Handy v. State

• Decision Date: 14 February 2000
• Docket Number: No. 71,71
• Citation: 357 Md. 685,745 A.2d 1107
• Parties: Mark HANDY v. STATE of Maryland.
• Court: Maryland Court of Appeals

745 A.2d 1107

357 Md. 685

Mark HANDY v. STATE of Maryland.

No. 71, Sept. Term, 1999.

Court of Appeals of Maryland.

February 14, 2000.

Peter F. Rose, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Celia Anderson Davis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.

CATHELL, Judge.

Mark Handy, petitioner, was convicted by a jury in the Circuit Court for Baltimore City of robbery with a dangerous or deadly weapon, robbery, and wearing and carrying a weapon openly with intent to injure. The weapon petitioner used during the robbery was pepper spray (also called "pepper mace"). The circuit court sentenced petitioner to twenty years imprisonment for the robbery with a dangerous or deadly weapon charge, with all but twelve years suspended in favor of five years probation. The other charges were merged for sentencing purposes. Petitioner appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court. Handy v. State, 126 Md. App. 548, 730 A.2d 710 (1999). This Court granted petitioner a writ of certiorari based on the following issue: "Whether pepper spray or mace qualifies as a dangerous or deadly weapon for purposes of proving the crime of robbery with a dangerous or deadly weapon[.]" We hold that pepper spray or mace may be considered a deadly or dangerous weapon when used during the commission of a robbery. Because there was sufficient evidence in this case for the jury to find that petitioner's use of pepper spray constituted the use of a dangerous weapon during the commission of a robbery, we affirm.

I. Facts

Harry Sparks, a letter carrier with the United States Postal Service, was delivering mail on his usual route in Baltimore on October 3, 1996, when he was approached by petitioner in front of 134 North Edgewood Street. Petitioner asked him for change of address cards. Mr. Sparks informed petitioner that he did not have any change of address cards and that he normally did not carry them. Petitioner proceeded up the stairs to 134 North Edgewood and blocked access to the porch. He then stepped down as if to let Mr. Sparks pass. As Mr. Sparks began to head up the stairs to Number 134, petitioner sprayed him in the eyes with pepper spray. Mr. Sparks attempted to wrestle with petitioner but fell to the ground, after which petitioner grabbed the mail bag and fled. As Mr. Sparks would later testify at trial, October 3, 1996, was the day for that month in which retirees received their Social Security payment checks in the mail. Mr. Sparks gave a partial description of the robber to the police when they arrived and identified petitioner six months later from a photo array.

At trial, counsel for petitioner moved for a judgment of acquittal at the close of the State's evidence. She argued that pepper spray was not a dangerous or deadly weapon under the robbery statute petitioner was charged with violating, Maryland Code (1957, 1996 Repl.Vol.), Article 27, section 488.¹ The trial judge denied the motion. Defense counsel renewed the motion at the end of trial, which the trial judge again denied. The jury convicted petitioner of all charges against him.

Petitioner appealed to the Court of Special Appeals. That court affirmed petitioner's conviction, holding, inter alia, that

pepper spray may become a dangerous weapon ... when it is used as an offensive weapon to injure and overcome the intended victim. The temporary blinding of an individual qualifies as serious harm, and one of the primary purposes of pepper spray is to provide personal protection in defending against criminal assaults. It is the use to which the object is put that determines whether a particular object is a dangerous or deadly weapon.

Handy, 126 Md.App. at 553, 730 A.2d at 712. The intermediate appellate court also held that "whether an object that is not necessarily a dangerous weapon, but can be used as such, may be considered a dangerous weapon under the applicable statute is a question of fact to be resolved by the trier of fact." Id. at 555, 730 A.2d at 713. We shall affirm the result, but upon slightly different reasons.

We hold that whether it is possible for an object to be used as a deadly or dangerous weapon and whether its use in a particular way constitutes the use of a dangerous or deadly weapon in the commission of a criminal offense is a matter of law for the court. In any given case, whether the facts alleged by the State are proven is for the trier of fact to determine. Whether pepper spray can be used as a deadly or dangerous weapon, and whether spraying pepper spray into a person's face for the purpose of robbing that person constitutes robbery with a deadly or dangerous weapon are questions of law for the court. Here, because the jury found that petitioner did, in fact, discharge the pepper spray into the face of the victim during the course of a robbery, we shall affirm the Court of Special Appeals's affirmance of petitioner's conviction for that offense.

II. Discussion

Article 27, section 488, the section with which petitioner was charged and convicted of violating reads:

§ 488. Robbery with deadly weapon.

