Bernadyn v. StateBernadyn v. State
Appellant, Michael Joseph Bernadyn, was convicted by a jury in the Circuit Court for Harford County of possession of marijuana, possession of marijuana with intent to distribute, and maintaining a common nuisance. The two drug possession charges were merged and
Appellant noted this appeal to raise the following questions for our review:
II. Did the circuit court err in permitting Deputy Burk-hardt to offer opinion testimony?
III. Did the circuit court err in refusing to pose two of appellant’s requested voir dire questions?
IV. Did the circuit court err in denying appellant’s motion for judgment of acquittal?
Finding no error and that there was sufficient evidence to convict appellant, we affirm the judgments.
FACTS
In August 2001, Deputy Mark Burkhardt of the Harford County Sheriffs Office conducted evening and late night surveillance on 2022 and 2024 Morgan Street in Edgewood, Maryland. Deputy Burkhardt observed the residences for approximately one week. Deputy Burkhardt testified at trial to witnessing numerous individuals entering and exiting the two buildings. Individuals would often exit and walk to adjoining streets to conduct hand-to-hand drug transactions. Deputy Burkhardt further noted that individuals would often return to one of the residences after a transaction had taken place.
Deputy Burkhardt testified that he frequently witnessed appellant leaving 2024 Morgan Street and walking up and down the street. Appellant was also observed looking up and down the street prior to letting people into the residence. Deputy Burkhardt stated that he observed this behavior on approximately ten to fifteen different occasions. Deputy Burkhardt also noted that individuals entering 2024 Morgan Street included known drug dealers. These individuals were viewed answering the door at 2024 Morgan Street and conducting transactions in the area.
On one occasion, two females were viewed exiting 2024 Morgan Street and exchanging what appeared to be a marijuana joint. The females departed and returned to the residence a short time later.
Based on the preceding information, Deputy Burkhardt applied for and was granted a search and seizure warrant for 2024 Morgan Street.
On August 29, 2001, Deputy Burkhardt, Detective Bray-band, and Sergeant Galbraith of the Harford County Narcotics Task Force executed the search and seizure warrant at 2024 Morgan Street. Appellant was found alone in the living room of the residence. The police seized five one-ounce bags and twenty small baggies 1 containing marijuana, a coffee can holding marijuana seeds and stems from the master bedroom, a small tin holding marijuana from a desk in the living room, and a marijuana pipe from a curio cabinet in the living room. Deputy Burkhardt testified that the master bedroom contained men’s clothing. Notably, the second bedroom only contained women’s clothing and objects that would belong to an individual in high school or middle school. The police also seized a medical bill from Johns Hopkins Bayview Physicians addressed to Bernadyn at 2024 Morgan Street. The “Statement Date” listed on the bill was August 16, 2001.
Appellant was charged with possession of marijuana, possession of marijuana with intent to distribute, and maintaining a common nuisance. A two-day jury trial was held on April 15-16, 2002. During the
STATE: Deputy, how many search and seizure warrants have you assisted with in your career?
DEFENSE: Objection. Relevance.
COURT: Overruled.
DEPUTY BURKHARDT: Over 50.
STATE: And when you’ve conducted those search and seizure warrants, how common is it for the utilities to be in someone else’s name?
DEFENSE: Objection.
COURT: If you know. Overruled.
DEPUTY BURKHARDT: Very common.
STATE: How common is it for the apartment to be in someone else’s name?
DEFENSE: Objection.
COURT: Overruled.
DEPUTY BURKHARDT: Very common.
At the conclusion of trial, the jury found appellant guilty of all charges. Appellant subsequently noted the current appeal.
We shall include more facts in the discussion as necessary.
DISCUSSION
I. The Medical Bill
Appellant contends that the circuit court erred in admitting the medical bill into evidence. He argues that the bill constituted hearsay and that the State did not establish that the bill was produced in the ordinary course of business. We do not agree.
Maryland Rule 5-801 provides the following pertinent definitions:
(a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A “declarant” is a person who makes a statement.
