Wynn v. State

518 A.2d 1072, 69 Md. App. 536, 1987 Md. App. LEXIS 234

• Court: Court of Special Appeals of Maryland
• Decided: January 7, 1987
• Docket: 205, September Term, 1986
• Status: Published

Opinions

ALPERT, Judge.

During the last three months of 1984, some thirty-five to forty burglaries were committed on Friday and Saturday nights in the area surrounding the Fort Sumner subdivision in Montgomery County. On at least six occasions, a black male was seen at or near the scene of the crime. On one occasion, a man acting suspiciously was seen wearing a brown shoulder bag. In response to the rash of burglaries, a Special Assignment Team of eighteen plainclothes police officers in unmarked vehicles was assigned to surveillance duties in the area on the night of Saturday, January 12, 1985.

At approximately 8:30, one of the officers saw a black male wearing a red and white knit cap, a dark coat, and loose fitting jeans, carrying a brown leather shoulder bag. The officer radioed the description and location of the man to the other members of the Team, who converged on the surrounding five or six block area.

Two members of the Team, Officers Robert C. Tompkins and Frank Mathis, were working together in a dark blue van. After driving around the area without seeing the man described in the radio transmission, they parked the van and waited. After three or four minutes, they saw a man emerge from the shadows between two houses and begin to walk in the direction of the van. When the man became visible in the street light, Officer Tompkins said, “That is the man. That’s him. Let’s get him.” The officers got out of the van and began to approach the man. When the man saw them, he changed the direction of his travel. Officer Tompkins called out, “Halt. Police.” The man faced the officer, lifted the right side of his waist-length jacket and appeared (to the officer) to draw a handgun from a light brown holster. Tompkins drew his gun and fired three shots. One of these shots struck the man.

The man yelled, turned, and ran around the side of a house. After a foot chase through several yards, the police found the man lying next to a sandbox near a large hedgerow of big evergreens and a fence. The man was arrested and handcuffed. He was later identified as appellant James Othel Wynn.

The police found an empty light brown holster on an ammo belt and a light brown glove lying on the ground near appellant. The ammo belt contained .38 caliber cartridges. At various points along the trail of the chase, aided by footprints in the snow that had fallen the previous day, the police recovered a loaded .38 caliber Colt revolver, a red and white knit cap, and a brown leather shoulder bag. The bag contained a small flashlight, a small chrome pry bar, a quantity of jewelry, and a .22 caliber Baretta pistol.

At approximately one o’clock the following morning, Mr. and Mrs. Hans Prauser, residents of the Fort Sumner subdivision, reported a burglary of their home during the prior evening at police headquarters. They identified the jewelry and Baretta pistol found in appellant’s bag as having been taken from their home.

Appellant was charged with housebreaking, theft, use of a handgun in the commission of a crime of violence (housebreaking), assault with intent to murder, assault with intent to prevent apprehension, use of a handgun in the commission of a felony (assault with intent to prevent apprehension), simple assault, and two counts of carrying handguns. He was tried by a jury in the Circuit Court for Montgomery County (Cave, J.).

At the end of the State’s case, a judgment of acquittal was entered on the charge of assault with intent to murder. The jury acquitted appellant of assault with intent to prevent apprehension and use of a handgun in the commission of that offense. They convicted him of housebreaking, theft, use of a handgun in the commission of a crime of violence (housebreaking), assault, and both counts of carrying handguns.

The court imposed concurrent sentences of ten years for housebreaking, eight years for theft, four years for assault, and two years for one count of carrying a handgun. The other carrying count was merged into the use of handgun charge. The court imposed a consecutive sentence of fifteen years (ten years suspended) for use of a handgun in the commission of a crime of violence. The appellant presents four issues on appeal from those judgments. He contends that:

1. Evidence obtained via an arrest made without probable cause should have been suppressed;

2. Deadly force was used unlawfully to accomplish appellant’s arrest;

3. The evidence was insufficient to sustain the convictions for housebreaking and theft; and

4. The evidence was insufficient to sustain the conviction for use of a handgun in the commission of a crime of violence (housebreaking).

I.

