Carter v. State

HEADNOTES: Jason Nathaniel Carter v. State of Maryland, No. 290, Sept. Term, 2017.
Opinion by Fader, J.
CONSTITUTIONAL LAW – REASONABLE LENGTH OF DETENTION FOR
TRAFFIC STOP
Where law enforcement officer had not completed citations for traffic violations by the
time a canine search produced a positive alert to the presence of a controlled dangerous
substance, and officer did not delay in processing the traffic citations, the traffic stop was
still ongoing at the time of the canine search. The officer’s temporary pauses from
processing the traffic citations to brief other officers and to ask the driver to exit the vehicle
so that the canine scan could take place neither constituted abandonment of, nor
impermissibly delayed, the traffic stop.
CONSTITUTIONAL LAW – PROBABLE CAUSE – SEARCH INCIDENT TO ARREST
Search met the requirements of the search incident to arrest exception to the prohibition
against warrantless searches where the positive alert of a drug-sniffing canine on the
appellant’s automobile provided probable cause to arrest and the search of his person was
essentially contemporaneous with his arrest.
CRIMINAL LAW – MANUFACTURE, DISTRIBUTION, DISPENSING, OR
POSSESSION OF SPECIFIED AMOUNTS OF CONTROLLED DANGEROUS
SUBSTANCES – ELEMENTS OF THE OFFENSE
To establish a violation of § 5-612 of the Criminal Law Article, the plain language of the
statute requires the State to prove beyond a reasonable doubt that the defendant:
(1) manufactured, distributed, dispensed, or possessed one of the specified controlled
dangerous substances; (2) in the requisite quantity established by the statute. The offense
does not require an intent to distribute.
STATUTORY INTERPRETATION – INTERPRETIVE WEIGHT OF CAPTIONS AND
CATCHLINES
In determining the meaning of a statute, we look to the language of the statute itself, not a
caption or catchline. Captions or catchlines, whether added by the General Assembly or
by publishers, have no interpretive weight.
Circuit Court for Montgomery County
Case No. 124874
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 290
September Term, 2017
______________________________________
JASON NATHANIEL CARTER
v.
STATE OF MARYLAND
______________________________________
________________________________
Graeff,
Fader,
Eyler, James R.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Fader, J.
______________________________________
Filed: April 2, 2018
A Montgomery County jury convicted the appellant, Jason Nathaniel Carter, of
possession of crack cocaine and possession of 50 grams or more of crack cocaine,1 but
acquitted him of possession with intent to distribute crack cocaine. Mr. Carter challenges
the circuit court’s: (1) denial of his motion to suppress more than 70 grams of crack cocaine
and more than three grams of cocaine that police seized from him during a traffic stop; and
(2) refusal to instruct the jury that “intent to distribute” is an element of the offense of
possession of 50 grams or more of crack cocaine.2 We find no error in the circuit court’s
denial of the motion to suppress or in its jury instruction, and so affirm.
BACKGROUND
In a challenge to a ruling on a motion to suppress, we are limited to considering the
facts presented at the motions hearing, Nathan v. State, 370 Md. 648, 659 (2002), and we
must view those facts in the light most favorable to the prevailing party, Belote v. State,
411 Md. 104, 120 (2009). Our discussion of background facts adheres to both of these
principles.
In the early morning hours of April 4, 2014, Montgomery County Patrol Officer
Michael Mancuso observed a car being driven by Mr. Carter fail to make a complete stop
at a stop sign while driving in a high-crime area known for drug activity. Officer Mancuso
1
As discussed below, although the offense of possession of 50 grams or more of a
controlled dangerous substance is commonly referred to as “volume dealer,” the crime
includes not only distribution of large quantities of controlled dangerous substances, but
also mere possession of those same quantities.
2
Mr. Carter frames his questions presented as “1. Did the trial court err in denying
the motion to suppress?” and “2. Did the trial court err in refusing to instruct the jury as to
the element of an intent to distribute for purposes of the ‘volume dealer’ charge?”
followed the car, pacing its speed at approximately 48 miles per hour in a 40 miles-per-
hour zone. At approximately 12:52 a.m., Officer Mancuso pulled Mr. Carter over and
obtained his license and registration. Mr. Carter displayed signs of being extremely
nervous.
Officer Mancuso returned to his car at 12:57 a.m. and promptly: (1) requested a
K-9 unit to conduct a scan for narcotics; and (2) ran a records check, which revealed that
Mr. Carter’s license was valid and that he did not have any outstanding warrants. Officer
Mancuso estimated that it took him approximately eight-to-ten minutes to perform the
various license and records checks. At 1:00 a.m., after the records check was complete,
Officer Mancuso opened the electronic system to write Mr. Carter warning citations for
both the failure to stop and speeding violations.3 From that point, it “probably took about
five to seven minutes” to write the citations. During that same time, Officer Mancuso also
briefed another officer, Officer Gary Finch, who had arrived on the scene at approximately
1:02 a.m.
