Battle v. State

• Decision Date: 01 September 1985
• Docket Number: No. 51,51
• Citation: 65 Md.App. 38,499 A.2d 200
• Parties: Gregory Leon BATTLE v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 38

65 Md.App. 38

499 A.2d 200

Gregory Leon BATTLE v. STATE of Maryland.

No. 51, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Nov. 6, 1985.

Barbara L. Matthews, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Nicolette H. Prevost, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, Andrew L. Sonner, State's Atty. for Montgomery County and Robert L. Dean, Asst. State's Atty. for Montgomery County, on brief, Rockville), for appellee.

Argued Before ALPERT and ROBERT M. BELL, JJ., and JAMES S. GETTY, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

ALPERT, Judge.

Gregory Leon Battle, appellant, was convicted of a variety of offenses arising out of two simultaneous armed robberies. He believes that those convictions were legally unjustified and appeals. We disagree and shall affirm.

FACTS

On January 16, 1984, employees of two separate stores (Bernard's Menswear and Thom McAn's Shoe Store) in the same shopping mall (White Oak Shopping Center in Montgomery County) were robbed. Both robberies occurred at 7:30 p.m. The testimony of various eyewitnesses, including the robbery victims and police involved in the arrest of appellant Battle and his co-defendants, map out the following series of events surrounding the robberies.

At 7:30 a single black man, ("Tan") wearing a tan jacket and tan hat went into Thom McAn's Shoe Store. When the store clerk approached him from behind the sales counter, Tan pulled out a handgun and instructed the clerk to put all the money in a bag, which he did, and then Tan walked out of the store in the direction of a liquor store at one end of the mall.

At the same time as the robbery was "going down" in Thom McAn's, another single black "customer," this one wearing a black hat and black jacket ("Black") entered Bernard's Menswear. After a store clerk helped Black to pick out a jacket from the store racks, and was going to the counter to ring up the sale, Black displayed something which resembled a gun to the clerk and his manager, who had been on the phone. Here, too, the employees were ordered to give Black the cash from the register, as well as their own wallets. Then Black walked out of the store in the direction of the liquor store where "Tan" committed a robbery.

Tan and Black exited the mall within a minute of each other, heading in the same direction in the parking lot. A police officer on stakeout saw Black get into the backseat of a black Buick on the passenger side. Having heard reports of the robberies from other police officers on duty at the shopping center, he followed the Buick, which did not have its headlights on, as it left the parking lot. The Buick was stopped at a police roadblock nearby, and the three occupants were arrested.

The occupants were: Robinson, the driver, who was wearing a black jacket; Jones, in the front passenger seat, who was wearing a tan jacket; appellant, Battle, in the rear seat, wearing a black jacket. After apprehending the three occupants, the following items were removed from appellant's immediate possession: a billfold belonging to the manager of Bernard's Menswear, handcuff keys, and a revolver. In addition, an automatic handgun, a Thom McAn bag containing money, a box of handcuffs, several items of men's clothing from Bernard's Menswear, and the black and tan hats were found in the passenger compartment. Both the revolver and the automatic handgun were tested and determined to be operational. There was conflicting testimony at trial concerning the gun used by Black in the Bernard's robbery. The manager testified it resembled the revolver found on appellant, while the store clerk said it resembled neither of the guns seized, and in fact didn't look like a real gun.

On February 2, 1984, appellant was indicted for three counts of robbery with a dangerous and deadly weapon, three counts of use of a handgun, one count of conspiracy to commit robbery, and two counts of transporting a handgun by vehicle. The State's motion to consolidate appellant's case with Robinson and Jones was granted. Appellant's and his co-defendants' motion to suppress evidence seized during the arrest was denied, as were their motions for continuance and severance.

The case was tried before a jury in the Circuit Court for Montgomery County, Miller, J., presiding. On July 17, appellant was found guilty of two counts of robbery with a dangerous and deadly weapon, two counts of use of a handgun, conspiracy to commit robbery, and one count of transporting a handgun by vehicle.

On December 19, appellant was sentenced to twelve years for the first count of robbery with a dangerous and deadly weapon, and received an additional sentence for each of the remaining convictions, all to run concurrently with the first twelve-year sentence. An appeal to this court was timely filed.

