Briggs v. State

• Decision Date: 01 September 1991
• Docket Number: No. 416,416
• Parties: Michael A. BRIGGS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 60

90 Md.App. 60

599 A.2d 1221

Michael A. BRIGGS v. STATE of Maryland.

No. 416, Sept. Term, 1991.

Court of Special Appeals of Maryland.

Jan. 7, 1992.

Jose Felipe Anderson, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Christian J. Jensen, State's Atty. for Caroline County of Denton, on the brief), for appellee.

Submitted before MOYLAN, GARRITY and ALPERT, JJ.

ALPERT, Judge.

We are asked to determine whether the appellant, Michael A. Briggs, was properly convicted of assault, disorderly conduct, and resisting arrest, and whether the trial court properly refused to instruct the jury about self defense.

The appellant was charged with disorderly conduct, three counts of battery, resisting arrest, and two counts of malicious destruction of property. Briggs's jury trial was conducted on January 11, 1991 in the Circuit Court for Caroline County, Wise, J., presiding, and he was convicted on all counts except one of the malicious destruction of property charges. Judge Wise sentenced Briggs to sixty days incarceration each for disorderly conduct and for malicious destruction of property. He also sentenced Briggs to two years incarceration for each of the battery counts, and six years for resisting arrest. Briggs now appeals, presenting the following questions:

1. Was the evidence sufficient to sustain Appellant's convictions for any charged assault or disorderly conduct, or resisting arrest?

2. Did the trial court err when it refused to give proper jury instructions regarding self defense?

FACTS

The police charged Briggs with the aforementioned crimes as the culmination of an episode that occurred on the evening of July 30, 1990, at the annual Federalsburg Carnival in Caroline County. Briggs had been gambling at the Federalsburg Volunteer Fire Company's dice table. The firemen testified that as Briggs began losing at the game, he also began cursing, using obscenities at an increasingly loud volume. One fireman testified that Briggs grabbed from the table the money he had just lost. He also was rough with the gaming table, throwing the dice at it hard enough to bounce off its surface. The firemen tried unsuccessfully to dissuade Briggs from acting this way, and eventually they sought police help.

Briggs's account and the officers' accounts differ as to what transpired next. Officer Adams testified that as he and Officers Miles and Collins approached the gambling booth, he saw Briggs yelling and screaming profanities. Briggs looked at Miles and asked, "What the fuck do you want?" Adams told Briggs that he would have to leave the carnival, and Briggs replied, "Fuck you, I don't have to leave if I don't want to." The police told Briggs that he would have to leave because he was offending people, and he could not continue to stand there and shout obscenities. After several attempts to induce Briggs to leave, the officers began escorting him from the grounds, and Briggs continued shouting, "Fuck you, motherfucking cops." The area was crowded, and Briggs's behavior noticeably affected carnival patrons.

Briggs continued to shout obscenities outside the grounds, and the officers decided to arrest him for disorderly conduct. They announced that Briggs was under arrest and told him to put his hands against a nearby truck. Briggs asked, "What the fuck is that for? I'm leaving." But the officers told him it was too late, that he was under arrest. Adams grabbed Briggs's arm to handcuff him, but Briggs threw his arms up, striking Adams and knocking Adams's watch off his wrist. The officers tried to put Briggs on the ground: he had on one handcuff and was fighting violently. Briggs kicked Miles close to the groin, and as Briggs struggled, he continued to yell obscenities and shouted, "you fucked with the wrong person now" and "I'm going to get you." Briggs found a place to hold onto the truck and would not let go. Eventually the officers decided to use mace on Briggs, and this caused him to let go of the truck, but he became more violent.

Adams testified that a large crowd had gathered to watch. Briggs screamed that the police were beating and killing him. Collins went to his police car to get his dog out to use in controlling the gathering because the officers feared that the crowd would try to take Briggs from them.

Eventually, the officers got Briggs into a squad car. As they took him to the Sheriff's office, and once inside the station, he continued yelling. At Briggs's behest, the police called an ambulance crew to check his injuries, but Briggs yelled at them, and rejected their efforts to treat him. He urinated on the heater and carpet in the room where he was held, and had to be restrained in a straight jacket before he could be taken to a hospital for examination. The hospital found no injuries.