Officer Jason Buhl of the K-9 unit, along with Konner, his drug-sniffing dog, arrived
on scene at 1:07 a.m. At that time, Officer Mancuso had not yet finished writing the
citations. At approximately 1:09 a.m., after he had briefed Officer Buhl, Officer Mancuso
ordered Mr. Carter out of his car and to stand behind the patrol car so that the canine scan
3
The inconsistency between Officer Mancuso’s testimony that it took eight-to-ten
minutes to complete the checks and the lapse of only three minutes between his return to
his car at 12:57 a.m. and opening the electronic system at 1:00 a.m. is discussed below in
footnote 5.
2
could proceed. Within 15-20 seconds, Konner alerted to the presence of narcotics on the
driver’s seat of Mr. Carter’s car.
After a search of the car yielded nothing illegal, Officer Michael Murphy conducted
a pat-down search of Mr. Carter. After Officer Murphy noticed an unnatural bulge in the
area of Mr. Carter’s groin, Mr. Carter became combative. It took all four officers to place
Mr. Carter in handcuffs. The search ultimately produced two plastic baggies containing
more than 70 grams of crack cocaine and three grams of cocaine. The officers then placed
Mr. Carter under arrest.
Mr. Carter moved to suppress the drugs. After a hearing at which Officers Mancuso
and Buhl, along with Mr. Carter, testified, the Circuit Court for Montgomery County made
findings of fact, including:
• Upon returning to his vehicle, Officer Mancuso “promptly” called for the
K-9 unit and initiated the records checks (including license, warrant, and case
search).
• Officer Buhl and Konner “arrived before Officer Mancuso had finished
writing the tickets.”
• Mr. Carter “was removed from his vehicle so the canine search could be
conducted.”
• The drug-sniffing dog “more or less immediately alerted.”
• “[T]here was no delay, intentional or otherwise, by the stopping officer
between the time he began questioning the driver at 12:51:57 and 1:00am.”
• “[T]here was no delay by the stopping officer between 1:00am and
1:07:19am when the canine officer arrived.”
• This is not a case where the officer engaged in delay and “dilly dallied
waiting for the canine officer. That’s not this case.”
• “[T]here was no delay. This was ordinary course.”
3
The court also concluded that the search was “incident to [Mr. Carter’s] arrest,” and so
denied the motion to suppress.
Mr. Carter was tried before a Montgomery County jury on charges of possession of
crack cocaine, possession with intent to distribute crack cocaine, and possession of 50
grams or more of crack cocaine. At the conclusion of a three-day jury trial, the trial court
instructed the jury that to convict Mr. Carter of the crime of possession of 50 grams or
more of crack cocaine, which the court referred to as “volume dealer,” the State must prove
beyond a reasonable doubt that Mr. Carter “possessed 50 grams of crack cocaine.” The
trial court rejected Mr. Carter’s contention that the jury should also be instructed that
“volume dealer” required the State to prove that Mr. Carter intended to distribute the crack
cocaine. The jury acquitted Mr. Carter of possession with intent to distribute, but convicted
him of both simple possession and possession of 50 grams or more of crack cocaine. The
trial court merged the two convictions and sentenced Mr. Carter to the mandatory minimum
sentence of five years’ incarceration for possession of 50 grams or more of crack cocaine.
DISCUSSION
I. THE MOTIONS COURT DID NOT ERR IN DENYING MR. CARTER’S
MOTION TO SUPPRESS.
Mr. Carter argues that the suppression court’s ruling must be reversed for two
reasons. First, he contends that Officer Mancuso lacked reasonable suspicion to authorize
what was effectively a second stop to investigate potential drug activity. Mr. Carter
concedes that Officer Mancuso had probable cause to detain him for the traffic offenses.
But he contends that Officer Mancuso abandoned that traffic stop when he paused from
4
writing Mr. Carter’s citations to assist Officer Buhl with the canine search. Thus, Mr.
Carter reasons, the traffic stop ended at that point and Officers Mancuso and Buhl needed
reasonable suspicion of drug activity to proceed with the canine search. Second, Mr. Carter
argues that Officer Mancuso’s search of his person was not incident to arrest because Mr.
Carter was not yet arrested, and there was no indication that he would be arrested, until
after the drugs were found.
When reviewing a ruling on a motion to suppress evidence, we defer to the
suppression court’s findings of fact unless clearly erroneous. Holt v. State, 435 Md. 443,
457 (2013); Longshore v. State, 399 Md. 486, 498 (2007). We only consider the facts
presented at the motions hearing, Nathan, 370 Md. at 659, and we view those facts in the
light most favorable to the prevailing party, Belote, 411 Md. at 120. “[W]e review the
hearing judge’s legal conclusions de novo, making our own independent constitutional
evaluation as to whether the officer’s encounter with the defendant was lawful.” Sizer v.
State, 456 Md. 350, 362 (2017). Each of these encounters is unique, and our review looks
to the totality of the circumstances on the specific facts of the case before us. Id. at 363;
Belote, 411 Md. at 120.
A. The Original Traffic Stop Was Ongoing When the Canine Alert
Occurred.
