Lee v. State

• Citation: 311 Md. 642,537 A.2d 235
• Decision Date: 16 February 1988
• Docket Number: No. 14,14
• Parties: David Anthony LEE and Stanley Lee Hall v. STATE of Maryland. Sept. Term 1987.
• Court: Court of Appeals of Maryland

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311 Md. 642 537 A.2d 235 David Anthony LEE and Stanley Lee Hall
v.
STATE of Maryland. No. 14 Sept. Term 1987. Court of Appeals of Maryland. Feb. 16, 1988.

[537 A.2d 236]

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Nancy S. Forster, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Norman L. Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY and BLACKWELL, JJ., and MARVIN H. SMITH and CHARLES E. ORTH, JR., Associate Judges of the Court of Appeals of Maryland (retired), Specially Assigned.

RODOWSKY, Judge.

This case involves a warrantless search and seizure precipitated by an anonymous tip. Twelve judges of the Court of Special Appeals, sitting en banc on reargument, evenly divided over the constitutionality of the search. Lee and Hall v. State, 69 Md.App. 302, 517 A.2d 774 (1986).

Petitioners, David Anthony Lee (Lee) and Stanley Lee Hall (Hall), were arrested on August 13, 1984, by Montgomery County police officers who contemporaneously seized a handgun and other evidence. Following an evidentiary hearing before Judge James S. McAuliffe, petitioners' pretrial motion to suppress was denied. Evidence which was the object of the motion was introduced at petitioners' joint trial. Each petitioner was found guilty by the jury of attempted second degree murder, robbery with a dangerous and deadly weapon and use of a handgun in a crime of

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violence, all arising out of a holdup and shooting perpetrated around midnight on August 12-13. Each petitioner was also convicted of carrying a handgun when arrested shortly before 5:00 p.m. on the thirteenth.

The Court of Special Appeals affirmed on all issues, including, because of the equal division in the appellate court, the trial court's denial of the suppression motion. We issued certiorari on a petition which raises two issues in addition to the search and seizure point.

I

Petitioners' first submission is that affirmance by an equally divided court denies them rights relating to appellate review. That issue is moot. It relates only to petitioners' search and seizure contentions which have been presented to this Court and are decided herein.

II

The petition for certiorari also raised the following question:

Does the Maryland statute prohibiting the carrying of a handgun require knowledge of the presence of the handgun and if so, was the evidence sufficient to convict Petitioners of this charge?

(a) If the evidence relied on to prove that Petitioners were guilty of carrying a handgun is the actual robbery itself, then [537 A.2d 237] shouldn't the carrying conviction merge with the use of a handgun conviction?

We answer this question on both factual and legal grounds.

First, the Court of Special Appeals correctly pointed out that the proof of carrying a handgun related to the late afternoon of August 13 when each of the two petitioners separately held the same gym bag which contained a handgun. Therefore, no problem of merger is presented on these facts. Further, the intermediate appellate court reviewed the evidence, including that of Hall's participation in a robbery some seventeen hours earlier in which that same

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handgun had been used, and concluded that there was sufficient evidence of Hall's knowledge, even if knowledge is an element of the governing statute. We agree with the court's factual analysis.

Moreover, the governing statute, Md.Code (1957, 1982 Repl.Vol.), Art. 27, § 36B(b) provides:

Any person who shall wear, carry or transport any handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads ... shall be guilty of a misdemeanor; and it shall be a rebuttable presumption that the person is knowingly transporting the handgun.... (Emphasis added).

Hall contends that this statute requires knowledge to convict for either wearing or carrying a handgun.

The plain language of § 36B(b) creates strict liability for the wearing or carrying of a handgun about one's person. ¹ The scienter requirement applies only to vehicular transportation of a handgun and was inserted "so that a person who shows that he was not aware that his vehicle was transporting a handgun will not incur penalties." Shell v. State, 307 Md. 46, 69, 512 A.2d 358, 369 (1986). This interpretation is strengthened by the fact that the legislative bill by which § 36B(b) was proposed provided for strict liability without any knowledge requirement as to wearing, carrying and transporting. The "knowledge" requirement for transporting was inserted by amendment. See Acts of 1972, ch. 13. The addition of a scienter requirement specifically for vehicular transport underscores the corresponding omission of that requirement for wearing and carrying handguns.

