Anderson v. State

RODOWSKY, Judge. Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 36 makes criminal, inter alia, the carrying, concealed upon or about one’s person, of certain specified weapons and also of “any other dangerous or deadly weapon of any kind.” There are many objects, not specified in § 36, which an individual could carry in a concealed fashion and which have the potential for use as a weapon. Here, we deal specifically with a utility knife, an object which is designed to be used as a tool, but which could be used as a weapon. The State contends that the statute is violated by the concealed carrying of a utility knife, with no intent required other than to carry the object while it is concealed.

The accused contends that the statute is not violated unless the object is carried, concealed, with the purpose of having the object ⁴²⁹ available for its use as a weapon. As we explain below, we agree with the construction advocated by the accused. The legal issue arises out of the following facts. On May 26, 1990, at approximately 12:45 a.m., Officer Kyle Starghill (Starghill) and another officer of the Anne Arundel County Police Department were on patrol in a marked vehicle.

Starghill observed the petitioner, Elmer Anderson, Jr. (Anderson), talking to the occupants of a black Nissan 300ZX in the area of the eighty-five hundred block of Pioneer Drive in the Pioneer City-Warfield condominium community of Severn. Starghill characterized that block of Pioneer Drive as an “open air drug market.” As Starghill approached, the Nissan drove off and Anderson began walking away. Viewing the situation as suspicious, Starghill stopped the patrol car, alighted, and called to Anderson who stopped, turned, and walked back to Starghill. Starghill asked for identification, and Anderson produced his driver’s license.

When asked what he was doing Anderson said he was on his way to a specific food market which Starghill knew had closed at 11:00 p.m. Starghill asked Anderson if he possessed any crack cocaine. Anderson replied that he did not possess any crack cocaine. At trial Starghill explained why he had asked that question. “Well, we were in the area of an open-air drug market and I frequently in that area, working that ... the hours that I was working on that particular evening were, I believe, 1900 hours to 0300 hours in the morning____ The reason for that is because that’s high activity time in that community for drug dealing.

Generally the ... the suspected drug dealer will approach vehicles on Pioneer Drive and make the transaction or the sale through the window ... and the vehicle will speed off.” Starghill inquired if Anderson would consent to a search of his person. He consented. Starghill asked whether Anderson possessed “any type of weapon or a knife or anything.” Anderson took from his back pants pocket and ⁴³⁰ handed Starghill what was called at trial a “razor knife” — a type of utility knife. 1 In addition, a piece of soap, approximately one inch by one inch by one-half inch, and three small glassine baggies were recovered from Anderson’s front pocket. Anderson told Starghill that he used the knife on his job, and that he intended to use the soap to take a bath.

He never told Starghill the type of job on which he used the knife. Anderson had no response when asked his intended use of the glassine baggies. By information, the State charged Anderson with possessing a noncontrolled substance, intending to distribute it as cocaine, and with the unlawful wearing and carrying of a “razor knife, a dangerous or deadly weapon, concealed upon and about [his] person,” contrary to § 36. 2 ⁴³¹ In a nonjury trial the circuit judge found Anderson guilty of the weapons charge but, giving him the benefit of the doubt, acquitted Anderson of the other charge. It appears from colloquy between court and counsel that the circuit judge equated the razor knife charged in the information with a “razor,” the concealed carrying of which is specifically proscribed by § 36(a).

The circuit court apparently rejected the argument of defense counsel who contended that the “razor,” specifically referred to in § 36(a), meant a straight razor. Were “razor” read otherwise, counsel submitted, any person who carried newly purchased razor blades home from the store would commit the offense. The court imposed a one year sentence, suspended it, and ordered Anderson to serve a two year term of probation. Anderson appealed to the Court of Special Appeals, which affirmed in an unreported opinion.

That court reasoned that the General Assembly had imposed “a special mens rea on the open carrying of weapons but deliberately did not impose such a special mens rea on the act of carrying concealed dangerous and deadly weapons.” The intermediate appellate court cited, as cases in this Court recognizing that distinction, Mackall v. State, 283 Md. 100, 106 , 387 A.2d 762, 765 (1978) and Hoey v. ⁴³² State, 311 Md. 473, 493 , 536 A.2d 622, 632 (1988). We granted Anderson’s petition for certiorari. Criminal statutes dealing with concealed weapons serve two related purposes. First, they seek to protect the public by deterring persons from concealing on or about their persons weapons of which the public would be unaware, thereby preventing injury or death to unsuspecting members of the public.

See Annotation, Offense of carrying concealed weapon as affected by manner of carrying or place of concealment, 43 A.L.R.2d 492 , 495 (1955); Note, Criminal Law —The Law as to Concealed Deadly Weapons, 43 Ky. L.J. 523 , 524 (1955). Second, these statutes protect the wearers or carriers of weapons from themselves, by attempting to deter persons from having at hand weapons that could be used in the heat of passion. See Annotation, supra, at 496-97; see also Sutton v. State, 12 Fla. 135, 137 (1867) (“[M]en in vexed assemblies or in public meetings, conscious of their advantage in possessing a secret and deadly weapon, often become insulting and overbearing in their intercourse, provoking a retort or an assault, which may be considered as an excuse for using the weapon, and a deadly encounter results, which might be avoided where the parties stand on a perfect equality, and where no undue advantage is taken.”).