The Fourth Amendment to the United States Constitution provides that “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . . .” The Court of Appeals has generally
5
interpreted Article 26 of the Maryland Declaration of Rights to provide the same
protections as the Fourth Amendment. Byndloss v. State, 391 Md. 462, 465 n.1 (2006).
The Fourth Amendment’s protections extend to investigatory traffic stops such as
that of Mr. Carter. United States v. Sharpe, 470 U.S. 675, 682 (1985); Ferris v. State, 355
Md. 356, 369 (1999). In determining whether such stops violate an individual’s Fourth
Amendment rights, courts examine the objective reasonableness of the stop. Whren v.
United States, 517 U.S. 806, 813 (1996). Thus, an otherwise-valid traffic stop does not
become unconstitutional just because the actual purpose of the law enforcement officer
making the stop was to investigate potential drug crimes.
So-called Whren stops—valid but pretextual traffic stops undertaken for the primary
purpose of investigating other illegal activity—though “a powerful law enforcement
weapon,” Charity v. State, 132 Md. App. 598, 601 (2000), are restricted in scope and
execution.4 A Whren stop “‘must be temporary and last no longer than is necessary to
effectuate the purpose of the stop.’” Ferris, 355 Md. at 369 (quoting Florida v. Royer, 460
U.S. 491, 500 (1983)). This Court has recognized, though, that officers may pursue
investigations into both the traffic violation and another crime “simultaneously, with each
pursuit necessarily slowing down the other to some modest extent.” Charity, 132 Md. App.
4
In addition to his other arguments, Mr. Carter also contends that Whren stops
violate the Fourth Amendment and Article 26. Although he is entitled to that opinion, the
Supreme Court has not retreated from its holding in Whren and the Court of Appeals has
repeatedly upheld the validity of Whren stops, as has this Court. See, e.g., Grant v. State,
449 Md. 1, 15-16 (2016); Darling v. State, 232 Md. App. 430, 452 (2017). Other than his
fervent belief that this controlling precedent is wrong, Mr. Carter has not provided any
basis on which we could disregard the determinations of our superiors on this point of law.
6
at 614. But investigation into the original traffic violation cannot “be conveniently or
cynically forgotten and not taken up again until after [the other] investigation has been
completed or has run a substantial course.” Id. at 614-15; see also Whitehead v. State, 116
Md. App. 497, 506 (1997) (“Stopping a car for speeding does not confer the right to
abandon or never begin to take action related to the traffic laws . . . .”).
The purpose of a traffic stop is “to address the traffic violation that warranted the
stop and attend to related safety concerns.” Rodriguez v. United States, 135 S. Ct. 1609,
1614 (2015) (internal citation omitted); see also Byndloss, 391 Md. at 483. Thus,
“[a]uthority for the seizure . . . ends when tasks tied to the traffic infraction are—or
reasonably should have been—completed.” Rodriguez, 135 S. Ct. at 1614. Because a scan
by a drug-sniffing dog serves no traffic-related purpose, traffic stops cannot be prolonged
while waiting for a dog to arrive. Henderson v. State, 416 Md. 125, 149-50 (2010). Once
the officer completes the tasks related to the original traffic stop or extends the stop beyond
when it reasonably should have been completed, any continued detention is considered a
second stop for Fourth Amendment purposes, and thus requires new, constitutionally-
sufficient justification. Byndloss, 391 Md. at 483. Absent such independent justification,
any further detention, even if very brief, violates the detainee’s protection against
unreasonable seizures.
We determine the reasonableness of the duration of a Whren stop on a case-by-case
basis. Jackson v. State, 190 Md. App. 497, 512 (2010). “There is no set formula for
measuring in the abstract what should be the reasonable duration of a traffic stop.” Charity,
132 Md. App. at 617. Thus, a very lengthy detention may be reasonable in one
7
circumstance, and a very brief one may be unreasonable in another. Id. Generally, the
reviewing court must look to whether the stop “‘extended beyond the period of time that it
would reasonably have taken for a uniformed officer to go through the procedure involved
in issuing a citation to a motorist.’” Ferris, 355 Md. at 371-72 (quoting Pryor v. State, 122
Md. App. 671, 682 (1998)).
Here, the trial court, after hearing testimony from Officers Mancuso and Buhl, as
well as Mr. Carter, found that Officer Mancuso promptly took the appropriate steps to
process Mr. Carter’s traffic violations and did not engage in any delay. Officer Mancuso
returned to his vehicle from his initial interaction with Mr. Carter at 12:57 a.m., and it was
then that he both called for the K-9 unit and began processing the necessary records checks.
By 1:07 a.m., when Office Buhl arrived with Konner, Officer Mancuso had processed the
records checks, briefed Officer Finch, and was in the process of writing the citations. In
light of Officer Mancuso’s testimony that it takes him eight-to-ten minutes to conduct all
of the necessary records checks and five-to-seven minutes to write the citations at issue, it
was not unreasonable that he was still writing the traffic citations when Officer Buhl
arrived.5 Indeed, both officers testified that was the case and the trial court found that
testimony credible.
