Curtin v. State

KARWACKI, Judge. The appellant was convicted in a trial by jury in the Circuit Court for Montgomery County (James S. McAuliffe, Jr., J., presiding) of assaulting Officer Barry L. Abramowitz of the Gaithersburg City Police Department and Officer David Godbold of the Montgomery County Police Department, of resisting arrest and of violating Maryland Code (1957, 1981 Repl.Vol.), Art. 2B, § 207(a)(2), which provides: (a) A person may not: ... (2) Be intoxicated or drink any alcoholic beverage in a public place and cause a public disturbance. For each assault and for resisting arrest the appellant was sentenced to five years.

The imprisonment was suspended and he was placed upon a five year supervised probation. He was fined $100.00 for the violation of § 207(a)(2). There was evidence from which the jury could have found that the following took place shortly after midnight on July 10, 1982. At that time Officer Maryann Troutner of the Gaithersburg City Police Department, who was alone in her patrol vehicle, had apprehended a drunk driving suspect on the parking lot of the Orchard Pond Apartments, a short distance from the public highway.

As Officer Troutner was engaged in placing the arrested suspect in her police cruiser she was approached by the appellant who loudly asked her, “What the fuck you think you’re doing.” The appellant had an open bottle of Heineken beer in his hand and Officer Troutner asked him what he was drinking. The appellant replied “beer.” The appellant’s demeanor was abrasive, his eyes were “watering,” he was unsteady on his feet and Officer Troutner concluded that he had been drinking. Because she believed he was violating Maryland Code (1957, 1981 Repl.Vol.), Art. 2B § 211, which prohibits the drinking of alcoholic beverages on public property, she asked him for identification. The appellant advised her that his identification papers were in his van which was parked nearby and he proceeded to get them.

On the way he finished drinking the beer. Officer Troutner waited with the arrested drunk ³⁴² en driver for five to ten minutes while the appellant was in his motor vehicle. During that time, she became apprehensive that she was going to have trouble and called on her radio for backup assistance. When the appellant returned with his identification papers, Officer Troutner asked him to stand behind the cruiser to which he replied, “I’ll stand anywhere I fuckin’ please.” The appellant then continued to protest the Officer’s actions in the presence of a group of about ten bystanders that had congregated.

Officer Troutner decided at this point to issue the appellant a citation for public drinking. Md.Code (1957, 1982 Repl.Vol., 1984 Supp.) Art. 27, § 594B(j); Md. District Rule 711. 1 While she wrote the ticket, the appellant continued to protest her actions loudly, prompting a woman in one of the nearby apartments to yell from a window to keep down the noise in the parking lot. By the time Officer Troutner had completed writing the citation, Officers Godbold and Abramowitz, as well as three other police officers, had arrived on the scene in response to the backup call issued earlier by Officer Troutner. When Officer Godbold attempted to quiet the appellant, the appellant suggested that Officer Godbold take off his badge and they could settle the dispute then and there.

Officer Troutner then explained to the appellant that he was being issued a citation for public drinking; that he could go on his way and that a court date would be set if he signed it, but that if he refused he would be arrested. The appellant read the citation, then slammed the pen down on Officer Troutner’s cruiser stating loudly, “I’m not signing any fuckin’ ticket.” Officer Abramowitz then took hold of the appellant’s arm and told him he was under arrest. A struggle then ensued between the officers and the appellant and after several minutes the appellant was subdued and placed in the cruiser of Officer Abramowitz. A few min ³⁴³ utes later the appellant tried to break away from custody and stumbled out of the cruiser.

He was placed back into the police vehicle and transported to the Germantown Police Station in the back seat of the vehicle under physical restraint by Officer William Mortall. In the course of this melee, Officer Abramowitz was struck and kicked and Officer Godbold was bitten by the appellant. When the appellant arrived at the Germantown Police Station, he was placed in the holding cell. He began screaming, yelling and throwing chairs around the cell, so that it became necessary to handcuff him to the cell bench.

