In re Jason Allen D.

• Decision Date: 12 July 1999
• Docket Number: No. 1457,1457
• Citation: 127 Md. App. 456,733 A.2d 351
• Parties: In re JASON ALLEN D.
• Court: Court of Special Appeals of Maryland

733 A.2d 351

127 Md. App. 456

In re JASON ALLEN D.

No. 1457, Sept. Term, 1998.

Court of Special Appeals of Maryland.

July 12, 1999.

Daniel Q. Mahone, Frederick, for appellant.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Argued before HOLLANDER, SALMON and JOHN J. BISHOP (Retired, Specially assigned), JJ.

HOLLANDER, Judge.

In this case, we must determine whether the Circuit Court for Frederick County, sitting as a juvenile court, properly found that Jason Allen D., appellant, committed the offense of trespass, in violation of Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 577, and the common law crime of resisting arrest. The charges stemmed from Jason's arrest on September 22, 1997, while he was on the grounds of the Sagner Housing Complex, owned by the Housing Authority of the City of Frederick (the "Housing Authority"). At the time of the incident, Jason was sixteen years old.

After the court found Jason delinquent, he was placed on supervised probation. Thereafter, Jason noted his appeal, and presents three issues for our consideration, which we have rephrased:

I. Was the evidence sufficient to sustain the trespass conviction?

II. Is the trespass statute constitutional?

III. Was the evidence sufficient to sustain the conviction for resisting arrest?

For the reasons that follow, we conclude that the evidence was insufficient to sustain the finding that appellant committed a trespass. Further, we shall vacate the finding of delinquency as to the offense of resisting arrest, and remand to the circuit court for a determination of whether appellant used excessive force.

Factual Background

In an amended juvenile petition, the State alleged that, at approximately 9:10 p.m. on the evening of September 22, 1997, Jason "did enter upon the private land of the Frederick City Housing Authority known as the Sagner Housing Complex after having been duly notified not to do so on March 22, 1997...." ¹ The petition also alleged that Jason unlawfully resisted the September 22, 1997 arrest. The matter proceeded to an adjudicatory hearing, at which several witnesses testified.

Theresa Ham, the Executive Director of the Housing Authority, testified that the Sagner complex is owned and operated by the Housing Authority as part of Frederick's public housing program. She explained that portions of the complex are designated as no-trespassing areas. In particular, Ham stated that a no-trespassing sign had been posted in front of 153 Pennsylvania Avenue, one of the buildings in the complex. Pursuant to a resolution passed by the Housing Authority Board of Commissioners in July 1994, members of the Frederick Police Department were authorized to enforce the no-trespassing laws on behalf of the Housing Authority.

Frederick City Police Officer John Fry testified that, at approximately 6:53 p.m. on the evening of November 28, 1996, he "approached an individual [later identified as Jason] who was standing by 153 [Pennsylvania Avenue] along the sidewalk." Officer Fry "asked [Jason] if he resided on the property...." When Jason said he did not, the officer called his dispatcher in order to determine if appellant's name had been added to the Housing Authority's "trespass log." The dispatcher informed Officer Fry that appellant's name was not listed on the log. Thereafter, Officer Fry issued a written notice to appellant stating that he "was not permitted on the property." ² Officer Fry further stated that Jason signed the notice and acknowledged that he understood that he was not to return to the property.

On cross-examination, Officer Fry testified that when he issued the notice, Jason was just "standing there." No complaint of criminal activity had been lodged by any resident of the complex or by anyone else. Although Officer Fry did not know where appellant was coming from or where he was going, he issued the notice "simply because he was not a resident of Sagner." On re-direct, Officer Fry acknowledged that no-trespass notices are "issued to all individuals who are on the property of the Frederick Housing Authority who do not live there."

Officer Phillip Custead, also of the Frederick Police Department, testified that, on the evening of September 22, 1997, he arrested appellant twice for trespassing at Sagner. The second arrest is at issue here.

Turning to the first arrest, it occurred at 7:38 p.m., after Officer Custead was "dispatched to [the complex] for a trespass." The officer conceded that the first arrest did not occur on Sagner property, nor did he witness appellant commit any offense on the Sagner grounds. Nevertheless, Officer Custead arrested appellant "because he was instructed to do so by [his] Sergeant." After the officer transported Jason to the police station, he was processed, released to his parents, and instructed not to return to Sagner.