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III

We turn then to the search and seizure issue and the facts out of which it arises. The record at the suppression hearing is the exclusive source of the facts for our review. See Trusty v. State, 308 Md. 658, 670-72, 521 A.2d 749, 754-56 (1987). Three Montgomery County police officers testified at that hearing, Detective Donald Deaton (Deaton), of the Germantown Investigative Section, and Sergeant John Straughan (Straughan) and Officer Leland Baughman (Baughman) from the Silver Spring Special Assignment Team (SAT). SAT is a unit of plainclothed officers who use unmarked vehicles. Exhibits introduced at the hearing included the written reports of Straughan and Baughman.

Deaton reported for duty at 7:00 a.m. on the 13th and was advised that a robbery and shooting had occurred around midnight at Corner Beer and Wine at 364 East Diamond Avenue in Gaithersburg, that the owner, Roland Ray (Ray), had been wounded and was in Suburban Hospital and that the police were looking for two black males. Deaton was given two photo arrays to show to the victim. Deaton saw Ray at around 11:40 a.m. shortly after Ray's surgery. Ray was under medication, dozing, and was unable to make any identification. It was not until August 24th, when Ray's condition had improved, that Deaton obtained a height and weight description [537 A.2d 238] from Ray but it related to only one of the robbers. ²

Sometime shortly before 3:40 p.m. on the 13th Detective Richard Stone (Stone) spoke on the telephone to an individual who had called into the Germantown District Station.

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That individual's identity was and has remained unknown to the police. The caller gave Stone information about the robbery which led Stone to telephone the Silver Spring District where he spoke to Straughan at about 3:40 p.m. According to Straughan's report, prepared after the arrest of petitioners, Stone had been told by the informant

that two subject, had bragged that they had done a Robbery in Gaithersburg at the Corner Beer and Wine where a subject had been shot.

The unknown subject stated that the two responsible would be a[t] the tennis courts behind 1014 Quebec [Terrace] with a small blue bag that would have a handgun, possible 45 calb.

The following are descriptions of the subjects that were involved given by the unknown subject.

1. DAVID LEE

....

6-0 150 lbs.

Lives at 1014 Quebec [Terrace]

Nickname Butter

Wearing blue sweat pants

White shirt, white Nike tennis

shoes.

# 2 Subject.

N/M 5'-10'

Wearing blue sweat pants

White shirt

White tennis shoes.

NICKNAME Bucky.

Lee was known to Straughan from a prior arrest and is a black person. According to the informant, Lee and Bucky would be at the courts to buy drugs.

After receiving the above information Straughan called in the other SAT units working that day, briefed them, and proceeded to Quebec Terrace in a caravan of three unmarked cars, each containing two officers. Straughan traveled

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with Baughman. They arrived at approximately 4:15 p.m.

The tennis courts at 1014 Quebec Terrace are located behind six or seven buildings which face on the street. Access to the rear is through a driveway which leads to an outdoor parking lot, tennis courts and at least one basketball court. One of the SAT cars parked at the far end of the line of buildings from the driveway. Straughan and Baughman drove to the parking lot at the other end of the buildings and parked alongside Piney Branch Road. The third SAT car remained somewhere between the other two cars, apparently on Quebec Terrace. Only Straughan and Baughman could observe the recreational area but they stayed in contact by radio with the officers in the other two cars. Quebec Terrace is an area where SAT units had responded previously to numerous calls for various crimes.

When Straughan and Baughman first observed the basketball court there were seven individuals shooting baskets and talking. Straughan recognized one of them to be Lee. A second individual in the group matched the physical description which had been given by the informant for Bucky. Both Lee and the second person, later identified to be Hall, were dressed exactly as the informant had described.

Straughan and Baughman parked 100 to 150 yards from the basketball court. Straughan got out of the car, raised the hood and pretended to work on the engine while intermittently observing the group on [537 A.2d 239] the court. Baughman remained in the front right seat of the car observing the group and operating the radio. Because Lee and Hall were reportedly armed, Straughan's plan was "to take the subjects down hard," but he delayed because neither he nor Baughman initially saw the blue gym bag which the informant had said contained a handgun.

After several minutes Straughan relayed a radio message through the Emergency Operations Center (EOC) to Stone in Germantown advising him of the situation. After several more minutes Technician Ann Lester of the EOC radioed to

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advise that someone calling himself...