Petition — Chisholm v. Maryland

Supreme Court, U.

FILED

AUG 31 1979

(_MICHARE ROBAK, JR, GLERH

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

vm 40-345

JAMES R. CHISHOLM,

Petitioner,

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS OF MARYLAND

JOSEPH A. DE PAUL, ESQ

7100 Baltimore Avenue

College Park, Maryland 20740

Counsel for Petitioner

Of Counsel:

WILLIAM C. BRENNAN, JR., ESQ.

7100 Baltimore Avenue

College Park, Maryland 20740

Washington, 0.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

pee

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

(i)

TABLE OF CONTENTS

REASONS FOR GRANTING THE WRIT

I.

II.

THIS COURT SHOULD DECIDE

WHETHER THE SIXTH AMENDMENT

RIGHT TO THE EFFECTIVE ASSIST-

ANCE OF COUNSEL IS VIOLATED

WHEN THERE IS JOINT REPRESENTA-

TION OF AN ACCUSED WITH A SHOW-

ING OF PREJUDICE AT A PRETRIAL

HEARING DESPITE AN ATTEMPTED

PARTIAL WAIVER OF THE CONFLICT

oe Fe.

THIS COURT SHOULD DECIDE WHAT

NEXUS IS CONSTITUTIONALLY RE-

QUIRED TO SEARCH TWO SEPARATE

BUT CONNECTED LOCATIONS

UNDER A SEARCH WARRANT THAT

ARGUENDO ONLY HAS PROBABLE

CAUSE FOR ONE LOCATION............

CONCLUSION

APPENDIX

A. OPINION AND JUDGMENT OF THE

B.

COURT OF SPECIAL APPEALS OF

se ee cena da wei aes ss a 60-00

ORDER AND JUDGMENT OF THE

COURT OF APPEALS OF MARY-

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(ii)

TABLE OF AUTHORITIES

Aguilar v. Texas,

PE Sy SU CE POOD cS eisddenscsandpueddans

Coleman v. Alabama,

FR or errrrrrer Tr rrr Terre

Franks v. Delaware,

G50 UE, TSN OTE) ooo cca cocscdencsccssees

Gannett Co., Inc. v. De Pasquale,

No. 77-1301 United States Supreme Court

CUE Bs SOFT cas crite scrdesssreescebecenes

Glasser v. United States,

Pa Sy ROE Areca hci eactveenpevence

Hignot v. State,

17 Md.App. 399,303 A.2d 173 (1973)........

Holloway v. Arkansas,

og Aree errr reer Tree

Johnson v. Zerbst,

PE I REPO 6 i seen yi seevenenascioes

People v. Hensen,

38 N.Y.2nd 17 339, N.E.2nd 837 (1975)......

Schneckloth v. Bustaonte,

Be A ee Raa oo sc ckeesesvanesesecs

Spinnelli v. United States,

Fe Gs UES bye on deasdaneseerccees

United States v. DeBerry,

487 F.2d 448 (2nd Cir. 1973) .......cccecee.

United States v. Dorsey,

S91 F286 Fas CENA. Cat. TDG) 000. cccccccccee

United States v. Kutas,

ae Te Oat COO GCM, EFTE) 20. ccc cccsvevene

United States v. Lawriw,

Oe ae PE CNG BUFO oc vctvnccecewes

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

NO.

JAMES R. CHISHOLM,

Petitioner,

STATE OF MARYLAND,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS OF MARYLAND

The Petitioner, James R. Chisholm, respectfully prays

that a writ of certiorari issue to review the judgment of the

Court of Special Appeals of Maryland entered in this

proceeding on March 16, 1979.

OPINIONS BELOW

The opinion of the Court of Special Appeals of Maryland

was a per curiam opinion, not officially reported, and is

contained in Appendix A (infra).

2

JURIS DICTION

The opinion of the Court of Special Appeals of Maryland

was filed on March 16, 1979. A timely petition to the Court

of Appeals of Maryland for a writ of certiorari was denied on

June 6, 1979. This petition was filed within ninety days of

that date. This Court’s jurisdiction is invoked under 28

U.S.C. §1257(3) (1964).

QUESTIONS PRESENTED

IS THE SIXTH AMENDMENT RIGHT TO

THE EFFECTIVE ASSISTANCE OF

COUNSEL VIOLATED WHEN THERE IS

JOINT REPRESENTATION OF AN AC-

CUSED WITH A SHOWING OF PREJU-

DICE AT A PRETRIAL HEARING DE-

SPITE AN ATTEMPTED PARTIAL

WAIVER OF THE CONFLICT BY THE AC-

CUSED AT THE TRIAL?

Il

WHAT NEXUS IS CONSTITUTIONALLY

REQUIRED TO SEARCH TWO SEPARATE

BUT CONNECTED LOCATIONS UNDER

A SEARCH WARRANT THAT ARGU-

ENDO ONLY HAS PROBABLE CAUSE

FOR ONE LOCATION?

3

CONSTITUTIONAL PROVISIONS INVOLVED

UNITED STATES CONSTITUTION, AMEND-

MENT IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures shall not be violated, and no

Warrant shall issue, but upon probable cause, sup-

ported by Oath or affirmation and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

UNITED STATES CONSTITUTION, AMEND-

MENT VI

In all criminal prosecutions, the accused shall enjoy the

right to . . . have the Assistance of Counsel for his

defence.

UNITED STATES CONSTITUTION AMEND-

MENT XIV

(N)or shall any State deprive any person of life, liberty

or property, without due process of law...

STATEMENT OF THE CASE

Petitioner, James R. Chisholm, was indicted in November

of 1977 in Montgomery County, Maryland and charged with

eleven violations of the Controlled Dangerous Substances

law of the State of Maryland. Also indicted on similar

charges were Marlene R. Matthews, Larry D. Butcher and

Steven G. Graham. All four defendants were represented by

the same counsel and over petitioner’s objection all cases

were consolidated for trial. However, only Chisholm and

Graham were tried together because Matthews entered into

a plea bargain with the State and testified as a prosecution

witness at the trial and Butcher failed to appear for the trial,

4

and when he later appeared he had retained new counsel.

The case came on for a trial by jury on April 3, 1978 before

the Honorable Joseph M. Mathias in the Circuit Court for

Montgomery County, Maryland. The evidence indicated

that in September of 1977 Chisholm attended a party at the

home of his friend defendant Graham. Chisholm, who was a

police officer for the Metropolitan Police Department,

Washington, D. C., was planning to take a vacation trip to

Ocean City, Maryland with Graham the following day. At

the party Chisholm met for the first time co-defendant

Butcher, a visitor from Florida.