Appellant contends that he was arrested without probable cause and that the items of physical evidence obtained by the police were seized as a result of that arrest. He asserts that that evidence should have been suppressed. He argues:

It is without question that Officer Tompkins had every right to accost Appellant and to request identification and an explanation of his activities. Foster v. State, 272 Md. 273 [323 A.2d 419] (1974). But an officer who initiates an arrest must have more; he must have probable cause to believe that a crime has been or is about to be committed, and that the suspect is involved in the crime. Randolph v. State, 1 Md.App. 441 [230 A.2d 688] (1967).

The linchpin of the appellant’s argument is that he was “arrested” when Officer Tompkins formulated the subjective intent to do so and announced that he was a policeman. We disagree.

As the Court of Appeals pointed out in Little v. State, 300 Md. 485, 509-10, 479 A.2d 903 (1984):

We have defined an arrest in general terms as the detention of a known or suspected offender for the purpose of prosecuting him for a crime. Bouldin v. State, 276 Md. 511, 516, 350 A.2d 130 (1976); Cornish v. State, 215 Md. 64, 137 A.2d 170 (1957). An arrest is effected (1) when the arrestee is physically restrained or (2) when the arrestee is told of the arrest and submits. Bouldin, supra, 276 Md. at 516, 350 A.2d 130. In sum “an arrest is the taking, seizing or detaining of the person of another, inter alia, by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest.” Morton v. State, 284 Md. 526, 530, 397 A.2d 1385 (1979). When a person is merely approached by an officer and questioned briefly about his identity, however, there is no formal arrest under Maryland common law. Foster and Forster v. State, 272 Md. 273, 323 A.2d 419 (1974), cert. denied, 419 U.S. 1036, 95 S.Ct. 520, 42 L.Ed.2d 311 (1974); Duffy v. State, 243 Md. 425, 221 A.2d 653 (1966); Shipley v. State, 243 Md. 262, 220 A.2d 585 (1966); Jones v. State, 242 Md. 95, 218 A.2d 7 (1966); Cornish, supra; E. Fisher, Laws of Arrest § 37 at 76-77 (1967).

When Officer Tompkins shouted, “Halt. Police,” appellant was not physically restrained, nor did he submit to custody. To the contrary, at that point Wynn sprang into a shortlived flight to freedom. The arrest in the instant case occurred after the chase, not before it. Even if we assume that no probable cause to arrest appellant existed at the time he was accosted, it clearly existed at the time he was apprehended. Furthermore, in our view, the physical evidence obtained by the police was not seized as a result of the arrest; it was abandoned by the appellant during the chase. See Morton v. State, 284 Md. 526, 531, 397 A.2d 1385 (1979) and Jackson v. State, 52 Md.App. 327, , 449 A.2d 438, cert. denied, 294 Md. 652 (1982). The trial court did not err in refusing to suppress the evidence.

II.

Appellant next contends that “[b]ecause Officer Tompkins did not have adequate probable cause to believe that appellant posed a threat of serious physical harm, his use of deadly force was improper and in contravention of the Supreme Court’s pronouncements in Tennessee v. Garner, [471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d. 1 (1985)].” Appellant makes no suggestion as to what the appropriate remedy should be, and with good reason—whether the officer used excessive force is not an issue in this case because it was not raised in the lower court and because it is immaterial to appellant’s guilt or innocence and to the fairness of his trial. While the use of excessive force in an arrest may, as in Gamer, be material in certain civil actions, it is immaterial in the instant criminal case.

III.

Appellant next contends that the evidence was insufficient to sustain his convictions for housebreaking and theft because there was no direct evidence that he broke into the Prausers’ home and stole the items found in the bag; the only evidence against him was circumstantial.

As we reiterated in Samuels v. State, 54 Md.App. 486, 493, 459 A.2d 213 (1983):

Unexplained possession of recently stolen goods gives rise to an inference that the possessor is the thief; if the theft occurred as part of a burglary or robbery, the inference is that the possessor is the burglar or robber.

The circumstantial evidence was sufficient to sustain the convictions for housebreaking and theft.

IV.

Finally, appellant contends that the evidence was insufficient to sustain his conviction for use of a handgun in the commission of a crime of violence. Appellant notes that, while police found him in possession of a handgun shortly after the housebreaking, there was no evidence that he used the gun in the Prausers’ house. He argues that one may not be convicted of using a handgun in the commission of a housebreaking when one is found merely to be in possession of the gun shortly after committing the housebreaking. We do not agree.

