Dennis v. State

• Decision Date: 01 September 1995
• Docket Number: No. 18,18
• Citation: 342 Md. 196,674 A.2d 928
• Parties: Bruce Lamont DENNIS v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 196

342 Md. 196

674 A.2d 928

Bruce Lamont DENNIS v. STATE of Maryland.

No. 18, Sept. Term, 1995.

Court of Appeals of Maryland.

March 13, 1996.

Reconsideration Denied May 3, 1996.

George E. Burns, Jr., Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Petitioner.

Mary Ellen Barbera, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Baltimore, for Respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

BELL, Judge.

This case presents the issue of whether a passenger in a vehicle whose driver has been stopped by police for a traffic violation may be convicted of disorderly conduct and battery when, rather than heeding the police command to remain in the vehicle, he walks away from the scene, and subsequently resists police attempts at detention. The Circuit Court for Somerset County found the petitioner, Bruce Lamont Dennis, guilty of disorderly conduct and battery and sentenced him to two concurrent terms of imprisonment of 45 days. ¹ The Court of Special Appeals affirmed the judgments in an unreported opinion. For the reasons discussed below, we shall reverse.

I.

Officer Wayne Foskey, of the Princess Anne Police Department, testified in the Circuit Court for Somerset County that on November 27, 1993 he saw a vehicle drive through a red traffic signal. Intending to make a traffic stop, Officer Foskey and his partner pursued the vehicle, while flashing the emergency lights on the police car. The driver of the pursued vehicle ignored the lights and increased his speed. Officer Foskey then shined a flashlight into the vehicle and told the driver to pull over. The driver ignored this command as well and again increased his speed. Eventually, the driver pulled the vehicle into a driveway in a residential neighborhood where five or six persons were congregated. At that point, the police, then assisted by a third officer, Trooper Bettina Collins, ended the chase.

Once the vehicle stopped, both the driver and the petitioner attempted to exit the vehicle, according to Trooper Collins's testimony. When the petitioner opened the passenger side door, Officer Foskey "yelled for him to shut the car door and stay in the vehicle." Instead, the petitioner stepped out of the vehicle. He ignored Officer Foskey's command to get back into the vehicle and began walking away without uttering a word. Officer Foskey yelled for the petitioner to stop, but he continued to walk away.

Trooper Collins testified that while the petitioner and the driver were attempting to exit the vehicle, "[t]here were several subjects in the yard at that time who were also yelling at us and saying things to Dennis and the other subject." Confronted with the petitioner's continued resistance to his commands, Officer Foskey proceeded to "[take the petitioner] to the ground." The petitioner struck Officer Foskey in the ribs with his elbow and began fighting with him. After spraying the petitioner twice with pepper mace, Officer Foskey finally got him back in the car.

The petitioner was tried for, inter alia, disorderly conduct and battery. ² Finding the petitioner guilty, the trial judge stated:

Gentlemen, considering the totality of the circumstances, the fact that there was a high speed chase, albeit after perhaps running a red light, I think the officer's actions were not unreasonable at all. I think, all Mr. Dennis had to do was stop, stay where he was, let the officer identify him and ensure that there were no problems with the officer's safety, and we wouldn't have been in court. That didn't happen. I think that with the fact that there were other people in the area at that location, according to Trooper Collins, who began yelling and shouting at the officers, that by refusing the [sic] comply with the officer's commands to stay within the car, and when he got out of the car, to get down, I think he violated Article 27, Section 123. He was charged with the correct section by refusing the lawful order of a police officer, the refusal of which could have threatened the public peace. Likewise, as to Count # 1, I think there was an unlawful touching. I think the officer was justified in doing what he did when he physically restrained Mr. Dennis, the defendant, from leaving the area. It all could have been avoided if Mr. Dennis had complied with the officer's command, which was not unreasonable.

I'm convinced beyond a reasonable doubt that Mr. Dennis is guilty of Count # 1, Battery, and Count # 2, Disorderly Conduct.

II.

In examining the petitioner's disorderly conduct conviction, we must first consider the nature of the crime itself. Disorderly conduct is addressed in Maryland Code (1957, 1992 Repl.Vol.), Article 27, § 123, and provides, in pertinent part:

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, 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.

