Beard v. State

Morton, J., delivered the opinion of the Court. Appellant, Wendell Beard, was convicted by a jury sitting in the Criminal Court of Baltimore (Murphy, J., presiding) of 1) first degree murder; 2) unlawful use of a handgun in the commission of a felony or crime of violence; 3) unlawfully carrying a handgun; and 4) unlawful use of a credit card. A life sentence was imposed on the murder conviction; fifteen years consecutive on the handgun violation (Md. Ann. Code art. 27, § 36B (d)); three years concurrent on the second handgun violation (Md. Ann. Code art. 27, § 36B (b)); and three years concurrent on the credit card violation. In this appeal the following issues are presented: "1.

Should the convictions for the use of a handgun in commission of a felony and for possession of a handgun be reversed in that the State failed to show that the weapons in question were, in fact, handguns? 2. Did the trial court commit plain error in failing to instruct the jury as to the definition of and burden of proof for 'handgun’? 3. Did the trial court commit plain error in inappropriately commenting to the jury that a finding of guilt on the robbery count would be inconsistent with an acquittal on the homicide count? 4. Was the evidence sufficient to support the jury’s verdict?” The record reveals that about 1 p.m. on September 1,1979, Officer George Trainor responded to a call over his police car radio and upon his arrival at the 900 block of Hendler’s Lane in Baltimore City he found the body of Beryl Friedrick, a white male, 43 years of age, lying in a pool of blood beside ⁴¹² a blue Ford Torino.

It was stipulated that Mr. Friedrick was pronounced dead at the Maryland General Hospital, the cause of death being a gunshot wound to his head, fired at close range from a small caliber weapon. Darlene Roles testified she had known appellant about thirteen years and that sometime in the afternoon of September 1, 1979, he arrived at her apartment and gave her "a brown and beige bag” which he requested that she hold for him. He also showed her some credit cards in the name of Beryl Friedrick and said he wanted to turn them over to her boyfriend, Martin Venable, "because he heard Marty could work credit cards.” After appellant left the apartment, according to Miss Roles, she looked in the bag and observed blood stained clothing and a "gun and some bullets inside the cloth.” Later in her testimony the following colloquy occurred: "THE COURT: What kind of a weapon was it that you saw in the bag? Do you know the difference between a revolver and automatic pistol?

A. No. I don’t know nothing about guns as far as the name of them. THE COURT: Well, do you know the difference between the kind that revolves when the trigger is pulled and the kind that ejects the shell through the top? A. No. THE COURT: Can you describe the one that you saw? A. Well, the one that I seen was — it was sort of big and brown — rusty — it looked like an old gun to me.

It looked rusty like. And it was big. It was rather big.” ⁴¹³ The only other testimony regarding the gun was as follows: "By MR. DANEMAN [Attorney for Defendant]: Q. Ma’am, this here big, rusty gun, was it bigger than Martin Venable’s gun that he left in your apartment?

A. Yes. Q. Martin Venable’s gun was a .38, wasn’t it? A. I don’t know what it was.” We think there is real merit in the appellant’s contention that his convictions for the use of a handgun in the commission of a felony and for the unlawful possession of a handgun should be reversed because the State failed to show that the weapon in question was, in fact, a handgun. We have set forth above the only testimony with respect to the description of the gun allegedly used by appellant