Briggs's version of these events differs from those of the officers. He says that he was winning money when the officers asked him to leave. "The only thing I can think, they didn't like I was winning money or it was another mishap in there and they thought I did it." Wishing to avoid trouble, he prepared to leave. As he departed the tent, he indicated his plan to leave and told the officers that he didn't need an escort. "And then when I got to the ... made the left to go outside the fence and I just looked around and there he goes. You know, the guys were on top of me."

Briggs testified that the police threw him to the ground, sprayed mace in his eyes, and beat him with a stick or clubs. The officers handcuffed him while he was on the ground, and by his estimate, he spent five to ten minutes there, with two or three officers on top of him. Next, the officers put him in a police car and drove him to the station, where they handcuffed him to a stationary object. He stated that he cooperated with the paramedics, but that their equipment malfunctioned. And by Briggs's account, he urinated on the floor because the police ignored his pleas to allow him to go to the bathroom.

I. THE SUFFICIENCY OF THE EVIDENCE

The State contends that Briggs "has failed to preserve his attack on the sufficiency of the evidence for appellate review." We agree. After the trial judge denied defense counsel's motion for judgment of acquittal, Briggs called two witnesses, rested his case, but failed to renew his motion for judgment of acquittal. Having withdrawn the motion by putting on evidence, he has not preserved for our review the court's denial. Winkles v. State, 40 Md.App. 616, 392 A.2d 1173 (1978).

In order to avoid further litigation, we shall address the merits of appellant's arguments. We first address whether the police officers had probable cause to arrest Briggs, because all else follows from that determination. Briggs argues that, at most, the State's evidence demonstrates that he talked loudly and used obscene, offensive language at a neighborhood carnival, and that this did not give the officers probable cause to arrest him.

Briggs was charged with violating Md.Ann.Code art. 27, § 123 (Supp.1991), a statute proscribing disorderly conduct in public places.

(a) A person may not act in a disorderly manner to the disturbance of the public peace, upon any public street, highway, alley, park or parking lot, or in any vehicle that is in or upon any street, highway, alley, park or parking lot, in any city, town, or county in this State, or at any place of public worship, or public resort or amusement in any city, town or county in this State, or in any store during business hours, or in any elevator, lobby or corridor of any office building or apartment house having more than three separate dwelling units, or in any public building in any city, town or county of this State.

We look to the many Maryland cases interpreting this statute to determine whether it sanctions Briggs's behavior. This court in Reese v. State, 17 Md.App. 73, 80-81, 299 A.2d 848 (1973) (citations omitted) considered whether the statute applied to a defendant who conversationally used an obscenity in the presence of others who were offended by the language, and who "carried on." We described the conduct proscribed by the section as follows:

[T]he gist of the crime under the statute, as it was in the cases of common law predecessor crimes, is the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area. In other words, it is conduct of such a nature as to affect the peace and quiet of persons actually present who may witness the conduct or hear the language and who may be disturbed or provoked to resentment thereby. Nevertheless, the statute, in either its "doing" or "saying" proscriptions, may not punish acts or spoken words, although vulgar and offensive, which are protected by the first and fourteenth amendments. Implicit in § 123 is the prohibition against a person wilfully acting in a disorderly manner by making loud and unseemly noises or by profanely cursing, swearing or using obscene language. The State has the power to punish obscene expression, but to be obscene such expression must be, in some significant way, erotic, so as to conjure up such psychic stimulation in anyone likely to be confronted with it. And the State is free to ban the simple use, "without a demonstration of additional justifying circumstances, of so-called 'fighting words', those personally abusive epithets which, when addressed to an ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Thus the obscene language prohibited means obscene in the constitutional sense and the profanely cursing or swearing prohibited means "fighting words."

Whether the loud and unseemly noises prohibitions are within the ambit of protected expression depends on the nature and content of them, a question to be determined on the...