Dillon v. State

• Decision Date: 04 May 1976
• Docket Number: No. 101,101
• Citation: 357 A.2d 360,277 Md. 571
• Parties: Samuel Henry DILLON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 571

277 Md. 571

357 A.2d 360

Samuel Henry DILLON v. STATE of Maryland.

No. 101.

Court of Appeals of Maryland.

May 4, 1976.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Alexander L. Cummings, 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.

The question which we are here called upon to decide is: whether the appellant's motion for a mistrial should have been granted after the trial court, as part of its advisory instructions, read to the jury the 'Declaration of Policy' set forth by the legislature as the preamble to Maryland Code (1957, 1971 Repl.Vol., (1975 Cum.Supp.)) Art. 27, § 36B.

The appellant, Samuel Henry Dillon, following a jury trial in the Circuit Court for Montgomery County (presided over by Shure, J.), was convicted under counts 1, 5, 7 and 12 of a multi-count indictment. Count 1 charged the armed robbery on January 22, 1974 of the manager of a Seven-Eleven Store in Takoma Park, Maryland; the 5th count charged the use of a handgun, in violation of Art. 27, § 36B, in the commission of that same felony. Counts 7 and 12 charged those same offenses, in connection with another armed robbery, upon the same victim, at the same store, on January 5, 1974. ¹

Pursuant to Maryland Rule 828 g, the parties have here agreed upon a statement, setting forth those facts which could reasonably have been found by the jury from the testimony, and which are relevant to the issue before us, as follows: 'On the morning of January 5, 1974, the Appellant entered the Seven-Eleven Store, 900 Merrimac Drive, Takoma Park. He ordered Louis Sharp, the sole employee present, to 'Give me all your money.' Sharp handed over (the) money and lottery tickets. During the time of the robbery, Dillon exhibited a gun (which) 'looked like between a .45 or 9 millimeter.' * * * On January 22, 1974, the appellant robbed the same store, again displaying a 'pistol."

We additionally note that during the course of the trial, no issue was raised by the appellant that a handgun had not been used in either of the robberies. ² Although he challenged his pre-trial identification, his defense was based upon an alibi for the times at which each of the robberies was committed.

In the course of its instructions, the trial court, after declaring: 'what I say to you is advisory only, because you are the judges of the law and the fact in criminal cases,' and after explaining to the jury the various counts which remained in the case, further stated:

'There are also two counts involving the use of a handgun in the commission of a felony.

'With respect to the use of a handgun, which you must also consider, Counts 5 and 12, the legislature several years ago enacted this new law.

'They declared as part of the law, which I will read to you, Article 27, Section 36B, which reads, and I am quoting now, 'Declaration of Policy.'-'The General Assembly of Maryland hereby finds and declares that:

((i)) 'There has, in recent years, been an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns;

((ii)) 'The result has been a substantial increase in the number of persons killed or injured which is tracable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity;

((iii)) 'The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and

((iv)) 'Further regulations on the wearing, carrying and transporting of handguns are necessary to preserve the peace and transquility of the State and to protect the rights and liberties of its citizens.

'Section (d) of this section is the section under which he is charged, and is entitled 'Unlawful use of handgun in commission of crime."

Immediately thereafter, the trial court read to the jury the provisions of Art. 27, § 36B(d), the subsection under which the appellant was charged in counts 5 and 12.

In taking exception to the 'handgun' instruction, the appellant's trial counsel contended that 'it was improper to read into the record the portion of the statute containing the handgun use;' he further asserted: 'I believe that is not the law, that the jury should not be instructed on that as being part of the law. I think it unduly prejudices the jury to read into the record an editorial comment by the legislature on the purpose of the law.' The exception concluded with a motion for a mistrial, which the trial court denied.

The Court of Special Appeals affirmed the conviction in Dillon v. State, 27 Md.App. 579, 342 A.2d 677 (1975) and found no 'prejudicial effect resulting from incorporation of both subsections (a) (the Declaration of Policy) and (d) of § 36B in the charge.' We granted certiorari limited to the question hereinbefore posed.