5
Our conclusions are not affected by the relatively minor discrepancy in the timeline
provided by Officer Mancuso. Officer Mancuso testified that it generally takes him eight-
to-ten minutes to complete the necessary records checks. He further testified that he always
completes those checks before he opens the electronic system to write citations. However,
the electronic record in this case reflects that Officer Mancuso returned to his vehicle at
12:57 a.m. and opened the electronic system only three minutes later, at 1:00 a.m. There
are many possible explanations for this discrepancy, including that Officer Mancuso did
not recall having opened the electronic system early on this occasion, that the records
8
We conclude, based on our independent constitutional appraisal of the events as a
whole, that there was no impermissible delay. Giving proper deference to the trial court’s
first-level findings of fact, the conduct of the officers was reasonable and does not suggest
impermissible delay. Moreover, the entire episode, from initiation of the traffic stop until
the alert, took approximately 17 minutes, and there were only ten minutes between the time
Officer Mancuso returned to his car and Officer Buhl’s arrival. Although the absolute
amount of time a stop takes is not dispositive, Byndloss, 391 Md. at 485 (“We will not
simply determine that a stop was unreasonable due to the length of time over which it
occurred.”), nothing about a stop of 17 minutes is itself unreasonable, see, e.g., id. at 469,
491-92 (upholding detention of approximately 30 minutes); State v. Ofori, 170 Md. App.
211, 243 (2006) (stating that a “24–minute period of delay was not, in and of itself,
especially inordinate”); Jackson, 190 Md. App. at 512 (noting that “[i]n almost all of the
cases, the critical breaking point between permissible and unreasonably prolonged traffic
detentions occurs at somewhere near the 20 to 25 minute marker”).
checks went especially fast on this occasion, that Officer Mancuso misallocated the amount
of time he spends as between records checks and writing citations, or that he simply made
a mistake as to that time estimate. However, viewed in the light most favorable to the
State, even assuming that he had completed all checks and started writing citations by 1:00
a.m., Officer Mancuso’s testimony that it would take him five-to-seven minutes to write
citations and that he paused during that process to brief Officer Finch still supports the trial
court’s findings that: (1) he did not delay; and (2) he was still writing the citations when
Officer Buhl arrived. See, e.g., Longshore v. State, 399 Md. 486, 498 (2007) (stating that
“when there is a conflict in the evidence, an appellate court will give great deference to a
hearing judge’s determination and weighing of first-level findings of fact”); In re Tariq A-
R-Y, 347 Md. 484, 488 (1997) (stating that “we extend great deference to the fact-finding
of the suppression hearing judge with respect to determining the credibility of witnesses
and to weighing and determining first-level facts”).
9
Mr. Carter contends that regardless of the amount of time that elapsed before the
canine scan, we should find that Officer Mancuso impermissibly abandoned the traffic stop
when he paused from writing citations to brief Officer Buhl and then to ask Mr. Carter to
exit his vehicle so that the canine search could proceed. We disagree. The suppression
court’s finding that Officer Mancuso never abandoned the tasks relevant to the traffic stop
is supported by Officer Mancuso’s testimony. Mr. Carter’s contention that any break from
tasks related solely to processing the traffic violations constitutes abandonment of the
traffic stop is both unreasonable and inconsistent with our prior decisions. See Charity,
132 Md. App. at 614 (stating that officers may pursue investigations into both the traffic
violation and another crime “simultaneously, with each pursuit necessarily slowing down
the other to some modest extent”). And we cannot say that the tasks Officer Mancuso
performed were unreasonable under the circumstances, as he simply briefed arriving
officers on the situation and approached Mr. Carter to ask him to exit his vehicle. See
McCree v. State, 214 Md. App. 238, 263 n.7 (2013) (stating that an officer’s interruption
of a traffic stop to brief other newly arrived officers was neither unreasonable nor “rendered
[the stop] impermissibly long”). That other officers were present on the scene does not
render it unreasonable for Officer Mancuso to have performed these tasks, as he was the
original officer on the scene and the only one who had interacted with Mr. Carter to that
point. This was not abandonment of the purpose of the traffic stop, but a momentary pause
for permissible multi-tasking that, based on the findings of the suppression court, did not
10
cause the seizure to extend beyond the time that was necessary to effectuate the traffic
stop.6
In sum, the original traffic stop had not ended, nor had it been extended improperly,
at the time Konner alerted because it occurred within the time that “tasks tied to the traffic
infraction are—or reasonably should have been—completed.” Rodriguez, 135 S. Ct. at
1614. Because we find that the traffic stop was ongoing when the canine alert occurred,
there was no “second stop” and we need not address whether Officer Mancuso had a
reasonable suspicion to investigate drug activity.
B. Officer Mancuso’s Search of Mr. Carter Was Incident to Mr.
Carter’s Arrest.
Mr. Carter also argues that even if the traffic stop continued until the alert, Officer
Mancuso still lacked probable cause to search his person. In making this argument, Mr.
