Herd v. State

• Decision Date: 24 February 1999
• Docket Number: No. 14,14
• Citation: 125 Md. App. 77,724 A.2d 693
• Parties: Frederick HERD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

724 A.2d 693

125 Md. App. 77

Frederick HERD v. STATE of Maryland.

No. 14, Sept. Term, 1998.

Court of Special Appeals of Maryland.

February 24, 1999.

Michael Rosofsky (Durkee & Rosofsky, on the brief), Reisterstown, MD, for appellant.

Regina Hollins Lewis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General and Patricia Jessamy, State's Attorney for Baltimore City, on the brief), Baltimore, MD, for appellee.

Before MOYLAN, KENNEY and RALPH BURNETT (Specially Assigned), JJ. MOYLAN, Judge.

The appellant, Frederick Herd, was convicted in the Circuit Court for Baltimore City by Judge Paul A. Smith, sitting without a jury, of burglary in the fourth degree. The appellant, a licensed bailbondsman, asserted as a defense his allegedly reasonable belief that he was entitled to enter the premises in question.

Before even reciting the list of subtle and perplexing issues raised by this appeal, it behooves us to note that this case was submitted to Judge Smith on an agreed statement of facts. It should serve as a classic illustration of the frequently overlooked truth that simply because a defendant submits on an agreed statement of facts, forbearing to require the State to call a single fact witness and abjuring any right to cross-examine a single accuser, such a choice of trial modalities by no means implies that the procedure is the functional equivalent of a guilty plea. In this regard, see Atkinson v. State, 331 Md. 199, 203 n. 3, 627 A.2d 1019 (1993) ("Although this procedure should not be used when there are significant witness credibility questions, we have approved of it in the past when the parties sought to argue solely legal questions at trial." (Emphasis supplied)); Ingersoll v. State, 65 Md.App. 753, 761, 501 A.2d 1373 (1986) ("We conclude, as we did in Ward, that neither the reported cases of the Court of Appeals nor of this Court `stand for the broad proposition that any "not guilty plea with an agreed statement of facts" is now to be regarded as "the functional equivalent to a guilty plea."`"); Ward v. State, 52 Md.App. 664, 670-73, 451 A.2d 1243 (1982).

No mere functional equivalent of a guilty plea would give rise to the fiercely contested legal issues with which the trial judge had to grapple and with which we must now contend:

1) What precisely is the mens rea of fourth-degree burglary and what is the impact on that mens rea of a defendant's reasonable belief that he was entitled to make the intrusion in question?

2) With respect to such reasonable belief (or the absence thereof), to which party is allocated 1) the burden of initial production, 2) the burden of ultimate persuasion, and 3) what is the level of persuasion that must be satisfied by the party carrying that burden?

3) Did the trial judge, sitting as a jury, apply the appropriate burden of persuasion, both as to its allocation and as to its required level of certainty, to his ultimate, conclusory fact finding on this issue of reasonable belief?

4) Were the uncontested facts, recited in the agreed statement, legally sufficient to support the verdict?

The Agreed Statement of Facts

The narrative of events set out in the agreed statement of facts self-evidently was not in dispute. Frederick Herd, the appellant, was at all relevant times employed by Courtside Bail Bonds (hereinafter "Courtside") as a bail bondsman. Herd's duties included the apprehension and arrest of fugitives.

On August 9, 1996 Steven Weiner, the operator of Courtside, informed Herd that James Askins, one of Courtside's clientele, had failed to appear for trial and that a warrant had been issued for Askins's arrest. Askins had been released on a bond of $10,000 put up by Courtside on the charge of violation of probation. Herd was instructed by Weiner to find Askins. Accordingly, Herd, Weiner, and two other bail bondsmen (Parsons and Doran) employed by Courtside went to Askins's last known address at East Madison Street. While at that residence the three men "learned that Mr. Askins was no longer residing at the Madison Street address." They were advised by a female that Askins "was presently staying at 924 Abbott Court, which is also located in Baltimore City." No further details were provided regarding what relationship, if any, that woman may have had to Askins. Herd and his companions then went to 924 Abbott Court in an attempt to locate Askins. The men knocked on the door of the residence but no one answered. According to Herd, the men could hear sounds of a radio coming from within the house and "the blinds at the second floor window showed signs of movement." At that point Herd and his companions forcibly entered the residence by breaking the lock off the front door with an axe. After entry and a sweep of the premises, the men realized that no one was inside the residence.

