Wieland v. State, 1412

CourtCourt of Special Appeals of Maryland
Citation643 A.2d 446,101 Md.App. 1
Docket NumberNo. 1412,1412
PartiesWilliam Edward WIELAND, Jr. v. STATE of Maryland. ,
Decision Date01 September 1993

Page 1

101 Md.App. 1
643 A.2d 446
William Edward WIELAND, Jr.
STATE of Maryland.
No. 1412, Sept. Term, 1993.
Court of Special Appeals of Maryland.
June 28, 1994.

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[643 A.2d 447] Byron L. Warnken, argued (Warnken & Warnken, on the brief), Baltimore, for appellant.

Annabelle L. Lisic, Asst. Atty. Gen., Baltimore, argued (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Scott G. Patterson, State's Atty. for Talbot County, Easton, on the brief), for appellee.

Argued before MOYLAN, ALPERT and ROSS, JJ., and DAVID, J. (specially assigned).

MOYLAN, Judge.

The appellant, William Edward Wieland, Jr. (Billy Wieland), was convicted by a Talbot County jury of four assaultive offenses, consummated or inchoate, against his brother, Bryan Wieland. The four offenses were part of a single act that took place at approximately 3 A.M. on August 10, 1992, at Billy Wieland's own home on Glebe Road in Easton. Billy Wieland was convicted of 1) the battery of his brother, 2) the antecedent assault, 3) the reckless endangerment of "another person" who turned out to be his brother, and 4) the carrying of a handgun with the intent to injure his brother.

The appellant was also convicted by the same jury of three other offenses that occurred[643 A.2d 448] at about 2:30 A.M. that same morning at a nearby 7-Eleven Store in Easton. Those offenses consisted of 1) an assault on Mohammed Khawar Ullah, 2) the unlawful carrying of a handgun at the 7-Eleven, and 3) the unlawful transporting of a handgun between the 7-Eleven and the residence at Glebe Road.

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On this appeal, the appellant raises six contentions. They are:

1) that the trial judge erroneously declined to sever the trial of the Glebe Road offenses from the trial of the offenses committed at the 7-Eleven;

2) that the evidence was not legally sufficient to support the appellant's convictions for the four offenses committed at Glebe Road;

3) that the appellant was entitled to a judgment of acquittal on the charge of carrying a handgun at his Glebe Road residence because the provisions of Md.Ann.Code art. 27, § 36B(c)(4) explicitly exempt a homeowner, carrying a handgun in his own home, from the coverage of the criminal offense;

4) that the judge erroneously concluded that he was required to impose a mandatory five-year sentence for the violation of § 36B(b)(iv) and erroneously believed that he lacked the discretion to suspend the sentence;

5) that the trial judge committed plain error in failing to instruct the jury on the possible effect of voluntary intoxication with respect to two offenses that allegedly required specific intent; and

6) that the trial judge gave an inapplicable and, therefore, confusing instruction to the jury on the subject of transferred intent.

The Incident at the 7-Eleven

Mohammed Khawar Ullah (Khawar) was the victim of the first assault. At approximately 2:30 A.M., he drove to the 7-Eleven where he worked with his brother, Mohammed Amjad Ullah. As Khawar approached the store, he saw Billy Wieland's vehicle moving at a very high rate of speed and feared that it might hit his car. Billy pulled into the parking place next to Khawar and, as he exited his vehicle, his door hit Khawar's car. As Khawar entered the 7-Eleven, Billy was already inside, staring at him in an angry way. Khawar asked

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Billy if he was all right. Billy responded, "Yeah, I'm all right--are you all right?" Khawar answered that he was.

At that point, Billy walked backward out of the 7-Eleven, continuing to stare at Khawar. He then challenged Khawar to "come on out, you motherfucker; I've got something for you." Khawar opened the door to the 7-Eleven and told Billy to "go home." Billy then opened his jacket, revealing a gun in the waistband of his pants and saying, "Look, motherfucker, what I got." At that point, Billy got in his car, gunned the engine, sped through the parking lot, and drove away. Khawar stated that Billy appeared to be drunk.

Police were summoned to the scene and took statements from both Ullah brothers. While they were there, Bryan Wieland arrived. He talked briefly with the police and then said that he was going to his brother's house.