Carter raises and then knocks down several strawmen,7 but never addresses squarely the
6
We also observe that even if Mr. Carter had proven that Officer Mancuso should
have completed writing the citations by the time Officer Buhl arrived, that would not have
ended the traffic stop. A traffic stop ends only when the officer provides the citation,
license, and registration back to the motorist; requests the motorist to acknowledge receipt
of the citation; and the motorist is legally free to leave. Ferris, 355 Md. at 373; see also
Md. Code Ann., Transp. § 26-203(b)(1) (requiring an officer to “ask the [motorist] to
acknowledge receipt of a copy of the citation”).
7
Mr. Carter first argues that the Carroll Doctrine only authorizes a search of a
vehicle, not people within the vehicle. See Carroll v. United States, 267 U.S. 132 (1925).
But the State does not rely on the Carroll Doctrine as providing probable cause for the
search of Mr. Carter’s person. Mr. Carter also contends that the Court of Appeals held in
State v. Wallace that a “positive canine alert to contraband in a vehicle, without more, does
not establish probable cause to search all of the passengers in a vehicle.” 372 Md. 137,
141 (2002). But Mr. Carter was not a passenger in his vehicle; he was its driver and sole
occupant. Mr. Carter also argues that Officer Mancuso lacked reasonable suspicion that
Mr. Carter was armed and dangerous, but the State does not argue to the contrary.
11
basis on which the suppression court actually upheld the search, which is that it was
incident to a lawful arrest. This Court has repeatedly found both (1) that a canine alert
provides probable cause to arrest, see, e.g., State v. Harding, 196 Md. App. 384, 390 (2010)
(“There is [] no question but that [a canine’s] positive alert furnished probable cause for
. . . the arrest of the appellee as the driver of the [vehicle].”); Ofori, 170 Md. App. at 221
(stating that at the time of a canine alert there was “unquestionable probable cause for the
warrantless arrest of” a vehicle’s driver); and (2) that “the ‘search incident to an arrest’
exception to the warrant requirement is applicable as long as the search is ‘essentially
contemporaneous’ with the arrest,” Barrett v. State, 234 Md. App. 653, 672 (2017) (quoting
Wilson v. State, 150 Md. App. 658, 673 (2003)), cert. denied, Pet. Dock. No. 429 (Feb. 16,
2018); see also Lee v. State, 311 Md. 642, 668 (1988) (stating that a search that is followed
by an arrest is considered incident to that arrest if “there was probable cause to support an
arrest at the time of the search”). Here, the canine alert provided probable cause to arrest
Mr. Carter and the search of his person was essentially contemporaneous with his arrest.
Under our precedent, therefore, this was a search incident to arrest; nothing more was
required.
Mr. Carter’s argument to the contrary relies primarily on dicta in this Court’s
decision in State v. Funkhouser, 140 Md. App. 696 (2001),8 which he contends requires a
8
The basis for our holding in Funkhouser was that, viewing the facts in the light
most favorable to Mr. Funkhouser (as the prevailing party below), the initial traffic stop
was improper and so everything that followed from that initial stop was properly
suppressed as fruit of the poisonous tree. 140 Md. App. at 705-06. Although we proceeded
12
court, when faced with a search conducted contemporaneously with an arrest, to make an
express finding that the arrest would have occurred regardless of the results of the search.
To the contrary, as we confirmed most recently last year in Barrett, the search incident to
arrest exception “is applicable as long as the search is ‘essentially contemporaneous’ with
the arrest.” 234 Md. App. at 672 (quoting Wilson, 150 Md. App. at 673). Here, the search
and the arrest were contemporaneous. That Officer Mancuso did not place Mr. Carter
under arrest immediately after the canine alert does not suggest that he did not intend to do
so, especially in the context of a chain of events that, in total, lasted only a few minutes.
“‘There is no case in which a defendant may validly say, ‘Although the officer had a right
to arrest me at the moment when he seized me and searched my person, the search is invalid
because he did not in fact arrest me until afterwards.’’” Conboy v. State, 155 Md. App.
353, 365 (2004) (quoting Sibron v. New York, 392 U.S. 40, 77 (1968) (Harlan, J.,
concurring)). We find no error or abuse of discretion in the suppression court’s
determination that Mr. Carter was searched incident to his arrest, and affirm the
suppression court’s denial of the motion to suppress.
II. THE TRIAL COURT’S JURY INSTRUCTION WAS VALID.
A. Based on the Plain, Unambiguous Language of the Statute, the
Trial Court Properly Instructed the Jury.
Mr. Carter also argues that the trial court erred by not instructing the jury that an
“intent to distribute” is an element of the crime of possession of 50 grams or more of crack
to address several additional arguments, including whether the search could be justified as
a search incident to arrest, the remainder of that opinion is dicta.
