Eldridge, writing for the Court in Dawkins v. State, 313 Md. 638 , 547 A.2d 1041 (1988), concluded that “an individual would not be deemed to exercise ‘dominion or control’ over an object about which he is unaware. Knowledge of the presence of an object is normally a prerequisite to exercising dominion and control.” Dawkins, 313 Md. at 649 , 547 A.2d at 1046 .

In Taylor v. State, 346 Md. 452 , 697 A.2d 462 (1997), police, after smelling marijuana in a hallway, entered a motel room rented by Taylor and four friends. Taylor, 346 Md. at 455 , 697 A.2d at 463 . The police saw clouds of smoke, smelling like marijuana, wafting in the room and, while searching the room, ¹⁶⁴ discovered bags of marijuana and a packet of rolling papers inside two carrying bags. Id.

Taylor, whom the police found lying on the floor asleep or feigning sleep, was charged with possession of the marijuana found in the bags. Taylor, 346 Md. at 456 , 697 A.2d at 464 . Taylor was convicted because [t]he trial court found that Petitioner was in close proximity to the marijuana; that, because people were smoking marijuana in Petitioner’s presence, Petitioner “knew” there was marijuana in the room; that, because he was on the premises asleep or pretending to be asleep, he had some possesso-ry right in the premises; and that the circumstances were sufficient to draw a reasonable inference that Petitioner was participating with others in the mutual enjoyment of the contraband. Id.

We concluded, however, that the evidence did not justify any reasonable inference that Taylor knew about, and thus possessed, the contraband. Writing for the Court, Judge Raker explained that “[m]ere proximity to the drug, mere presence on the property where it was located, or mere association, without