The Maryland statute, now § 36, originated with Chapter 375 of the Acts of 1886. That enactment punished a person “who shall wear or carry any pistol, dirk-knife, bowie-knife, slung-shot, billy, sand-club, metal knuckles, razor, or any other dangerous or deadly weapon of any kind whatsoever, (penknives excepted,) concealed upon or about his person; and every person who shall carry or wear any such weapon openly, with the intent or purpose of injuring any person.” This 1886 reference to a “razor” is to a straight razor. The Maryland statute has been amended many times, the first of which was in 1894. The preamble to the 1894 amendment stated: ⁴³³ “WHEREAS, It is represented to this General Assembly that the existing law in reference to the offense of carrying concealed weapons does not make proper discrimination in favor of those who travel in dangerous localities, or from other imminent necessity, or prudent precaution in the presence of threatened injury to their lives or persons, may reasonably arm themselves for self-protection; and the law has been made an instrument of injustice to those not deserving of punishment____” Acts of 1894, ch. 547.

Accordingly, those who carried weapons “as a reasonable precaution against apprehended danger” were excepted by the 1894 amendments. Id.; see Art. 27, § 36(d). The court or jury decides the reasonableness of carrying a weapon “under the evidence in the case.” See id. Writing during this period, Lewis Hochheimer described statutes criminalizing the carrying of concealed weapons.

Speaking generally, and not with particular reference to the Maryland statute, he said that “[g]uilt ordinarily attaches, whenever one does the prohibited act, regardless of any question of specific evil intent or wrongful motive.” L. Hochheimer, Crimes and Criminal Procedure ch. 44, § 281, at 314 (2d ed.1904) (footnote omitted). All of the cases cited by Hochheimer in his supporting footnote involve the concealed carrying of a handgun. 3 Handguns were specifically listed as weapons in the Maryland statute until the enactment of the Maryland Handgun Act by Chapter 13 of the Acts of 1972. See Md.Code (1957, 1992 Repl. Vol., 1992 Cum.Supp.), Art. 27, §§ 36B-36K.

The legal significance of listing certain specified objects in § 36(a) was explained in Mackall v. State, 283 Md. 100 , 387 A.2d 762 (1978). There we held that the State ⁴³⁴ had the burden of proving a knife was not within the statute’s penknife exception. 283 Md. at 111 , 387 A.2d at 768 . In reaching that conclusion we stated: “Generally, it is a misdemeanor for any person to carry any dangerous or deadly weapon ... concealed____ The following articles are dangerous and deadly weapons per se: a) dirk knives; b) bowie knives; c) switchblade knives; d) sandclubs; e) metal knuckles; f) razors; g) nunchakus.” Id. at 106 , 387 A.2d at 765 . 4 For objects not legislatively classified as dangerous and deadly per se, such as the utility knife involved here, the State must prove that the object is within the class described as “any other dangerous or deadly weapon of any kind.” Art. 27, § 36; see Mackall, 283 Md. at 108-11 , 387 A.2d at 766-68 ; Brooks v. State, 314 Md. 585, 599-601 , 552 A.2d 872, 879-80 (1989). This Court has discussed whether an object that is not, per se, a dangerous and deadly weapon, should be considered to be such.

The issue arises in the context of § 36, and in the context of the aggravated robbery statute, Art. 27, § 488. 5 Savoy v. State, 236 Md. 36, 39 , 202 A.2d 324, 326 (1964), involved a gravity knife, described as similar to a switchblade knife, which “could be locked in position ... with a flick of the wrist.” This Court concluded that “the question ⁴³⁵ whether the knife constituted a dangerous or deadly weapon was properly submitted to the jury” in a § 36 prosecution. Id. at 39, 202 A.2d at 326 . Violation of the aggravated robbery statute was charged in Bennett & Flynn v. State, 237 Md. 212 , 205 A.2d 393 (1964). We held that use of the microphone cord from a taxicab’s two-way radio to strangle the cab driver during a robbery sufficed to support a finding that the cord was a “dangerous or deadly weapon.” Id. at 215-16 , 205 A.2d at 394-95 .

Quoting approvingly from Wharton’s, we said: “The character of a weapon as a deadly or dangerous weapon is not necessarily determined by its design, construction, or purpose. A weapon may be deadly or dangerous although not especially designed or constructed for offensive or defensive purposes or for the destruction of life or the infliction of bodily injury. Accordingly, when a weapon is in fact used in such a way as is likely to produce death or grievous bodily harm it may be properly regarded as a dangerous or deadly weapon.” Id. at 215 , 205 A.2d at 394 (quoting 3 Wharton’s Criminal Law & Procedure § 961, at 113 (Anderson’s ed.1957)). Hoey v. State, 311 Md. 473 , 536 A.2d 622 (1988), briefly discusses § 36, in reference to the burden of proof of lack of criminal responsibility.