Ms. Louise Holland, a resident of 926 Abbott Court, heard banging at her window on the evening of 9 August 1996. When she looked outside she noticed a white male walking out of her yard. Ms. Holland continued to watch as the four men broke down the door of 924 Abbott Court with an axe.

During the course of the forcible entry into 924 Abbott Court, Ms. Michelle Reed, the lawful resident of that address, returned home with two of her children. On approaching her residence, Ms. Reed was informed by neighbors that the police were in her house. She then noticed that there were men in her home. At that point one of the men asked Ms. Reed to come inside the residence and told her they had some questions. According to Ms. Reed, she requested from the men both identification and a search warrant, but they provided her with neither. Instead, they informed her only that they were "from the fugitive unit." Ms. Reed noticed that the men were armed and that at least one of the men was wearing a bullet proof vest. Ms. Reed was then presented with a photograph of Askins and asked whether she knew him. She replied that she did not. By that point, Ms. Reed was visibly upset, but the men continued to search her residence. At some point during the encounter, one of the men asked Ms. Reed how much she paid for day care services for her children. When she replied to his question, the man offered her that amount of money. Ms. Reed refused to take it.

Ms. Reed told the men that she was going to call an attorney and the men departed. Because she was under the mistaken impression that the men who had been in her house were police officers, she called the Police Department to report that one of the "officers" had offered her a bribe (in attempting to give her money for day care services). When the police arrived they surveyed the damage done by the bail bondsmen. They also learned that no search warrant had been executed for that particular address on that day.

Later that evening, one of Ms. Reed's neighbors saw Herd at a gas station, realized that he was the same man who had broken into Ms. Reed's home, and recorded the license plate number of his vehicle. Thereafter, Courtside was contacted regarding the incident and further police investigation led to the ultimate arrest of Herd, Parsons, and Weiner.¹

Approximately two-and-one-half weeks later during an interview at the State's Attorney's office, Parsons admitted to having broken the lock of Ms. Reed's door with an axe. Parsons, however, would provide no detail about the woman who had given the men the information that Askins could be found at 924 Abbott Court.

Although those facts themselves were not disputed, what was very hotly disputed was whether those facts could support a conviction for burglary in the fourth degree.

Fourth-Degree Burglary

The offense which, since the recodification of the various burglary laws by Ch. 572 of the Laws of 1994, is now called burglary in the fourth degree embraces four varieties of proscribed conduct. That variety involved in the present case is spelled out by Art. 27, § 32(a)(1),² which provides A person may not break and enter the dwelling of another.

The facts set out in the agreed statement unequivocally established the actus reus of fourth-degree burglary. The structure at 924 Abbott Court was indisputably a dwelling. Its lawful residents were indisputably Ms. Michelle Reed and two of her children. From the point of view of the appellant, therefore, 924 Abbott Court was indisputably the dwelling of another. When the appellant and his three companions broke down the door with an axe, that clearly qualified as a breaking. When they subsequently entered 924 Abbott Court, that unquestionably constituted an entering. Indisputably, the appellant broke and entered the dwelling of another.

At serious issue, however, is whether the statement of facts establishes the necessary mens rea to support the appellant's conviction. That raises the question of what precisely is the mens rea of that variety of fourth-degree burglary spelled out by § 32(a)(1).³

The Mens Rea of Fourth-Degree Burglary

Three opinions by the Court of Appeals and by this Court have, in combination, thoroughly examined the mens rea of fourth-degree burglary of the breaking and entering variety, although they have not exhausted all of the procedural issues involved in the proof of that mens rea. The three cases, in order of their being decided, are Bane v. State, 73 Md.App. 135, 533 A.2d 309 (1987); Warfield v. State, 315 Md. 474, 554 A.2d 1238 (1989); and Green v. State, 119 Md.App. 547, 705 A.2d 133 (1998).

A. The Absence of Any Required Specific Intent:

The most prominent characteristic of the mens rea, of that variety of fourth-degree burglary dealt with by § 32(a)(1) is that it creates a mere general-intent and not a specific-intent crime. That conclusion inexorably follows from looking at the four corners of the statute itself. Section 32(a)(1) expressly prohibits the breaking and entering of the dwelling of another and makes no mention of any specific intent that must accompany the breaking and/or entering. As in the...