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Butler v. State

Court of Special Appeals of Maryland

November 1, 2013

JEAN PAUL BUTLER
v.
STATE OF MARYLAND

Zarnoch, Nazarian, Thieme, Raymond G., Jr. (Retired, Specially Assigned), JJ.

OPINION

Nazarian, J.

Jean Paul Butler challenges his convictions for possession of controlled dangerous substances ("CDS"), possession with intent to distribute, and possession of a device adapted to produce a CDS. He contends that the Circuit Court for Harford County committed several errors: by accepting and then holding him to his waiver of the right to a jury trial; by denying his motion to suppress; by denying his motion to dismiss for lack of a speedy trial; and by failing to introduce evidence sufficient to convict him of possessing a device adapted to produce a CDS. We hold that because the circuit court did not make the findings required by Valonis v. State, 431 Md. 551 (2013), we are compelled to reverse his convictions and remand for further proceedings not inconsistent with this opinion. And in the course of addressing (and rejecting) Mr. Butler's other contentions, which are likely to recur on remand, we hold that the digital scale found in his car could properly have been found to be "a machine, equipment, instrument, implement, [or] device . . . adapted to produce a controlled dangerous substance" for purposes of Md. Code (2002, 2012 Repl. Vol.), § 5-603 of the Criminal Law Article ("CL").

I. BACKGROUND

On October 21, 2008, Harford County Sheriff's Detective Christopher Sergent was working as an off-duty security officer at the Woodbridge Shopping Center in Edgewood. As he watched the Center's security monitor, he noticed what appeared to him to be a drug transaction:

There was [Mr. Butler's] vehicle backed into a parking spot on the side of the building directly next to the Advance Auto Parts store. That vehicle was backed into a spot, and there was one subject in the driver's seat [Mr. Butler] who I could only observe as a black male, and there was a second passenger in the front passenger seat, I couldn't see any further description on him or her at that time. I did observe the driver holding what appeared to be a plastic bag that contained an unknown material and was tied off. He handed that baggie to the subject in the passenger seat, that baggie was then passed back to the driver, which was then put into the center console of the vehicle. The vehicle then pulled off from the parking spot into the front area of the parking lot in front of the Advance Auto Parts, where the white male passenger exited the passenger side of the vehicle and entered a black-in-color pickup truck, which then left the parking lot.

Detective Sergent further identified the object being handed back and forth as being "a clear plastic baggie with a substance in the bottom of it, and also appeared to be tied off at the top, which is common in drug transactions." He also testified that the substance at the bottom of the bag "appeared to be blue." Although the tape of the transaction shown at the suppression hearing (and later the trial) was somewhat "jumpy"—it was digital and skipped as it moved from frame to frame—Detective Sergent testified that the live-feed view he had through the security camera made for a clear visual: "[l]ooking through the [monitor] it's real time and everything flows as it would if you saw it with your eyes . . . It's smooth and the images are as detailed as they would be if you were looking directly."

Detective Sergent based his conclusion that a drug deal likely had just taken place not only on what he saw take place in the car, but also where the parties met, i.e., in a remote corner of the parking lot:

Q: And how much of the public parking lot is visible from where [Mr. Butler] parked his car?
A: Very little.
Q: And if you are in the public parking lot, how much of the area where the defendant was parked is visible?
A: I'm assuming only if you were on that far row of spots, but aside from that, I'd say none of the parking lot.

After seeing the transaction unfold, Detective Sergent got in his patrol vehicle (which was in the parking lot at the shopping center), and pulled Mr. Butler over as he tried to leave the parking lot. He told Mr. Butler that he had "observed what [he] believed to be a drug transaction on surveillance video" and asked if he had anything illegal inside the vehicle. Mr. Butler responded that the passenger had left "a substantial quantity of pills in the center console in a clear plastic bag that was tied off." Detective Sergent ultimately recovered eighty 30-milligram pills, later confirmed to be oxycodone, from Mr. Butler's car. He also searched Mr. Butler and found two oxycodone pills and fifty dollars cash in his front pants pockets and twelve dollars cash in his rear pocket.