We reviewed the Molotov cocktail statute, Art. 27, § 139A, together with the concealed weapons statute, stating: “For the State to prove a violation of [§ 139A], ‘it is necessary to show mere possession of the specified object, regardless of the purposes for which it may subsequently be used.’ Similarly, to prove that a defendant was guilty of wearing or carrying a concealed dangerous or deadly weapon under Art. 27, § 36, it is only necessary for the State to show that the defendant ‘carried a dangerous or deadly weapon “concealed upon or about his person.” ’ ” Id. at 493, 536 A.2d at 632 (emphasis added; citations omitted). ⁴³⁶ A toy plastic pistol was the weapon used in Brooks v. State, 314 Md. 585 , 552 A.2d 872 (1989), an aggravated robbery prosecution. Synthesizing prior decisions, we adopted an objective standard when determining whether an instrument is a “dangerous or deadly weapon” under § 488. We said that the instrument must be: “(1) designed as ‘ “anything used or designed to be used in destroying, defeating, or injuring an enemy, or as an instrument of offensive or defensive combat,” ’ (2) under the circumstances of the case, immediately useable to inflict serious or deadly harm {e.g., unloaded gun or starter’s pistol useable as a bludgeon); or (3) actually used in a way likely to inflict that sort of harm (e.g., microphone cord used as a garrote).” Id. at 600, 552 A.2d at 880 (citation and footnote omitted). Thus, in the aggravated robbery context, we know from the use actually made of an instrument, or from the fact that, under the circumstances, an instrument is immediately useable to inflict serious or deadly, harm, that the instrument is a dangerous or deadly weapon.

And, in the carrying context under § 36, we know, because the Legislature has told us, that certain instruments are dangerous or deadly weapons per se. Our cases have not resolved, however, the standard for determining whether an instrument which is not, per se, a dangerous or deadly weapon, is such a weapon when it is simply carried, without actual or imminent use. That is the issue presented here. Resolution of this question has been foreshadowed by the discussion in Simpler v. State, 318 Md. 311 , 568 A.2d 22 (1990).

There the State contended that a stop and frisk was justified by a police officer’s knowledge that the defendant had carried a carpet knife on a prior occasion. No arrest was made on that earlier occasion when the defendant “showed” the officer the knife when asked if he had any weapons. Id. at 314, 321 , 568 A.2d at 23, 27 . We said: ⁴³⁷ “But [the officer’s] description of the earlier occasion when he was in [the defendant’s] presence is devoid of any aspect of dangerousness.

The record does not describe the carpet knife. The necessary inference is that it is a knife which may lawfully be carried, just as the ordinary pocket knife may lawfully be carried. On the earlier occasion, [the officer], knowing that [the defendant] had the knife in his possession, continued whatever their conversation was within the close confines of a police car. There is no indication that [the defendant] was hostile toward [the officer], or police officers generally, based on the prior contact between the two.

There is no evidence of what [the defendant’s] employment was, whether the knife was a job tool, or whether the contact took place at a job site during working hours. There is no evidence indicating that [the defendant] regularly carried the knife.” Id. at 321 , 568 A.2d at 27 . Implicit in this analysis is that all knives are not dangerous or deadly weapons and that, depending on the circumstances, the concealed carrying of some cutting tools may be considered lawful. The State’s construction of § 36(a), which requires only an intent to carry the instrument in a concealed fashion, looks only to the object’s physical potential as a weapon, without considering the purpose of the person carrying the instrument.

The State’s construction produces results so closely approaching the absurd that we do not consider it to be the construction intended by the General Assembly. For example, the carpenter who carries screwdrivers, drills, chisels, and one or more hammers in a closed tool box is carrying, concealed, potential daggers and clubs, and would violate § 36. The woman who affixes her hat with a hat pin, covered by the hat and by her hair, is carrying, concealed, a potential stiletto, and would violate § 36. Persons who wear belts around their waists, covered by coats, jackets, or sweaters, carry, concealed, potential garrotes, and would violate § 36. ⁴³⁸ The State’s answer at oral argument to these reductio ad absurdum examples is that the concealed wearing and carrying of such items on or about the person would not be criminally charged, in the exercise of the police officer’s or the prosecutor’s discretion.

That construction of § 36(a), however, raises due process questions concerning notice to the public of the conduct that is considered criminal. A construction of a statute which would cast doubt on its constitutional validity should be avoided. In order to violate § 36(a) by the concealed wearing or carrying of an instrument which has not legislatively been declared to be a dangerous or deadly weapon per se, the trier of fact must first determine whether the instrument constitutes a “dangerous or deadly weapon.” The concealed carrying prohibition of § 36(a) is not violated simply because the instrument can be used to inflict serious or deadly harm. The person carrying the object must have at least the general intent to carry the instrument for its use as a weapon, either of offense or defense.

It is a question of fact, to be decided based on all of the circumstances. Thus, reasonable persons would agree that carpenters arriving at work and carrying their tools in enclosed boxes from their cars to the job site, are not carrying concealed, dangerous or deadly weapons because they do not intend to use their tools as weapons. In the language of §