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REPORTED COURT OF SPECIAL APPEALS OF MARYLAND No. 2628 September Term, 2003 ___________________________________ EN BANC JAMES BRADLEY LAROCCA V. STATE OF MARYLAND _______________________________ Murphy, C.J., Davis, Salmon, Eyler, James R., Kenney, Eyler, Deborah S., Adkins, Krauser, Barbera, Sharer, Meredith, Woodward, JJ. Opinion by Eyler, Deborah S., J. Dissenting Opinion by Salmon, J., in which Kenney, Adkins, and Meredith, JJ., Join

Filed: September 29, 2005

In a court trial in the Circuit Court for Washington County, James Bradley Larocca, the appellant, was convicted of possession with intent to distribute marijuana and possession of marijuana. The court merged the simple possession conviction and sentenced the appellant to five years' imprisonment, with all but two years suspended in favor of three years' probation.1 presents three questions for review: I. II. Was the evidence legally sufficient to support his conviction? Did the trial court err in considering a witness's extrajudicial statement as substantive evidence? The appellant

III. Did the trial court err in denying the appellant's motion to suppress evidence? This case originally was placed on the Court's non-argument docket. Because this type of sufficiency of the evidence issue is

likely to recur in other cases, this Court set the case in for an en banc hearing, and permitted the parties to file supplemental briefs. For the following reasons, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS
On January 16, 2003, the appellant and his friend, David Hinkle, were arrested and charged with possession of marijuana with intent to distribute and simple possession. Hinkle pleaded guilty

The sentence was to run concurrent with a federal sentence the appellant was serving.

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to the lesser offense, and the State nol prossed the greater offense. At the appellant's trial, the State called as witnesses Sergeant Johnny Lee Murray, Officer John Lehman, and Officer Todd Webster, of the Hagerstown Police Department; Hinkle; and Jeremy Miner, another friend of the appellant. The appellant did not call any witnesses. He did, however, introduce into evidence an

affidavit signed by Hinkle.

The evidence viewed in the light most

favorable to the verdict was as follows. On the night in question, the appellant, Hinkle, and Miner were in Hagerstown, "just riding through town" in a Honda Civic registered to Hinkle's mother. was the front seat passenger. Hinkle was driving. The appellant

Miner was sitting in the back seat.

It had been snowing on and off throughout the day.2 At the appellant's request, Hinkle drove to the 600 block of N. Mulberry Street. there. Hinkle double parked in front of a house

It so happened that Sergeant Murray and Officer Webster,

dressed in plainclothes, were at that location, conducting an undercover "trash pull." The officers were assigned to a special No one else was

unit that was targeting street level drug dealers. in the area.

According to those portions of the testimony of Hinkle and Miner most favorable to the State, as the trio was driving to N.

Earlier in the evening, a fourth occupant had been seated in the back passenger seat, with Miner. He got out of the car before the events central to this case took place. 2

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Mulberry Street, Miner produced a marijuana blunt, lit it, smoked it, and passed it to Hinkle. took place in the This communal partaking in marijuana presence, in the passenger

appellant's

compartment of the Honda. It continued while the appellant got out of the car and went into the house where the Honda was double parked. Sergeant Murray, standing nearby, watched as the appellant entered the house on N. Mulberry Street and then a short time later exited and returned to the Honda. appellant carrying or holding Sergeant Murray did not see the anything. However, when the

appellant opened the car door to get back inside, Sergeant Murray smelled burning marijuana in the vicinity of the Honda. He could

not see inside the Honda because its windows were tinted and the rear window was covered with snow. Sergeant Murray noticed that

the Honda's rear license plate was completely covered with snow. Sergeant Murray told Officer Webster about what he had seen and smelled. The officers put in a request for a uniformed

colleague, Officer Lehman, to follow the Honda in a marked cruiser, which he did. The undercover officers followed behind Officer

Lehman in their unmarked car. The marijuana smoking inside the Honda continued after the three men departed from N. Mulberry Street. While the Honda was

waiting at a red light, Hinkle noticed police car lights coming up behind him, "from back . . . back about a mile or so." Hinkle

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testified, "And as soon as I seen him, I was trying to get through the intersection. I didn't know if the police officer was coming

to pull me over or trying to . . . on a call that he had to get to." Officer Lehman made the traffic stop and approached the driver's side of the car. approached the opposite Sergeant Murray and Officer Webster side of the vehicle and asked the

passengers to roll down their windows.