(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Rule 5-802 provides that hearsay is generally inadmissible.
See Stanley v. State,
The case sub judice raises the question of whether a bill, mailed to an individual at a particular address can be considered hearsay. This is an issue of first impression for the State of Maryland. We shall begin by discussing Rule 5-801.
Rule 5-801(a)(l) defines a statement as an oral or written assertion. Quite certainly, a bill addressed to an individual at a specific address does not assert anything more than that the individual owes the sender money for services. The bill simply did not state “Michael J. Bernadyn lives at 2024
Morgan Street.” The subject bill, and indeed most correspondence, only includes a name and address. We reject any contention that such information contains an implied assertion
2
that the individual resides at the listed residence. The
conduct of addressing a letter is a non assertive action.
United States v. Singer,
Of import, several jurisdictions have directly dealt with the issue before us. The United States Court of Appeals for the Eighth Circuit addressed the issue in
United States v. Singer, supra.
In
Singer,
the appellees were convicted of conspiracy
Fed.R.Evid. 801(c) states: “ ‘Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The Advisory Committee for the proposed Rules of Evidence noted that “the effect of the definition of ‘statement’ is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion.... [Some] nonverbal conduct ... may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred.” This observation is consistent with the purpose of the hearsay rule—the exclusion of declarations whose veracity cannot be tested by cross-examination. There is some guarantee that an infer ence drawn from out-of-court behavior is trustworthy, because people base their actions on the correctness of their belief. 4 Weinstein, Evidence § 801—53-56 (1981). If this letter were submitted to assert the implied truth of its written contents—that Carlos Almadén lived at 600 Wil-shire—it would be hearsay and inadmissible. It is, however, admissible nonhearsay because its purpose is to imply from the landlord’s behavior—his mailing a letter to “Carlos Almadén,” 600 Wilshire—that “Almadén” lived there. In addition, it is important that the letter was found in the residence at 600 Wilshire.
Id. at 1147.
Thus, the Court concluded that a letter seized from a residence during a lawful search was not hearsay when offered to show that the sender believed appellees resided at the subject address and the letter was found in the residence to which it was addressed. It is clear, however, that the content of the letter could not be used to prove the truth of the matters asserted in the letter.
The Court of Appeals of Virginia reached a similar result in
Shurbaji v. Virginia,
The challenged documents in this case were not offered for the truth of the matter asserted therein. The utility bills were used as circumstantial evidencethat appellant received or stored his property, including his correspondence, in the master bedroom. It was irrelevant what the utility bills “asserted therein.” Rather, the mere existence of the bills in the master bedroom tended to prove that appellant controlled the room, and that the cocaine and paraphernalia found there belonged to him. See United States v. Hazeltine, 444 F.2d 1382 , 1384 (10th Cir.1971) (envelope bearing inmate’s name and address was not hearsay and properly admissible, without authentication, to establish that cell and locker in which heroin was seized were the inmate’s cell and locker); United States v. Snow,517 F.2d 441 , 443 (9th Cir.1975) (label bearing accused’s name affixed to gun case was not hearsay and constituted an admissible evidentiary fact); see also McCormick on Evidence § 250 (John William Strong ed., 4th ed.1992). Accordingly, the bills were not hearsay and were properly admitted into evidence.
Id.
The Court of Appeals of North Carolina addressed the same issue in
North Carolina v. Peek,
On its face, a written or printed name and address on an envelope asserts nothing. From the sender’s conduct in writing or affixing the name and address and mailing the material so addressed, however, it may be inferred that the sender believes the person named lives at that address. As the Commentary toRule 801 makes clear, conduct “offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved” is not a statement. Although evidence of the sender’s conduct remains untested as to perception, memory, and narration, those “dangers are minimal in the absence of an intent to assert, and do not justify the loss of the evidence on hearsay grounds.” G.S. 8C-1,Rule 801 , Commentary. See also McCormick on Evidence, section 250 (3d ed.1984). The sender’s conduct in addressing and mailing the envelope undoubtedly implies that the sender believes the addressee lives at that address. Nevertheless, because no assertion is intended, the evidence is not hearsay and is admissible.
