Brogden v. State

• Citation: 384 Md. 631,866 A.2d 129
• Decision Date: 18 January 2005
• Docket Number: No. 55,55
• Parties: Lionel BROGDEN v. STATE of Maryland.
• Court: Maryland Court of Appeals

866 A.2d 129

384 Md. 631

Lionel BROGDEN v. STATE of Maryland.

No. 55, September Term, 2004.

Court of Appeals of Maryland.

January 18, 2005.

Martha Weisheit, Assistant Public Defender (Stephen E. Harris, Public Defender, Baltimore), on brief, for petitioner.

Shannon E. Avery, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, Baltimore), on brief, for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, GREENE, JJ.

CATHELL, J.

This case concerns the propriety of a trial court's response in supplemental jury instructions to questions posed by the jury. Basically, we are considering whether it was reversible error for the trial court to explain to the jury a defense and its effect on the burden of proof as to a particular charge, where that defense was never proffered by the defendant, Lionel Brogden, petitioner.

On February 24, 2003, petitioner was tried by a jury in the Circuit Court for Baltimore City on the charges of burglary in the first degree, malicious destruction of property, and wearing, carrying or transporting a handgun. Petitioner presented no defense at the close of the State's case-in-chief. That same day, petitioner was convicted of first degree burglary and carrying a handgun but was acquitted of malicious destruction. He was thereafter sentenced by the trial court to twenty years incarceration for the burglary, all suspended except ten years. A three-year sentence was imposed for the handgun conviction.

Petitioner thereafter appealed the decision to the Court of Special Appeals of Maryland and, as relevant here, challenged, inter alia, the propriety of the trial court's supplemental jury instructions in respect to the handgun charge and the sentence in respect to that charge.¹ On April 16, 2004, the intermediate appellate court, in an unreported opinion, affirmed the trial court's judgment. Petitioner thereafter filed a Petition for Writ of Certiorari to this Court. On August 25, 2004, we granted the petition. Brogden v. State, 382 Md. 687, 856 A.2d 723 (2004). Petitioner presents the following questions for our review:

"1. Is it improper to instruct the jury regarding a defense to a crime, when no evidence supporting that defense has been introduced and the accused objects to the instruction?

2. Did the Court of Special Appeals err in holding that the trial court's instruction on the licensing exception to the handgun statute was correct, and in any event harmless, when that instruction placed the burden of proof on the defense?

3. Should [petitioner's] sentences be construed to run concurrently as a matter of law where the sentence imposed for the second conviction was made consecutive to the sentence [petitioner] was then serving and [petitioner] was not serving any other sentence at the time of disposition?" [Alterations added.]

We hold that the trial judge's action of giving supplemental instructions, over petitioner's objection, to the jury during its deliberations, in which the trial judge discussed a possible defense theory as to a particular count that was entirely inapplicable to that count as presented, had never been proffered by the petitioner, and alluded to that defense as placing a burden of proof on petitioner, constitutes error on the part of the trial court. We further hold that this error, which only relates to petitioner's conviction on the charge of petitioner "wearing, carrying or transporting" a handgun and not his burglary conviction, was not harmless as to that handgun charge.

Facts

On May 11, 2002, police responded to a 9-1-1 call reporting a burglary at 1603 West Lombard Street in Baltimore City. The call was made by Ms. Laticia Hawkins, who reported that upon arriving at her home around 7:30 or 8:00 p.m. she found that her apartment had been broken into and burglarized. According to Hawkins' testimony at trial, she had opened the outer door to her apartment when she heard a noise come from inside the apartment, which had been secured when she had left earlier in the evening. As Hawkins began to back out of the building, a male intruder opened the door to her apartment, pulled out a handgun and pointed it in her direction as he ran away. The intruder was clutching a bag while fleeing the scene and Hawkins later learned that several compact discs, a video camera and a VCR were missing from her apartment. She also noticed in her apartment a metal crowbar that did not belong to her and presumably was used to effect entry into her apartment.

After a May 14, 2002 interview with Hawkins, Detective Thomas McDonald caused an arrest warrant to issue for petitioner based on information obtained during that interview.² Petitioner was then arrested. At trial in the Circuit Court for Baltimore City, Hawkins identified petitioner as the intruder she had encountered on May 11, 2002, and testified that she recognized him as a former neighbor who had once lived in the same apartment building. After the State's case-in-chief, the defense rested without presenting any evidence.