Thereafter the appellant began screaming again and jumping up and down on the bench in his cell, requiring the officers to cuff his legs as well. The appellant prayed a jury trial in the District Court and the case was transmitted to the Circuit Court for Montgomery County. In this appeal the appellant asserts that there was no legally sufficient evidence to support his convictions, that the trial judge gave the jury an improper advisory instruction as to the meaning of § 207, and that evidence of the appellant’s conduct at the police station following his arrest was improperly admitted. Sufficiency of the Evidence The challenge to the sufficiency of the evidence of the assaults upon the two police officers and resisting arrest is based upon the appellant’s contention that his arrest on the parking lot of the Orchard Pond Apartments on July 10, 1982, was illegal.

He points out that since Officer Troutner was acting under the misapprehension that the parking lot was “public property” within the prohibition of § 211, when she attempted to issue a citation to him charging him with a violation of that section, his subsequent arrest was illegal. 2 We believe his contention ³⁴⁴ meritless for either of two reasons. The issue of the appellant’s legal arrest depends not upon whether Officer Troutner correctly assumed that the parking lot in question was public property within the definition of that term as used by the Legislature in enacting § 211, but whether there was evidence from which the jury could conclude that Officer Troutner possessed probable cause to believe that §211 had been violated. The rule of probable cause has often been characterized as a “non-technical conception of a reasonable ground for belief of guilt requiring less evidence ³⁴⁵ for such belief than would justify conviction, but more evidence than that which would arouse mere suspicion.” Collins v. State, 17 Md.App. 376, 384 , 302 A.2d 693 (1973). Given the proximity of the site of arrest to the public highway and the further fact that by virtue of Art. 2B, § 210, private parking lots of certain kinds of commercial ventures are included within the definition of public property on which drinking is prohibited by § 211, we believe that the evidence was sufficient to permit the jury to conclude that Officer Troutner, under the facts and circumstances present in the early morning hours of July 10, 1982, was justified in believing that a violation of § 211 was taking place.

Moreover, the jury could also have concluded, based upon the evidence, that Officer Troutner possessed ample probable cause to believe that the appellant had violated Art. 2B, § 207(a)(2). The fact that Officer Troutner cited the wrong section of Art. 2B of the Code in placing the appellant under arrest is of no consequence. Braxton v. State, 234 Md. 1 , 197 A.2d 841 (1964). He appeared intoxicated and she witnessed his consumption of an alcoholic beverage.

We believe the parking lot of this apartment complex was a public place within the meaning of § 207, and that the appellant was creating a public disturbance thereon. The words just emphasized from § 207(a)(2) have not previously been interpreted by the Court of Appeals or this Court. We therefore construe them according to their ordinary and normal meaning unless a different legislative intent is indicated by the context. Blake v. State, 210 Md. 459 , 124 A.2d 273 (1956).

Clearly, the use in § 211 by the legislative draftsmen of the term “public property” with its attendant definition in § 210 of the same subheading shows a legislative intent to prohibit mere consumption of alcohol more limitedly than disorderly drinking or intoxication. Public property as defined in § 210, as applicable in § 211 is a much more limited term than public place used in ³⁴⁶ § 207(a)(2), and clearly indicates the intent of the Legislature to make a distinction between the two types of situs. In Webster’s Seventh New Collegiate Dictionary (1969), “public” is defined as “a place accessible or visible to the public.” In Webster’s New World Dictionary, 2d ed. (1976) “in-public” is defined as “openly; not in private or in secrecy.” “Disturb” is defined as “to break up the quiet or serenity of; agitate ... to break in on; interrupt; interfere____” “Disturbance” is defined as “... commotion; disorder.” Webster has also defined “disturb” as “to interfere with the lawful enjoyment of a right.” Black’s Law Dictionary, (Rev. 5th ed.) defines disturbance as follows: Any act causing annoyance, disquiet, agitation, or derangement to another, or interrupting his peace, or interfering with him in the pursuit of a lawful and appropriate occupation or contrary to the usages of a sort of meeting and class of persons assembled that interferes with its due process or irritates the assembly in whole or in part.

Appellant’s reliance on Diehl v. State, 294 Md. 466 , 451 A.2d 115 (1982). to justify his outrageous conduct is misplaced. Diehl does not stand for the proposition that one is privileged to disturb the public peace in the middle of the night and interfere with police officers in the lawful performance of their duties. We conclude that the parking lot was a public place and that the appellant’s conduct thereon amounted to a public disturbance justifying his arrest for violation of § 207(a)(2). Since there was evidence