Harris v. State

• Decision Date: 01 September 1992
• Docket Number: No. 48,48
• Citation: 331 Md. 137,626 A.2d 946
• Parties: Cecil E. HARRIS v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 137

331 Md. 137

626 A.2d 946

Cecil E. HARRIS v. STATE of Maryland.

No. 48, Sept. Term, 1992.

Court of Appeals of Maryland.

June 28, 1993.

Jack B. Rubin (Jack B. Rubin, P.A., on brief), Baltimore, for appellant.

David P. Kennedy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

We granted certiorari in this case to consider whether under Maryland Code (1957, 1992 Repl.Vol.) Article 27 § 281A(b), a firearm is "used" during and in relation to a drug trafficking offense when it is neither actively employed nor brandished. ¹ 327 Md. 304, 609 A.2d 312. In addition, because we granted certiorari prior to argument or decision by the Court of Special Appeals, we must address two other issues. One involves the application of Maryland Rule 1-351, which pertains to ex parte orders. The other involves the propriety of the trial court's allowance of cross-examination of the appellant concerning the defendant's income and Maryland State income tax returns.

I. ²

Cecil Harris, the appellant, was convicted by a jury in the Circuit Court for Baltimore City of possession of cocaine in sufficient quantity to indicate an intent to distribute, possession of marijuana, and feloniously using, wearing, carrying, or transporting a firearm, to wit, an Uzi semi-automatic 9mm assault firearm, during and in relation to a drug trafficking crime. ³ He was sentenced to concurrent terms of imprisonment--ten years for the cocaine charge, six months for the marijuana charge and ten years without parole for use of the firearm. ⁴ The charges arose out of the Baltimore City Police Department's execution of a search and seizure warrant, at premises at which the appellant maintained a part-time residence and, out of which, he had, at one time, operated a restaurant and car repair business.

The appellant and three others were found on the first floor, seated on the sofa in the living room. Neither weapons nor drugs were found on that floor or on the person of the appellant and his companions. All of the drugs and weapons were found on the second floor. In a hallway closet, 96.6 grams of 70% pure cocaine, valued at $36,000, were found in the false bottom of a "Fix-A-Flat" container. Eleven bags of cocaine and a bag of marijuana were found in the pocket of a man's leather jacket, which was located in the middle room closet. The Uzi semi-automatic 9mm firearm was seized, in plain view, from the appellant's room, the front bedroom. In that same room, the police recovered a loaded .357 handgun which was stuffed between pillows in a couch and three unloaded shotguns, all located in the closet. A .22 caliber Derringer handgun containing one round, was found in a drawer of the dresser in that room. The appellant owned all of the firearms.

The State offered expert testimony as to the significance of the evidence recovered. According to Officer Glenn Williams, to whose qualifications in narcotics investigation the parties stipulated, the quantity and purity of the cocaine found in the Fix-A-Flat can indicated distribution rather than personal use. He also testified that the premises was a narcotics stash house, in which guns are ordinarily kept to protect the narcotics from rival dealers and police. That was the purpose of the Uzi found in appellant's bedroom, Officer Williams opined.

Testifying in his defense, the appellant described the businesses he operated at the premises as a carry-out restaurant and a mechanic shop and a tire shop. Although the carry-out had been closed, he testified that he made some money in that store.

On cross-examination, the appellant testified that he supported himself from the proceeds of his businesses. He characterized his car repair business as profitable, as long as his physical condition permitted him to work, and his carry-out restaurant business as doing pretty well. This prompted inquiry concerning his income, his 1989 and 1990 taxes, and his expenses, generally. The appellant's 1989 and 1990 Maryland tax returns, showing income of $2,909 in 1989 and $18,441 in 1990, which were admitted into evidence, formed the basis for much of the questioning. The appellant objected to being questioned about the tax returns and to their admission in evidence. On redirect, as he had also done on cross-examination, the appellant testified to having other income from insurance and disability payments.

The appellant's tax returns were obtained during the course of the trial. The prosecutor obtained a court order for their disclosure without notice first being given to the appellant that they were being sought. Neither was the appellant or his counsel present when the State presented the court with the petition and order. ⁵

II.

Section 281A(b), by its plain language, makes it a crime for a person to use or to wear, carry or transport a firearm during, and in relation to, a drug trafficking crime. There are three prerequisites: the firearm must be 1) used, worn, carried or transported, 2) during a drug trafficking crime, and 3) in relation to it. One who uses or wears, carries or transports a firearm during a drug trafficking crime is not guilty of a violation of section 281A(b) unless the evidence also establishes that the use, wearing, carrying or transporting was in relation to that crime.