The legislature adopted a comprehensive scheme of statutory regulation of handguns through the Handgun Control Act of 1972, Ch. 13 of the Acts of 1972, now codified at Art. 27, Sections 36B-36F. The rationale for that regulation is embodied in the first subsection of Art. 27, Section 36B:

(a) Declaration of policy.—The General Assembly of Maryland hereby finds and declares that:

(i) There has, in recent years, been an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns;

(ii) The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity;

(iii) The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and

(iv) Further regulations on the wearing, carrying, and transporting or handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens.

This policy has been implemented through several measures. Chief among those measures for present purposes is Md.Code, Art. 27 Sec. 36B(d), which provides in pertinent part:

Any person who shall use a handgun or an antique firearm capable of being concealed on the person in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor____

Section 441 defines housebreaking as a crime of violence.

The essence of appellant’s argument is that by merely carrying a handgun during the Prausser housebreaking,¹ he did not “use” the weapon within the meaning of Section 36B(d). Thus, we are called upon to define the term “use” within the broader phrase “use [of] a handgun ... in the commission of [a housebreaking].” We note that no definition of “use” appears in the “Handguns” subtitle, nor have the appellate courts of this state been called upon to construe the term before this appeal.

The Court of Appeals has recently restated the often used rules of statutory construction.

In construing a statute, a court must ascertain and carry out the real legislative intent. Police Comm’r v. Dowling, 281 Md. 412, 418, 379 A.2d 1007 (1977). The court looks first to the language of the statute, assuming that it is to be afforded its ordinary and generally understood meaning. Mauzy v. Hornbeck, 285 Md. 84, 92-93, 400 A.2d 1091 (1979). If the statutory language contains no ambiguity or obscurity, the court generally looks no further. State v. Fabritz, 276 Md. 416, 421, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 [96 S.Ct. 1680, 48 L.Ed.2d 185] (1976).

When a statute can be fairly read to have more than one meaning, however, the court will examine the statute’s subject matter, purpose, and object and consider the consequences flowing from different constructions. State v. Berry, 287 Md. 491, 496, 413 A.2d 557 (1980). If one of the proposed interpretations would render the statute valid while another would render it invalid or ineffective, the court will construe the statute to be valid whenever feasible. Pickett v. Prince George’s County, 291 Md. 648, 661, 436 A.2d 449 (1981).

In Re: Criminal Investigation No. 1-162, 307 Md. 674, 685, 516 A.2d 976 (1986).

The ordinary and generally understood meaning of the term “use” is broad indeed even when narrowed by being placed in the context of “use of a handgun.” The second and third definitions found in Webster’s Third New International Dictionary at pages 2523 and 2524 include the following:

to put into action or service; to have recourse to or enjoyment of ... to carry out a purpose or action by means of: make instrumental to an end or process____

Under these generally understood meanings of the term “use,” section 36B(d) would create criminal liability when a handgun is “instrumental to” or part of the housebreaking, as for example, when entry is gained by means of the weapon. Such an interpretation, however, would not serve the expressed declaration of the handgun law—to protect people—and would lead to an absurd interpretation of § 36B(d). As we recognized in Jeter v. State:

“[Pjistols are used by burglars, not for breaking into safes, but for preventing interference with the criminal design or arrest by those who may discover its existence.”

9 Md.App. 575, 579, 267 A.2d 319 (1970), quoting People v. Durham, 70 Cal.2d 171, 74 Cal.Rptr. 262, 449 P.2d 198 (1969). We may safely assume that the General Assembly did not intend to deter criminals from breaking window panes with gun butts when it created criminal responsibility for using a handgun in the commission of a housebreaking. As the Court of Appeals stated most recently: “That a term may be free from ambiguity when used in one context but of doubtful application in another context is well settled.” Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 74, 517 A.2d 730 (1986).

Cognizant of the legislature’s expressed purpose in adopting Section 36B(d) and ignoring those interpretations that would lead to an absurd result, we must construe the statute so as not to render the inclusion of housebreaking among its parts as mere surplusage. See Scott v. State, 297 Md. 235, 465 A.2d 1126 (1983).