13
cocaine. An appellate court reviews a trial court’s jury instruction for an abuse of
discretion. Stabb v. State, 423 Md. 454, 465 (2011). To make this determination, we look
to three factors: “‘(1) whether the requested instruction was a correct statement of the law;
(2) whether it was applicable under the facts of the case; and (3) whether it was fairly
covered in the instructions actually given.’” Keller v. Serio, 437 Md. 277, 283 (2014)
(quoting Stabb, 423 Md. at 465). Although the overall determination is one of abuse of
discretion, “we review without deference . . . whether the jury instruction was a correct
statement of the law.” Seley-Radtke v. Hosmane, 450 Md. 468, 482 (2016). The
complainant bears the burden “‘to show both prejudice and error.’” Lindsey v. State, 235
Md. App. 299, 331 (2018) (quoting Tharp v. State, 129 Md. App. 319, 329 (1999), aff’d
362 Md. 77 (2000)).
To determine the elements of a statutory offense, we use the standard tools of
statutory interpretation. State v. Bey, 452 Md. 255, 265 (2017). Where the plain language
of the statute, within the statutory scheme and in light of the legislative purpose of the
statute, is clear and unambiguous, no further inquiry is necessary. Id. at 265-66. We must
give “words their natural and ordinary meaning,” Davis v. State, 426 Md. 211, 218 (2012),
and “the statute must be given a reasonable interpretation, not one that is absurd, illogical
or incompatible with common sense,” Bey, 452 Md. at 266.
Normally, where the plain language of a statute is clear, our inquiry into the
legislative intent ends. Id. at 265. We may though, on occasion, “examine extrinsic sources
of legislative intent merely as a check of our reading of a statute’s plain language.” Moore
v. State, 424 Md. 118, 128 (2011). These extrinsic sources can include “[a] bill’s title,
14
amendments that occurred as the bill passed through the legislature, and a bill’s relationship
to earlier and subsequent legislation.” Clark v. State, 348 Md. 722, 726 (1998).
The instruction given by the trial court was: “In order to convict the defendant of
volume dealer, the State must prove that the defendant possessed 50 grams of crack
cocaine.” The offense with which we are concerned is a violation of § 5-612(a)(4) of the
Criminal Law Article. At the time of Mr. Carter’s offense, § 5-612(a)(4) provided in
relevant part that “(a) A person may not manufacture, distribute, dispense, or possess . . .
(4) 50 grams or more of cocaine base, commonly known as ‘crack.’”9
As this Court noted in Kyler v. State, the plain language of § 5-612(a) requires only
two elements for a conviction: “(1) manufacturing, distributing, dispensing or possessing
[a controlled dangerous substance]; and (2) in the requisite quantity.” 218 Md. App. 196,
227 (2014). Nowhere in the plain language of the statute is there any indication that an
“intent to distribute” is an element of the crime, either express or presumed. Nor, as
discussed further below, is there any context from the remaining provisions of the statute
that would counsel a different interpretation. Thus, the trial court’s instruction, which
generally mirrored the statutory text, was a correct statement of law. See Lindsey, 235 Md.
App. at 331-32 (mirroring the language of the statute “indicat[es] that the instruction given
by trial judge was a correct statement of the law”). Because the instruction was also
9
As part of the Justice Reinvestment Act, the General Assembly amended
§ 5-612(a)(4) in 2016 to equalize the punishments for cocaine and crack cocaine. 2016
Md. Laws ch. 515 § 2. The statute now prohibits the manufacture, distribution, dispensing,
or possession of 448 grams or more of crack cocaine. Id.; Crim. Law § 5-612(a)(4).
15
applicable under the facts of this case, the trial court properly overruled Mr. Carter’s
objection.
B. Section 5-612(a)(4) Does Not Contain an “Intent to Distribute”
Element.
Even if we were to go behind the statutory language, we would still affirm the trial
court’s instruction. Mr. Carter’s argument that we should read an “intent to distribute”
element into § 5-612(a) is based partly in legislative history and partly in the headings that
publishers have added to or left in the statute. To understand the flaws in his argument, we
pause briefly to trace the relevant history of the statute.
As we described in Kyler, under former § 286 of Article 27 of the Maryland Code,
the manufacture, distribution, dispensing, or possession of a controlled dangerous
substance in a specified quantity (50 grams or more for crack cocaine) was not a stand-
alone criminal offense. 218 Md. App. at 223-24. Instead, it was a penalty enhancement
for someone convicted of possession with intent to distribute, and it resided in the same
statutory section as the underlying crime. Id.
In 2002, as part of the codification of the new Criminal Law Article, the General
Assembly created § 5-612, which it titled “Volume Dealer.” 2002 Md. Laws ch. 26 § 2.10
10
As enacted in 2002, § 5-612 provided, in relevant part:
5-612. Volume Dealer.
(a) Unlawful amounts.
A person who violates § 5-602 of this subtitle with respect to any of the
following controlled dangerous substances in the amounts indicated is
subject on conviction to a fine not exceeding $100,000 and the enhanced
penalty provided in subsection (c) of this section:
16
Although codified in a separate statutory section from the crime of possession with intent
to distribute, the “Volume Dealer” provision did not purport to establish a stand-alone
criminal offense. Instead, it merely provided an “enhanced penalty” for one who was
convicted of violating § 5-602 of the Criminal Law Article, which prohibits, among other
things, possession with intent to distribute.11
In 2005, for reasons we explained in Kyler, 218 Md. App. at 224, the General
Assembly repealed and reenacted § 5-612. The relevant statutory changes, showing
additions in italics and deletions in strikeouts, were:
...
