Wynn v. State, 205

• Decision Date: 01 September 1986
• Docket Number: No. 205,205
• Parties: James Othel WYNN v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 536

69 Md.App. 536

518 A.2d 1072

James Othel WYNN v. STATE of Maryland.

No. 205, Sept. Term, 1986.

Court of Special Appeals of Maryland.

Jan. 7, 1987.

Greta C. Van Susteren, Washington, D.C. (Alan H. Murrell, Public Defender, Baltimore, and Ilene Cohen, Assigned Public Defender, Annapolis, on the brief), for appellant.

Ronald M. Levitan, Asst. Atty. Gen. (Stephen H. Sachs, Atty.Gen., Baltimore, Andrew L. Sonner, State's Atty. for

Montgomery County and Jack Hanly, Asst. State's Atty. for Montgomery County, Rockville, on the brief), for appellee.

Submitted before ALPERT, ROSALYN B. BELL and ROBERT M. BELL, JJ.

ALPERT, Judge.

During the last three months of 1984, some thirty-five to forty burglaries were committed on Friday and Saturday nights in the area surrounding the Fort Sumner subdivision in Montgomery County. On at least six occasions, a black male was seen at or near the scene of the crime. On one occasion, a man acting suspiciously was seen wearing a brown shoulder bag. In response to the rash of burglaries, a Special Assignment Team of eighteen plainclothes police officers in unmarked vehicles was assigned to surveillance duties in the area on the night of Saturday, January 12, 1985.

At approximately 8:30, one of the officers saw a black male wearing a red and white knit cap, a dark coat, and loose fitting jeans, carrying a brown leather shoulder bag. The officer radioed the description and location of the man to the other members of the Team, who converged on the surrounding five or six block area.

Two members of the Team, Officers Robert C. Tompkins and Frank Mathis, were working together in a dark blue van. After driving around the area without seeing the man described in the radio transmission, they parked the van and waited. After three or four minutes, they saw a man emerge from the shadows between two houses and begin to walk in the direction of the van. When the man became visible in the street light, Officer Tompkins said, "That is the man. That's him. Let's get him." The officers got out of the van and began to approach the man. When the man saw them, he changed the direction of his travel. Officer Tompkins called out, "Halt. Police." The man faced the officer, lifted the right side of his waist-length jacket and appeared (to the officer) to draw a handgun from a light brown holster. Tompkins drew his gun and fired three shots. One of these shots struck the man.

The man yelled, turned, and ran around the side of a house. After a foot chase through several yards, the police found the man lying next to a sandbox near a large hedgerow of big evergreens and a fence. The man was arrested and handcuffed. He was later identified as appellant James Othel Wynn.

The police found an empty light brown holster on an ammo belt and a light brown glove lying on the ground near appellant. The ammo belt contained .38 caliber cartridges. At various points along the trail of the chase, aided by footprints in the snow that had fallen the previous day, the police recovered a loaded .38 caliber Colt revolver, a red and white knit cap, and a brown leather shoulder bag. The bag contained a small flashlight, a small chrome pry bar, a quantity of jewelry, and a .22 caliber Baretta pistol.

At approximately one o'clock the following morning, Mr. and Mrs. Hans Prauser, residents of the Fort Sumner subdivision, reported a burglary of their home during the prior evening at police headquarters. They identified the jewelry and Baretta pistol found in appellant's bag as having been taken from their home.

Appellant was charged with housebreaking, theft, use of a handgun in the commission of a crime of violence (housebreaking), assault with intent to murder, assault with intent to prevent apprehension, use of a handgun in the commission of a felony (assault with intent to prevent apprehension), simple assault, and two counts of carrying handguns. He was tried by a jury in the Circuit Court for Montgomery County (Cave, J.).

At the end of the State's case, a judgment of acquittal was entered on the charge of assault with intent to murder. The jury acquitted appellant of assault with intent to prevent apprehension and use of a handgun in the commission of that offense. They convicted him of housebreaking, theft, use of a handgun in the commission of a crime of violence (housebreaking), assault, and both counts of carrying handguns.

The court imposed concurrent sentences of ten years for housebreaking, eight years for theft, four years for assault, and two years for one count of carrying a handgun. The other carrying count was merged into the use of handgun charge. The court imposed a consecutive sentence of fifteen years (ten years suspended) for use of a handgun in the commission of a crime of violence. The appellant presents four issues on appeal from those judgments. He contends that:

1. Evidence obtained via an arrest made without probable cause should have been suppressed;

2. Deadly force was used unlawfully to accomplish appellant's arrest;

3. The evidence was insufficient to sustain the convictions for housebreaking and theft; and

4. The evidence was insufficient to sustain the conviction for use of a handgun in the commission of a crime of violence (housebreaking).

