Purnell v. State

• Citation: 827 A.2d 68,375 Md. 678
• Decision Date: 18 June 2003
• Docket Number: No. 46,46
• Parties: Charles PURNELL v. STATE of Maryland.
• Court: Court of Appeals of Maryland

827 A.2d 68

375 Md. 678

Charles PURNELL v. STATE of Maryland.

No. 46, Sept. Term, 2000.

Court of Appeals of Maryland.

June 18, 2003.

Margaret L. Lanier, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for Petitioner.

Steven L. Holcomb, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and LAWRENCE F. RODOWSKY (Retired, specially assigned), JJ.

BELL, C.J.

The sole issue presented by this appeal is whether the appropriate unit of prosecution for the common law crime of resisting arrest is determined by the number of police officers a criminal defendant resists during an arrest or, more simply, by the arrest itself.¹

During one episode of attempting to elude police custody, Charles Purnell, the petitioner, was charged with two counts of resisting arrest: one count for each of the two officers attempting to arrest him. The petitioner was also charged, inter alia, with two counts of second degree assault,² again one count for each police officer. Following a bench trial, the Circuit Court for Baltimore City convicted the petitioner of both counts of resisting arrest and both counts of assault and, subsequently, imposed, as to each conviction, a ten-year term of incarceration, with all but two years suspended, to be served concurrently. In an unreported opinion, the Court of Special Appeals affirmed those judgments. This Court granted the petitioner's Petition for Writ of Certiorari. Purnell v. State, 359 Md. 668, 755 A.2d 1139 (2000). Because we conclude that it is inappropriate to determine the unit of prosecution for the crime of resisting arrest by reference to the number of law enforcement officers resisted, or by the number of officers put at risk by the resistance, we shall reverse the judgment of the intermediate appellate court and order that one of the petitioner's convictions for resisting arrest be vacated.

I.

Although not married, the petitioner had a long term relationship with Ms. Terry Washington, the mother of the petitioner's four children. Despite not having shared a domicile with Ms. Washington for more than two years, the petitioner paid the mortgage on the home that she and the children shared, as well as the gas and electric bills. This case arose out of events occurring on August 12, 1998. As to those events, the petitioner and Ms. Washington tell widely differing stories. Because the court acquitted the petitioner of all of the charges related to Ms. Washington,³ we shall rely on the petitioner's version of the events leading up to his arrest for assault and resisting arrest.

In the late afternoon of August 12, 1998, the petitioner drove to Ms. Washington's place of employment in Baltimore City, arriving as she was leaving work for the day. According to the petitioner, he did so in response to a page from Ms. Washington, in which she used a code that they had devised, indicating that Ms. Washington needed the petitioner to give her a ride home.⁴ He said that he informed his co-workers that he was leaving work to pick up Ms. Washington and that he would return later. The petitioner testified that, while he was taking Ms. Washington home, they had an argument about Ms. Washington's relationship with one of her co-workers. During the argument, Ms. Washington informed the petitioner that she was having pains in her chest and that he should take her to the emergency room, whereupon he drove her to the emergency room of the University of Maryland Hospital.

At the hospital, Ms. Washington, unaccompanied, checked in with the triage nurse while the petitioner searched for a parking spot. Telling the nurse that she was the victim of domestic violence and that the perpetrator would be sitting in the waiting room, Ms. Washington asked the nurse to call the police. After Ms. Washington had returned to her seat in the waiting room and while sitting next to the petitioner, Officer Wayne Early, who was responding to a call for a "problem" at the University of Maryland Hospital emergency room, arrived. A member of the hospital staff pointed out Ms. Washington and she stood up and identified herself, saying, "[i]t was me." When Officer Early asked the petitioner for identification, the petitioner stood up and handed him his driver's license, thus complying. He refused Officer Early's request to sit down, prompted by Officer Early's perception that the petitioner was getting "fidgety" and concern "for [his] safety," however, and, after the second request, the petitioner pushed Officer Early into a wall and ran toward the hospital door, where he was met by Officer John Vogelpohl, a University of Maryland campus police officer. The petitioner and Officer Vogelpohl "went to the ground" as the petitioner attempted to flee from the emergency room waiting area. When he fled, the petitioner had not been placed under arrest or told that he was.