At the conclusion of the party, Chisholm because of

fatigue and alcohol was unable to drive home so Graham and

Butcher arranged for Chisholm to sleep in one of Butcher’s

rented rooms at the Ramada Inn in Rockville. Chisholm slept

in Room 409 of the Ramada Inn where he observed no

controlled dangerous substances aor controlled parapher-

nalia. Butcher slept in the adjoining room 407. The next

morning Graham and co-defendant Matthews joined

Butcher in Room 407. Chisholm who felt ill remained

primarily in Room 409.

The Montgomery County Police had obtained a search

warrant to search rooms 407 and 409 of the Ramada Inn in

Rockville, and when they executed the warrant, they found

Chisholm asleep in Room 409 and co-defendants Matthews,

Butcher and Graham in Room 407. In Room 409 the officers

discovered substantial quantities of diazepam tablets in

locked suitcases and various firearms belonging to

Chisholm. In Room 407 the police discovered miscellaneous

drug paraphernalia and substantial quantities of cocaine and

diazepam. The officers also testified that they discovered a

small quantity of diazepam and a small quantity of cocaine in

Chisholm’s wallet. Chisholm denied that the substances

5

were in his wallet when it was taken from him at the Ramada

Inn.

Chisholm pursuant to the Maryland Rules of Procedure

timely filed a pre-trial motion to suppress evidence derived

from the search which was heard prior to trial. Before the

motion hearing however, both the State’s Attorney and

Chisholm’s trial counsel told the Court that there was a

conflict of interest because of joint representation. The Court

made no inquiry of Chisholm or Graham or Matthews

concerning this problem, and the evidentiary motions were

conducted. The motions were denied.

The Trial Court did conduct a brief waiver inquiry of

Chisholm and Graham concerning joint representation after

the pre-trial motions. The Court never told Chisholm that

there was a conflict nor that his former co-defendant

Matthews would be a prosecution witness but merely

inquired of him whether he wished to waive a potential

conflict. The Court made the finding that there was a waiver

of independent counsel.

Chisholm was found guilty of five of the eleven counts. |

Graham was convicted of similar counts. Chisholm was

given five years in jail, but Graham was given probation.

After the trial Chisholm dismissed his trial counsel and

retained new counsel for appeal.

Chisholm argued in the Court of Special Appeals of

Maryland inter alia that he was denied his Sixth Amend-

ment right to the effective asistance of counsel because his

trial counsel who represented all four defendants in the case

had a clear conflict of interest. Chisholm relied upon the

decision of this Court in Holloway v. Arkansas, 435 U.S.

475 (1978) to support his position. The Court of Special

Appeals of Maryland found that Chisholm had waived his

right to the effective assistance of counsel and never cited the

6

Holloway case in its opinion. (Appendix A infra)

Chisholm also argued in the Court of Special Appeals of

maryland that his Fourth Amendment rights were violated

because there was no probable cause to search Room 409 as

opposed to Room 407 of the Ramada Inn. The Court of

Special Appeals of Maryland without citing a case stated

that there was a sufficient nexus between Room 409 and 407

to justify a search. (Appendix A infra)

A timely petition for writ of certiorari was filed with the

Court of Appeals of Maryland addressing the Holloway

issue, the search issue and other issues but was denied by that

Court or June 6, 1979.

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD DECIDE

WHETHER THE SIXTH AMENDMENT

RIGHT TO THE EFFECTIVE ASSISTANCE

OF COUNSEL IS VIOLATED WHEN

THERE IS JOINT REPRESENTATION OF

AN ACCUSED WITH A SHOWING OF

PREJUDICE AT A PRE-TRIAL HEAR-

ING DESPITE AN ATTEMPTED PARTIAL

WAIVER OF THE CONFLICT BY THE AC-

CUSED AT THE TRIAL.

When the Montgomery County Police raised Rooms 407

and 409 of the Ramada Inn in Rockville, Maryland, they

seized a quantity of controlled dangerous substances and

arrested the four persons found in the two rooms. They were

the Petitioner, James R. Chisholm, and co-defendants, Larry

7

D. Butcher, Steven G. Graham and Marlene R. Matthews.

All four were charged with various counts of possessing

controlled dangerous substances and all were represented by

one lawyer, Sanford Berman. 4

Butcher did not appear for trial as scheduled and Mat-

thews, after evidentiary hearings on the Motions to suppress

evidence but before the trial, entered into a plea bargain

agreement with the State and testified as a State’s witness at

the trial. Chisholm and Graham were tried together over

Chisholm’s objection.

Prior to the Court’s ruling on the Motion to consolidate

and prior to the evidentiary hearing on the Motion to

suppress, Chisholm’s trial counsel told the Court: “[F]rom

the point of transfer of guilt I think that would be very harmful

to him, Your Honor. It is quite prejudicial to be candid with

you... Sol was keenly aware of the possibility of a conflict

situation. . .” (T.Motions, 13,17) The prosecutor went even

further than Petitioner’s defense counsel and told the court in

no uncertain terms that there was a clear conflict of interest

and clear prejudice. “‘It has always been my opinion, and I

mentioned this to Mr. Berman there is indeed a conflict of

interest where there are four persons charged in an indict-

ment of this nature, where certainly the legal theory of the

State’s case will be constructive joint possession.”

(T.Motions, 18-19)

The Court never conducted an inquiry of either Chisholm

or Graham, or Matthews concerning this conflict of interest

(T.Motions, 23,98) which was pointed out by both the

defense counsel and the State’s Attorney. The Court never

ruled on the conflict issue. (T. Motions, 23,98) The Court

ordered the cases to be tried together and conducted a full

evidentiary hearing on the Motion to suppress evidence

derived from the search.

8

During the evidentiary phase of the Motion to suppress

evidence, Petitioner’s counsel inquired of the State’s witness

as to whether or not any controlled dangerous substances

were seized from Graham. Counsel thus opened the door for

the State to establish on re-direct examination that some

controlled dangerous substances were allegedly found on

Chisholm. Chisholm was clearly prejudiced during the

evidentiary phase of the Motion to suppress evidence. The

Motion to suppress evidence was denied. (T.Motions, 97)

When the case came on for trial the trial court did conduct

a waiver inquiry of Chisholm and Graham concerning

conflict of interest. (T.A. 1-10) The Court told Chisholm

that there was a possibility of a conflict but the Court did not

tell Chisholm that there was, in fact, a conflict, nor did the

Court explain to Chisholm in detail the manner in which this

conflict could manifest itself. Chisholm was not told for

example, that his former co-defendant Matthews would now

be a State’s witness at the trial. There was no affidavit filed

by Chisholm, nor was he under oath. There was no narrative

articulation by Chisholm of the waiver. There was merely an

assent to a series of questions. (T.A. 1-10) The trial court

found a waiver of the Sixth Amendment right to the effective

assistance of counsel. (T.A. 10)

Matthews testified as a State’s witness at trial and Berman

did not formally withdraw as her counsel until just before her

testimony. Her testimony put Chisholm at the scene and in

Room 407, thus creating inferences of constructive pos-

session.

