Mack v. State

Decision Date01 September 1983
Docket NumberNo. 40,40
Citation479 A.2d 1344,300 Md. 583
PartiesVerina Lee MACK v. STATE of Maryland. ,
CourtMaryland 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.

DAVIDSON, Judge.

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:

"The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.... The court need not grant a requested instruction if the matter is fairly covered by instructions actually given." (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:

"The State has to prove each and every element of each and every crime with which the defendant is charged. Now, in this case we have five counts.... [T]he lead count is assault with intent to murder, and others are related counts. This is what we call a multiple count indictment. There are five counts you will be deliberating about and you're to consider each one of these counts separate and distinct from the others. In other words, you make up your mind on one count, then forget about what your judgment was and move on to the next count. So that you're not being influenced by your own decision. You're giving consideration on each separate count as if you were deciding that count alone.

"Later on I'm going to give you legal definitions of the particular crimes....

"And when I give you the legal definitions, I will tell you that is binding on you. You have to apply the law to the case as I give you the law with respect to the definitions of the law.

* * *

"Once you have determined what happened in the case, then you apply the law as I define the law....

* * *

[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.

"Assault and battery does not fall within that definition, so your first two counts, assault with intent to murder, assault with intent to maim are crimes of violence. Assault and battery is not considered a crime of violence.

"Now, did the defendant use a handgun in the commission of a crime of violence? Because the mere use of a handgun where there are one of those violence crimes is in and of itself a separate and distinct crime." (Emphasis added).

Thereafter, the following colloquy took place at the bench:

"MR. PARKER [Defense Counsel]: I ask the Judge to instruct 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. I don't believe that is quite clear. I think that's important.

"MS. LIEBERMAN [State's Attorney]: I don't think you can do that, Your Honor.

"THE COURT: You have all of the counts listed. They give a verdict on all counts or how about the incident involving the guy? Is that assault and battery?

"MR. PARKER: Assault and battery does not constitute a violent crime.

"THE COURT: I told them that.

"MR. PARKER: I just think--one way they can find assault, I mean with the use of a handgun in the commission of a violent crime is if they find count one or two.

"THE COURT: I instructed them. I made that very clear to them.

"MR. PARKER: Very well, Your Honor. I just ask that you specify it as I've asked.

"THE COURT: I think I have." (Emphasis added).

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:

"MR. PARKER: ... I asked that you reinstruct as to, if the defendant was found not guilty of count 1 and count 2, that, in fact, he could not be found guilty of count 5. ... I believe, had that instruction been given, that my client would not be facing the mandatory sentence he is facing today, which is the 5 years for the use of a handgun in the commission of a crime of violence, and for that reason, I would ask that you grant us a new trial ... on the count, which is count 5, as to the use of a handgun in the commission of a crime of violence, I believe if the motion for new trial on that particular count were granted, that justice would be done, and that a reasonable sentence, if any, or a suspended sentence with probation could be given as to the other two charges....

* * *

"THE COURT: ... With respect to the last argument in your motion for a new trial, the legislature has seen fit to make an independent and separate crime out of use of a handgun in the commission of a crime of violence. As I understand your argument, if the jury found him not guilty on the crimes of violence, how could they find him guilty on use of a handgun in a crime of violence. This has happened before. It is, in all probability, a compromise verdict, and you and Ms. Lieberman and me, none of us know what went on in that jury room, in the deliberations of the jury. There have been a number of cases that have upheld a conviction on use of a handgun in a crime of violence where the crime of violence, itself, there has been an acquittal. They have indicated it is a separate and distinct crime...." (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.

I

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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