The appellant presents five issues for consideration:

1. Did the trial court err in refusing to instruct the jury on the lesser included offense of robbery?

2. Was evidence that appellant had a handgun in his pocket sufficient to sustain a conviction for knowingly transporting a handgun in a vehicle?

3. Was the evidence sufficient to sustain two convictions for use of a handgun during the commission of a crime of violence where there were two victims but only one criminal episode?

4. Was the evidence sufficient to identify appellant as the perpetrator of the armed robberies in Bernard's Menswear store?

5. Did the trial court err in permitting a joint trial of appellant, Robinson and Jones?

1.

In its instructions to the jury on the counts of robbery with a dangerous or deadly weapon, the trial court stated Now, robbery with a dangerous or deadly weapon consists of the crime of robbery coupled with the use of a weapon to produce intimidation and coupled with the apparent ability to use the weapon. In order for the defendant to be found guilty of this offense, the State must prove beyond a reasonable doubt, number one, that there was a robbery, and number two, that it was committed with the use of a deadly or dangerous weapon.

Appellant Battle excepted to this instruction, arguing that the jury could find him guilty of the "lesser-included" count of robbery, if they find that there was no deadly weapon. The court noted that, because the jury must, without the appellant's requested instruction, find defendant guilty of robbery and using a dangerous or deadly weapon, or find him not guilty, it was really advantageous to defendant to deny the instruction for simple robbery.

The State contends that, because appellant was charged with robbery with a dangerous and deadly weapon, and not simple robbery, he could not have been convicted of robbery, and the proffered instruction on robbery was properly denied. We agree that the trial judge did not err, but not quite for the reasons assigned by the State. ¹

Appellant contends that because the witness Worrell thought that the gun was a toy gun, the jury could find that Worrell was robbed, but not with a dangerous or deadly weapon. We hasten to point out that the jury, if it found that Worrell was robbed, but not with a dangerous or deadly weapon, was obliged, under the instructions, to acquit the appellant.

Alternatively, we observe that even if the gun was a toy gun, "guilt under the Maryland statute is predicated upon a finding of intent to rob by means of intimidation produced by use of a weapon, coupled with the apparent ability to execute the implied threat to use the weapon if resistance is offered...." Jackson v. State, 231 Md. 591, 594, 191 A.2d 432 (1962) (emphasis in original). See also Whack v. State, 288 Md. 137, 416 A.2d 265 (1980). As long as there is an intent to rob by means of what appears to be a dangerous weapon which is used to induce intimidation, "it is unnecessary to find an intent or ability to execute the implied threat in the event of resistance." Jackson, 231 Md. at 594, 191 A.2d 432.

Thus, there is no evidence of robbery without the use of a dangerous weapon. ² The trial judge was not obliged to instruct the jury as to a lesser included offense "unless there is some evidence tending to reduce the crime to one of lower grades or degrees...." Warren v. State, 29 Md.App. 560, 564, 350 A.2d 173 cert. denied, 278 Md. 738 (1976). The trial judge did not err in refusing to instruct on common law robbery.

2.

Appellant's next contention is that the evidence that he had a handgun in his pocket was insufficient to convict him of the charge: "knowingly transporting a handgun ... in a vehicle traveling upon ways generally used by the public in this state."

Appellant offers the following rationale in support of his contention. First, he argues, Maryland Code Ann., Art. 27, § 36B(b) provides three alternative ways by which a person can commit the offense. ³ He can (1) wear a handgun in any vehicle, (2) carry it in any vehicle, or (3) knowingly transport it in any vehicle. The legislature did not define the terms "wear, carry, or transport." Nor has this court or the Court of Appeals interpreted these terms.

Second, he claims the prohibitions against (1) wearing and (2) carrying refer to those situations where the handgun is actually on the person. "Wearing" and "carrying" are thus distinguished from "knowingly transporting," which refers to situations where the handgun is not on the person, but rather is somewhere in the vehicle itself, for example, in the glove compartment. This distinction is further supported, according to appellant, because the transporting must be knowingly, while the "wearing" or "carrying" need not.

In essence, therefore, because the State's proof showed that appellant was "wearing" a handgun in the vehicle, but was not "knowingly transporting" a handgun in that vehicle, appellant contends that there was a variance between the facts alleged and the facts proved, and thus appellant was not on notice of...