Brooks v. State

• Decision Date: 03 March 1976
• Docket Number: No. 49,49
• Citation: 353 A.2d 217,277 Md. 155
• Parties: Charles BROOKS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 155

277 Md. 155

353 A.2d 217

Charles BROOKS v. STATE of Maryland.

No. 49.

Court of Appeals of Maryland.

March 3, 1976.

Russell D. Karpook, Towson (William F. Mosner, Towson, on the brief), for appellant.

Albert Gallatin Warfield, III, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

Pursuant to a writ of certiorari to the Court of Special Appeals, we here review the conviction of the appellant, Charles Edward Brooks, also known as Charles Edward Brice, for storehouse breaking under Maryland Code (1957, 1971 Repl.Vol.) Art. 27, § 32. Following a non-jury trial in the Criminal Court of Baltimore (Liss, J.), Brooks was convicted of breaking the building at the Two Guys Department Store ('Two Guys'), located at 2401 Belair Road, in Baltimore City, on July 29, 1973, with intent to feloniously steal therefrom. His conviction was affirmed by the Court of Special Appeals in Brooks v. State, 25 Md.App. 194, 333 A.2d 352 (1975).

When, at about 2:30 a. m., on July 29, 1973, the burglar-alarm system in the department store was activated, representatives of the American District Telegraph Company (ADT), and patrol officers of the Baltimore City Police Department, responded. Douglas L. Kane, an ADT employee, told the trial court that upon his arrival, the building appeared 'secure from the outside,' but that within a matter of minutes, alarms were noted emanating from ultrasonic equipment in the area of the jewelry department and the location of the safes, indicating that 'there was something moving around.' Officer William Childs, of the Baltimore City Police Department, testified that from his inspection of the exterior of the building, he saw 'no evidence of anyone (having) gained entrance;' that from the 'looks of everything on the outside, the exterior, the doors, (that) everything was secured.' Over objection, he was permitted to express the conclusion that 'they (had) secreted themselves inside the building.' The police notified Joseph Thornton, a supervisor for 'Two Guys,' and he came to the premises. Because the police believed the intruders might have weapons, they armed themselves with shotguns, and accompanied by K-9 dogs, searched the store following Thornton's arrival. A number of rifles, which had been chained within a display gun rack, had been forcibly removed; several glass jewelry display cases had been broken open, and a large quantity of watches and other jewelry was discovered piled on the floor nearby. After a search of about 35 minutes, Brooks and two juveniles were detected by the dogs, secreted in separate shoe cases, about 20 feet from where the jewelry was found. When thus apprehended, the appellant was awake and uninebriated.

During the course of Officer Childs' testimony several photographs were introduced into evidence. One photograph, taken from the exterior, showed a large cylindrical incinerator with a metal access door, and a large metal sleeve connecting it to what was described as the incinerator room. ¹ A second photograph showed a pried-open door leading from the shoe department to the incinerator room; this depicted a padlock intact in the hasp, but showed that the flap and hinge pin had been pulled from the mount which had secured it to the edge of the stile of the door-as if from force applied from without. Officer Childs testified that this door provided 'a possible exit through the inside out of the building,' as well as a means of ingress from the exterior to the shoe department.

It was stipulated in the trial court that if Thornton were called as a witness, he would testify that the department store was closed at the end of its regular business hours on the evening of July 28th; that at that time nothing was in disarray; that the building was completely secured, and that the merchandise therein exceeded $700,000.00 in value. It was further stipulated that his testimony would verify that the door to the incinerator room was locked, that the photographs accurately depicted the conditions observed by him and that neither the defendant nor anyone else had permission to then be upon the premises.

When the trial resumed, after a delay of several weeks, the appellant, unsuccessful in that interval in securing the appearance of the two juveniles who had been arrested with him, ² testified as the sole witness in his behalf. As he related it, the events of the evening commenced about 8 p. m. after he had imbibed about a 'pint and a half of bourbon and rum;' that, while sitting on the steps at his mother's home, he was approached by two friends-16 and 17 years of age, respectively-and asked them 'to take (him) home.' Hailing a taxicab, the three, instead of going to Brooks' residence, disembarked at the Two Guys Department Store, after a ride of only six or seven blocks. After Brooks paid the cab fare, he went 'to the back of the store and got something to eat;' his friends, who were to keep him company, told him to sit down in the shoe department. Brooks, feeling tired, got in on the shelf and went to sleep; sometime later, after the store had closed, when his companions awakened him, he dismissed them as not wishing to be disturbed. It was his testimony that when he was next roused from his slumber by his friends, he 'heard a loudspeaker saying 'come out;" sensing then that he was in trouble, he returned to the shelf in an attempt to hide.

