Furda v. State Of Md..

Decision Date14 September 2010
Docket NumberNo. 2240, Sept. Term, 2008.,2240, Sept. Term, 2008.
Citation194 Md.App. 1,1 A.3d 528
PartiesMark E. FURDA v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland



Walter Booth of Bethesda, MD, for appellant.

Brenda Gruss (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.



Following a bench trial in the Circuit Court for Montgomery County (Rubin, J.), Mark Edward Furda, appellant, was convicted of perjury, in violation of Md.Code (2002, 2007 Supp.), § 9-101(a)(2) of the Criminal Law Article (“C.L.”), and giving false information or making a material misstatement in a firearm application (the “false statement” charge), in violation of Md.Code (2003, 2007 Supp.), § 5-139(a) of the Public Safety Article (“P.S.”). After merging the false statement conviction, the court sentenced appellant to ten years' incarceration for the perjury offense, with all but five years suspended.

The underlying convictions arose from appellant's submission on January 24, 2008, of a Maryland State Police Application and Affidavit to Purchase a Regulated Firearm (the “Application”), in which Furda represented, under oath, that he had never been “committed to a mental institution.” At that time, Furda knew that, in connection with a case in which he had pleaded guilty to violation of a Final Protective Order, under §§ 4-506 and 4-509 of the Family Law Article, the circuit court had recently issued an Order denying his request for the return of his firearms. In the Order, the court found that Furda was barred, under federal law, from possessing a firearm, because his emergency mental health evaluation in 2003 constituted an involuntarily commitment to a mental institution.

From Furda's arguments in his brief, we distill the following questions: 1 1. Was the evidence sufficient to convict appellant of perjury and false statement, when the State's only evidence that appellant had previously been committed to a mental institution was a circuit court order that was “ clearly in error” and when appellant was never found to be committed under Maryland law and he therefore truthfully responded to the Application?

2. Did the court err by improperly shifting the burden of proof to appellant and by usurping the prosecutorial function?

3. Did the court err in denying appellant's request to take judicial notice of medical records in the file?
4. Did the court err or abuse its discretion in denying appellant's Motion for New Trial?

For clarity, we shall refer to this matter as the “Perjury Case,” and we shall refer to the domestic violence proceedings as the “Protective Order Case.” The Protective Order Case is the subject of a companion appeal, in which Furda challenged the circuit court's Order that his emergency mental evaluation in 2003 constituted a commitment, so as to bar his possession of any regulated firearms. See Furda v. State, 193 Md.App. 371, 997 A.2d 856 (2010). 2 We agree with Furda in the companion appeal; we have concluded that the court erroneously determined that Furda's admission amounted to a commitment under federal law. Nevertheless, we conclude that the court's error in the Protective Order Case does not exonerate appellant in the Perjury Case. Therefore, for the reasons explicated below, we shall affirm.


The story of this case begins with domestic problems between appellant and his former wife, Karen Furda. According to an “Incident Report” submitted on February 28, 2003, by a Deputy Sheriff for Montgomery County, 3 the Sheriff's Office served Mr. Furda on February 27, 2003, with a petition for an emergency mental evaluation, initiated by Ms. Furda, and with “ a temporary protection order” (Case No. 0601 SP006212003), issued by the District Court for Montgomery County, also in response to a petition filed by Ms. Furda. Ms. Furda claimed, inter alia, that appellant had several guns in the house, and she consented to a search of the home. During the search, the Sheriffs seized many weapons, including fifteen rifles, one handgun, and a large quantity of ammunition. The items are detailed on a “Seized Property/ Evidence Log” prepared by the Sheriff's Department.

On February 27, 2003, Furda was transported to Montgomery General Hospital (the “Hospital”) for an emergency mental health evaluation. From there, he was transferred to Potomac Ridge Behavioral Health (“Potomac Ridge”). He was discharged on or about March 4, 2003.