Id. at 322.
Indeed, other jurisdictions have reached the same conclusion regarding the admissibility of mail seized during a search.
Illinois v. Cruz,
We are persuaded by the logic of these decisions. Consequently, we hold that mail offered to prove that the individual to whom the correspondence is addressed has some connection to the residence, and not the truth of the matter asserted in the body of the correspondence, is admissible nonhearsay.
In the case at bar the following excerpt from the State’s closing argument is insightful:
Then you go to the officer who testifies, “When we go in, we look for mail.” And I submit if you said to anyone, “Go inthis certain house,” and tell them no other information, “and tell me who lives there,” odds are they are going to pick up a piece of mail and look at it, and they’re going to say, probably that person lives here because their mail is here. And then again that is something you would rely on in your every day decision making in that type of situation. And what you have, the officers said, there’s other mail, but, you know, they don’t back a truck up to the house when they are doing a Search and Seizure Warrant and unload the entire contents of the house.
They pick a piece of evidence that shows who lives there, and what you have is a bill from Johns Hopkins Bay view Physicians, a statement date of August 16, 2001. That’s almost two weeks before the warrant, but it’s for services that are provided back in June of 2001.
Now we go back almost two months prior to the warrant being served. So I guess defense counsel and the defendant would have you believe that Johns Hopkins randomly picked an address of 2024 and just happened to send it there, and that’s where the defendant lived. It doesn’t happen, because you also—look, this is a bill, is what it is, and I am sure that any institution is going to make sure they have the right address when they want to get paid.
The preceding provides the only indication regarding the purpose for which the State introduced the subject bill. The State suggests that the police seized an article of mail as evidence that someone lives at an address. The intent of the police in seizing the bill is not at issue. The State thereafter noted that Johns Hopkins believed that appellant resided at the address. The State further bolstered the statement by suggesting that Hopkins’ belief was most likely correct, because it is an institution that wished to be paid and would do background checks. Consequently, the State properly offered the bill as evidence that Johns Hopkins believed appellant lived at the address. Appellant did not object to the State’s comments.
Appellant relies on
U.S. v. Patrick,
During closing argument, the prosecutor explained:
Take, for example, an argument that might be made that that’s not his apartment, that he doesn’t live there, and that’s not his bedroom, that he doesn’t stay in that bedroom.
Well, ladies and gentlemen, let’s look at a couple of things that were taken out of that bedroom. Look at government’s exhibit no. 14, the television receipt. You all had a chance to look at this closely before[,] when it was admitted into evidence. G.A. Patrick, 818 Chesapeake Street, Southeast, Washington, D.C. 20020.
The receipt so used constituted a statement, namely Patrick lived at 818 Chesapeake Street, Southeast, and that statement indisputably was hearsay. Unlike the use of the name on the receipt to
Patrick,
The Court explained further that the receipt was double hearsay because it embodied the assertion of both the Circuit City employee who made out the receipt and the customer who provided the address. In the absence of testimony that Circuit City’s standard practice was to record and verify an address provided by a customer, the Court concluded that the receipt did not fall under the business record exception. Id. at 1000-1001.
The Court in Patrick determined that “the government used the receipt to prove that Patrick resided at the address.” Id at 1000 n. 13. We agree that such a use would be inadmissa-ble hearsay. In the case sub judice, however, the bill was used as a means to show that Johns Hopkins believed appellant lived at the address and that the belief was likely accurate because Johns Hopkins had an interest in being paid. Such an offering is admissible nonhearsay.
Moreover, alternatively, it was immaterial to the State’s case whether or not appellant owed Johns Hopkins money for services rendered. The medical bill was not offered to establish the truth of its contents, but rather for its probative value as circumstantial evidence connecting appellant to the residence wherein he, the bill, and the drugs were all found. Hence, there was no need to inquire into the credibility of the declarant at the time the medical bill was prepared.
