Mack v. State
Decision Date | 01 September 1983 |
Docket Number | No. 40,40 |
Citation | 479 A.2d 1344,300 Md. 583 |
Parties | Verina Lee MACK v. STATE of Maryland. , |
Court | Maryland Court of Appeals |
Gary S. Offutt, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.
Richard B. Rosenblatt, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore), for appellee.
Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODWOSKY and COUCH, JJ.
The primary question presented in this case is whether under Maryland Rule 4-325(c) a trial court in a criminal case must, if requested by the accused, instruct a jury that an accused cannot be found guilty of use of a handgun in the commission of a crime of violence under Maryland Code (1957, 1982 Repl.Vol., 1983 Cum.Supp.), Art. 27, § 36B(d) if found not guilty of a crime of violence as defined in Maryland Code (1957, 1982 Repl.Vol., 1983 Cum.Supp.), Art. 27, § 441(e).
Maryland Rule 4-325(c) 1 provides in pertinent part:
(Emphasis added).
Article 27, § 36B(d) 2 provides in pertinent part:
"Any person who shall use a handgun ... in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor...." (Emphasis added).
Article 27, § 441(e) 3 provides in pertinent part:
"The term 'crime of violence' means ... assault with intent to commit any ... offense punishable by imprisonment for more than one year." (Emphasis in original).
On 29 July 1981, the petitioner, Verina Lee Mack, was charged in a multicount indictment with 1) assault with intent to murder; 2) assault with intent to maim; 3) assault and battery; 4) carrying a handgun; and 5) use of a handgun in the commission of a crime of violence (use of a handgun). During a jury trial held in the Circuit Court for Prince George's County, the petitioner conceded that he had shot and injured the victim. The petitioner contended, however, that the shooting occurred in self-defense.
At the conclusion of the trial, the trial court instructed the jury in pertinent part as follows:
* * *
[W]e also have the final count, which is the use of a handgun in the commission of a crime of violence.
* * *
[W]here you find there has been a commission of a crime of violence, assault with intent to murder and assault with intent to maim are crimes of violence, in fact.
Thereafter, the following colloquy took place at the bench:
On 28 January 1982, the jury found the petitioner guilty of assault and battery and carrying a handgun, neither of which is a crime of violence as defined in Art. 27, § 441(e). The jury found the petitioner not guilty of assault with intent to murder and assault with intent to maim, both of which are crimes of violence as defined in Art. 27, § 441(e). Notwithstanding those verdicts, the jury found the petitioner guilty of use of a handgun.
Subsequently, the petitioner filed a motion for a new trial. At a hearing on that motion, the following colloquy took place:
* * *
(Emphasis added).
On 10 March 1982, the petitioner was sentenced to a term of seven years for assault and battery; a concurrent term of 30 days for carrying a handgun; and a concurrent term of five years for use of a handgun.
The petitioner appealed to the Court of Special Appeals. In an unreported per curiam opinion, that Court affirmed the judgments of the trial court. Mack v. State, No. 535, September Term, 1982, filed 10 February 1983. The petitioner filed a petition for a writ of certiorari that we granted. We shall affirm the judgments of the Court of Special Appeals.
This Court has consistently held that the requirements of Md.Rule 757 b (now Md.Rule 4-325(c)) are mandatory and that under that Rule a trial judge must give a requested instruction that correctly states the applicable law and that has not been fairly covered in instructions actually given. Indeed, the failure to give such an instruction constitutes error. Lansdowne v. State, 287 Md. 232, 239, 412 A.2d 88, 91 (1980).
Here, the petitioner requested an instruction that "if the defendant is found [not] guilty of assault with intent to murder or maim, then he cannot be found guilty of the use of a handgun in the commission of a violent crime." 4 In deciding whether the trial court was required to give such an instruction, we must determine whether the requested instruction constitutes a correct statement of the law; whether it is applicable under the facts and circumstances of this case; and whether it has been fairly covered in the instructions actually given.
This Court's decision in Ford v. State, 274 Md. 546, 337 A.2d 81 (1975), establishes that the requested instruction constitutes a correct statement of the law. In Ford, the accused was charged in a multicount indictment with, insofar as here relevant, 1) robbery with a dangerous and deadly weapon; 2) robbery; and 3) use of a handgun. The jury found the accused not guilty of robbery with a dangerous and deadly weapon, and robbery, both crimes of violence as defined in Art. 27, § 441(e). Notwithstanding these verdicts, the jury found the accused guilty of use of a handgun.
In Ford, this Court considered the question whether the conviction of use of a handgun should be reversed because it was inconsistent with the jury's finding that the accused was not guilty of committing a crime of violence. 5 In resolving this question, the Court initially examined the relationship between the commission of a crime of violence and use of a handgun during the commission of that crime. There, Judge Digges,...
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