When the windows were

rolled down, Sergeant Murray and Officer Webster both smelled the odor of burnt marijuana coming from inside the car. According to

Officer Webster, it took about three to five minutes to make the traffic stop. Officer Lehman obtained Hinkle's driver's license and the registration for the Honda. Because of the smell of marijuana, the investigation immediately focused on drugs inside the vehicle or on the occupants' persons. Hinkle was brought to the rear of the

Honda and asked by Sergeant Murray if there were any drugs on his person or in the vehicle. He answered in the negative and That search revealed rolling

consented to a search of his person. papers and currency.

Sergeant Murray next ordered Miner to exit the vehicle. did as ordered and also consented to a search. uncovered a small baggie of marijuana.

He

The search of Miner

Miner was immediately

placed under arrest for possession of marijuana.

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The appellant also was asked to exit the Honda.

He complied.

Officer Webster inquired whether he had anything illegal in his possession. The appellant responded in the negative. He then

consented to a search of his person. were recovered in that search.

No drugs or paraphernalia

Officer Webster proceeded to search the Honda. Underneath the front passenger seat he recovered a white plastic bag that In

contained five individually wrapped baggies of marijuana.

Officer Webster's words, the white bag was located, "[j]ust under the rim of the seat. If [the appellant is] sitting in the seat, if

you just reach your hand under, I guess right where normally the adjustments are, it's right under there in the front portion of the seat." In other words, the white plastic bag was found directly

under the appellant's seat, on the floor of the car near the edge of the seat, in the area immediately behind and next to where the appellant's legs had been when he was seated. The white plastic

bag was opaque, and therefore had to be opened to see what was inside. None of the occupants of the vehicle claimed ownership of the white bag of marijuana at the time of the stop. As noted above,

the appellant and Hinkle were arrested and charged with possession of marijuana with intent to distribute and simple possession.3

Subsequent laboratory analysis showed that the marijuana in the white plastic bag, together with its packaging, weighed about (continued...) 5

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Miner was arrested and charged with simple possession of the marijuana found on his person. At the police station, Officer Webster interviewed Miner and Hinkle. Miner told the officer he did not know how the white bag Hinkle

of marijuana got under the front passenger seat of the car.

told Officer Webster that the white bag of marijuana was not in the car until the appellant and Miner got in the car. Also, Hinkle

told Officer Webster, "Brad [the appellant] has told me he sells dope." Hinkle gave this information in written statement form, but refused to sign it. Hinkle's statement was admitted at trial for

impeachment purposes only. Before trial, Hinkle gave the appellant's counsel an affidavit in which he attested that the appellant was not aware of the white bag of marijuana underneath the seat prior to its seizure by the police; that the marijuana was in the car before the appellant entered it; and that he never told the appellant that the marijuana was there. He also attested that, sometime after their arrests, he wrote a note to the appellant's defense counsel (attached to the affidavit), admitting that the marijuana was his. Also as noted above, before trial, Hinkle pleaded guilty to the lesser charge of simple possession of the marijuana in the

(...continued) five ounces (138.26 grams). Officer Webster opined that the street value of the marijuana was between $500 and $600 and that the amount of marijuana recovered and its packaging indicated that it was for sale and not personal use. 6

white bag and the State nol prossed the possession with intent to distribute charge against him. Miner's trial testimony was consistent with what he told Officer Webster on the night of the arrest. Miner said he did not

know the white bag of marijuana was in the car, did not put it there, and did not see anyone else put it there. He first learned

of its presence when the police removed it from the car. Hinkle testified at trial that the white bag of marijuana belonged to him and its presence in the car was unknown to the appellant. He said that the day before the stop, someone named

Robert, whose last name Hinkle did not know, gave him the bag of marijuana (worth about $500) for free. He put the bag under the

front passenger seat of the Honda to take to his house, for personal use (although it was packaged for sale), but forgot about it. The next night, when the traffic stop occurred, he did not

tell the police about the bag under the seat because he was scared (not because he had forgotten about it, however). Many times in his testimony, Hinkle claimed not to remember what had happened on the night of the traffic stop, because of "short term memory loss" due to drug use. Yet, he claimed to

remember clearly that the appellant did not know of the presence of the bag of marijuana in the car. Hinkle's trial testimony was

inconsistent with what he told Officer Webster on the night of the stop. At trial, he claimed that he had put the marijuana in the