Similarly, the eviction notice addressed to the defendants in Singer, the personal papers and utility bills addressed to the defendant in Shurbaji, the mail addressed to the defendant in Peek, and the evidence offered here was not intended as an assertion and the jury was free to infer from the sender’s conduct (writing the name and address and mailing the material so addressed) that the addressee lived at the address in question. This inference was bolstered further by the fact that appellant was found inside the residence at that address.
II. Deputy Burkhardt’s Testimony
Appellant next contends that the court erred in allowing Deputy Burkhardt to testify regarding his experiences involving background investigations because the testimony was not helpful to the jury and lacked sufficient factual support. Specifically, appellant contends that Deputy Burkhardt is not an expert in leasing and utility practices and, thus, his opinion testimony should not have been admitted. Again, we do not agree.
We reaffirm that trial courts have considerable discretion regarding the admission of evidence, and we shall only reverse the court if there is a clear showing of an abuse of discretion.
Merzbacher,
Maryland Rule 5-701, limits the opinion testimony that may be accepted from a lay witness. The Rule provides:
If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.
The Court of Appeals has further explained the requirements of Rule 5-701 in
A trial court should, within the sound exercise of its discretion, admit lay opinion testimony if such testimony is [1] derived from first-hand knowledge; [2] is rationally connected to the underlying facts; [3] is helpful to the trier of fact; [4] and is not barred by any other rule of evidence.
Id.
at 118,
Thereafter, the Court described two categories of admissible lay opinion testimony. The first category is “lay opinion testimony where it is impossible, difficult, or inefficient to verbalize or communicate the underlying data observed by the witness.”
Robinson,
In applying the requirements of the four-pronged test, the Court concluded that the officers could not visually identify the subject substance as cocaine. Although
the record demonstrate^] that the trial court would have been justified in concluding that [the officers] had the training and experience to offer opinion testimony as to the visual appearance of crack cocaine, ... neither trooper limited his testimony to identifying the visual characteristics of the disputed substance. Rather, both [officers] testified to the chemical nature of the alleged contraband.
Id.
at 122,
Thus, the Court concluded that the testimony fell outside the scope of the officers’ personal knowledge. Similarly, the Court concluded that the visual identification is not rationally connected to the chemical nature of crack cocaine because many substances share the same physical characteristics.
Id.
at 125,
We have reaffirmed the test set forth in
Robinson
in various decisions. In
Bey v. State,
In
Bell v. State,
In
Rosenberg v. State,
On appeal appellant, in part, contended that the circuit court erred in allowing a detective to give lay opinion testimony regarding:
(1) the significance of crimp marks on the telephone wires in the telephone box; (2) what appellant was doing with the wires in the telephone box; (3) whether certain equipment seized from appellant’s canvas bag and home belonged to Bell Atlantic; and (4) whether the blue material found on the barbed wire at a Bell Atlantic storage facility was consistent with the blue blanket found in appellant’s truck.
Id.
at 254,
We held that the detective’s testimony fell within the category of permissible testimony under
Robinson.
We first noted that the detective had twenty-five years of experience as a police officer, experience conducting electronic surveillance, and experience dealing with phone boxes.
Id.
at 256,
According to [the detective], the crimp marks on the wires in the telephone box were consistent with the type of marks made by “alligator clips connected to a butt-in set.” This remark was derived from the detective’s first-hand knowledge, was rationally connected to the underlying facts, and was helpful to the trier of fact, because it would have been difficult, if not impossible, to convey the type of marks on the wires. [The detective] also testified that, based on what he had observed at the scene, he believed that appellant was using the wires hanging outside the box in an attempt either to make telephone calls or to monitor telephone lines. This remark was also based on the detective’s first hand knowledge of the scene ..., it was rationally connected to the underlying facts, and was helpful to the jurors because it may have been difficult for them to understand that a person could steal telephone service or make calls by opening a telephone box and attaching a number of alligator clips to certain wires.