While penal statutes are to be strictly construed against the State and in favor of the defendant, State v. Kennedy, 320 Md. 749, 754, 580 A.2d 193, 195 (1990); Davis v. State, 319 Md. 56, 61, 570 A.2d 855, 858 (1990); Wynn v. State, 313 Md. 533, 539, 546 A.2d 465, 468 (1988); 3 Norman J. Singer, Statutes and Statutory Construction, § 59.03 (4th ed. 1986), so that only punishment contemplated by the words of the statute is meted out, Davis, 319 Md. at 61, 570 A.2d at 858, the construction to be given a statute must depend upon discerning the intention of the Legislature when it drafted and enacted it. Kennedy, 320 Md. at 755, 580 A.2d at 196. This requires reading and interpreting the entire statute, neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the words actually used. Bd. of Educ. of Garrett County v. Lendo, 295 Md. 55, 63, 453 A.2d 1185, 1189 (1982); Smelser v. Criterion Ins. Co., 293 Md. 384, 389, 444 A.2d 1024, 1027 (1982); Pappas v. Pappas, 287 Md. 455, 465, 413 A.2d 549, 553 (1980). Moreover, construction requires that the statute be given a reasonable interpretation, not one that is illogical or incompatible with common sense. D & Y, Inc. v. Winston, 320 Md. 534, 538, 578 A.2d 1177, 1179 (1990); Blandon v. State, 304 Md. 316, 319, 498 A.2d 1195, 1196 (1985); Erwin and Shafer, Inc. v. Pabst Brewing Co., 304 Md. 302, 315, 498 A.2d 1188, 1194 (1985).

Our inquiry into legislative intent begins with the words of the statute and, ordinarily, will also end there. Where the words of the statute are clear and unambiguous, there usually is no need to go further in construing the statute, Mustafa v. State, 323 Md. 65, 73, 591 A.2d 481, 485 (1991); G. Heileman Brewing Co. v. Stroh Brewery Co., 308 Md. 746, 755, 521 A.2d 1225, 1230 (1987); In re Criminal Investigation No. 1-162, 307 Md. 674, 685, 516 A.2d 976, 982 (1986); Comptroller of Treasury v. Fairchild Industries, Inc., 303 Md. 280, 284, 493 A.2d 341, 343 (1985). Giving the words their ordinary and common meaning "in light of the full context in which they appear, and in light of external manifestations of intent or general purpose available through other evidence," Dickerson v. State, 324 Md. 163, 170-71, 596 A.2d 648, 651-52 (1991), quoting Cunningham v. State, 318 Md. 182, 185, 567 A.2d 126, 127 (1989), normally will result in the discovery of the Legislature's intent. State v. Bricker, 321 Md. 86, 92, 581 A.2d 9, 12 (1990). In the interest of completeness, however, we may look at the purpose of the statute and compare the result obtained by use of its plain language with that which results when the purpose of the statute is taken into account. Sabatier v. State Farm Mut. Auto. Ins. Co., 323 Md. 232, 250, 592 A.2d 1098, 1107 (1991); Mustafa, 323 Md. at 73, 591 A.2d at 485; Baltimore County Coalition Against Unfair Taxes v. Baltimore County, 321 Md. 184, 203, 582 A.2d 510, 519 (1990); Cunningham, 318 Md. at 185, 567 A.2d at 127; Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 514-15, 525 A.2d 628, 632-33 (1987). We may also consider such evidence as "a bill's title and function paragraphs, amendments that occurred as it passed through the legislature, its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal...." Wynn, 313 Md. at 539, 546 A.2d at 468, quoting Kaczorowksi, 309 Md. at 515, 525 A.2d at 632-33. And we may look to the Court's interpretation or treatment of another statute treating the same or similar subject matter. Bridges v. Nicely, 304 Md. 1, 10, 497 A.2d 142, 146 (1985).

A.

The appellant insists that the evidence in the case sub judice showed only that he possessed the firearm and that the General Assembly did not make it a crime to possess a firearm during and in relation to a drug trafficking crime. The language of section 281A(b), the appellant argues, is plain and unambiguous, and in that regard, cannot be construed to cover mere possession. He posits that "possession" and "use" have different meanings; while one necessarily possesses a firearm while using it, it is not necessarily true that one who possesses a firearm also uses it.

The State does not dispute, nor can it, that the appellant was not wearing, carrying or transporting ⁶ a firearm during and in relation to a drug trafficking crime; direct evidence established that no firearms were found on the appellant and, in fact, that the only firearms recovered...