This case presents two issues of constitutional significance

which have not been decided by this Court.

The first is, whether or not the per se rule of Holloway v.

Arkansas, 435 U.S. 475 (1978) applies to pre-trial evi-

dentiary hearings. When both defense counsel and the

9

prosecution tell the court that there is a conflict of interest

and the Court makes no inquiry of the defendants and then

conducts an extensive evidentiary hearing on pre-trial

Motions, has the accused been denied his Sixth Amendment

right to the effective assistance of counsel?

The second issue presented by this case is whether or not

the Sixth Amendment Right to the Effective Assistance of

Counsel can be waived by an accused and if so what is the

waiver standard? This question of waiver was alluded to in

Glasser v. United States, 315 U.S. 60 (1942) and spe-

cifically mentioned but not decided in footnote 5 in

Holloway v. Arkansas, supra.

It is clear that post-arraignment pre-trial evidentiary

hearings are a critical stage of the prosecution to which the

Sixth Amendment Right to the effective assistance of

counsel attaches. Coleman v. Alabama, 399 U.S. 1 (1970).

In the instant case the Court was told by both the prosecution

and the defense that there was a conflict of interest and the

court did not conduct a waiver inquiry of the Petitioner nor

otherwise attempt to alleviate the stated conflict prior to the

pre-trial evidentiary hearings.

Since both Glasser v. United States, supra and Holloway

v. Arkansas, supra, clearly state that joint representation at

trial when a conflict has been raised is a denial of the Sixth

Amendment right to the effective assistance of counsel, the

question presented by this case is whether the Glasser-

Holloway rule applies to a Coleman v. Alabama, pre-trial

critical stage of the prosecution. The recent case of Gannett

Co., Inc. v. De Pasquale, No. 77-1301 United States

Supreme Court (July 2, 1979) would seem to indicate that

pre-trial hearings stand in a different posture than trial

hearings. This Court should resolve this question.

Both Glasser v. United States, supra and Holloway v.

10

Arkansas, supra indicated that the Sixth Amendment right

to the effective assistance of counsel can be waived by an

accused but neither opinion stated the waiver standard.

There was a waiver inquiry of the petitioner in the instant

case after the pre-trial hearings but before the trial.

Different constitutional rights have different waiver

standards. Johnson v. Zerbst, 304 U.S. 458 (1938) and

Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Pe-

titioner submits that the waiver inquiry in this case fell short

of the Johnson v. Zerbst, supra standard of a knowing and

intelligent waiver of a known right which guarantees a fair

trial.

Indeed, lower federal courts have considered putting

defendants under oath and having them file affidavits and

having a narrative articulation of the waiver. See United

States v. Lawriw, 568 F.2d 98 (8th Cir. 1977); United

States v. Kutas, 542 F.2d 527 (9th Cir. 1976); United

States v. DeBerry, 487 F.2d 448 (2nd Cir. 1973). This was

not done in the instant case, Petitioner merely assented to a

series of questions.

This court should issue a writ of certiorari in this case to

decide if the Sixth Amendment right to the effective

assistance of counsel in joint representation cases attaches to

pre-trial hearings and to decide what waiver standard applies

to the Sixth Amendment right to the effective assistance of

counsel.

THIS COURT SHOULD DECIDE WHAT

NEXUS IS CONSTITUTIONALLY RE-

QUIRED TO SEARCH TWO SEPARATE

BUT CONNECTED LOCATIONS UNDER

A SEARCH WARRANT THAT ARGU-

ENDO ONLY HAS PROBABLE CAUSE

FOR ONE LOCATION.

The Montgomery County police executed a dual search at

the Ramada Inn in Rockville, Maryland. One search team

entered Room 407 and a second search team entered Room

409. The officers were armed with one search warrant which

authorized the search of both rooms.

Chisholm pursuant to the Maryland Rules of Procedure

timely filed Motion to suppress evidence derived from the

search (R.15) Chisholm argued below that because of a

breakdown of the controls in the so-called “controlled buy”

which occurred in Room 407 there was insufficient probable

cause for the issuance of a search warrant. Chisholm also

argued that notwithstanding the sufficiency or non-

sufficiency of probable cause for Room 407 there was clearly

insufficient probable cause to authorize the search of Room

409.

The Court of Special Appeals of Maryland relying on the

State Court case of Hignut v. State, 17 Md. App. 399, 303

A.2d 173 (1973) ruled that absolute controls on a so-called

“controlled buy” are not required. The court also ruled,

without citing a singlé case, that despite the fact that the so-

called ‘‘controlled buy” occurred in Room 407 and not in

Room 409 that there was a sufficient nexus between the two

rooms to justify a search of Room 409 as well as Room 407.

12

The questions presented by this case are:

First, when an affidavit in support of a search warrant

relies upon a so-called “‘controlled buy” and not upon the

reliability, credibility and basis of knowledge of a con-

fidential informant what controls are constitutionally

mandated in order to preserve the probable cause of the so-

calied “controlled buy’’?

Second, what nexus is constitutionally mandated to

authorize the search of a separate but connected location

when there is arguably only probable cause for the search of

the primary location?

When evaluating the probable cause in a search warrant,

the reliability, credibility and basis of knowledge of the

confidential informant must be clearly established, Aguilar

v. Texas, 378 U.S. 108 (1964) or else there must be self-

verifying details which supply the probable cause. Spinnelli

v. United States, 393 U.S. 410 (1969). In the instant case

the State did not rely upon the Aguilar-Spinnelli test for

establishing the probasble cause in this case, rather it focused

upon the so-called “controlled buy”’ for fulfilling the Aguilar

- Spinnelli test. However, the record indicates that some of

the controls in the so-called “‘controlled buy” broke down.

The affidavit indicates that an informant was strip-

searched during a twenty-five (25) hour period preceeding

the so-called “‘controlled buy” and does not indicate where

the strip-search occurred. The affidavit further does not say

that the informant was constantly in sight of the police

officers after the strip-search nor whether or not there were

any other entrances or exits to Room 407. In short, there

were very few controls in the so-called “‘controlled buy’.

Also, there was a misrepresentation in the affidavit con-

cerning the so-called “‘controlled buy’’. The affidavit recited

that after leaving room 407 “‘the informant came directly to

13

your affiants.’’ However, the testimony of the officers at trial

was that the informant did not come directly to the affiants

but rather walked in the opposite direction down a flight of

stairs and was out of sight of the affiants for a short period of

time. This was a material misrepresentation and/or a false

statement in the affidavit as prohibited by this Court in

Franks v. Delaware, 438 U.S. 154 (1978).