Every person convicted of the crime of robbery or attempt to rob with a dangerous or deadly weapon or accessory thereto is guilty of a felony, shall restore to the owner thereof the thing robbed or taken, or shall pay him the full value thereof, and be sentenced to imprisonment for not more than 20 years.

This Court has noted previously that "[r]obbery with a [dangerous or] deadly weapon is not a separate substantive offense, but if the State can prove that a defendant used a [dangerous or] deadly weapon during the commission of a robbery, the defendant is subject to harsher penalties." Conyers v. State, 345 Md. 525, 558, 693 A.2d 781, 796-97 (1997) (citing Whack v. State, 288 Md. 137, 140-41, 416 A.2d 265, 266 (1980)); cf. Eldridge v. State, 329 Md. 307, 316, 619 A.2d 531, 536 (1993)

. Because the words "deadly or dangerous weapon" are stated in the disjunctive, the State need not prove that the weapon is deadly; the dangerousness of the weapon used will suffice to sustain a conviction. See Hayes v. State, 211 Md. 111, 116, 126 A.2d 576, 578-79 (1956); Bell v. State, 5 Md.App. 276, 279, 246 A.2d 286, 288 (1968).

A. Treatment of Pepper Spray as a Dangerous Weapon

This Court examined what constitutes a dangerous or deadly weapon under section 488 in Brooks v. State, 314 Md. 585, 552 A.2d 872 (1989). We noted two approaches: the subjective test, in which "a weapon is deadly or dangerous if the victim believes it to be of that character and is, therefore, intimidated by its use," and the objective test, in which "to be deadly or dangerous a weapon must be inherently of that character or must be used or useable in a manner that gives it that character." Id. at 590, 552 A.2d at 875. We ultimately adopted the objective test. Id. at 600, 552 A.2d at 880. In doing so, we held that a related statute, Article 27, section 36, which prohibits the concealed wearing or carrying of a dangerous or deadly weapon, or the wearing or carrying of a dangerous or deadly weapon openly with intent to injure, embodied the Legislature's intent that the trier of fact determine objectively whether the facts supported that an object was used as a dangerous or deadly weapon:

One aspect of context is the "relationship [of the statute under consideration] to earlier and subsequent legislation...." Wynn [v. State], 313 Md. [533,] 539, 546 A.2d [465,] 468 [ (1988) ] (quoting Kaczorowski [v. Mayor of Baltimore ], 309 Md. [505,] 515, 525 A.2d [628,] 632-633 [ (1987) ]). On the statute books when Chapter 457, Acts of 1927, was enacted, [creating section 488,] was the predecessor to Article 27, § 36. In 1927, that provision was Article 27, § 42, and it read thus:

Every person who shall wear or carry any pistol, dirk-knife, bowie knife, slung shot, billy, sand club, metal knuckles, razor, or any other dangerous or deadly weapon of any kind whatsoever (pen knives excepted) concealed upon or about his person, and every person who shall wear or carry any such weapon openly with the intent or purpose of injuring any person in any unlawful manner, shall be guilty of a misdemeanor.

This statute gives us an indication of what sort of implements the legislature believed to be dangerous or deadly weapons. It is apparent that the term encompasses only those devices that are inherently dangerous or deadly or that may be used with dangerous or deadly effect. See Walker v. State, 53 Md.App. 171, 204, 452 A.2d 1234, 1251 (1982),

cert. denied, 296 Md. 63 (1983). As in the case of § 488, we have held that an unloaded pistol is covered. Wallace v. Warden, 226 Md. 670, 174 A.2d 435 (1961). So is a starter's pistol. Jackson [ v. State], 231 Md. 591, 191 A.2d 432 [(1963) ]. But § 36 was not aimed at minimizing intimidation of victims. A victim or potential victim cannot be intimidated by the carrying of a concealed weapon. It was designed to penalize those who had in their possession, with evil intent, instruments that were likely to be used to inflict serious or deadly injury. In short, the objective approach to determining what was dangerous or deadly was embodied in this statute. It is not unreasonable to assume that the legislature that adopted what is now § 488 transported into that statute the "dangerous and deadly" language of old § 42, intending it to carry the same meaning as it then bore.

Id. at 599-600, 552 A.2d at 879-80 (first alteration in original). Based on the previous cases concerning dangerous or deadly weapons, we developed three objective tests, only one of which need be satisfied, to determine that an object used during the commission of a robbery was a dangerous or deadly weapon:

[F]or an instrument

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