During jury deliberations, the jury sent a note to the trial judge asking for clarification on two points: first, whether it was a crime to have a handgun, and secondly, whether the State had the burden of proving that petitioner did not have a license to carry a handgun. This appeal is mainly concerned with the propriety of the trial judge's response to the second point. It is imperative to note at the outset that petitioner, during the trial, never claimed to possess a permit for the carrying of a handgun. In fact, he presented no defense other than requiring the State to prove its case. Thus, absolutely no issue was raised during trial concerning the existence of a license for the handgun allegedly seen in petitioner's possession and no evidence was introduced pertaining to petitioner having, or not having, such a license.

The following dialogue took place between petitioner's attorney ("Ms. Meckler"), the prosecutor ("Mr. Cox") and the trial judge relating to how the trial court should respond to the jury's questions:

THE COURT: The jury's question — I'm going to read them exactly the way they're written on here. I don't see anything else. It doesn't say any beginning or ending. It doesn't say Judge or, you know — I'm going to read you only what's on the sheet. "Is having a gun a crime?" That's the first one. Next one, "Does the State have the burden to prove that he did not have a license (to carry the gun)?" All right. The first one; what's your response on that, Mr. Cox?

MR. COX [PROSECUTOR]: I would say, yes, under the — under the way the jury instruction was formulated. I might say — suggest that you should read them the jury instruction again. But to the second part, I would, certainly, say no.

THE COURT: I think — you know, what I think — I think they're digging a little deeper there, but it isn't a crime to own a gun; it's only a crime to wear, carry, and transport a gun without a license.

MR. COX: Right.

THE COURT: I think that's what I would have to tell the jury, that under some circumstances, it may be a crime to own a gun. But I would say this, my inclination is to say, if you have not been convicted previously of a felony or a crime of violence or of having had a gun illegally, that it is not a crime to own a gun. However, it is a crime to wear, carry, and transport a gun, in accordance with my instructions. That is my inclination on question one. What's your response to that?

MS. MECKLER [DEFENSE COUNSEL]: Your Honor, I think if you give them that, they're going to come back with, "Well, does he have any prior convictions?" I think it's just going to open a can of worms.

THE COURT: All right. So you don't want me to say that. Just say that, in our society, it is permissible to own a gun, but it is not permissible to wear, carry, and transport a gun in Maryland without a license; how's that?

...

THE COURT: ... That's what I'm going to do in the first one. Now, let's go to the second one. "Does the State have the burden to prove that he did not have his license?" What's your answer to that?

MR. COX: No, Your Honor ... I don't believe so.

THE COURT: I don't think so either. What's your response to that Ms. Meckler? In fact, it's just the reverse. They've got — the Defendant — in Maryland law, the Defendant has to show that he has a license in order to justify having a gun.

MR. COX: Your Honor, I don't even believe that — in the first part, I don't even think there should be any reference to a license; just the State doesn't have to prove that he did not have one.

MS. MECKLER: Your Honor, I would —

THE COURT: Well, I'm going to tell them that the State doesn't have to prove that. In fact, it's just the reverse; the Defendant has to prove it.

MR. COX: Okay.

...

MS. MECKLER: Regarding question four, "Is having a gun a crime," I'm going to ask just the Maryland pattern jury instruction for wear, carry, and transport be read ... as to does the State have the burden to prove he did not have a license. That's not before the jury. The jury is not being asked to consider that.

THE COURT: Well, that definitely is before the jury. The jury is coming up with far-reaching philosophical approaches to the question of guns.

MS. MECKLER: So I would just say — I would just ask that, you know, the jury just be instructed that's not something that — it's not before the jury for you to determine that.

THE COURT: Okay. Well, I disagree with you. I'm going to answer that the way I told you. I don't think the jury should be not told anything ... and not have their questions answered. I believe that when a jury reaches out intelligently into a question, that they have a right to an answer, and I've always felt that way. I've always disagreed with this policy of trying to isolate juries from the realities of life.

In fact, in the State of Maryland, it is absolutely permissible to own a gun, as you know, in your house or in other places where

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