York v. State

• Decision Date: 01 September 1982
• Docket Number: No. 1945,1945
• Citation: 56 Md.App. 222,467 A.2d 552
• Parties: Irvin Tyrone YORK v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 222

56 Md.App. 222

467 A.2d 552

Irvin Tyrone YORK v. STATE of Maryland.

No. 1945, Sept. Term, 1982.

Court of Special Appeals of Maryland.

Nov. 4, 1983.

Gary W. Christopher, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on brief, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County and Stephen J. Savage, Asst. State's Atty. for Montgomery County on brief, for appellee.

Submitted before LOWE, WILNER and ADKINS, JJ.

ADKINS, Judge.

A jury sitting in the Circuit Court for Montgomery County convicted appellant Irvin Tyrone York of robbery with a dangerous and deadly weapon, use of a handgun in the commission of a crime of violence, and battery, for which he received sentences of imprisonment for twenty years, fifteen years (consecutive) and five years (concurrent), respectively. On appeal, he raises four issues. They are:

1. Is use of an inoperable handgun in a robbery a sufficient basis for conviction of use of a handgun in a crime of violence?

2. Did the trial court err in prohibiting York from attempting to elicit testimony from his co-defendant, Demery, who had claimed his privilege against self-incrimination?

3. Did the trial court err in permitting inquiry as to York's financial status?

4. Was it illegal and beyond the trial judge's power to direct, as part of the sentence, that York never be considered for parole?

Facts

The facts surrounding the commission of the crimes themselves are simple enough. A fact-finder could have found beyond a reasonable doubt (and the jury obviously did) that on December 1, 1981, police observed York and Jeffrey Demery (who was charged with the same offenses as York and tried jointly with him) cruising about the streets of Silver Spring in York's car. Eventually, they parked the car, walked about the streets looking in shop windows, and then entered Rochee's Hong Kong Tailor Shop, Demery leading and York following. Demery produced a Titan and Tiger .38 caliber revolver and he and York pushed the two store clerks (its only occupants) into a bathroom. York and Demery removed money from the cash register and clothing from the racks, then left the store, first walking, then running. They reentered the car with the loot and departed, with York driving. They were soon apprehended. Material from the cash register was found on York's person. The clothing from the racks was found in the car. The revolver wielded by Demery also was recovered from the car.

The Inoperable Handgun

Testimony produced at trial suggested that the Titan and Tiger revolver found in the car would not fire, although it was fully loaded. The problem was that the gun, a cheap "Saturday night special," had been dropped and damaged in such a way that the cylinder would not revolve. This, in turn, meant that the weapon could not be fired by the exertion of ordinary pressure on the trigger, although somebody with "unusual strength" might have been able to fire it.

In any event, the police report classified the revolver as "inoperable." But a police firearms expert testified that by using a hammer and a screwdriver or a fingernail file he could restore the weapon to operable condition in about a minute's time.

On the basis of this testimony, York argued that there was insufficient evidence to convict him on the handgun charge, because an inoperable gun cannot be a handgun as that term is used in Art. 27, § 36B(d). The trial judge disagreed, although concluding that this question was one of first impression in Maryland. See In Re Appeal No. 1124, 27 Md.App. 468, 473-74, 340 A.2d 338 (1975). But cf. White v. State, 23 Md.App. 151, 165, 326 A.2d 219 (1974). He reasoned that the legislature had intended to include within the scope of § 36B(d) a weapon "designed as a handgun" when it left the factory, particularly if, at the time of its use, its inoperability could be readily remedied.

As we have noted, the earlier Maryland cases that have touched on the issue of whether a handgun must be operable to fall within the language of § 36B(d) seem to point in opposite directions. In In Re Appeal No. 1124, supra, we observed that the problem of inoperability raised a "very real" issue as to whether a gun "was a 'handgun' within the contemplation of Article 27, § 36B...." 27 Md.App. at 474, 340 A.2d 338. On the other hand, in White v. State, supra, we upheld the trial judge's refusal to instruct that the statute "applied only to handguns which are operable." We found "no such prerequisite in the statute." 23 Md.App. at 165, 326 A.2d 219.

