Muir v. State

• Decision Date: 01 September 1985
• Docket Number: No. 124,124
• Citation: 64 Md.App. 648,498 A.2d 666
• Parties: Gary Michael MUIR v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 648

64 Md.App. 648

498 A.2d 666

Gary Michael MUIR v. STATE of Maryland.

No. 124, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Oct. 8, 1985.

Jonathan Scott Smith, Assigned Public Defender, Ellicott City (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty. for Prince George's County and William Shockley, Asst. State's Atty. for Prince George's County, Upper Marlboro, on brief), for appellee.

Argued before GILBERT, C.J., and WEANT and GARRITY, JJ.

GILBERT, C.J.

"Ambiguity in statutes may not be the parent of litigation, but it is certainly a kissing cousin." ¹

The late Judge John P. Moore, writing for this Court in Calhoun v. State, 46 Md.App. 478, 418 A.2d 1241 (1980), aff'd, 290 Md. 1, 425 A.2d 1361 (1981), characterized the "draftsmanship" of Md.Ann.Code art. 27, § 643B(c) as "patently inartful." "Any change," he wrote, "must be left to the legislature." Calhoun, 46 Md.App. at 490, 418 A.2d at 1249, aff'd 290 Md. 1, 425 A.2d 1361. That body heeded Judge Moore's implicit invitation, but it, nevertheless, failed to clarify completely § 643B(c). As a result, we are again called upon to clear away some of the mist surrounding that statute.

Before discussing the statute and the other issues raised in this appeal, we shall recount briefly the scenario out of which this matter arose.

The facts

The testimony reveals that Gary Michael Muir, without permission, entered the dwelling of another during the hours between midnight and sunrise. He apparently made his way to the bedroom of a young woman where he forcibly endeavored to have her perform fellatio upon his person. While he twisted her neck, gripped her mouth, and ordered her to obey his command or have her neck broken, she called out to her brother for assistance. The brother, asleep in the adjoining room, awakened and rushed to his sister's aid. He carried a bar from a weightlifting set, and he struck the intruder with it. A struggle ensued and as a result, the brother was hit on the chin with the bar. To close the laceration that occurred from that striking required "10 to 11" sutures. During the struggle between her brother and the intruder, the female victim ran up the stairs to the next floor where she awakened other members of the family. They quickly joined the fray and subdued Muir. He was held by the family until the police arrived and took custody of him.

Muir contended that he entered the house by mistake and that he believed, at the time, that the female victim was his wife.

A jury in the Circuit Court for Prince George's County patently disbelieved Muir and convicted him of a multitude of charges, scilicet: attempted first degree sexual offense; attempted second degree sexual offense; assault and battery on the female victim; burglary; assault with intent to disable; assault with intent to prevent lawful apprehension; assault and battery on the female victim's brother.

Muir was sentenced to life imprisonment on the first degree sexual offense. He also further received a series of concurrent sentences ranging from twenty to ten years.

In this Court he posits that:

1. The evidence was insufficient to prove common law burglary.

2. The evidence was insufficient to support a conviction of assault with intent to disable.

3. It was error to disallow as evidence Muir's out-of-court statement concerning his entering the wrong house.

4. Consideration at sentencing of Muir's court martial conviction for robbery was error because at the time of the robbery Muir was seventeen years of age and, under Maryland law, would have been under the exclusive jurisdiction of the juvenile court.

5. The trial judge erroneously concluded that he was statutorily required, in light of Muir's prior record, to impose upon Muir a life sentence, without the possibility of parole.

Sufficiency of evidence of breaking and entering in the nighttime

With regard to the burglary conviction, Muir asserts that the evidence was insufficient to show that the "breaking" into the victim's home occurred in "nighttime."

Common law burglary is the breaking and entering of the dwelling of another, during the nighttime, with the intent to commit a felony therein. R. Gilbert & C. Moylan, Maryland Criminal Law: Practice and Procedure § 11.0 (1983); Benton v. State, 8 Md.App. 388, 260 A.2d 86 (1969). In the context of burglary, "nighttime" is not rigidly defined.

"[I]f there be daylight or crepusculum enough, begun or left, to discern a man's face withal, it is no burglary. But this does not extend to moonlight."