Further, [the detective] testified that during a search of appellant’s home he found a white canvas bag that was identical to the white canvas bag that appellant had with him when the police first saw him. [The detective] testified that the bag was similar to those used by the telephone company. This testimony was also derived from first-hand knowledge; was rationally connected to the underlying facts; and was helpful to the jury because there were no marks on the bags identifying them as bags used by telephone repair persons.
Lastly, appellant complains about [the detective’s] opinion testimony that the blanket recovered from appellant’s home was similar to the blue fuzzy material found on the fence at one of Bell Atlantic’s facilities. Again, this testimony was based on the detective’s first hand knowledge, was rationally connected to the underlying facts, and was helpful to the jury. As the material on the fence was not entered into evidence, there was no other way to communicate the similarities which Detective Angelino physically observed.
Rosenberg,
In the case at bar, Deputy Burkhardt testified regarding his experiences seeking search warrants and the frequency with which he found leases or bills to be in the name of an individual who was not the targeted resident.
3
The Deputy’s
testimony was limited to the investigations he
Appellant relies on
Dorsey v. State,
The principal issue in the appellant’s trial was whether he was one of the perpetrators of the robbery. [The detec- five’s] testimony, attempting to establish that a large percentage of those arrested by him for robbery were ultimately proven guilty, undertook to collaterally establish the detective’s investigative successes, but had no probative value in tending to establish the proposition in issue—the identity of the appellant as one of the robbers—and was thus patently irrelevant.
Hi * ❖
Permitting the detective to relate syllogistically—though imperfectly—before the jury, the high probability of the appellant’s guilt, tended to portray the officer as a “super-investigator” and thus clothed his testimony, with a greater weight than that which might have been given to the testimony of the other witnesses. Thus, the jury’s basic function of weighing the conflicting evidence in arriving at a conclusion of guilt “beyond a reasonable doubt,” was subjected to the counterbalancing effect of the detective’s irrelevant and extraneous opinion. Indeed in the absence of any showing of similarity between the investigation which led to the appellant’s arrest and those other investigations which led to the detective’s conviction rate, the premise posited before the jury appears to have been invalid.
Id.
at 644-45,
In the case
sub judice,
Deputy Burkhardt’s testimony was relevant to an issue raised by appellant and did not have the same prejudicial effects as the testimony is
Dorsey.
Of note, the State questioned the Deputy regarding his previous investigations because appellant emphasized that the apartment was not leased in his name. Thus, the testimony was a means to clarify that, in the Deputy’s experiences,
Furthermore, Deputy Burkhardt’s testimony was not so prejudicial that it outweighed its probative value. Unlike the case in Dorsey, the statement did not tend to portray the Deputy as an infallible “super-investigator” that always arrested the guilty party. The testimony merely suggested that any reliance on the lease to suggest that appellant did not reside in the house may have been misplaced.
Appellant also relies on our opinion in
Goren v. United States Fire Ins. Co.,
This testimony certainly exceeded a recitation of facts that Robbins [the State Trooper] observed at the scene.
Moreover, Robbins’s testimony did not satisfy the requirements of Rule 5-701. First, it is clear that the Trooper’s opinions were not based upon events that he witnessed; he acknowledged that he was not present at the time of the accident. Second, Robbins’s opinions were not helpful to the jury, within the meaning of the rule, because they were the type of opinions that required an expertise in accident reconstruction, which Robbins admittedly did not possess.
Id.
at 687,
The case at bar is readily distinguishable from Goren. Deputy Burkhardt testified only as to his investigatory experiences. The Deputy’s statements were, thus, appropriately limited to the requirements of Rule 5-701. The testimony was helpful to the jury because it suggested that the lack of appellant’s name on the lease did not necessarily imply that he did not live in the house. This testimony was further helpful because the Deputy opined that in his experience as an officer making many investigations, a suspect’s name would often not be on the lease. An expert was not necessary to suggest this possibility. Furthermore, Deputy Burkhardt’s experience as a law enforcement officer gave additional insight that the average jury, arguably, would not possess.