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car the night before and only he knew of its presence; in the interview, he said no such thing and instead suggested that the drugs had come into the car with Miner and the appellant. After holding the case sub curia, the trial court reconvened and made his ruling from the bench. He recited the names of the

various witnesses who testified, then said: The physical evidence consisted of five one ounce baggies of marijuana found under the front passenger seat where the defendant was located, the lab report, and the statements of Hinkle and Miner. The Court has previously ruled that the stop was legal, search consensual which resulted in the seizure of the five baggies, as I indicated, located right under the front seat where the defendant was located. The evidence would indicate by, again by the totality of the circumstances and proximity of the drugs to the defendant, constructive possession and control. But does it constitute guilty beyond a reasonable doubt? Without rehashing the whole testimony, the key witness in this case, I think the lynchpin, among other things, was Hinkle. His statements to Officer Webster were contrary to the statements that he made subsequently to that time, which he submitted by note and affidavit through counsel for the defendant, whereby he indicated the drugs were all his, the defendant didn't even know anything about them. And basically he never told the police at the time he was interrogated they were his. He testified at trial he put it under the front seat, not the driver's seat, but he had forgotten about it. It was his, for his own personal use, even th[]ough they were packaged in one ounce baggies, which I guess could be argued could be for personal use and/or distribution. After the arrest he writes this note and affidavit, which is inconsistent with what he told the police officer. Hinkle's testimony was that the reason he didn't . . . the reason his statement was different at the time he was interrogated by Officer Webster is that he was scared. The Court finds that Hinkle's testimony is totally non-credible. His story is too pat. He is obviously torn between loyalty to this defendant and his own selfpreservation when he appeared in court in May of this year concerning his own criminal charges. And I find his 8

statements to the police to be the real truth. On the evening in question, [January] 16, 2003, it was a Thursday evening, Friday morning. It was terrible weather. There was no explanation as to why these people were out and they were riding around hot spots. There was the smell of marijuana. The marijuana was in easy reach of the defendant, easier reach than Hinkle, but it was in Hinkle's automobile and would indicate joint constructive possession. This taken with Hinkle's incredible testimony, there is evidence to convict the defendant as to both charges beyond a reasonable doubt.

DISCUSSION I.
Sufficiency of the Evidence The appellant contends the evidence was legally insufficient to support his conviction of possession of marijuana with intent to distribute. His complaint focuses on the possession element of the crime. He argues that there was not a "scintilla of evidence that

he was even aware of the existence of the [marijuana], and the driver/owner of the car freely admitted that in fact he was the owner of the drugs." He maintains that the evidence at most showed

"proximity [on his part] to concealed drugs," which standing alone cannot support a finding of knowledge of the presence and the nature of the contraband. He emphasizes that the marijuana was in

an opaque bag that he could not see from his vantage point as a front seat passenger, because it was tucked under his seat. He

also stresses that there was no evidence that he had a possessory interest or right in the Honda.

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The State responds that the evidence was sufficient to support a reasonable finding, beyond a reasonable doubt, that the appellant had knowledge of the bag of marijuana in the car and was in constructive possession of it. "The standard for appellate review of evidentiary sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." v. Smith, 374 Md. 527, 533 (2003)(citations omitted). State

"Weighing

the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact finder." 351 Md. 733, 750 (1998). State v. Stanley,

In addition, we give "`due regard to the

[fact finder's] finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.'" Moye v. State, 369 Md. 2, 12

(2002) (quoting McDonald v. State, 347 Md. 452, 474 (1997) (quoting State v. Albrecht, 336 Md. 475, 478 (1994))). Although a conviction may rest on circumstantial evidence alone, a conviction may not be sustained on proof amounting only to strong suspicion or mere probability." 150, 162-63 (2001)(citation omitted). White v. State, 363 Md. "`Circumstantial evidence

which merely arouses suspicion or leaves room for conjecture is obviously insufficient. It must do more than raise the possibility or even the probability of guilt. 10 [I]t must . . . afford the basis

for an inference of guilt beyond a reasonable doubt.'"

Taylor v.

State, 346 Md. 452, 458 (1997) (quoting 1 Underhill, Criminal Evidence

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