The Incident at Glebe Road

When Bryan Wieland arrived at his brother's house on Glebe Road, the front porch light was on but the lights inside the house were out. Bryan parked in the driveway and walked to the front door. Thinking Billy might be asleep, Bryan kicked the bottom of the front door four or five times, making a lot of noise in the process. When Billy did not answer, Bryan decided to go home. About halfway to his car, Bryan heard a noise inside the house. He walked back to the front door. As Bryan reached the front door, Billy opened it and the gun he was holding fired. Bryan was hit in the left shoulder.

Billy Wieland testified that he is an alcoholic and that on the day he shot his brother, he had been drinking heavily since approximately 2 P.M. He had purchased the handgun for protection of his business and for his own protection when he made night deposits. Billy remembered the trip to the 7-Eleven with the gun in his waistband, but he had no recollection of a confrontation with Khawar. After returning from the 7-Eleven, Billy either[643 A.2d 449] fell asleep or passed out on his bed. He was awakened by a loud noise. He testified that because of

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the hour and the nature of the loud noise, he removed his handgun from its holster and inserted a clip. He went down the hallway and peered around the corner to see who was at the door. He observed "an unknown person" leaving but then turning as if to return. He did not realize it was his brother at the door until he opened it.

Billy testified that as the door swung open, he took a step backward, tripped, and fell. He claimed that the discharge of the gun was completely accidental. When he gave a statement to Trooper John Bollinger, however, he made no mention of tripping and falling before the shot was fired.

In any event, he was shocked to discover that the person he had hit was his own brother. He rushed to his brother's assistance, grabbed him, and tried to comfort him. He called for emergency medical assistance and told a member of the ambulance crew that he had shot his brother accidentally. Bryan was evacuated by helicopter to the Shock Trauma Unit in Baltimore. The police who arrived at the scene detected a strong odor of alcohol on Billy's breath and observed that he was noticeably slurring his words.

The Severance Issue

As his trial approached, the appellant was facing a single consolidated criminal information containing eleven counts. The last three of those counts involved the earlier incident at the 7-Eleven. The first eight of those counts involved the later incident at Glebe Road. By virtue of the appellant's motions for judgment of acquittal being granted with respect to two of the Glebe Road counts and nol prosses being entered by the State with respect to two other of the Glebe Road counts, the Glebe Road package of charges for purposes of present analysis is reduced to four offenses.

The three crimes charged as having occurred at the 7-Eleven were 1) the assault (of the attempt to frighten variety, not of the attempted battery variety) against Mohammed Khawar Ullah, 2) the carrying of a handgun at the 7-Eleven in

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contravention of § 36B, and 3) the largely overlapping carrying of a handgun between the 7-Eleven and Glebe Road.

The episode at Glebe Road gave rise to four charges that resulted in guilty verdicts. They were 1) the carrying of a handgun on the Glebe Road premises in alleged violation of § 36B, 2) the battery of Bryan Wieland at Glebe Road, 3) the antecedent assault on Bryan Wieland which merged into the consummated battery, and 4) the reckless endangerment of "another person" (who turned out to be Bryan Wieland), which also merged into the consummated battery, the harm that had been recklessly risked.

The appellant timely moved to have the two sets of charges severed for trial purposes. He relied on Md.Rule 4-253, dealing with "Joint or Separate Trials." Subsection (a) deals with the joinder for trial of two or more defendants and subsection (b) deals with the joinder for trial of two or more charging documents. It is subsection (c) that deals with the severing of charges and/or defendants who had been previously joined for trial where it appears that prejudice might result from the joint trial. Subsection (c) provides:

Prejudicial Joinder.--If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires.

The trial judge denied the motion, relying largely on Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980). We hold that, in the circumstances of this case, the denial of the request for trial severance was in error.

1. Severance and Joinder: Two Views of the Same Phenomenon

As we survey briefly the controlling case law, we note that the cases assume two different procedural postures. Some deal with the opposition to an effort to join charges or defendants that have theretofore been separate. Others deal

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with the effort to sever [643 A.2d 450] charges or defendants that have theretofore been joined. It is a distinction without a difference. One is simply the procedural converse of the other. The defendant (or the State) either wants to get loose or to stay loose. Whether a party is 1) resisting a proposed joinder or 2) seeking to extricate himself from an already existing joinder, the same principles of law control. As we observed in Hutchinson v. State, 41 Md.App. 569, 572, 398 A.2d 451 (1979), aff'd, 287 Md. 198, 411 A.2d 1035 (1980).

While the question generally arises in the context of a request by a defendant for a severance, the same principles...

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