Accordingly, we hold that the circuit court did not err in allowing the testimony to be admitted. Moreover, had an error occurred, we are convinced that the error would be harmless. An error is harmless if an appellate court determines beyond a reasonable doubt that the error did not influence the verdict and prejudice the defendant.
See Brown v. State,
Appellant contends that the circuit court erred in failing to ask two proposed questions of the venire. We do not agree.
Prior to voir dire, the following exchange occurred:
DEFENSE: Couple of questions on the voir dire. Problems with the voir dire before we even ask it.
* * *
STATE: I object to defense counsel’s number 20.
COURT: Which is?
STATE: “Is there any member of the panel who feels that a person’s mere presence at a scene where drugs are found makes them guilty, even though the law may instruct otherwise?”
COURT: I agree. Anything else, folks?
DEFENSE: Nope.
The following then occurred before the bench during voir dire:
COURT: Exceptions to the voir dire as given?
DEFENSE: Number 12, which I think is another way to establish bias when a police officer testifies, and possibly the Defendant.
COURT: With him not testifying?
DEFENSE: If he elects to testify, would you assume he is not telling the truth. 5 It’s just another bias question as far as police versus non police officers.
COURT: I’m not going to ask that one.
DEFENSE: Thank you.
Notably, the circuit court did question the venire about whether any member would “be more or less likely to believe a police officer as opposed to a civilian witness solely because he or she is a police officer.” The court furthermore asked standard questions regarding the skepticism of defense witnesses and strong biases against drugs.
The Court of Appeals in
Dingle v. State,
Voir dire, the process by which prospective jurors are examined to determine whether cause for disqualification exists, see Boyd v. State,341 Md. 431 , 435,671 A.2d 33 (1996), is the mechanism whereby the right to a fair and impartial jury, guaranteed by Art. 21 of the Maryland Declaration of Rights, see Grogg v. State,231 Md. 530 , 532,191 A.2d 435 (1963), is given substance. See Hill v. State,339 Md. 275 , 280,661 A.2d 1164 (1995); Bedford v. State,317 Md. 659 , 670,566 A.2d 111 (1989). The overarching purpose of voir dire in a criminal case is to ensure a fair and impartial jury. See Boyd v. State,341 Md. 431 , 435,671 A.2d 33 (1996); Hill v. State,339 Md. 275 , 279,661 A.2d 1164 (1995); Davis v. State,333 Md. 27 , 34,633 A.2d 867 (1993); Bedford v. State,317 Md. 659 , 670,566 A.2d 111 (1989); Casey v. Roman Catholic Archbishop,217 Md. 595 , 605,143 A.2d 627 (1958); Adams v. State,200 Md. 133 , 140,88 A.2d 556 (1952). In Davis,333 Md. at 33 ,633 A.2d 867 , quoting Langley v. State,281 Md. 337 , 340,378 A.2d 1338 (1977) (citing Waters v. State,51 Md. 430 , 436 (1879)), we said, “a fundamental tenet underlying the practice of trial by jury isthat each juror, as far as possible, be impartial and unbiased.”
Id.
at 9,
The Court further noted:
Undergirding the voir dire procedure and, hence, informing the trial court’s exercise of discretion regarding the conduct of the voir dire, is a single, primary, and overriding principle or purpose: “to ascertain ‘the existence of cause for disqualification.’ ”
In so doing, the questions should focus on issues particular to the defendant’s case so that biases directly related -to the crime, the witnesses, or the defendant may be uncovered.
Id.
at 10,
Thus, the Court concluded that
voir dire
may reveal bias through two areas of inquiry: (1) whether jurors meet the minimum statutory qualifications for jury service; (2) whether a juror has a bias with respect “to the matter in hand or any collateral matter reasonably liable to unduly influence him.”
