Dennis v. State

1

DONTAE DAVON DENNIS v. STATE OF MARYLAND

No. 1684-2021

Court of Special Appeals of Maryland^[*]

January 4, 2023

Circuit Court for Queen Anne's County Case No C-17-CR-20-000304

Beachley, Albright, Battaglia, Lynne A. (Senior Judge Specially Assigned), JJ.

OPINION ^[*]

BATTAGLIA, J.

Dontae Davon Dennis, Appellant, was convicted in the Circuit Court for Queen Anne's County of distribution of fentanyl in violation of Section 5-602(1) of the Criminal Law Article, Maryland Code (2002, 2012 Repl. Vol., 2018 Supp.) (Count 1);^[1] possession with intent to distribute fentanyl in violation of Section 5-602(2) of the Criminal Law Article (Count 2); knowingly distributing fentanyl in violation of Section 5-608.1 of the Criminal Law Article (Count 3); possession of fentanyl in violation of Section 5-601(a)(1) of the Criminal Law Article (Count 4); conspiracy to distribute fentanyl in violation of the Common Law of Maryland (Count 5); conspiracy to possess with intent to distribute fentanyl in violation of the Common Law of Maryland (Count 6); reckless endangerment in violation of Section 3-204(a)(1) of the Criminal Law Article (Count 7); and manslaughter in violation of Section 2-207(a) of the Criminal Law Article (Count 8). Dennis's appeal relates to only Count 3, knowingly distributing fentanyl in violation of Section 5-608.1 of the Criminal Law Article,^[2] which alleged that Dennis:

[D]id knowingly distribute to Sidneysia Roy, a controlled dangerous substance containing fentanyl, contrary to the form of the Act of the Assembly in such case made and provided, in violation of Criminal Law Article, Section 5-608.1(a) of the Annotated Code of Maryland and against the peace, government and dignity of the State.

Prior to trial, the State and Dennis's counsel submitted proposed jury instructions, which, among others, included Maryland Criminal Pattern Jury Instruction 4:24, "Narcotics and Controlled Dangerous Substance-Possession,"^[3] Maryland Criminal Pattern Jury Instruction 4:24.1, "Narcotics and Controlled Dangerous Substance-Possession with Intent to Distribute,"^[4] and Maryland Criminal Pattern Jury Instruction 4:24.2, "Narcotics and Controlled Dangerous Substance-Distribution."^[5] The State requested in each of Maryland Criminal Pattern Jury Instructions 4:24, 4:24.1, and 4:24.2, that the phrase "(controlled dangerous substances)" would be replaced with "fentanyl." The court asked counsel for Dennis if he had any objection to the proposed change in the instructions, and he stated, "No." After the court went through each requested instruction, the court asked Dennis's counsel again whether there was anything else, and he responded, "No, your Honor."

The trial court then delivered Maryland Criminal Pattern Jury Instructions 4:24, 4:24.1, and 4:24.2, among others, to the jury and provided each juror with a typed copy of each instruction. After the court instructed the jury, the judge asked Dennis's counsel if he had any "final objections or other suggestions [to the instructions]," and Dennis's counsel again responded, "No, sir."

The jury convicted Dennis of all eight counts, and he was subsequently sentenced to twenty years for distribution of fentanyl in violation of Section 5-602(1) of the Criminal Law Article (Count 1); ten years for knowingly distributing fentanyl in violation of Section 5-608.1 of the Criminal Law Article, all suspended (Count 3); one year for possessing fentanyl in violation of Section 5-601(a)(1) of the Criminal Law Article, to run concurrently with Count 1 (Count 4); and ten years for manslaughter in violation of Section 2-207(a) of the Criminal Law Article, all suspended (Count 8). Dennis was also sentenced to five years of supervised probation upon release.^[6]

On appeal, Dennis challenges only his conviction on Count 3, knowingly distributing fentanyl in violation of Section 5-608.1 of the Criminal Law Article, and he presents this Court with three questions for review, which we have renumbered:

1. Did the trial court commit plain error in failing to instruct the jury as to the crime charged in count three, to wit, knowingly distributing fentanyl to Sidneysia Roy in violation of CL § 5-608.1?

2. Is the sentence imposed on count three illegal where Dennis was never convicted of the crime charged in count three, to wit, knowingly distributing fentanyl to Sidneysia Roy in violation of CL § 5-608.1?

3. Is the evidence insufficient to sustain a conviction for knowingly distributing fentanyl to Sidneysia Roy in violation of CL § 5-608.1?