Brooks further stated that when he 'heard someone trying to get in the back door, that's what made (him) get back in the shelf;' he denied the possession of any weapons or burglary tools and denied as well any knowledge of the removal of the jewelry or guns from their respective displays-while he was asleep.

Obviously unimpressed by the account given by the appellant as to how he came to be within the store, the trial judge, in entering a verdict of guilty, stated: 'I don't believe a word Mr. Brice (Brooks) said.' This rejection of the appellant's credibility was further expanded when the trial court (after having obtained a presentence report), imposed sentence. The trial judge in those proceedings, stated:

'This defendant, as far as he is concerned, got on that stand and lied and committed perjury. I don't for a minute believe his story. I point out to you this place was broken into and he was caught red-handed, and there is no question about that, and instead of admitting as to what he has done, he comes in here and tries to tell me a story that he was drunk the night before and fell asleep sitting on a chair in the shoe department and nobody saw him when they closed the place up. . . . I don't believe a word of that.' (emphasis added).

It was in this posture that the case was reviewed by the Court of Special Appeals, where Brooks contended that 'there was not sufficient evidence of the essential element of 'breaking' to convict (him) of storehouse breaking.' That Court, apparently leaving unnoticed the trial court's rejection of the appellant's prevarication, and its finding that the 'place was broken into,' considered the question posited before it to be: 'whether an individual who enters a store while it is open to the public for business, secrets himself therein and then is apprehended after the closing hour under circumstances which indicate an intent to steal, can be convicted of storehouse breaking (under Maryland) Code Art. 27, § 32.' 25 Md.App. at 195, 333 A.2d at 352.

Art. 27, § 32, provides in pertinent part:

'Every person, his aiders, abettors and counsellors, who shall be convicted of the crime of breaking a storehouse, . . . warehouse or other outhouse . . . in the day or night . . . with the intent to steal, take or carry away the personal goods of another of the value of one hundred dollars ($100.00) or more therefrom, shall be guilty of a felony, . . .' (emphasis added).

The Court of Special Appeals, recognizing that the term 'breaking,' as used in § 32, is to be given its common law meaning, and that such breaking may be either 'actual' or 'constructive,' as 'where one gains entrance by trick, fraud, artifice, deception or similar means,' concluded, in affirming the conviction, that the 'appellant's failure to leave the premises when the store closed for business made his original entrance a constructive, illegal breaking and entering, ab initio.' 25 Md.App. at 197-98, 333 A.2d at 353-54.

We agree with the basic premise that the term 'breaking,' as used in Art. 27, § 32, as an element of that statutory offense, has the same meaning as it has as an element in common law burglary; and that the term 'breaking' may be satisfied where it is shown that there has been an 'actual' breaking, or where the breaking occurred 'constructively,' through an entry gained by artifice, 'by fraud, (by) conspiracy (with those within) or (by) threats.' See Williams v. State, 205 Md. 470, 477, 109 A.2d 89, 93 (1954); Reagan v. State, 2 Md.App. 262, 267-68, 234 A.2d 278, 281 (1967); Jones v. State, 2 Md.App. 356, 359-60, 234 A.2d 625, 627 (1967); Sizemore v. State, 10 Md.App. 682, 690, 272 A.2d 824, 828 (1971). See also Perkins, Criminal Law (2d ed. 1969), Ch. 3, § 1A, pp. 194-95; Clark and Marshall, A Treatise On The Law Of Crimes, (7th ed. 1967); § 13.03, pp. 996-98; 2 Wharton's Criminal Law and Procedure (Anderson ed. 1957) §§ 414-15, pp. 38-40; Hochheimber, Law of Crimes and Criminal Procedure (2d ed. 1904) § 277, p. 311.

In concluding that the 'breaking' by the appellant had been 'constructive,' the Court of Special Appeals drew heavily upon the holdings in Levesque v. State, 63 Wis.2d, 412, 217 N.W.2d 317 (1974), where the appellant had entered a sandwich shop shortly before closing, had secreted himself in the ceiling in the men's room, and then, after the premises had been closed, emerged from his hiding place to take money...