Id.
at 9-10,
We note that, generally, trial courts are given broad discretion in the handling of
voir dire. Boyd v. State,
[I]n discussing what type of questions must be asked on voir dire, we have defined the proper focus of the voir dire examination to be only “the venireperson’s state of mind and the existence of bias, prejudice, or preconception, i.e., ‘a mental state that gives rise to a cause for disqualification ....’”
Id.
at 436-37,
Appellant relies on the Court of Appeals’ decision in
Fleming v. State,
The purpose of the mere presence instruction in a drug case is to inform the jury that simply because the defendant was in close proximity to the drugs in question, it may not infer knowledge and intent to exercise dominion and control from that fact alone.
Id.
at 439,
In reversing the conviction, the Court noted that the instruction on mere presence was “both warranted by the evidence and not sufficiently covered by the instruction actually given.”
Fleming v. State,
Despite this shortcoming, we may still determine that the question was mandated if its purpose was to reveal a specific bias. The proposed question seems to be formulated to determine whether jurors could properly accept legal instructions. Such questions are not mandated as they do not address the juror’s state of mind.
See Wilson v. State,
Appellant further alleges that the circuit court erred in failing to ask appellant’s question number 12. Appellant contends that the question regarding weight to be given to the testimony of a criminal defendant is similar to mandatory inquiries regarding the weight to be given to the testimony of police officers. Essentially, the question seeks to determine whether jurors would have a bias against appellant merely because he was accused of a crime and therefore give his testimony less weight than the testimony of other witnesses such as police officers.
We first note that the court questioned the venire regarding biases in favor of or against the testimony of police officers. The issue was adequately addressed by the court. Second, the court asked the venire whether members would “tend to view the witnesses called by the defense with more or less skepticism than witnesses called by the State[.]” The question is a broader version of that requested by appellant. The actual question posed to the venire would reveal not only bias towards appellant’s testimony but also towards those wit nesses testifying on appellant’s behalf. Consequently, we find that the questions given by the court were sufficient to meet the mandatory requirements.
IV. Sufficiency of the Evidence
Appellant finally contends that the circuit court erred in denying his motion for judgment because there was no evidence establishing that appellant had knowledge, or dominion and control over, the seized contraband or that he was maintaining the common nuisance. We do not agree.
In reviewing a sufficiency of the evidence argument, we must decide “whether, after reviewing 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.”
Jackson v. Virginia, 443
U.S. 307, 319,
The jury found appellant guilty of possession of marijuana with intent to distribute pursuant to Section 287(a) of Article 27. Maryland Code (1957,1996 Repl.Vol., 2001 Supp.), Article 27 § 287(a). 6 That Section provides:
Except as authorized by this subheading, it is unlawful for any person:
(a) To possess or administer to another any controlled dangerous substance, unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his professional practice.
Section 277(s) defines “possession” as, “the exercise of actual or constructive dominion or control over a thing by one or more persons.”
We have previously discussed the factors that a jury may consider in finding possession. In Stuckey we noted:
Possession may be constructive or actual, exclusive or joint.
See State v. Leach,
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.
Stuckey,
The Court of Appeals has further noted in Merge that a jury’s determination can be based on circumstantial evidence alone. The Court stated:
While a valid conviction may be based solely on circumstantial evidence, it cannot be sustained “on proof amounting only to strong suspicion or mere probability.” White,363 Md. at 163 ,767 A.2d 855 (explaining that “circumstantial evidence which merely arouses suspicion or leaves room for conjecture is obviously insufficient”)(quoting Taylor,346 Md. at 458 ,697 A.2d 462 )(internal quotations omitted). A conviction based solely on circumstantial evidence should be sustained only where “the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence.” Wilson v. State, 319 Md. 530, 537,573 A.2d 831 (1990); West v. State,312 Md. 197 , 211-12,539 A.2d 231 (1988).