Despite the officer's instruction to Jason, Officer Custead testified that, at 9:10 p.m., he was again dispatched to Sagner because he "was advised by dispatch that Jason [D.] had returned to the property and was harassing the security guards there." Appellant's counsel immediately objected to the officer's testimony. The court overruled the objection after the State said: "Your Honor, that's not for the truth of the matter asserted, only for the knowledge of the hearer in this case, it's why Officer Custead returned to the scene."

Officer Custead then described his second encounter with Jason:

THE PROSECUTOR: Officer Custead, upon returning back to the Sagner property did you happen to make contact with the respondent, [Jason]?

OFFICER CUSTEAD: Yes I did, I pulled into Sagner Drive and was met by a Watkins Security officer who then advised me of the situation again. And the two of us walked between the buildings over to Pennsylvania Avenue side of the complex.

* * *

THE PROSECUTOR: Could you please describe the area where the respondent was standing?

OFFICER CUSTEAD: The respondent was standing on the curb which was the property of the Housing Authority of the City of Frederick.

Officer Custead later testified that he observed appellant standing in close proximity to several other people. The officer did not know the identity of the people standing with Jason. Nor did he attempt to ascertain their relationship either to Jason or to the Sagner housing project. When backup officer David Armstrong arrived on the scene, Jason was advised that he was under arrest.

Appellant's counsel questioned Officer Custead about the circumstances of the second arrest. The following colloquy is relevant:

APPELLANT'S COUNSEL: When you went back [at the time of the second arrest] you went back for the specific purpose of arresting him ... isn't that correct?

OFFICER CUSTEAD: I would have used my discretion when I got there, it was not a specific purpose to arrest him at that time, no.

APPELLANT'S COUNSEL: When you went back the second time you didn't go there to arrest him?

OFFICER CUSTEAD: If he had been on the property, yes.

APPELLANT'S COUNSEL: Okay. And once you saw him on the property it was clear you were going to arrest him at that point, right?

OFFICER CUSTEAD: That's correct.

APPELLANT'S COUNSEL: And were there other people standing in that area, Officer?

OFFICER CUSTEAD: Yes.

APPELLANT'S COUNSEL: Can you tell the Court how many folks were in that area?

OFFICER CUSTEAD: Probably five or six other people.

APPELLANT'S COUNSEL: Um-hmm. And was he standing in proximity to those persons?

OFFICER CUSTEAD: Yes he was.

APPELLANT'S COUNSEL: And do you know what the relationship of [Jason] was to those persons that he was standing with?

OFFICER CUSTEAD: No I do not.

* * *

APPELLANT'S COUNSEL: ... And so when you made the arrest why did you arrest him?

OFFICER CUSTEAD: He was trespassing on the Housing Authority's property after being duly notified not to do so.

APPELLANT'S COUNSEL: Do you know whether or not he was there at the invitation of any of the tenants?

OFFICER CUSTEAD: No.

APPELLANT'S COUNSEL: Did you make an inquiry, sir? OFFICER CUSTEAD: No.

Later, on re-cross, the court did not allow appellant's counsel to ask Officer Custead whether, at the relevant time, Jason was doing anything illegal, "other than standing right there on [the] curb."

According to Officer Custead, when appellant was advised of his arrest, he "became argumentative and said you're not going to fucking arrest me, you [are] not going to fucking arrest me." When the officers asked appellant to put his hands behind his back, appellant refused. As Officers Custead and Armstrong attempted to handcuff Jason, appellant "pulled his arms into his stomach very tightly." Officer Custead testified that he and Armstrong then "took him to the ground." According to Officer Custead, appellant "continued to resist and pull away" and it took approximately one-and-one-half minutes to subdue him. Officer Custead testified that, after the arrest was accomplished, Jason "had a trickle of blood coming from his nose."

In the defense case, Ham was again called as a witness. During her testimony, Ham described the provisions of the Housing Authority's standard lease agreement, although no lease agreement was introduced into evidence. The following colloquy ensued:

APPELLANT'S COUNSEL: Now do the tenants, do you have a lease, a standard lease agreement with the tenants of the, respective of Housing Authority communities?

HAM: Yes.

APPELLANT'S COUNSEL: And is it correct to say that within the lease there's a provision which indicates that the tenants do have a right to have visitors?

HAM: Yes.

APPELLANT'S COUNSEL: And if someone is visiting a person on that property, that's a right pursuant to the contract between you, the Housing Authority, and the tenant?

HAM: Yes.

Ham further explained that the Housing Authority lease provides that "guests or visitors may be accommodated for a period up to two weeks." When defense counsel questioned Ham about...