The affidavit in support of the search warrant (with one

minor exception) applied only to Room 407. The so-called

“controlled buy” related solely to Room 407, the con-

fidential informant entered and exited only Room 407, the

affidavit never recites that the informant ever entered Room

409, nor was there any indication that the informant ever

observed any controlled dangerous substances in Room 409.

The affidavit is also silent as the physical relationship of

Rooms 407 and Room 409. The issuing magistrate had no

way of knowing whether or not the rooms were separated by

a hallway or around the corner from one another or were

connected in any way.

The only nexus between Room 407 and Room 409 was the

fact that they were allegedly leased by someone with a last

name of “‘Gee’’. The confidential informant told the police

that it was a Larry Gee who registered in Rooms 407 and

409, but the affidavit recites that the Innkeeper at the

Ramada Inn reported that Rooms 407 and 409 were

registered to a Marshall Gee. That is the only connection

between Room 407 and Room 409,

The law on the subject of what nexus is required in joint

searches is rather slim. The recent case of United States v.

Dorsey, 591 F.2d 922 (D.C. Cir. 1979) states: “Federal

Courts have long held that police officers, before they

constitutionally may search a separate residential unit within

an apartment building, must have probable cause to do so

14

that is specifically related to that unit.’”’ See also, People v.

Hensen, 38 N.Y.2nd 17, 339 N.E.2d 837 (1975).

Thus, this Court should issue a Writ of Certiorari in this

case to decide the questions of what controls are required in

an affidavit for a search warrant when the affidavit does not

rely on the Aguilar-Spinnelli test of reliability, but rather on

a so-called “controlled buy” and to decide the related

question of what nexus is constitutionally required when a

search warrant authorizes the search of two separate but

related locations and there is arguendo only probable cause

for the primary location.

CONCLUSION

For the reasons heretofore cited and in reliance upon legal

authorities hereinabove set forth, it is respectfully submitted

that a writ of certiorari to the Court of Special Appeals of

Maryland be issued herein.

Respectfully submitted,

JOSEPH A. DE PAUL, ESQ.

7100 Baltimore Avenue

College Park, Maryland 20740

Counsel for Petitioner

Of Counsel

WILLIAM C. BRENNAN, JR,

ESQ.

7100 Baltimore Avenue

College Park, Maryland 20740

la

APPENDIX A

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

September Term, 1978

No. 818

JAMES RAYMOND CHISHOLM

v.

STATE OF MARYLAND

Thompson

Wilner

Couch,

JJ.

PER CURIAM

Filed: March 16, 1979

2a

James Raymond Chisholm, the appellant, was convicted

in a jury trial, in the Circuit Court for Montgomery County,

of two counts of possession of cocaine, two counts of

possession of diazepam, and one count of possession of

controlled paraphernalia. Appellant was sentenced to a total

of five years incarceration. From these convictions, ap-

pellant appeals.

Appellant presents nine issues to this Court for con-

sideration, which we shall discuss in turn. Because of the

nature of these issues, we shall supply the pertinent factual

background for each issue as we discuss it, and will now

present only a brief background of the events giving rise to

this appeal.

On September 22, 1977, Montgomery County police

officers, armed with a search and seizure warrant, began a

search of Rooms 407 and 409 of the Ramada Inn in

Rockville, Maryland. At the time of the execution of the

warrant appellant was found alone in Room 409 and three

codefendants, Matthews, Graham, and Butcher, were in

Room 407. According to the police, a connecting door

between the rooms was open. During the course of the search

certain proscribed controlled dangerous substances and

paraphernalia, as well as three handguns, were found in the

rooms. A subsequent search of appellant’s wallet revealed a

small quanity of cocaine and three diazepam tablets.

Appellant and his codefendants were arrested and, ulti-

mately, separately indicted. All of the defendants engaged

the same attorney, not present appellate counsel. The State

filed a motion to consolidate the respective indictments for

trial, and the appellant moved to dismiss the indictment, to

suppress evidence, and demanded particulars. After a hear-

ing, the trial court granted the State’s motion to consolidate

and denied appellant’s motions to dismiss and suppress.

3a

Thereafter, the case proceeded to trial as to appellant and

Graham - Matthews turned State’s witness and was not tried,

and Butcher was not present for either the motions hearing or

trial.

1

Appellant’s first claim is that he was denied his Sixth

Amendment right to the effective assistance of counsel

because all four defendants were represented by the same

attorney. The record shows that initially all of the defendants

were represented by the same attorney. Matthews ap-

parently negotiated a plea and testified for the State, and was

then represented by different counsel. The record also

demonstrates that at the pre-trial hearing on the motions, the

trial court, sua sponte, raised the question of joint repre-

sentation. Appellant and Graham were present, and neither

made any objection or expressed any concern as to the

possible ramifications of joint representation. The judge

made no definitive ruling on the problem. When the case

came on for trial, the judge (not the same judge who heard the

motions) raised the question and conducted a hearing.

Appellant’s counsel and the Assistant State’s Attorney both

advised the court that there could be a conflict. The trial

judge then engaged in a substantial colloquy with appellant

and his codefendant, during which it was developed that both

were college educated, neither one suffered from a mental or

physical impairment, and both were employed. Their re-

sponses to the judge’s questions showed they clearly under-

stood that there was a possibility of a conflict but, never-

theless, they desired to have the same attorney represent

them. This was ultimately allowed.

Appellant now claims there was an invalid waiver of his

right to the effective assistance of counsel. He says that even

4a

if it was a valid waiver, he was sufficiently prejudiced so as to

warrant a new trial. The State argues that the waiver was

valid and, in any event, that no prejudice was suffered by

appellant. The State also contends that this issue cannot be

raised on direct appeal since it was not raised below. Md.

Rule 1085. While this latter argument may have some merit,

we think it is necessary to address the issue so that any

possibility of manifest injustice may be avoided. See Rose v.

State, 37 Md. App. 395, 377 A.2d 597 (1977).

If anything can be agreed upon by all concerned, it is that

any defendant is entitled to the effective assistance of counsel

of his own choosing, if retained and not appointed. English v.

State, 8 Md. App. 330, 259 A.2d 822 (1969). The precise

problem confronting the court in this case is how far this

principle extends. Here, the defendant retained his own

attorney knowing that his codefendants had retained the

same attorney. The attorney and the court made him aware

that joint representation could raise conflicts of adequate

representation. The defendant, though obviously intelligent,

declared that he wanted to be so represented. After con-

viction, he now asks for a new trial, claiming he was

prejudiced by the dual representation.