(4) 50 grams or more of cocaine base, commonly known as “crack”;
...
(b) For the purpose of determining the quantity of a controlled
dangerous substance involved in individual acts of manufacturing,
distributing, dispensing, or possessing with intent to manufacture,
distribute, or dispense under subsection (a) of this section, the acts
may be aggregated if each of the acts occurred within a 90-day period.
(c) Enhanced penalty. (1) A person who is convicted under § 5-602 of this
subtitle with respect to a controlled dangerous substance in an amount
indicated in subsection (a) of this section shall be sentenced to imprisonment
for not less than 5 years.
....
2002 Md. Laws ch. 26 § 2.
11
Section 5-602(2) provides that “a person may not . . . possess a controlled
dangerous substance in sufficient quantity reasonably to indicate under all circumstances
an intent to distribute or dispense a controlled dangerous substance.”
17
5-612. Volume Dealer.[12]
(a) A person who violates § 5-602 of this subtitle with respect to any of the
following controlled dangerous substances in the amounts indicated is
subject on conviction to a fine not exceeding $100,000 and the enhanced
penalty provided in subsection (c) of this section may not manufacture,
distribute, dispense, or possess:
...
(4) 50 grams or more of cocaine base, commonly known as “crack”;
...
(b) For the purpose of determining the quantity of a controlled dangerous
substance involved in individual acts of manufacturing, distributing,
dispensing, or possessing with intent to manufacture, distribute, or dispense
under subsection (a) of this section, the acts may be aggregated if each of the
acts occurred within a 90-day period.
(c) Enhanced penalty. (1) A person who is convicted under § 5-602 of this
subtitle with respect to a controlled dangerous substance in an amount
indicated in of a violation of subsection (a) of this section shall be sentenced
to imprisonment for not less than 5 years and is subject to a fine not
exceeding $100,000.
....
2005 Md. Laws ch. 482 § 1. The General Assembly stated that these changes were made
“FOR the purpose of altering certain provisions of law to establish new offenses in place
of factual determinations that enhance penalties; . . . [and] establishing the offense and
clarifying the penalties for manufacturing, distributing, dispensing, or possessing certain
quantities of certain controlled dangerous substances; . . . .” 2005 Md. Laws ch. 482.
12
Chapter 482, as enacted, did not expressly identify the deletion of the section title
“Volume Dealer” and the catchline “Enhanced penalty,” but those headings did not appear
in the statute as the General Assembly reenacted it, and they were thus not part of the statute
as of its October 1, 2005 effective date.
18
Mr. Carter contends that § 5-612 includes as an element of the offense an “intent to
distribute” the controlled dangerous substance at issue because: (1) if the General
Assembly had wanted “to eliminate intent as an element” of the crime, it must have
expressly stated so in the statute; (2) this Court concluded in Kyler that the legislative
history was ambiguous as to whether the General Assembly intended for volume dealing
to be punished separately from the crime of possession with the intent to distribute; and
(3) the offense must necessarily require intent to distribute “because of its relationship to
the crime of possession with intent to distribute as a penalty enhancement.”
Even if we were to find the statute ambiguous, which we do not, Mr. Carter’s
contentions cannot withstand the legislative history set forth above. As an initial matter,
the General Assembly made clear that its intent was not to alter the elements of an existing
crime, but to establish a new crime: the manufacture, distribution, dispensing, or
possession of certain quantities of controlled dangerous substances. What had previously
been a penalty enhancement was unambiguously made a stand-alone crime. Moreover, the
General Assembly could hardly have been clearer in removing any hint of an intent
requirement from the statute. The legislature removed from the statute the only express
mention of intent to distribute, which had appeared in subsection (b), as well as the
references in subsections (a) and (c) to the crime of possession with the intent to distribute.
No direct or indirect reference to intent to distribute survived.
Mr. Carter’s reliance on Kyler is mistaken, as he improperly conflates two different
parts of that opinion. In Kyler, we first applied the required evidence test to determine if
two offenses—violation of § 5-612(a) and the separate crime of possession with intent to
19
distribute—merged. In the course of determining that they did not, we held that § 5-612(a)
does not require proof of an intent to distribute. 218 Md. App. at 226-27.
Only after reaching that conclusion did we proceed, in applying the rule of lenity,
to explore the historical relationship between those two crimes for the purpose of
determining whether the General Assembly intended that they be punished separately. Id.
at 227-30. Our conclusion that the General Assembly did not appear to so intend did not
in any way undermine our holding that § 5-612(a) does not require an intent to distribute.13
Mr. Carter’s reliance on the relationship of § 5-612(a) “to the crime of possession
with intent to distribute as a penalty enhancement” is similarly mistaken. Although
§ 5-612(a) indisputably arose from what was initially a mere penalty enhancement, the
General Assembly just as indisputably broke that link with its 2005 changes to the statute.