In committing a burglary, whether statutory or common law, an intruder “uses” a handgun merely by carrying it with him in anticipation of preventing interference with his criminal design. By carrying the handgun, the burglar’s nefarious task is more easily accomplished because he operates under the assurance that, if discovered, he will probably enjoy an advantage over the unlucky person who discovers him. In this sense, the handgun is “instrumental to [his] end.” When the General Assembly created the separate offense of using a handgun in the commission of a crime of violence, housebreaking was already defined, pursuant to section 441, as a crime of violence. Consistent with the purpose and object of § 36B, we believe the legislature intended to deter criminals from carrying handguns into the homes of others and to protect the citizens of this State from the violent crimes perpetrated by gun-carrying burglars. As Justice O’Connor noted in a recent dissent:

Household burglaries represent not only the illegal entry into a person’s home, but also “pos[e] real risk of serious harm to others.” Solem v. Helm, 463 U.S. 277, 315-316 [103 S.Ct. 3001, 3022-23, 77 L.Ed.2d 637] (1983) (Burger, C.J., dissenting). According to recent Department of Justice statistics, “[t]hree-fifths of all rapes in the home, three-fifths of all home robberies, and about a third of home aggravated and simple assaults are committed by burglars.” Bureau of Justice Statistics Bulletin, Household Burglary 1 (January 1985). During the period 1973-1982, 2.8 million such violent crimes were committed in the course of burglaries. Ibid____ Moreover, even if a particular burglary, when viewed in retrospect, does not involve physical harm to others, the “harsh potentialities for violence” inherent in the forced entry into a home preclude characterization of the crime as “innocuous, inconsequential, minor, or ‘nonviolent.’ ” Solem v. Helm, supra, at 316 [103 S.Ct. at 3023] (Burger, C.J., dissenting). See also Restatement of Torts § 131, Comment g (1934) (burglary is among felonies that normally cause or threaten death or serious bodily harm); R. Perkins & R. Boyce, Criminal Law 1110 (3d ed. 1982) (burglary is dangerous felony that creates unreasonable risk of great personal harm).

Garner, 471 U.S. at 26-27, 105 S.Ct. at 1707 (O’Connor, J., dissenting).

This court expressed a similar view in Davis v. State, 68 Md.App. 581, 514 A.2d 1229 (1986):

Daytime housebreaking is a crime, like burglary, that raises the very real possibility of serious harm to persons or property.

68 Md.App. at 591, 514 A.2d 1229. In Davis, we thought it significant, in determining that defendant’s housebreaking involved no threat of violence, that there was no evidence that Davis “was armed with a dangerous weapon when he committed [the housebreaking].” The opposite is true in the case at bar.

To require proof that the intruder brandished the gun against the homeowner would make the offense duplicative of use of a handgun in the commission of a robbery or an assault. To require proof that the intruder employed his weapon as part of the housebreaking (e.g., to break a window in gaining entrance) would run contrary to the legislature’s intention to protect citizens and would lead to an absurd result.²

Evidence tending to show that appellant carried a handgun in the course of a housebreaking was sufficient to establish that he “used” the handgun in the commission of that offense, and therefore to support his conviction pursuant to Section 36B of the criminal law article.

JUDGMENTS AFFIRMED; APPELLANT TO PAY THE COSTS.

1 . Appellant does not challenge the sufficiency of the evidence tending to show that he carried the gun during the housebreaking. Indeed, he concedes in argument that, while he possessed the gun in the Prausser house, there was no proof that he "used” the weapon. In any event, the fact that appellant possessed the gun a short distance from the scene of his crime shortly after committing the crime, would support an inference that he carried the gun while committing the crime.

2 . Arson is also defined as a crime of violence pursuant to Section 441. Md.Ann.Code art. 27 § 441(e) (1982 Repl.Vol.). Certainly, use of a handgun in the commission of an arson is not limited to those circumstances in which the fire is started with the handgun. There, too, it is the real danger that crimes against property pose when perpetrated by gun-carrying criminals that the legislature sought to deter.

Further, because the defendant is committing a crime of violence while he is carrying a handgun, our interpretation does not duplicate § 36B(b), which creates criminal liability for merely carrying a handgun subject to certain exceptions.