4 W. Blackstone, Commentaries *224; Wiggins v. State, 4 Md.App. 95, 109-110 n. 9, 241 A.2d 424, 432 n. 9 (1968), cert. denied, 251 Md. 753 (1968). In sum, before an accused may be convicted of burglary, it must be shown that there was too little natural light to discern the countenance of a man or woman. Existence as to artificial light has no import. Wiggins, 4 Md.App. at 109 n. 9, 241 A.2d at 432 n. 9, cert. denied, 251 Md. 753.

Both the female victim and her brother testified that it was dark outside at the time of the incident. The testimony of the female victim was that "there was some light from the street light outside ... I couldn't see ... I couldn't see features or anything ... I just saw his body standing there." Her testimony was essentially uncontroverted, except for that of her younger brother who at the time of the incident was outside assembling newspapers for his route. When asked whether it was light or dark at the time of the occurrence, the young man stated that when he was summoned to the aid of his sister, it was getting lighter but that it was not quite daybreak. The witness did not, and probably could not, testify as to the degree of illumination at the time of the actual break-in of the dwelling.

The jury was free to accept that evidence which it believed and reject that which it did not. It was not required to believe the female victim's younger brother, or it could have believed him but decided that at the time of the breaking and entering it was not daylight. On the other hand, it could, and obviously did, accept the testimony of the female victim that when she awoke and found Muir in her bedroom, it was dark outside. That testimony in and of itself is sufficient to sustain the charge.

Sufficiency of evidence of assault with intent to disable

Muir next asserts that the evidence was insufficient to convict him of assault with intent to disable. That issue has not, however, been preserved for our review. Md.Rule 4-324(a). Lyles v. State, 63 Md.App. 376, 492 A.2d 959 (1985).

Rule 4-324(a) provides that a defendant may move for judgment of acquittal on one or more counts at the close of the evidence offered by the State, or in a jury trial at the close of all of the evidence. Unlike former Rule 756 a, the current Rule 4-324(a) provides that when a motion for judgment of acquittal is made, the defendant "shall state with particularity all reasons why the motion should be granted." This requirement is relatively new to Maryland practice. That it is new does not excuse noncompliance. The rules of procedure promulgated by the Court of Appeals are "precise rubrics ... to be read and followed." Brown v. Fraley, 222 Md. 480, 483, 161 A.2d 128, 130 (1960); see also Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md.App. 583, 374 A.2d 419 (1977).

At the close of the evidence, Muir's counsel said:

"[W]e would ... renew the motion for judgment of acquittal pursuant to Md.Rule 4-324 generally as to all counts, but paying specific attention to Count 6 ... which is burglary."

The previous motion that counsel sought to "renew" was, except for the word "renew," a "carbon copy" of the renewal. Neither motion, the original or the renewal, stated with "particularity all the reasons why the motions" should have been granted. Neither motion satisfies Rule 4-324.

Declaration against penal interest

At trial Muir proffered a statement he had made to a police officer following arrest. The transcript reads:

"[Muir] made an oral statement to Private Daniel P. Murphy. The defendant said he had been out drinking with a relative at a club in Riverdale. He said he didn't know the name of the club. He said he had been drinking beer and whiskey. He said he had mistakenly entered the victim's house and had been arrested by the police officer after being confronted by the family members. He said he had no recollection of how he entered the victim's house. He said he had no recollection of his activities prior to his arrest. The defendant said he remembered arriving home (referring to the victim's house), and that he had entered his bedroom (referring to the victim's bedroom). He said he asked the victim, who he believed to be his wife, to perform fellatio on him. When some inconsistencies in his story were pointed out to him, the defendant said he would not make any further statements and he demanded an attorney. The interview was then terminated."

The trial judge refused to permit the proffered statement into evidence. Muir now argues that the judge's denial of the proffer was error. We have an entirely different point of view.

As a general rule when a person makes an out-of-court declaration which is against his or her penal interest, that declaration, even though hearsay, is admissible into evidence as an exception to the hearsay rule if the person is unavailable for trial. Jacobs v. State, 45 Md.App. 634, 415 A.2d 590 (1980), cert. denied, 288 Md. 737 (1980). Muir's statement to Officer Murphy is not a declaration against Muir's penal interest. It, therefore, is not admissible under that exception to the hearsay rule.

A declaration against interest is an out-of-court statement of facts which are against the declarant's pecuniary, proprietary or penal interest. McCormick on Evidence, § 276 (3d ed. 1984)...