We can afford no relief because we believe appellant has

effectively waived his right to complain. The Sixth Amend-

ment right to effective assistance of counsel, like any other

right guaranteed by either the United States Constitution or

that of this State, may be waived, providing such waiver is

voluntary and intelligent. See generally State v. Renshaw,

276 Md. 259, 347 A.2d 219 (1975). Our review of the

record persuades us that the trial judge covered the matter

thoroughly with appellant, and that appellant made his

choice freely.

Appellant argues alternatively that even if there were a

valid waiver, if he was prejudiced by the joint representation

5a

he is entitled to a new trial, citing United States v. Kutas, 542

F.2d 527 (9th Cir. 1976), cert. den., 429 U.S. 1073, and

United States v. DeBerry, 487 F.2d 448 (2nd Cir. 1973), to

support this contention. Our review of these cases indicates

appellant misread them. In Kutas, the Court said, in part:

**Additionally, even were Kutas able to point to some

prejudice, nevertheless her affidavit satisfies the burden

of demonstrating that she knowingly and voluntarily

waived her right to separate counsel.” 542 F.2d at 530.

In DeBerry, there simply had not been any significant waiver

inquiry by the court. In remanding the case, the Court stated:

‘“*... it is in the best interests of justice, we think, to

reverse and remand for a new trial as to both parties after

the court has acertained that each either has separate

counsel or that, from the beginning, each understands

clearly the possibilities of a conflict of interest and

waives any rights in connection with it.” 487 F.2d at

454.

Other federal appellate circuits have considered this

problem and have concluded that while it is the affirmative

duty of the trial court to inquire as to whether there is a

conflict of interest which renders the assistance of counsel

ineffective, it is also clear that a defendant may waive his

Sixth Amendment right. See United States v. Lawriw, 568

F.2d 98, 103-4 (8th Cir. 1977), and cases cited therein.

Appellant also relies on State v. Hunt, 26 Md. App. 417,

338 A.2d 95, cert. den., 276 Md. 745 (1975); Kent v. State,

11 Md. App. 293, 273 A.2d 819 (1971); and Brown vy.

State, 10 Md. App. 215, 269 A.2d 96 (1970). Our reading of

the cases leads us to conclude they offer no support to

appellant because none of them deal with the issue of waiver.

We hold that appellant voluntarily and knowingly waived

his right to effective assistance of counsel, and his belated

effort to show prejudice avails him nothing in this appeal.

6a

Appellant’s next argument is that the trial court erred in

granting the State’s motion to consolidate his case for trial

with that of his codefendant Graham. The basis for his

objection appears to be limited to the fact that he and

Graham were represented by the same attorney and that

there was a conflict of interest between Graham and himself.

Maryland Rule 745 a permits the consolidating for trial of

two or more charging documents if the offenses and the

defendants could have been joined in a single charging

document. Rule 745 c allows the court to order separate

trials of counts, charging documents, and defendants, if it

appears that any party will be prejudiced by a joint trial. We

have held that whether separate trials should be ordered rests

within the sound discretion of the trial court. See McKnight

v. State, 33 Md. App. 280, 364 A.2d 116 (1976), rev'd., 280

Md. 604, 375 A.2d 551 (1977) (held that trial court abused

its discretion); Jones v. State, 38 Md. App. 432, 381 A.2d

317 (1978), aff'd, ____ Md. ____ (No. 7, Sept. Term, 1978,

filed January 4, 1979). Appellant does not say that he could

not have been charged with his codefendant in a single

indictment. Rather, he again sets forth the conflict of interest

argument addressed above. The record is clear that the trial

court granted the motion to consolidate the indictments

before there was argument and a ruling on the effective

assistance of counsel issue. Nevertheless, we find no error

since we believe there was an effective waiver of the right toa

separate trial inasmuch as the very ground for this issue was

the same as that advanced in the Sixth Amendment

argument. See generally, Sears v. State, 9 Md. App. 375,

264 A.2d 485 (1970), cert. den., 258 Md. 730. Having so

concluded, we find no error in consolidating the cases for

trial.

| Appellant further argues that the trial court erred in

7a

admitting evidence from a search based on a warrant that

lacked probable cause for its issuance. We disagree.

Before discussing why we disagree with appellant, perhaps

it is best to again set forth the well established principles that

guide us in determining the validity of search warrants

generally. In United States v. Ventresca, 380 U.S. 102, 85

S. Ct. 741, 13 L.Ed.2d 684 (1965), the Supreme Court said:

“If the teaching of the Court’s cases are to be followed

and the constitutional policy served, affidavits for

search warrants, such as the one involved here, must be

tested and interpreted by magistrates and courts in a

common sense and realistic fashion.” 380 U.S. at 108.

We are instructed further by the same case that a warrant

should not be invalidated by interpreting the affidavit in a

hypertechnical manner. In Aguilar v. Texas, 378 U.S. 108,

84 S. Ct. 1509, 12 L.Ed.2d 723 (1964), the Supreme Court

pointed out that the preference for warrants is so marked, that

less persuasive evidence will justify the issuance of a warrant

than would justify a warrantless search or warrantless arrest.

See also Hignut v. State, 17 Md. App. 399, 303 A.2d 173

(1973). It also appears settled tha a “‘controlled buy” will, in

and of itself, supply sufficient probable cause to justify the

issuance of a search warrant. Hignut v. State, supra; Vines v.

State, 40 Md. App. 658, 394 A.2d 809 (1978).

With the above in mind, we now turn to the affidavit upon

which the search warrant involved in this case was issued.

Because of its short length we set forth the recitation of

supporting data as contained in the affidavit:

“1. Your affiants interviewed a confidential in-

formant who related that there was a subject by the

name of Larry Gee registered in Room 407 anc Roem

409 at the Ramada Inn in Rockville, Maryland. The

confidential informant described Gee as a white male,

8a

over six feet, blonde hair, in his early thirties. The

confidential informant further related that Gee was

registered in Room 407 and Room 409 for the purpose

of selling cocaine and quaaludes. Cocaine and

Quaaludes are Controlled Dangerous Substances.

2. On September 22, 1977, Mary Dailey, was

interviewed by Cpl. J. Fajardo, Montgomery County

Department of Police, assigned to the Vice-Narcotic

Division. Mary Dailey is the Secretary to the Innkeeper

of the Ramada Inn located at 1251 West Montgomery

Avenue, Rockville, Montgomery County, Maryland.

Mary Dailey related that Room 407 and Room 409 are

registered to Marshall Gee and an unknown white

female and an unknown white male. Marshall Gee

checked into the Ramada Inn on Monday, September

21, 1977 and. has a checkout time of Saturday,

September 24, 1977. Marshall Gee list>d his home

address as 1320 Potter Drive, Springs, Colorado.