Detective Sergent also found a digital scale in the back seat of Mr. Butler's car. Christine Burns, a forensic chemist with the Maryland State Police, testified that the residue on the scale tested positive for cocaine. A second detective, Detective Matthew Glassman, testified at trial as an expert in narcotics enforcement and explained the significance of the scale with cocaine residue on it:

Q: How, if in any way, would that be used to facilitate the manufacturing, packaging and distribution of narcotics?
A: Not for use. I have never seen it for sale of pills, but for the sale of any other illegal drugs; cocaine, marijuana, heroin.
Q: How is it used for cocaine distribution?
A: To weigh out proper amounts. A drug dealer doesn't want to give out more than he has to, so he is going to use the scale to properly weigh the product prior to the sale.
Q: Based upon your training, knowledge and experience, what, if anything, happens when that scale is used and comes in contact with cocaine and the scale is recovered later on? What, if any, significance would there be if there was a residue of cocaine on that scale?
A: It would show prior use.

Mr. Butler conceded at trial that he knew the scale contained cocaine residue and that it was in the car.

Mr. Butler testified on his own behalf, and identified the passenger in the car at the time of his arrest as Keir Thompson, his friend of five or six years. According to Mr. Butler, Mr. Thompson sold him the pills that Detective Sergent recovered for Mr. Butler's own use and not for distribution. Mr. Butler claimed he lied to Detective Sergent when he said the pills belonged to his friend in an effort to hide his own addiction from his family.

The events of October 21 led to two separate indictments. In the first, Case No. 12-K-08-001890 (Circuit Court for Harford County) (the "2008 case"), Mr. Butler was indicted on November 12, 2008, for (1) possession of oxycodone with intent to distribute; (2) possession of oxycodone; and (3) possession with intent to use drug paraphernalia (the scale). In the second, Case No. 12-K-10-001757 (Circuit Court for Harford County) (the "2010 case"), he was indicted on November 3, 2010, for (1) possession of cocaine with intent to distribute; (2) possession of cocaine; (3) manufacture of cocaine; (4) possession with intent to use drug paraphernalia (a scale); (5) maintaining a common nuisance (his car) "for purposes of the illegal manufacturing, distribution, storage and concealment" of CDSs; and (6) possession of the digital scale, which was adapted for production of CDSs. The record does not indicate why the second indictment was not brought until 2010, [1] but in any event the cases were consolidated for trial by Order dated November 19, 2010.

Following a two-day bench trial on December 8 and 9, 2011, the trial court found Mr. Butler guilty on all three counts in the 2008 case and two of the counts from the 2010 case, possession of cocaine and possession of the scale adapted for production of CDSs. The court sentenced Mr. Butler to twenty years' incarceration (with a mandatory minimum of ten years) for possession with intent to distribute oxycodone (this sentence merged the convictions for possession of oxycodone and cocaine); two years (to be served concurrently) for possession of paraphernalia; ten years (five suspended), consecutive to the twenty-year sentence, for possession of the scale; and five years of post-release supervised probation. Mr. Butler filed a timely appeal in each of the two cases, which were consolidated here for briefing and argument before this Court.

We discuss additional facts that pertain to specific issues below.

II. DISCUSSION

Mr. Butler challenges on appeal a number of different (and unrelated) rulings the circuit court made before and during his trial, as well as the sufficiency of the evidence supporting his conviction for possession of the scale adapted for the production of a CDS. For reasons that will become apparent, we have reordered, rephrased and consolidated the issues:[2]

1. Did the trial court properly announce on the record Mr. Butler's waiver of a right to jury trial, and did it err in refusing to permit him to withdraw that waiver?
2. Did the trial court properly decline to suppress the evidence found in Mr. Butler's car after what he claims was an illegal stop of his car, not based on reasonable suspicion by Detective Sergent that a crime had occurred?
3. Did the trial court properly decline to dismiss the 2008 case for lack of a speedy trial?
4. Was the evidence sufficient to convict Mr. Butler for possession of a device adapted to assist in the production and distribution of a controlled dangerous substance?