As the trial judge correctly discerned, whether an inoperable handgun falls within the ambit of § 36B(d) is a question of legislative intent. Although we think he read that intent a little broadly, we think the result reached in this case was correct.

The General Assembly included a declaration of policy when it enacted Art. 27, § 36B. After finding that "in recent years [there has] 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" (Art. 27, § 36B(a)(i)), the legislature went on to explain (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....

This language demonstrates that the paramount purpose of the General Assembly in enacting § 36B was to reduce the especially high potential for death or serious injury that arises when a handgun, as distinguished from some other weapon, is used in a crime of violence. That potential for major harm exists only when the weapon, at the time of the offense, is useable as a handgun. If it is not then so useable, its likelihood of inflicting injury is no greater than that produced by a knife or a club--bad enough, but different from the special hazard to the victim that the legislature attached to the use of handguns.

The legislative purpose we discern also is apparent in the definition of handgun set forth in § 36F which, like § 36B was adopted as part of Ch. 13, Laws of 1972. ¹ Section 36F, subject to exceptions not here pertinent, provides that the word " 'handgun' shall include any pistol, revolver, or other firearm capable of being concealed on the person...." In Howell v. State, 278 Md. 389, 364 A.2d 797 (1976) the Court of Appeals examined this definition. It concluded that for a weapon "to be a handgun it must be a firearm or it must be readily convertible into a firearm," that is, " 'a gun which could be explosive of projectiles....' " 278 Md. at 396, 364 A.2d 797. From this it follows that a gun which, at the time of its use, is not a firearm ("explosive of projectiles") and not readily convertible to that purpose, is not a handgun under § 36B(d). Such a gun is not capable of inflicting the harm the legislature sought to prevent by the enactment of § 36B(d).

But to state that conclusion does not end the inquiry here. The weapon used in this case (unlike the tear gas gun in Howell ) had been designed, manufactured and presumably sold as a firearm. See State v. Pelzer, 230 Kan. 780, 640 P.2d 1261 (1982). The infliction of death or serious bodily harm was its raison d'etre. The only factor detracting in any degree from its ability to perform that lethal function was a minor mechanical defect correctable in about a minute by the use of simple tools. Moreover, the two police witnesses who characterized the weapon as "inoperable" both in effect qualified their opinions in that regard. One, Officer Peters, said the gun wouldn't fire to a "95% degree of certainty" but that it might be fired if someone took two hands and tried to force the action. The other, Officer Bransome, believed that the gun could be fired by someone with perhaps twice his strength.

What this evidence shows is that the Titan and Tiger .38 brandished by Demery was in fact a firearm at the time of the offenses here involved. It could be fired. We do not think the legislature, in its concern for the protection of citizens against handguns used in crimes, intended a weapon to be excluded from the handgun category because of nice calculations of percentages or the relative strengths of potential users. In our view, a gun that may be "explosive of projectiles" when used is a handgun for purposes of § 36B(d). The trier of fact could have found that this gun met this criterion. ² The evidence was sufficient to sustain York's handgun conviction.

Demery's Testimony

Prior to the joint trial of York and Demery for the various offenses arising out of the December 18, 1981, robbery at Rochee's Hong Kong Tailor Shop, Demery had pled guilty to the charges of armed robbery and battery. He had pled not guilty only to the handgun use charge. York, it will be recalled, had pled not guilty to all charges.

York's defense was that the armed robbery was all Demery's idea and that he, York, was under the influence of drugs, didn't really know what was going on, and had been frightened into participation when Demery produced the gun. In fact, during the process of tendering his guilty pleas, Demery said "York was to my back and unaware of what was going on in the store."

At the conclusion of his case, York sought to call co-defendant Demery to testify on his behalf. Counsel for Demery stated that his client "has decided to stand on his Fifth Amendment rights against self-incrimination and he will not testify." The court advised Demery that he had

a constitutional right to both testify as well as not to testify.... You are a defendant in this case. The co-defendant wishes to call you as a witness. You cannot under the circumstances be called as a witness against your will and consent.

After some further discussion, Demery said he elected not to testify. The court said that...