Moye v. State,
Although there was no contraband found on appellant’s person, the jury could have determined appellant had constructive possession of the contraband from the circumstantial evidence noted above. The jury could properly infer possession from Deputy Burkhardt’s testimony, appellant’s presence alone in the residence, and the medical bill that appellant lived in the house. Furthermore, the jury could infer that appellant lived in the bedroom from which the marijuana was seized due to the discovery of men’s clothing. Such an inference would satisfy the third factor set forth in Stuckey. A similar inference that appellant was frequently in the dwelling could also satisfy the second factor, that appellant had knowledge of the contraband. Finally, Deputy Burkhardt’s testimony that he witnessed what he believed to be drug related activity around the house, along with the presence of drugs in the home, could have led the jury to conclude that appellant was participating with others in the use or sale of the marijuana. Thus, the fourth Stuckey factor would be satisfied.
Appellant was also convicted of maintaining a common nuisance pursuant to Section 286(a)(5) of Article 27. Maryland Code (1957, 1996 Repl.Vol., 2001 Supp.) Article 27, § 286(a)(5). 7 Appellant concedes that the evidence was legally sufficient to establish that the residence was a common nuisance, but merely contends that no evidence was presented to show he was the individual maintaining the nuisance.
As noted above, the jury could have rationally concluded that appellant lived at the residence and to some degree, either jointly or solely, possessed the marijuana. Furthermore, the jury could have inferred from Deputy Burkhardt’s testimony that appellant was engaging in the use or sale of the marijuana with others. Consequently, the jury could have found that appellant was maintaining the nuisance.
We hold that the jury could have rationally concluded that appellant was living at the residence and had possession of the marijuana. From this conclusion, the jury also could have found that appellant, as a resident in the house, was maintaining a common nuisance.
JUDGMENT OF THE CIRCUIT COURT FOR HAR-FORD COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
Notes
. The small baggies were referred to as "dime bags." The divisions are referred to as such because they generally contain $10 of marijuana.
. We have most recently discussed the topic of implied assertions in
Carlton v. State,
The text of Rule 5-801 is substantively the same as Federal
Id.
at 442-43,
In holding that the hearsay rule was not violated, we provided examples of questions that include implied assertions. We stated:
Many questions asked by an out-of-court declarant can be implied assertions. For example, the question, "Do you need change?” impliedly asserts that the questioner has change.
State v. Saunders,
Id. at 443,
. Deputy Burkhart was the seizing officer who executed the search and seizure warrant for 2024 Morgan Street. He related to the court his training and experience in the area of drug investigations. He testified that as a member of the Harford County Narcotics Task Force, he conducted investigations of narcotics complaints in an undercover capacity. According to Deputy Burkhardt, he had been doing this work for approximately one-and-a-half years and conducted more than a hundred drug investigations. He also testified that he had attended "a basic narcotics investigators' course, the Maryland State Police Top Gun Narcotics Investigators’ course,” and he had "received additional training in the identification of CDS and packaging and distribution from the Northeast Counterdrug Training Center, and other drug iden tification courses.” Additionally, Deputy Burkhardt offered testimony that he had assisted in the execution of more than fifty search and seizure warrants. Moreover, based upon his training and experience, he was familiar with the specific leasing practices of suspects in drug investigations where search warrants were executed.
. On cross-examination of Deputy Burkhart, defense counsel established that the name on the lease for 2024 Morgan Street and on the BGE bill was Nicole Majerowiicz. On redirect examination of Deputy Burkhart, the State established that in over 50 search and seizure warrants in which Deputy Burkhart had assisted, it was “very common” for the utilities and apartment to be listed in "someone else’s name.”
. According to appellant’s brief, the proposed question read:
"If the Defendant elects to testify on his own behalf, would any of you assume that he is testifying falsely because he is the person on trial? Would any of you be unable to weigh his testimony in the same manner as any other witness?”
. Article 27 Section 287 has been recodified at Section 5-601 of the Criminal Law Article. Md.Code (2002), § 5-601 of ihe Criminal Law Article.
. Article 27 Section 286 has been recodified at Section 5-605 of the Criminal Law Article. Md.Code (2002), § 5-605 of the Criminal Law Article.