Wynn v. State

• Decision Date: 01 September 1987
• Docket Number: No. 29,29
• Citation: 546 A.2d 465,313 Md. 533
• Parties: James Othel WYNN v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 533

313 Md. 533

546 A.2d 465

James Othel WYNN v. STATE of Maryland.

No. 29, Sept. Term, 1987.

Court of Appeals of Maryland.

Sept. 1, 1988.

Greta C. Van Susteren (Milliken, Van Susteren & Canan, on the brief) Washington, D.C., for appellant.

Ronald M. Levitan, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief) Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

COLE, Judge.

In this case we must decide whether the trial court erred in convicting James Wynn of the use of a handgun in the commission of a crime of violence. The answer to this question depends upon whether bare possession of a handgun in the commission of a crime of violence is the equivalent of use of a handgun in the commission of a crime of violence under Art. 27, § 36B(d).

The facts giving rise to this issue are straightforward. On January 12, 1985, Wynn was observed by a team of undercover police officers on surveillance in a neighborhood recently subjected to a series of burglaries. Wynn was acting suspiciously and two of the officers decided to question him. As the officers approached, Wynn turned and walked away. One of the officers subsequently identified himself and demanded that Wynn halt. Wynn then turned to face the officer while simultaneously reaching under his coat. The officer, believing that Wynn had drawn a gun, shot Wynn as he attempted to flee the scene. At the point where Wynn was apprehended, and along the route of his attempted escape, the police recovered two handguns, a holster and ammunition belt, jewelry, and assorted burglar tools. The jewelry and one of the handguns were later found to have been stolen from the home of Mr. and Mrs. Hans Prauser, located in the same vicinity where Wynn was arrested.

Wynn 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 a handgun. Wynn was tried by a jury in the Circuit Court for Montgomery County (Cave, J.) and convicted of housebreaking, theft, use of a handgun in the commission of a crime of violence (housebreaking), assault, and carrying a handgun (two counts). His sentence for use of the handgun was consecutive to his sentences for the other charges.

Wynn challenged his convictions in an appeal to the Court of Special Appeals but that court affirmed the lower court. Wynn v. State, 69 Md.App. 536, 518 A.2d 1072 (1987). We subsequently granted Wynn's petition for a writ of certiorari.

Before outlining the parties' contentions, it is necessary to refer to the statutory provisions underlying this dispute. Wynn was tried and convicted under Maryland Code (1957, 1982 Repl.Vol., 1986 Cum.Supp.) Art. 27, § 36B(d), for the use of a handgun in the commission of a crime of violence. Section 36B constitutes a portion of the Handgun Control Act of 1972, codified at Art. 27, §§ 36B-36F. This comprehensive scheme begins with a preamble at § 36B(a) which provides:

(a) Declaration of policy.--The General Assembly of Maryland hereby finds and declares that:

(i) There has, in recent years, been an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns;

(ii) The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity;

(iii) The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and

(iv) Further regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens.

Section 36B(b) and (d) provide in pertinent part:

(b) Unlawful wearing, carrying, or transporting of handguns; penalties.--Any person who shall wear carry, or transport any handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads, highways, waterways, or airways or upon roads or parking lots generally used by the public in this State shall be guilty of a misdemeanor; and it shall be a rebuttable presumption that the person is knowingly transporting the handgun....

(d) Unlawful use of handgun or antique firearm in commission of crime; penalties.--Any person who shall use a handgun or an antique firearm capable of being concealed on the person in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor:

(1) For a first offense, be sentenced to the Maryland Division of Correction for a term of not less than 5 nor more than 20 years, and it is mandatory upon the court to impose no less than the minimum sentence of 5 years.

(2) For a second offense or subsequent offense, be sentenced to the Maryland Division of Correction for a term of not less than 5 nor more than 20 years, and it is mandatory upon the court to impose no less than a minimum consecutive sentence of 5 years which shall be served consecutively and not concurrently to any other sentence imposed by virtue of the commission of said felony or misdemeanor.

Art. 27, § 441(e) defines "crime of violence" as follows:

(e) The term "crime of violence" means abduction; arson; burglary, including commonlaw and all statutory and storehouse forms of burglary offenses; escape; housebreaking; kidnapping; manslaughter, excepting involuntary manslaughter; mayhem; murder; rape; robbery; robbery with a deadly weapon; sexual offense in the first degree; and sodomy; or an attempt to commit any of the aforesaid offenses; or assault with intent to commit any other offense punishable by imprisonment for more than one year.

The statute does not define "use."

Wynn does not dispute that housebreaking is a statutory crime of violence. Further, at oral argument, Wynn's counsel conceded that a reasonable finder of fact could conclude that Wynn possessed a handgun while breaking into the Prauser home. ¹ It is likewise apparent that the State does not dispute that Wynn did not display, fire, or threaten to fire the gun while in the Prauser home. This concession is based on the simple fact that no one was present while Wynn was in the Prauser home. The parties do dispute, however, one critical issue.

Wynn contends that the State must prove that he utilized the gun, beyond mere possession, in order to convict him of use of a handgun in the commission of a crime of violence in violation of Art. 27, § 36B(d). Wynn maintains that the language used by the legislature in § 36B(d) is clear and unambiguous in this regard. He also argues that if this Court finds the language to be ambiguous, legislative intent dictates that his interpretation of the statute be adopted. Finally, Wynn argues that his interpretation is consistent with the construction given similar statutes in other states.

The State also argues that the word "use" in § 36B(d) is unambiguous but concludes that because Wynn had "recourse to or enjoyment of" the gun while in the Prauser home, he is guilty of use of the handgun in the commission of a crime of violence. However, in the event this Court concludes that the word "use" is ambiguous, the State directs the Court's attention to the preamble of § 36B, which according to the State clearly supports a construction consistent with its interpretation, i.e., that the legislature intended that § 36B(d) apply to the possession of a handgun during the commission of a crime of violence in recognition of the heightened potential for death or serious harm when handguns are present during the perpetration of violent crimes.

Our task in this case is to determine whether the legislature intended that a conviction for use of a handgun in the commission of a crime of violence arises under the facts presented. We emphasized in Kaczorowski v. City of Baltimore, 309 Md. 505, 525 A.2d 628 (1987), that the search for legislative intent is most accurately characterized as an effort to discern some general purpose, aim, or policy of the statute. Id. at 513, 525 A.2d at 632. In this regard, we begin the process by examining the words of the statute in accord with their plain meaning. Obviously, "what the legislature has written in an effort to achieve a goal is a natural ingredient of analysis to determine that goal." Id. However, when a statute is plainly susceptible of more than one meaning and thus contains an ambiguity the court may consider the consequences resulting from one meaning rather than another and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense. Id.

We also pointed out that the plain-meaning rule is not a complete, all-sufficient rule for ascertaining a legislative intention because the meaning of the plainest language is controlled by the context in which it appears. Id. at 514, 525 A.2d at 632. In determining the context of statutory language, we must consider any persuasive evidence

including a bill's title and function paragraphs, amendments that occurred as it passed through the legislature, its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case.

Id. at 515, 525 A.2d...