Marshall Gee also listed his means of transportation as

a Ford LTD, bearing Florida registration 782659U.

3. Between 12 noon on September 21, 1977 and

1:00 P.M. on September 22, 1977 your affiants met

with the confidential informant at which time your

affiant completely strip searched the confidential

informant and found him and his clothing to be com-

pletely free of any controlled dangerous substances.

Your affiants then took the confidential informant to the

Ramada Inn, 1251 West Montgomery Avenue, Rock-

ville, Montgomery County, Maryland for the purpose of

obtaining samples of controlled dangerous substances.

Your affiant watched the confidential informant enter

Room 407 of the aforementioned Ramada Inn and exit

Room 407 of the aforementioned Ramada Inn. The

confidential informant left Room 407 and came directly

to your affiants at which time he turned over to your

affiant, Off. J. R. Hock, Jr., samples of suspected

controlled dangerous substances. The confidential in-

9a

formant related to your affiants that he had observed

large quantities of what he thought to be cocaine and

quaaludes.

4. On September 22, 1977, your affiants transported

the suspected controlled dangerous substances to the

Montgomery County Police Crime Laboratory where it

was analyzed by Forensic Chemist Richard Gervasoni

and found to be in fact cocaine and quaaludes.”’

Appellant contends that the affidavit was defective

because the two-pronged test of reliability-credibility with

basis of knowledge, as set out in Aguilar, supra, was not

established, and also because, in effect, there was no

“controlled buy”. The State argues that the dictates of

Aguilar and Spinnelli v. United States, 393 U.S. 410, 89 S.

Ct. 584, 21 L.Ed.2d 637 (1969) have been met and that

there was a valid “‘controlled buy’’. From the view we take of

this issue, we need not discuss the Aguilarian prongs of

reliability-credibility and basis of knowledge. We say so

because we believe there was a valid “controlled buy”

which, in and of itself, supplied the necessary probable cause

for the issuance of the warrant. Hignut v. State, supra; Vines

v. State, supra. Appellant argues that the affidavit does not

show a “controlled buy” because the affidavit does not show

when the confidential informant was strip searched in

‘relation to when he went into the room at the Ramada Inn: the

affidavit does not show if the surveillance of Room 407 was

unbroken after the informant entered; there was no showing

that no one else thereafter entered the room; there was no

evidence that 407 did not have another door to the outside:

there was no showing from whom the informant obtained the

controlled dangerous substance, nor whether it was from

Room 407 or 409, assuming that the rooms were inter-

connected. Finally, appellant argues that the affidavit recited

10a

that the informant came directly to the affiants after exiting

the room, whereas at trial one of the officers stated he was

downstairs using a phone and the other testified that actually

the informant, upon exiting the room, went down the hall in

the opposite direction and went down a flight of stairs, where

the officer caught up with the informant on the floor below,

having used a diffferent set of stairs. We find none of these

reasons sufficient, singularly or collectively, to demonstrate

there was an invalid “controlled buy’’, when the affidavit is

viewed in a common sense manner and not hypertechnically.

Even if one were to accept the version of the “controlled

buy” given at the trial, it is evident that the “buy” was

completed and the informant approached by the officer

within a matter of seconds. Contrary to appellant’s view of

‘the facts, it is apparent that at least one of the officers

maintained an unbroken surveillance of the room while the

“buy” took place. Moreover, we do not accept appellant's

theory that the versions given in the affidavit and at trial are

necessarily inconsistent. For the controlled buy to be

consummated without alerting the subject of the surveil-

lance, it is understandable that the officer and the informant

met “directly” at a place in close proximity where the

informant could relate his observations and turn over the

samples, unnoticed by appellant. We have carefully re-

viewed the affidavit and conclude that it adequately demon-

strted, from the affiant’s own personal observation of the

controlled buy, sufficient probable cause to believe that

Rooms 407 and 409 of the Ramada Inn contained proscribed

controlled dangerous substances. The issuance of the war-

rant was proper and there was no error on the part of the trial

court in admitting the evidence.

lla

4

Appellant also contends the trial court was in error in

admitting evidence seized in Room 409 because there was no

probable cause to search that room. We find no merit in this

contention. First, it must be observed that the actual search

of Room 409 was done under the authority of a duly issued

warrant. Thus to agree with appellant we would have to

conclude that the warrant was invalid as to that room. Again,

reading the affidavit in a common sense manner, we

conclude it adequately demonstrated probable cause to

believe Room 409 contained controlled dangerous sub-

stances, It was stated that both rooms were registered to one

“*Gee’’, although the first names were different. We believe a

fair inference could be drawn, from the numerical sequence,

that the rooms were connected. The informant had stated

that both rooms were rented for the purpose of selling drugs.

We believe common sense will justify a belief that both

rooms were so used.

5

Appellant next argues that, since the affidavit used to

support the search warrant contained a statement which was

either knowingly false or in reckless disregard of the truth, the

trial court erred in not conducting an inquiry to determine if

this was the case and, if so, setting the false statements aside,

whether the remaining content was sufficient to establish

probable cause. See Franks v. Delaware, 438 U.S. 154,

98 S. Ct. 2674 (1978). He argues on appeal that there was a

false statement in the affidavit insofar as it related that the

confidential informant, upon leaving Room 407, came

directly to the affiants, whereas it was revealed at trial that

12a

the informant left the room, went down the hall in the

opposite direction from one of the affiants, down a stairwell

to the floor below, where he was met by one of the officers.

We need not reach the question of the retroactivity of

Franks, as raised by the State, because we hold that this

issue was not raised below. Md. Rule 1085. Our reading of

the record persuades us that appellant raised the issue of the

statement in the affidavit only in reference to the presence of

quaalude pills, which turned out to be valium. No proffer was

made below that there was a false statement in relation to the

“controlled buy”. Mr. Justice Blackmum, speaking for the

Court in Franks, supra, stated:

‘| . where the defendant makes a substantial pre-

liminary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth,

was included by the affiant in the warrant affidavit, and

if the allegedly false statement is necessary to the finding

of probable cause, the Fourth Amendment requires that

a hearing be held at the defendant’s request. In the event

that at that hearing the allegation of perjury or reckless

disregard is established by the defendant by a pre-

ponderance of the evidence, and, with the affidavit’s

false material set to one side, the affidavit’s remaining

content is insufficient to establish probable cause, the

search warrant must be voided and the fruits of the

search excluded to the same extent as if probable cause

was lacking on the face of the affidavit.” Jd. at 2677.

We do not believe this issue has been preserved for appeal.

Nevertheless, assuming the issue was preserved, we con-

clude there is not merit to appellant’s argument because,

even setting aside the allegedly false statement as to how the

informant went from the fourth to the third floor, the

remainder of the affidavit furnished probable cause.