The petitioner managed to get out of the hospital with a "fifteen yard head start," but with the two officers in pursuit. As a result of the confrontation with, or chase of, the petitioner, Officer Early suffered a pulled muscle in his leg and Officer Vogelpohl suffered a cut on his right forearm. Having been directed there by by-standers, the officers found the petitioner in a parking lot, hiding under a pick-up truck. Concerned that the petitioner may have been armed, the officers drew their weapons and ordered the petitioner to "come out." Although he did not do so initially, after "a few commands" and with the aid of Baltimore City police officers, the petitioner did come from under the truck.

After the petitioner emerged from under the truck, the officers attempted to place the petitioner under arrest, directing him "several times ... to place his hands behind his back." The petitioner resisted their attempts to handcuff him, by "attempt[ing] to push up," which then required the officers to push "him back down to actually get him handcuffed."

The petitioner was charged, with regard to Ms. Washington, with false imprisonment, assault and stalking. He also was charged with two counts each of assault and resisting arrest, one count of each for Officer Early and Officer Vogelpohl. After a bench trial, the petitioner was acquitted of the charges relating to Ms. Washington, but convicted of all of the charges relating to the police officers. The trial court's findings of fact supporting the guilty verdicts were summarized as follows:

"[C]ount one, resisting arrest [to Officer Early], I find that there was resisting arrest, but not at the hospital, but at the parking lot. This was a warrantless arrest and, therefore, I find the defendant guilty beyond a reasonable doubt where the evidence indicated he certainly knew that the police officers intended to place him under arrest when he was in the parking lot and under the car and that there was a scuffle whereby he clearly resisted arrest.

* * * *

"In respect to case number XXXXXXXXX, the events regarding Officer John Vogelpohl, I find in respect to count one that there was a resisting arrest. I find that beyond a reasonable doubt and these, again, are events at the parking lot and not the hospital."

The petitioner unsuccessfully appealed his conviction as to Officer Vogelpohl to the Court of Special Appeals. On his direct appeal to that court, the petitioner's argued, inter alia, that his conviction for resisting arrest relating to Officer Vogelpohl was invalid, as a matter of law, because it was part of the same arrest being effected by Officer Early, the conviction relating to whom he did not contest. The Court of Special Appeals, rejecting the petitioner's arguments, affirmed both of the judgments. The court expressly disagreed with the petitioner's contention that he "resisted with one act on one occasion." The intermediate appellate court explained:

"[t]he trial court could have found two separate acts of resisting arrest: (1) appellant's refusal to emerge from under the vehicle when ordered to do so at gunpoint by [Officer] Vogelpohl, and (2) appellant's attempts to `push up' while [Officer] Early and other officers tried to handcuff him, necessitating that officers `push him back down to actually get him handcuffed.'"

In support of his appeal to this Court, the petitioner argues that his second conviction for resisting arrest cannot, as a matter of law, be upheld because the principal act involved in the wrongful conduct—resisting—was the same act that formed the basis of his first conviction for the same offense. Put another way, the petitioner argues that the appropriate unit of prosecution for the resistance to one lawful arrest is determined by the arrest itself and that he cannot be convicted twice for the same crime. Petitioner specifically draws this Court's attention to the factual findings of the trial court that both convictions for resisting arrest were based upon his act or acts of resistance in the parking lot where he was ultimately apprehended, and exclusive of any conduct that took place in the hospital. The petitioner's argument, in substance, is a double jeopardy challenge to the prosecutor's decision to charge him with two counts of resisting arrest from purportedly a single event.⁵

In rebuttal, the State notes that "in most unit of prosecution cases involving statutory offenses, this Court has repeatedly stated that the critical inquiry is one of legislative intent." (Respondent's Brief at 14) (citing Huffman v. State, 356 Md. 622, 627, 741 A.2d 1088, 1091 (1999)

; Randall Book Corp. v. State, 316 Md. 315, 324, 558 A.2d 715, 720 (1989); Brown v. State, 311 Md. 426, 434, 535 A.2d 485, 489 (1988)). The State, however, attempts to persuade this Court that, absent statutory guidance, an historical review of certain authoritative writings on the common law of England, and in particular the crime of resisting arrest, instructs that...