Polk v. State

• Decision Date: 03 December 2008
• Docket Number: No. 1985, September Term, 2007.,1985, September Term, 2007.
• Citation: 183 Md. App. 299,961 A.2d 603
• Parties: Matthew POLK v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

961 A.2d 603

183 Md. App. 299

Matthew POLK v. STATE of Maryland.

No. 1985, September Term, 2007.

Court of Special Appeals of Maryland.

December 3, 2008.

Brian M. Saccenti (Nancy S. Forster, Public Defender, on brief), Baltimore, MD, for Appellant.

Michelle W. Cole (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: HOLLANDER, CHARLES E., MOYLAN, JR. (retired, specially assigned) and RAYMOND G., THIEME, JR. (retired, specially assigned), JJ.

CHARLES E., MOYLAN, JR., Judge (retired, specially assigned).

Sailing Close to the Wind

Entrusting the legal sufficiency of the State's evidence to a sometimes hastily composed statement of facts can turn out to be a case of the State's sailing dangerously close to the wind. It can be done, but it should be done with great care. This appeal well illustrates the dangers. A generous plea bargain was offered in exchange for, not a guilty plea on the part of the defendant but, an agreement to submit the case to the trial judge on an agreed statement of facts. Ironically, what frequently appears to be an almost total "cave in" on the part of a defendant may sometimes, as in this case, turn out to be a risky gamble for the prosecutor to take. The danger is that the mood and tenor of the proceedings give every appearance that the defendant is content to accept the lesser penalty agreed upon and is uninclined to protest in any way about anything. That easy-going geniality may insidiously lull the prosecution into letting down its guard and becoming less than vigilant in its composition of the statement of facts. Preparing such a statement can be a tricky exercise and should never be approached casually. If the trap is then sprung, a charge perhaps that the statement of facts failed to establish some particular element of the crime, it may already be too late for the prosecution to react.

The Present Case

In a non-jury trial in the Circuit Court for Baltimore City, the appellant, Matthew Polk, was convicted, on the basis of an agreed statement of facts,¹ of wearing and carrying a concealed dangerous weapon in contravention of Maryland Code, Criminal Law Article, § 4-101(c)(1), which provides:

A person may not wear or carry a dangerous weapon of any kind concealed on or about the person.

(Emphasis supplied).

On this appeal, the appellant raises the single contention that the State's evidence, as reflected by the statement of facts, was not legally sufficient to support the conviction. The appellant does not argue that he was not carrying a dangerous weapon. He argues strenuously, however, that the weapon he was carrying was not concealed. Concealment is our only concern.

In this case, both the State and the trial judge had reached an agreement with the appellant that he would receive a suspended sentence of 18 months with 18 months of probation if he waived his right to a full confrontational trial. Instead of entering a guilty plea for his part of the bargain, however, the appellant agreed to submit the case to the judge on a statement of facts.²

Immediately following the denial of the appellant's motion in limine, the stage was set for submitting on the statement of facts.

THE COURT: So the Motion in Limine is denied.

Do you want to go for the miscellaneous agreement where you get to reserve that point for appeal, yet you still get the 18 months suspended, 18 months probation?

MS. COHEN [DEFENSE COUNSEL]: Sure, Your Honor.

THE COURT: Have your client waive jury and confrontation, although he's had pretty much confrontation anyhow.

MS. COHEN: Okay. So advise him just of his right to a jury trial that is a —

THE COURT: And any extra confrontation beyond what he's already had.

MS. COHEN: Okay.

You understand by proceeding this way, you're giving up your right to having a jury trial and that means the State's gonna read into the record the Statement of Probable Cause. The judge is gonna find you guilty simply based on that. You're not gonna confront any of the State's witnesses. You're not gonna put on your own defense, testify or remain silent, and you're not gonna compel any of your witnesses to come to court. Do you understand that?

(Emphasis supplied). The appellant indicated that he did "understand that." In any event, he makes no contention now that he did not.

The Four Corners of the State's Case

In advising the appellant as to how the trial would proceed, defense counsel referred to the anticipated statement of facts as a case of "read[ing] into the record the Statement of Probable Cause." The trial judge instructed the prosecutor to "put on the State's case in chief as though it was unobjected to." In any event, the prosecutor then recited as follows:

State's statement of facts is as follows for Mr. Matthew Polk, 807283005, that on September 6th, 2007 at 10:50 in the morning, Officers Schneider and Moro of the Central District Baltimore City Police Department were in the 800 block of Lennox. Officers observed a car parked with an altered temp tag. The car drove off. Officers followed, observed the front passenger not wearing his seatbelt.