13a

6

Appellant was convicted of possession of cocaine found in

one of the Inn’s rooms, possession of diazepam, likewise

found, and of controlled paraphernalia. He now argues that

his motion for judgment of acquittal as to these counts should

have been granted because the evidence was insufficient to

demonstrate constructive possession. It is argued by ap-

pellant, and the record confirms, that the matters covered in

these counts two, four, and eight were seized from Room 407

but that he was arrested in Room 409. He further contends

that there was no evidence he had rented Room 407 or had

any interest in or control over that 100m, or had any

knowledge of its hidden contents. Nevertheless, there was

evidence that he was in Room 407 at one time. Appellant

attempts to counter the evidence of his presence in the room

with the argument that there was no evidence the proscribed

drugs and paraphernalia were then visible. In Cain v. State,

34 Md. App. 446, 367 A.2d 47 (1977), cert. den., 280 Md.

728, Judge Liss, speaking for this Court, said:

“It is well settled that possession of narcotic drugs

under the Maryland law need not be sole possession;

there may be joint possession and joint control in several

persons. The duration of possession and the quantity

possessed are not material, nor is it necessary to prove

ownership in the sense of title. Folk v. State, 11 Md.

App. 508, 275 A.2d 184 (1971).

Judge Moylan in Folk, made an excellent, exhaustive

survey of the numerous cases that we have had before us

in which the sufficiency of the evidence to prove joint

possession was in issue. After reviewing the factual

situation in each of the cases cited in Folk, Judge

Moylan found the common thread running through all

the cases negating joint possession to be: (1) the lack of

l4a

proximity between the defendant and the contraband,

(2) the fact that the contraband was secreted away in

hidden places not shown.to be within his gaze or

knowledge or in any way under his control, and (3) the

lack of evidence from which a reasonable inference

could be drawn that the defendant was participating

with others in the mutual use of the contraband. See,

Haley, Peterson and Roberts v. State, 7 Md. App. 18,

253 A.2d 424 (1969); Wimberly v. State, 7 Md. App.

302, 254 A.2d 711 (1969); Scott v. State, 7 Md. App.

505, 256 A.2d 384; and Barksdale v. State, 15 Md.

App. 469, 291 A.2d 495 (1972).” Id. at 449.

The evidence in this case, when viewed in a light most

favorable to the State, persuades us that there was no error in

denying appellant’s motion for judgment of acquittal. There

certainly was evidence to show close proximity between

appellant and the contraband in Room 407; it was there and

so was he. While some of the contraband may have been in a

briefcase and some in a dresser drawer, there was some

testimony that both were open. Further, there was testimony

that, in plain sight, there was a cutting board, razor, white

powder, and a sraw, all typical implements used for

“snorting” cocaine. In addition, there was testimony from

Matthews that appellant was alone in Room 409 when the

raid occurred and that she heard a voice from that room say,

‘“‘We have been popped”. We believe the evidence was

sufficient to at least raise a rational inference, if not to show

directly, that appellant was in constructive possession of the

proscribed drugs and implements found in Room 407 so as to

justify submission of the issue to the jury.

7

Appellant was convicted of two counts of possession of

cocaine and two counts of possession of diazepam. The

15a

record shows that there were separate counts for possession

of the controlled dangerous substances found on appellant’s

person and for those substances found in Rooms 407 and

409. Thus he was charged in Count 2 with possession

(constructive) of cocaine found in Room 407, and in Count 3

with possession (actual) of cocaine found on his person. He

was charged in Count 5 with possession (constructive) of

diazepam found in the rooms, and in Count 6 with possession

(actual) of diazepam found on his person.

Appellant argues, and we agree, that there should have

been a merger of the counts which involved possession of the

same drugs, i.e., Counts 2 and 3 and Counts 5 and 6. The

State contends that there should be no merger because each

of the counts constitutes a separate offense. We follow the

test for determining the identity of offenses as laid down in

Newton v. State, 280 Md. 260, 373 A.2d 626 (1977):

“Thus, under both federal double jeopardy principles

and Maryland merger law, the test for determining the

identity of offenses is the required evidence test. If each

offense requires proof of a fact which the other does not,

the offenses are not the same and do not merge.

However, if only one offense requires proof of a fact

which the other does not, the offenses a e deemed the

same, and separate sentences for each offense are

prohibited.”’ Jd. at 268.

See Brooks v. State, ___ Md. , A.2d___ (1979)

(No. 4, Sept. Term, 1978, filed 2/16/79).

Counts 2, 3, 4 and 5 each charge appellant with possession

of cocaine (2 and 3) and diazepam (4 and 5), in violation of

Art. 27, §287(a), which 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 ob-

16a

tained directly, or pursuant to a valid prescription or

order from a practitioner, while acting in the course of

his professional practice.”

In examining this statute, and the respective counts, it is

obvious that Counts 2 and 3 and 5 and 6 are not separate

offenses as neither Count 2 or 3 or 5 or 6 requires proof of a

fact which the other does not. Upon conviction of all these

counts, the court should have merged Counts 2 and 3 and

rendered one sentence, and merged Counts 5 and 6 and

rendered one sentence. We are not unmindful that the trial

court, by giving concurrent sentences, may have ac-

complished a merger. Nevertheless, under the teachings of

Newton, supra, we may not allow these convictions to stand.

In Newton, Judge Eldridge stated:

“In the instant case, there has been but one prose-

cution and trial for the felony murder and the underlying

felony so that no issue concerning successive trials for

the same offense is presented. Cf Bynum v. State, 277

Md. 703, 707-708, 357 A.2d 339, cert. denied, 429

U.S. 899, 97 S. Ct. 264, 50 L.Ed.2d 183 (1976).

However, both parties and the Court of Special Appeals

have proceeded on the assumption that if both offenses

are deemed the same under double jeopardy principles,

so that both offenses merge upon conviction, separate

sentences on both would constitute double punishment

and the judgment of conviction and sentence on the

lesser offense must be vacated. Even though the sen-

tences on the felony murder conviction and the under-

lying felony of attempted robbery are concurrent, this

assumption is valid in view of our prior Maryland cases

in which the Court has reviewed the validity of all

convictions and sentences challenged even though

concurrent. Stewart v. Warden, 243 Md. 697, 699-

700, 221 A.2d 709 (1966); Crowe and Williston v.

State, 240 Md. 144, 146, 152-153, 213 A.2d 558

(1965). See the discussion of this question in Benton v.

Rina ee

17a

Maryland, supra, 395 U.S. at 787-793; see also

United States v. Belt, 516 F.2d 873, 875 n. 7, 876 (8th

Cir. 1975).” Id. at 265.