We could not adopt Mr. Carter’s argument without implicitly reading those references back
into the statute. That we are not permitted to do. See Moore, 424 Md. at 129 (quoting
Henriquez v. Henriquez, 413 Md. 287, 299 (2010)) (observing that the Court of Appeals
has “frequently stated that ‘[w]e will not . . . judicially insert language [into a statute] to
impose exceptions, limitations, or restrictions not set forth by the legislature’”); McGlone
13
In finding that the offenses merged for sentencing purposes under the rule of
lenity, we noted that there was no language in § 5-612 that a conviction under that statute
did not merge with other crimes. Kyler, 218 Md. App. at 229-30. Although we also noted
that § 5-612 “continues to refer to the penalty as an ‘[e]nhanced penalty,’” 218 Md. App.
at 229, that statement was based on the heading to subsection (c) that was included by the
publishers. As explained above, this heading does not appear in the statute as it was enacted
by the General Assembly and does not detract from the conclusion, discussed in Kyler, that
§ 5-612 does not require proof of an intent to distribute. 218 Md. App. at 226-27.
20
v. State, 406 Md. 545, 559 (2008) (“We interpret the words enacted by the Maryland
General Assembly; we do not rewrite the language of a statute to add a new meaning.”).
We would be remiss if we did not comment on the potentially unfortunate role of
the headings added to—or at least not properly deleted from—the statute by publishers in
assembling and reporting their versions of the Maryland Code. As noted, the version of
§ 5-612 enacted by the General Assembly in 2005 did not include either the Section title
“Volume Dealer” or the subsection (c) heading “Enhanced penalty.” Similarly, the General
Assembly’s reenactment of that provision in chapter 515 of the 2016 Laws of Maryland
also does not include either of those phrases. 2016 Md. Laws ch. 515 § 2. Nonetheless,
the printed volumes and online versions of the Maryland Annotated Code compiled by both
LexisNexis (2012 Repl. & 2017 Supp.) and West (2002 & 2017 Supp.) continue to include
both the title and the heading.
It is, of course, the words of the General Assembly that are law in Maryland and
that we interpret and apply. “In determining the meaning of a statute, we look to the words
of the statute itself, not a caption.” State v. Holton, 193 Md. App. 322, 365 (2010). Even
“captions or catchlines” that are added by the General Assembly “(i) may not be considered
as a title of the section or subsection; and (ii) may not be considered as a title if the section,
subsection, caption, or catchline is amended or reenacted.” Md. Code Ann., Gen. Prov.
§ 1-208(2).14 Such headings or catchlines added by publishers are, if possible, even less
14
The General Assembly expressly made this point specific to the catchlines and
captions contained in the 2002 code revision, when § 5-612 was first created. Section 14
of Chapter 26 of the 2002 Laws of Maryland provided “[t]hat the catchlines, captions, and
21
significant,15 and certainly cannot render an otherwise unambiguous statute ambiguous.
Indeed, they have no role whatsoever in our interpretation and application of Maryland
law.
Although including titles and headings not supplied by the General Assembly can
certainly provide some assistance to a user, they can also prove misleading when they are
not accurate. In this case, the statutory changes made in 2005 rendered “Volume Dealer”
an inaccurate title for the offense described in § 5-612(a), and “Enhanced penalty” an
inaccurate descriptor of the penalty established by § 5-612(c). The offense is the
manufacture, distribution, dispensing, or possession of a specified quantity of controlled
dangerous substances, and the penalty provided in subsection (c) is simply the penalty for
that crime, not an enhancement of any other penalty.
Revisor’s Notes contained in this Act are not law and may not be considered to have been
enacted as a part of this Act.”
15
The publishers recognize this. West, under the heading “Rules of Interpretation”
in the preface to the Criminal Law Article of its Annotated Code of Maryland, quotes
verbatim from § 1-208 of the General Provisions Article. LexisNexis, in its preface to the
now nearly-completely-repealed Article I of the Maryland Code, states:
Headings or ‘catchlines’ for Code sections and subsections are generally
created and maintained by the publisher. Pursuant to § 1-208 of the General
Provisions Article, they are ‘mere catchwords’ and are not to be deemed or
taken as the official title of a section or as a part of the section. Your
suggestions for the improvement of particular catchlines are invited.
Md. Code Ann., Art. 1, x (LexisNexis 2017 Repl.) By delivering copies of this opinion to
LexisNexis and West, we hereby suggest that the heading for § 5-612 be changed from
“Volume Dealer” to “Manufacture, Distribution, Dispensing, or Possession of Specified
Amounts,” and that the heading before subsection (c) be changed from “Enhanced Penalty”
to “Penalty.”
22
We observe that the trial court, without objection from either party, referred to the
crime at issue as “volume dealer.” Although an incorrect descriptor of the offense for the
reasons we have discussed, we discern no prejudice to Mr. Carter, who could only have
benefitted from the inaccurate implication that the State had the additional burden of
proving that Mr. Carter was a “dealer” of crack cocaine. Any error from the use of that
term was thus harmless.
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
23