In contending that such a jury instruction was prejudicial, the appellant, drawing upon language in State v. Waletich, 51 S.D. 209, 212, 213 N.W. 21, 22 (1927), asserts that it created the impression upon the jury that the section of the handgun law, with which he was charged, '(stood) upon a higher plane than other criminal laws,' and thus 'it would be particularly astute (for the jury) to convict.' He relies as well upon the holdings in State v. Locks, 94 Ariz. 134, 382 P.2d 241 (1963).

In Waletich, the defendant was convicted of transporting intoxicating liquor in violation of § 10303 of the South Dakota Code (1919). In the course of its instructions, the trial court told the jury that 'all of the provisions of the intoxicating liquor laws of this state shall be liberally construed for the enforcement thereof, and that no shift, device, art, or contrivance whatever, which is used or practiced to evade the law, . . .' will avail or be of any benefit. Id. 51 S.D. at 211, 213 N.W. at 22.

The Supreme Court of South Dakota, noted that '(t)his instruction was evidently taken from the provisions of sections 10235 and 10299, Rev.Code 1919.' In finding that it was 'inappropriate,' insofar as it was given under § 10299, and that it was erroneous and prejudicial insofar as it was given under § 10235, that court stated:

'The charge here was unlawful transportation-not any offense arising under section 10299. In so far as it was given under section 10235, it seems to us that the instruction was clearly erroneous. That section is one of interpretation of the act and is addressed solely to the courts, and the jury has nothing to do with it. The instruction should not have been given.

'We are of the opinion that the portion of the instruction, which stated that the laws of this state especially direct that all of the provisions of the intoxicating liquor laws shall be liberally construed for the enforcement thereof, was not only erroneous, but constituted prejudicial error. We think it must have impressed the jury that the liquor laws stand upon a higher plane than other criminal laws, and that it should be particularly astute to convict upon a charge of violating the intoxicating liquor laws as compared with the violation of other laws.' 51 S.D. at 212, 213 N.W. at 22. (emphasis added).

In Locks, the defendant, the operator of a 'hobby shop' which sold 'girlie' magazines, was convicted, in violation of an Arizona statute (A.R.S. § 13-822, subd. A), with contributing to the delinquency of a minor when he solicited him to look at 'some of the magazines.' In instructing the jury, the trial court read to them § 13-827, subd. A, which provided: 'This article shall be liberally construed in favor of the state for the protection of the child from neglect or omission of parental duty . . . and also to protect children of the state from the effects of improper conduct, acts or bad example of any person which may be calculated to cause, encourage or contribute to, the dependency or delinquency of children . . .' After adverting to the principle that the proper interpretation of a statute is a question wholly for the court, and not to be submitted to the jury, the Supreme Court of Arizona, in reversing the conviction, stated:

'In the instant case in reading A.R.S. § 13-827, subd. A to the jury the trial court impliedly invited the jury to construe §§ 13-821 and 13-822 by giving to those sections a liberal meaning in favor of the state to protect the children of the state from any person whom the jury might believe had improperly conducted himself in a fashion to encourage the delinquency of a child. No more roving unrestrained authority to convict the defendant of the crime charged could possibly have been authorized, an authority unrestrained by any of the other accepted modes for the determination of the meaning of the language used in a statute.

'While we have construed the language of §§ 13-821 and 13-822 as being broad enough to sustain a conviction for the crime charged we, of course, can not say with certainty that under the instructions this was the basis for the jury's verdict. What liberal concepts the jury attached to the language of the legislature to protect children is impossible to tell. Of what it in fact convicted the defendant is unknown.' 94 Ariz. at 138, 382 P.2d at 244. (emphasis added).

As we see it, the holdings in both State v. Waletich, supra, and in State v. Locks, supra, are here distinguishable. There was no suggestion from so much of the trial court's instructions as set forth the legislative 'Declaration of Policy' when Art. 27, § 36B was enacted, that it was to be 'liberally construed' in favor of the state in its enforcement, nor that the 'handgun' statute stood 'upon a higher plane than other criminal laws.' The 'Declaration of Policy' related to the jury was a verbatim reading...