Accordingly, we shall vacate the sentences and con-

victions given in Counts 3 and 6.

8, 9, and cross-appellant’s question

Appellant’s questions 8 and 9 and cross-appellant’s single

question stem from actions taken after the trial in this case.

The appellant was charged in Count 1 with possession of

cocaine with intent to distribute (Art. 27, §286(a)(1); in

Count 4 with possession of diazepam with intent to distribute

(Art. 27, §286(a)(1); in Count 10 with use of a handgun in

the commission of a felony (Art. 27, §36B); and in Count 1 1

with keeping and maintaining a common nuisance (Art. 27,

§ 286(a)(5). The jury was unable to reach a verdict on these

counts and, with the consent of appellant, the court declared

a misWial as to them. Subsequent thereto, appellant moved to

dismiss these counts on double jeopardy grounds. After a

hearing on this motion the trial court granted appellant’s ©

motion as to Counts 1 and 4, but denied it as to Counts 10

and 11. Thereafter, appellant appealed this ruling separately

and the State filed a cross appeal as to the court’s action in

dismissing Counts | and 4.

We shall deal first with Count 11 (common nuisance)

since this is appellant’s question 8. As indicated above,

appellant’s motion as to all counts was bottomed solely on

grounds of double jeopardy. As to Count | 1 he argued below,

and reiterates here, that since the trial court erred in not

granting his motion for judgment of acquittal as to this count,

he cannot be retired on Count 11 on double jeopardy

grounds. The trial judge, in ruling on his motion, stated:

18a

‘“‘While we are inclined to agree with the defendant’s

contention that the Court erred in declining to grant the

motion for judgment of acquittal, we do not think that we

have the power at this time to dismiss Count 11 on the

ground of double jeopardy. However, we do not think

the count ought to be retried.”

The appellant challenged the ruling, stating that the count

should have been dismissed on the basis of collateral

estoppel, citing Ashe v. Swenson, 397 U.S. 436 (1970);

Simpson v. Florida, 403 U.S. 384 (1970); and Sealfon v.

United States, 322 U.S. 575 (1948), as authority. Our

review of these cases persuades us that appellant’s reliance

thereon is misplaced. We note that these cases are inapposite

in that they all concern situations where there had been a

previous final judgment of acquittal. There is no final

judgment here to trigger the operation of the double jeopardy

concept, only a mistrial to which appellant consented,

coupled with a remark by the trial judge that he may have

erred in not granting a motion for judgment of acquittal. We

find no error here.

Turning next to Count 10, use of a handgun in the

commission of a felony, appellant argues that the trial court

should have dismissed this count since it granted appellant’s

motion to dismiss as to Counts | and 4, which he alleges were

the felony counts. Thus, the appellant contends that his

motion to dismiss as to the handgun count should have been

granted. We agree with the appellant but for slightly different

reasons.

The trial court kept the handgun count viable by denying

appellant’s motion to dismiss as to Count 11, the common

nuisance count, which provided the underlying felony.

Nevertheless, we believe this count should have been

dismissed as we do not believe the statute was designed or

19a

intended to cover the situation involved here. The statute

specifically requires a finding of “‘use’’ in the commission of a

crime of violence or a felony. There is a complete lack of any

evidence to show a use of a handgun, only that guns were

present. Couplin v. State, 37 Md. App. 567,577, 378 A.2d

197 (1977). Accordingly, the State failed to prove the

elements necessary for a conviction under Art. 27, §36B(d),

insofar as it did not produce any evidence that a handgun was

used in the perpetration of a felony or crime of violence.

This leaves for resolution the State’s cross appeal wherein

the State contends the trial court erred in dismissing Counts 1

and 4 on double jeopardy grounds after the jury had failed to

reach a verdict on these counts and a mistrial, with the

consent of the State and appellant, was declared by the court.

The trial court, in granting appellant’s motion on Counts 1

and 4, stated:

“We are of the opinion that the defendant’s motion to

dismiss Counts 1 and 4 should be granted and that his

motion to dismiss Counts 10 and 11 should be denied.

As to Counts | and 4, the controlling case is Newton v.

State, 280 Md. 260. There at page 266 the Court said:

“Where only one offense requires proof of an

additional fact so that all elements of one offense

are present in the other, the offenses are deemed to

be the same for double jeopardy purposes.’

The defendant was convicted by the jury on Count 2,

charging simple possession of cocaine found in room

407 at the Ramada Inn. Count | on which the jury was

unable to agree charges the defendant with possession of

the same cocaine but in sufficient quantity to indicate an

intent to distribute same. Under the definition above,

therefore, the offenses charged in Counts | and 2 are

deemed to be the same for double jeopardy purposes.

The jury found the defendant guilty of Count 5

20a

charging possession of diazepam found in room 407 at

the Ramada Inn. Count 4 charges the defendant with

possession of the same diazepam but in sufficient

quantity to indicate an intent to distribute. For the same

reason, therefore, double jeopardy precludes the de-

fendant from being tried again on Count 4.”

We agree with the trial judge in his assessment of the

double jeopardy issue presented by appellant. This con-

clusion is in accord with the recent Supreme Court decision

in Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221 (1977). In

Brown, the Court held that where the only distinction

between two statutory offenses was an element of intent, then

the offenses constitute the “same offense” for double

jeopardy purposes. 97 S. Ct. at 2226. The only distinction

present in this case between Counts 1 and 2, and Counts 4

and 5, is a sufficient quantity of cocaine and diazepam from

which an intent to distribute could be inferred. Accordingly.

we find no error in this regard.

JUDGMENTS ON COUNTS 3 AND 6

VACATED; .ALL OTHER JUDGMENTS

AFFIRMED.

ORDER GRANTING MOTION TO

DISMISS

COUNTS | AND 4 AFFIRMED.

ORDER DENYING MOTION TO DISMISS

COUNT 10 REVERSED.

ORDER DENYING MOTION TO DISMISS

COUNT 11 AFFIRMED.

COSTS TO BE PAID TWO-THIRDS BY

APPELLANT AND ONE-THIRD BY

MONTGOMERY COUNTY.

lb

APPENDIX B

JAMES RAYMOND In the

CHISHOLM Court of Appeals

of Maryland

v. Petition Docket No. 80

September Term, 1979

STATE OF MARYLAND (No. 818, September Term,

1978 Court of Special

Appeals)

ORDER

Upon consideration of the petition and cross petition for a

writ of certiorari to the Court of Special Appeals in the above

entitled case, it is

ORDERED, by the Court of Appeals of Maryland, that

the petition and cross petition be, and they are hereby, denied

as there has been no showing that review by certiorari is

desirable and in the public interest.

/s/ Robert C. Murphy

Chief Judge

Date: June 6, 1979