I.

Appellant contends that he was arrested without probable cause and that the items of physical evidence obtained by the police were seized as a result of that arrest. He asserts that that evidence should have been suppressed. He argues:

It is without question that Officer Tompkins had every right to accost Appellant and to request identification and an explanation of his activities. Foster v. State, 272 Md. 273 (1974). But an officer who initiates an arrest must have more; he must have probable cause to believe that a crime has been or is about to be committed, and that the suspect is involved in the crime. Randolph v. State, 1 Md.App. 441 (1967).

The linchpin of the appellant's argument is that he was "arrested" when Officer Tompkins formulated the subjective intent to do so and announced that he was a policeman. We disagree.

As the Court of Appeals pointed out in Little v. State, 300 Md. 485, 509-10, 479 A.2d 903 (1984):

We have defined an arrest in general terms as the detention of a known or suspected offender for the purpose of prosecuting him for a crime. Bouldin v. State, 276 Md. 511, 516, 350 A.2d 130 (1976); Cornish v. State, 215 Md. 64, 137 A.2d 170 (1957). An arrest is effected (1) when the arrestee is physically restrained or (2) when the arrestee is told of the arrest and submits. Bouldin, supra, 276 Md. at 516, 350 A.2d 130. In sum "an arrest is the taking, seizing or detaining of the person of another, inter alia, by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest." Morton v. State, 284 Md. 526, 530, 397 A.2d 1385 (1979). When a person is merely approached by an officer and questioned briefly about his identity, however, there is no formal arrest under Maryland common law. Foster and Forster v. State, 272 Md. 273, 323 A.2d 419 (1974), cert. denied, 419 U.S. 1036, 95 S.Ct. 520, 42 L.Ed.2d 311 (1974); Duffy v. State, 243 Md. 425, 221 A.2d 653 (1966); Shipley v. State, 243 Md. 262, 220 A.2d 585 (1966); Jones v. State, 242 Md. 95, 218 A.2d 7 (1966); Cornish, supra; E. Fisher, Laws of Arrest § 37 at 76-77 (1967).

When Officer Tompkins shouted, "Halt. Police," appellant was not physically restrained, nor did he submit to custody. To the contrary, at that point Wynn sprang into a shortlived flight to freedom. The arrest in the instant case occurred after the chase, not before it. Even if we assume that no probable cause to arrest appellant existed at the time he was accosted, it clearly existed at the time he was apprehended. Furthermore, in our view, the physical evidence obtained by the police was not seized as a result of the arrest; it was abandoned by the appellant during the chase. See Morton v. State, 284 Md. 526, 531, 397 A.2d 1385 (1979) and Jackson v. State, 52 Md.App. 327 334, 449 A.2d 438, cert. denied, 294 Md. 652 (1982). The trial court did not err in refusing to suppress the evidence.

II.

Appellant next contends that "[b]ecause Officer Tompkins did not have adequate probable cause to believe that appellant posed a threat of serious physical harm, his use of deadly force was improper and in contravention of the Supreme Court's pronouncements in Tennessee v. Garner, [471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d. 1 (1985) ]." Appellant makes no suggestion as to what the appropriate remedy should be, and with good reason--whether the officer used excessive force is not an issue in this case because it was not raised in the lower court and because it is immaterial to appellant's guilt or innocence and to the fairness of his trial. While the use of excessive force in an arrest may, as in Garner, be material in certain civil actions, it is immaterial in the instant criminal case.

III.

Appellant next contends that the evidence was insufficient to sustain his convictions for housebreaking and theft because there was no direct evidence that he broke into the Prausers' home and stole the items found in the bag; the only evidence against him was circumstantial.

As we reiterated in Samuels v. State, 54 Md.App. 486, 493, 459 A.2d 213 (1983):

Unexplained possession of recently stolen goods gives rise to an inference that the possessor is the thief; if the theft occurred as part of a burglary or robbery, the inference is that the possessor is the burglar or robber.

The circumstantial evidence was sufficient to sustain the convictions for housebreaking and theft.

IV.

Finally, appellant contends that the evidence was insufficient to sustain his conviction for use of a handgun in the commission of a crime of violence. Appellant notes that, while police found him in possession of a handgun shortly after the...