In Drews v. State, 224 Md. 186, 167 A.2d 341 (1961), vacated on other grounds and remanded, 378 U.S. 547, 84 S.Ct. 1900, 12 L.Ed.2d 1032 (1964), judgments reinstated and reaffirmed, 236 Md. 349, 204 A.2d 64 (1964), appeal dismissed and cert. denied, 381 U.S. 421, 85 S.Ct. 1576, 14 L.Ed.2d 693 (1965), this Court stated that

[t]he gist of the crime of disorderly conduct under Sec. 123 of Art. 27, 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. 3 Underhill, Criminal Evidence, Sec. 850 (5th Ed.), adopts as one definition of the crime the statement that it is conduct 'of such a nature as to affect the peace and quiet of persons who may witness the same and who may be disturbed or provoked to resentment thereby.' Also, it has been held that failure to obey a policeman's command to move on when not to do so may endanger the public peace, amounts to disorderly conduct.

Id. at 192, 167 A.2d at 343-44. Thus, while not explicitly stated in the statute, this Court has found there to be a "police command" aspect of disorderly conduct. To be guilty of disorderly conduct on this basis, however, there must be a sufficient nexus between the police command and the probability of disorderly conduct. These commands cannot be " 'purely arbitrary and ... not calculated in any way to promote the public order.' " Id. at 193, 167 A.2d at 344 (quoting People v. Galpern, 259 N.Y. 279, 181 N.E. 572, 574 (1932)). See also Harris v. State, 237 Md. 299, 303, 206 A.2d 254, 256 (1965) (holding that "[a] failure to obey a reasonable and lawful request by a police officer fairly made to prevent a disturbance to the public peace constitutes disorderly conduct.").

Our prohibition of arbitrary police commands is consistent with the Supreme Court's holding in Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965). In that case, the Court struck down a city ordinance that made it " 'unlawful for any person to stand or loiter upon any street or sidewalk ... after having been requested by any police officer to move on.' " Id. at 90, 86 S.Ct. at 213, 15 L.Ed.2d at 179 (quoting § 1142 of the Birmingham General City Code). The Court stated that citizens should not be governed " 'by the moment-to-moment opinions of a policeman on his beat[,]' " but rather by clearly defined laws. Id. (quoting Cox v. Louisiana, 379 U.S. 536, 579, 85 S.Ct. 466, 469, 13 L.Ed.2d 487, 501 (1965)). The Court further stated that law based on "[i]nstinct with its ever-present potential for arbitrarily suppressing First Amendment liberties ... bears the hallmark of a police state." Id. at 90-91, 86 S.Ct. at 213, 15 L.Ed.2d at 179 (footnote omitted).

A brief review of some of the instances in which Art. 27, § 123 violations premised on the refusal to comply with police commands have been found are instructive, by way of comparison with the case sub judice, to show that Maryland case law demands more affirmative conduct by a defendant than occurred in this case before disobeying a police order will be deemed a breach of the peace. For example, in Hallengren v. State, 14 Md.App. 43, 286 A.2d 213 (1972), the defendant was among a crowd of people engaged in riotous behavior. While the police attempted to disperse the crowd, the defendant exhorted the crowd "to resist and kill the police." Id. 45-46, 286 A.2d at 215. In Luthardt v. State, 6 Md.App. 251, 251 A.2d 40 (1969), the defendant encouraged a crowd to burn down the home of an African American family. The police ordered the defendant to desist from his conduct and when he failed to do so he was arrested. Id. at 253-55, 251 A.2d at 42-43. In Bacheller v. State, 3 Md.App. 626, 240 A.2d 623 (1968), rev'd on other grounds, 397 U.S. 564, 90 S.Ct. 1312, 25 L.Ed.2d 570 (1970), the defendants, Vietnam War demonstrators, entered a United States recruiting station and demanded that their anti-war posters be displayed. After being physically ejected from the building, they began blocking the sidewalk, attracting a crowd of onlookers, including some individuals who reacted in a hostile manner to the demonstrators. The demonstrators were ordered by the police to move on and after failing to do so were arrested. Id. at 630-31, 240 A.2d at 625-26. See also Sharpe v. State, 231 Md. 401, 403, 190 A.2d 628, 630-31, cert. denied, 375 U.S. 946, 84 S.Ct. 350, 11 L.Ed.2d 275 (1963).

In addressing the disorderly conduct conviction, the State contends that the refusal of the petitioner to stay in the...