According to the record, Ms. Furda obtained a Final Protective Order against Mr. Furda on March 6, 2003. It stated, in part: “While this Protective Order is in effect you may be subject to a federal penalty under the 1994 amendment to the Gun Control Act, 18 U.S.C. Section 922(g)(8), for possessing, transporting, or accepting a firearm.”

On January 31, 2005, Ms. Furda applied for a Statement of Charges, accusing appellant of violating another Final Protective Order, dated September 21, 2004, by contacting her and threatening her. 4 As a result, on March 3, 2005, Furda was charged in a one-count Information withfail[ing] to comply with [the Protective Order] ... dated September 21, 2004, issued under Section 4-506 of the Family Law Article, that ordered the respondent to refrain from contacting and attempting to contact Karen Furda, by contacting her in writing, and is a subsequent offender, in violation of Section 4-509 of the Family Law Article against the peace, government, and dignity of the State.

See State v. Furda, Case No. 101933, Circuit Court for Montgomery County. As we indicated, at a hearing on July 26, 2005, appellant pleaded guilty to one count of “Protective Order-Fail to Comply/Subsequent Offender.” The court sentenced him to a suspended, one-year term of incarceration and two years of probation.

On September 13, 2006, while Furda was still on probation in the Protective Order Case, he filed a “Motion” in that case, pro se, seeking the return of his archery equipment and “other related items. Buck skinning knives, Bows, Arrows, Arrow Release [and] fanny packs,” which had been seized during the search of his home in February 2003. According to the docket entries, the court denied the Motion, without prejudice, on November 1, 2006.

On July 30, 2007, a few days after appellant completed his two-year probation in the Protective Order Case, he filed another “Motion,” also pro se, asking for the “release of all [his] property held for safe keeping by the Montgomery County Sheriff's Department.” The State opposed the Motion. On October 31, 2007, before the court ruled on the second Motion, appellant, through counsel, filed a “Motion To Return Property,” in which he sought the return of all the property seized by the Sheriffs in 2003, including his firearms.

The court (Harrington, J.) held a motion hearing on November 7, 2007, at which appellant was present. In open court, the court agreed to the release of various items, but otherwise took the matter under advisement. On the same date, the circuit court issued an “Order” (docketed November 9, 2007), denying appellant's motion for the return of his firearms. The Order noted that appellant sought the return of “firearms and ammunition seized by the Office of the Sheriff for Montgomery County ... at the time a Domestic Violence Protective Order was served” on appellant. Moreover, the court noted that the Protective Order had “expired and probation arising from a related criminal case is now closed.” The Order also said: “All items appearing on the inventory that are not firearms or ammunition have already been or will be returned to the Defendant by agreement of the State and pursuant to Court order....”

Of import here, the court determined:

Upon the evidence presented, the Court finds that Defendant Mark Furda is considered a prohibited person under 18 U.S.C. Section 922(g)(4) as a result of having been involuntarily committed to a mental institution and is thereby prohibited from possessing firearms.

The court also concluded that appellant was prohibited from possessing firearms under Montgomery County Code § 57-9(d) (2004). However, the court did not address whether appellant was barred from possessing firearms under State law. The Order concluded: “ORDERED, that [Furda's] Motion to Release Personal Property be and the same hereby is DENIED.”

We pause to review 18 U.S.C. § 922 (2005), which provided, in part (emphasis added):

§ 922. Unlawful acts.
(a) It shall be unlawful-

* * *

(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such

firearm or ammunition under the provisions of this chapter[.]

* * *

(g) It shall be unlawful for any person-

* * *

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution

* * *

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.[ 5 ]

On December 3, 2007, appellant moved for reconsideration of the Order of November 7, 2007. Judge Harrington denied his motion by “Order Of Court dated January 15, 2008 (docketed January 16, 2008). On February 13, 2008, appellant noted an appeal to the Court of Special Appeals with respect to the Protective Order Case. 6

In the interim, on January 24, 2008, appellant went to Gilbert's Guns and applied for the purchase of a Ruger Mark III,...

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