We shall hold that the trial judge plainly erred by failing to give a separate jury instruction on Count 3, knowingly distributing fentanyl in violation of Section 5-608.1 of the Criminal Law Article, and we shall vacate Dennis's conviction on that count.^[7] Discussion

In addressing the issue of whether a separate jury instruction should have been given with respect to Count 3, knowingly distributing a substance known to be fentanyl, we are mindful that, "Maryland Rule 4-325(c)^[8] imposes a requirement that instructions be given in respect to the applicable law in a case." Patterson v. State, 356 Md. 677, 684 (1999). "The main purpose of a jury instruction is to aid the jury in clearly understanding the case, to provide guidance for the jury's deliberations, and to help the jury arrive at a correct verdict." Chambers v. State, 337 Md. 44, 48 (1994). See General v. State, 367 Md. 475, 485 (2002) ("Jury instructions direct the jury's attention to the legal principles that apply to the facts of the case."); Carter v. State, 366 Md. 574, 587 (2001). "A defendant is entitled to an instruction on every essential question or point of law supported by evidence." Chambers, 337 Md. at 48 (quoting Sims v. State, 319 Md. 540, 550 (1990)). See Cousar v. State, 198 Md.App. 486, 522 (2011) ("It is generally well recognized that a defendant is entitled to instructions on the law when generated by the evidence and not covered by instructions actually given." (quoting Sydnor v. State, 133 Md.App. 173, 183 (2000), aff'd, 365 Md. 205 (2001))); Green v. State, 119 Md.App. 547, 562 (1998) ("It is beyond cavil that a trial court must properly instruct the jury on a point of law that is supported by some evidence in the record."); Robertson v. State, 112 Md.App. 366, 385 (1996) ("The court's instructions should fairly and adequately protect an accused's rights by covering the controlling issues of the case."); Wright v. State, 70 Md.App. 616, 620 (1987) ("The 'bottom line' is that, if a prima facie case is generated on a particular point of law, the defendant is entitled to a jury instruction on that point.").

"It is the duty of the trial judge to instruct the jury concerning the law applicable to the case." Fleming v. State, 373 Md. 426, 432 (2003). See Wood v. State, 436 Md. 276, 293 (2013) ("[T]he onus is on the trial judge to discern and ensure that the jury instructions encompass the substantive law applicable to the case." (quoting Collins v. Nat'l R.R. Passenger Corp., 417 Md. 217, 228 (2010))). It follows, therefore, that jury instructions must include the elements of a charged offense to properly cover the applicable law. See Lawrence v. State, 475 Md. 384, 398 (2021) (explaining that an appellate court's role on review of a jury instruction "is to determine whether the instruction correctly identified the elements of the statutory crime.").

The elements of knowingly distributing fentanyl in violation of Section 5-608.1 of the Criminal Law Article are identified through interpretation of its plain language and legislative intent. See Carter v. State, 236 Md.App. 456, 475 (2018) ("To determine the elements of a statutory offense, we use the standard tools of statutory interpretation."); State v. Bey, 452 Md. 255, 265 (2017) ("The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature." (quoting State v. Johnson, 415 Md. 413, 421 (2010))). "We begin our analysis by first looking to the normal, plain meaning of the language of the statute[.]" Ray v. State, 410 Md. 384, 404 (2009) (citing Barbre v. Pope, 402 Md. 157, 172 (2007)).

Section 5-608.1 of the Criminal Law Article, the statute with which we are concerned, provides:

§ 5-608.1. Penalties-Fentanyl or analogue of fentanyl, or heroin mixture

(a) A person may not knowingly violate § 5-602 of this subtitle with:

(1) A mixture that contains heroin and a detectable amount of fentanyl or any analogue of fentanyl; or

(2) Fentanyl or any analogue of fentanyl.

(b) A person who violates this section is guilty of a felony and, in addition to any other penalty imposed for a violation of § 5-602 of this subtitle, on conviction is subject to imprisonment not exceeding 10 years.

(c) A sentence imposed under this section shall be consecutive to and not concurrent with any other sentence imposed under any other provision of law.

Section 5-602 of the Criminal Law Article, to which there is an internal reference in Section 5-608.1 of the Criminal Law Article, states:

§ 5-602. Manufacturing, distributing, possession with intent to distribute, or dispensing controlled dangerous substance

Except as otherwise provided in this title, a person may not:

(1) distribute or dispense a controlled dangerous substance; or

(2) possess a controlled dangerous substance in sufficient quantity reasonably to indicate under all circumstances an intent to distribute or dispense a controlled dangerous substance.

Read together, any sentence imposed under Section 5-608.1 of the Criminal Law Article is in addition to a penalty imposed under Section 5-602 of the Criminal Law Article. A person convicted for a violation of Section 5-608.1 of the Criminal Law Article can...