The answer to the first question comes from Valonis v. State, 431 Md. 551 (2013), which issued after the parties' briefs were filed and which drives the overall outcome of this appeal: because the circuit court's short examination of Mr. Butler regarding his desire to waive a jury trial did not culminate in a finding by the court that he waived that right voluntarily and knowingly, we must reverse his convictions and remand for further proceedings.

From there, because it is "necessary and desirable for the guidance of the lower court and to avoid the expense and delay of another appeal to this Court, " we review Mr. Butler's other contentions. Midgett v. State, 216 Md. 26, 38 (1958); see also Battle v. State, 287 Md. 675, 684-85 (1980). We conclude that the circuit court correctly declined to suppress the evidence found in Mr. Butler's car and that the delays in getting to trial did not deprive him of his constitutional right to a speedy trial, but rather represented the typical problems of an overcrowded court system and caused Mr. Butler no demonstrable prejudice in any event. Finally, we are compelled to address Mr. Butler's claim that the evidence was insufficient to convict him for possession of a device adapted to produce a CDS because if we were to agree with him on this issue, he could not be retried on that charge on remand. See Winder v. State, 362 Md. 275, 324-25 (2001) (explaining that if we hold that the evidence admitted at trial was insufficient to sustain a conviction, the Double Jeopardy Clause forbids a retrial simply because of the prosecution's failure to present sufficient evidence the first time around (citing Burks v. United States, 437 U.S. 1, 11 (1978))); Markham v. State, 189 Md.App. 140, 169 (2009) ("'When a defendant's conviction is reversed by an appellate court on the ground that the evidence is insufficient to sustain the jury's verdict, the Double Jeopardy Clause bars a retrial on the same charge.'" (quoting Lockhart v. Nelson, 488 U.S. 33, 39 (1988))). Ultimately, we disagree with Mr. Butler, primarily because we hold that the General Assembly's amendment to § 5-603 of the Criminal Law Article expanded that offense to cover packaging equipment such as the scale found in his car.

A. The Convictions Must Be Reversed Because The Trial Court Did Not Make An On-The-Record Finding That Mr. Butler Waived His Jury Trial Knowingly And Voluntarily.

Although it was not his first trial date (or his last), Mr. Butler was scheduled for trial on February 7, 2011. The trial did not proceed that day—the circuit court postponed it after addressing Mr. Butler's request to waive a jury trial and denying his motion to dismiss some of the charges on speedy trial grounds (more on that below).[3] The court discussed Mr. Butler's request to waive a jury trial briefly with him before granting it, and we reproduce the colloquy in full:

THE COURT: After some discussion with [defense counsel], it's my understanding that you wish to go to trial and have your case tried by me, correct?
[MR. BUTLER]: Yes, Your Honor.
THE COURT: Okay. Now, you understand that what I am going to do is I am going to dismiss the jury, you understand that?
[MR. BUTLER]: Yes, Your Honor.
THE COURT: And you understand that if you had a jury trial, all twelve jurors would have to agree that you were guilty and they would also have to agree that you were guilty beyond a reasonable doubt. So that you're waiving your right to a trial by jury, you're going to have your case tried by me and I am going to let the jury go home. Do you understand that?
[MR. BUTLER]: Yes, Your Honor.

Mr. Butler's counsel did not object at the time, nor did counsel offer Mr. Butler any further explanation on the record about the nature and consequences of the waiver. Nevertheless, Mr. Butler argues in his brief that his waiver was invalid because the court failed to comply with Maryland Rule 4-246(b). The State counters that the waiver complied with that ...


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