A car stop was effected. Rear passenger was seen moving around in the backseat. He was asked to raise his hands for officer safety. The Defendant, Mr. Polk, to my left with counsel, the driver of the car, became argumentative and loud. Officer Moro was by the passenger side. He observed a five-inch brown fixed blade bowie knife in a sheath wedged near the dash. Defendant claimed he had the knife because he hunted. Defendant did not have a registration on the car, nor could produce his license. All events occurred in Baltimore City, State of Maryland.

If called to testify, Officers Schneider and Moro would identify Mr. Polk, the Defendant, as the driver of the car that day. That is the State's case.

(Emphasis supplied).

Following that statement, the State rested. The appellant immediately moved for a judgment of acquittal based on the same argument he had earlier made in support of his motion in limine.³ That argument was that the State's evidence did not adequately establish that the knife in question was, indeed, concealed. The trial judge denied the motion for the same reasons he had earlier denied the motion in limine.

THE COURT: All right. You're moving for judgment of acquittal based on your Motion in Limine, which is essentially the officer can't call it concealed if you can see it.

MS. COHEN: Yes.

THE COURT: And for the same reason I overruled your Motion in Limine, I'm going to deny the Motion for Judgment of Acquittal.

MS. COHEN: Thank you.

The appellant was then advised by his lawyer of his right to remain silent and of his right to testify. He chose the former and the defense rested. The motion for a judgment of acquittal was immediately renewed with the same result.

THE COURT: All right. You renew your motion on the same grounds?

MS. COHEN: Oh. yeah.

THE COURT: I'll deny it. Do you want to be heard on any other issue but that the officer should not have been able to call that a concealed weapon on the merits?

MS. COHEN: I will just incorporate my argument.

THE COURT: All right. I find beyond a reasonable doubt that the effort to conceal was the dominant theme, and even though there was no movement of persons, that there was sufficient description of the officer of what a concealed weapon could be, could look like and could be discerned, and that when the officer saw the handle because of his experience as a police officer, because of his heightened perception not to get hurt by anything that might be a weapon—you know, they always say I'd rather have 12 judging me than six carrying me—that it does not mean that in the ordinary pattern of life, that anybody but either a police officer or somebody very paranoid would view that phenomenon as a weapon.

So therefore, it was sufficiently disguised as to fit the rubric of concealed, and I find beyond a reasonable doubt the Defendant guilty of violating, is it 4-101

MR. BJORKLUND: Yes.

THE COURT: — of the Criminal Article, carrying a concealed deadly weapon.

(Emphasis supplied).

Standard of Appellate Review

Preliminarily, a word is in order about the scope of our appellate review. An assessment of the legal sufficiency of the evidence is not an evidentiary issue but a substantive issue, with respect to which an appellate court makes its own independent judgment, as a matter of law. This is an area wherein the reviewing court is not at all deferential to the trial court. It makes the same determination on the same basis as does the trial court. In assessing legal sufficiency, we will look only at that which was formally received in evidence. In this case, our evidentiary universe is strictly circumscribed within the four corners of the agreed statement of facts.

Judicial Role Shifting

It is difficult for a layman to wrap his mind around the notion that "I may know something for certain purposes, but I don't know it for other purposes." For judges, however, such compartmentalizing is Mother's milk. The trial judge in this case had heard, to be sure, some testimony bearing on the same subject at the hearing on the pretrial motion in limine. In a non-jury case, however, a trial judge sits in two very different capacities. He is ultimately, of course, the fact finder, replacing the jury in that role. He is also, however, the legal referee, sometimes determining what he is permitted to consider as a fact finder and what he is not permitted to consider. State v. Hutchinson, 260 Md. 227, 236, 271 A.2d 641 (1970). In assessing legal sufficiency, we measure not everything the judge has heard but only those things that the judge has heard in his capacity as fact finder. Even there, we must calibrate more finely. We measure not everything that the judge 1) would have been permitted to hear as a fact finder and 2) may actually have heard as a legal referee, but only those things that the judge actually heard or had...