Eldridge v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. James Eldridge does not now question the propriety of his convictions by a jury in the Circuit Court for Baltimore City of robbery with a dangerous and deadly weapon and of wearing or carrying the weapon both concealed, and openly ³⁰⁹ with the intent to injure. He is, however, sorely aggrieved by the total of 26 years imprisonment imposed by the judge—20 years on the robbery conviction to run consecutively to all sentences imposed on previous convictions and 3 years on each weapon conviction, to run consecutively to the robbery sentence. The sentences were the maximum authorized for each offense.

He sought to assuage his distress by appealing to the Court of Special Appeals. In an unreported opinion, that court denied him relief in one brief paragraph. It held that the conviction for carrying a deadly weapon did not merge into the conviction for armed robbery. It declared: The weapons charges and armed robbery are not the same offense according to Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed.2d [L.Ed.] 306 (1932), and the so-called “Rule of Lenity,” therefore, does not come into play.

The Court of Special Appeals affirmed the judgments, leaving the 26 years intact. Eldridge was neither convinced nor content. He turned to this Court. We granted his petition for a writ of certiorari.

He asks: Whether, under the circumstances of this case, the trial judge erred in imposing separate punishments for two [weapon] offenses in addition to the punishment imposed for the offense of robbery with a deadly weapon. THE FACTS The circumstances of this case, leading to the convictions, are gleaned from a statement of facts agreed upon by the parties pursuant to Md.Rule 8-501(g) and the transcript of the trial. The statement of facts reflects the testimony of three State witnesses—Jennifer Pender, Judy Weber, and Officer Brian Bosley, a member of the Baltimore City Police Department. We capsulize the statement.

The scene of the crimes was a bar. Judy Weber was the owner, and Jennifer Pender was her employee. The time of the crimes was about 10:30 p.m. on 18 December 1989. ³¹⁰ Weber and Pender were playing the poker machines, which were apparently a feature of the establishment. Eldridge entered the bar, remained for a short time, went to the men’s room, and then left.

About 20 minutes later he came back, accompanied by Andre Murdock. 1 Pender, engaged in playing a poker machine, heard Weber cry out, “[H]e’s choking me, he’s choking me, he has a gun.” Pender saw Eldridge pushing Weber toward the cash register. He had his left arm around Weber’s neck, and a gun in his right hand was pointed at Weber’s head. Eldridge warned, “This is a holdup. Tell everybody to get on the floor.” He dragged Weber to the cash register, told her he had a gun and threatened to kill her.

She gave him the money in the cash register and the money used for the poker machines. He demanded that Pender give him her pocketbook. While this was going on, Murdock was standing by the front door. One of the customers, however, slipped out.

The customer flagged down Officer Bosley, and told him that a robbery was in progress at Weber’s bar. The officer ran into the bar and saw Murdock and Eldridge. He grabbed Murdock. Eldridge threw down the gun.

Weber testified: “I went down and I picked it up and hollered, ‘Bosley, I got it and I’m going to shoot the mother fucker.’ ” Then, to her dismay, she discovered, “It didn’t have no bullets.” Eldridge fled. The gun was recovered by the police. It was a “starter’s pistol,” incapable of firing a projectile. 2 But, Bosley testified, it was heavy enough to be used as a bludgeon and was capable of instilling fear in a victim. This Court held in Jackson v. State, 231 Md. 591, 594-595 , 191 A.2d 432 (1963) that a .22 caliber starter’s pistol qualified as a dangerous or ³¹¹ deadly weapon when used in a robbery.

Cf. Anderson v. State, 328 Md. 426, 438-439 , 614 A.2d 963 (1992); Brooks v. State, 314 Md. 585, 600 , 552 A.2d 872 (1989). ARTICLE 27, § 36 AND MULTIPLE SENTENCES (1) Each of the crimes of which Eldridge was convicted featured a deadly weapon. Md.Code (1957, 1992 Repl.Yol.) Art. 27, § 486 authorizes the punishment for the common law felony of robbery.

Section 488 provides a harsher punishment when the robbery is with a deadly weapon. 3 Section 36(a) creates the misdemeanor of carrying a deadly weapon, when “concealed upon or about [the] person” or “openly with the intent or purpose of injuring any person in any unlawful manner.” Whether carried concealed or openly, the penalty authorized is the same, except if it shall appear from the evidence that such weapon was carried, concealed or openly, with the deliberate purpose of injuring the person or destroying the life of another the statute commands that “the court shall impose the highest sentence of imprisonment prescribed [, 3 years].” See Mackall v. State, 283 Md. 100 , 387 A.2d 762 (1978) in which we dissected § 36. (2) After imposing the sentence on the conviction for armed robbery, the trial judge made clear his firm belief as to the status of the two weapon offenses. He declared: As to the deadly weapon, there are two separate distinct charges. One is carrying a concealed deadly weapon and that is a charge that is separate and distinct from the use ³¹² of a weapon carried openly with intent to injure Ms. Weber, the victim in this case.

In order to get the weapon into the premises, it had to have been carried concealed on or about your person and that was a logical reasonable inference which the jury found and the court does not disagree with the jury’s verdict. In addition, once you were in the premises, it’s at that time that you pulled that weapon out and put it to the head of the victim and clearly established an intent to injure that victim. And under those circumstances, the elements of each, these are separate and distinct. One is carrying a concealed weapon about your person.

The second is pulling it out and attempting to use it and showing the intent to cause injury. So under these circumstances, they are two separate and distinct offenses and this interpretation does not permit a merger and the court certainly will not merge them either for purposes of disposition or for any other purpose. (3) We approach the propriety of the two sentences imposed on the weapon convictions from the pinnacle we have reached in our many attempts to divine legislative intent. We have set out the guidelines so often that there is no need to detail them here.

Suffice it to say, the key to legislative interpretation is the purpose of the legislation, determined in the light of the statute’s language and context. Kaczorowski v. City of Baltimore, 309 Md. 505, 516 , 525 A.2d 628 (1987). See Warfield v. State, 315 Md. 474, 499-500 , 554 A.2d 1238 (1989). “We may and often must, consider other ‘external manifestations’ or ‘persuasive evidence’.” Kaczorowski, 309 Md. at 515 , 525 A.2d 628 . “ ‘[R]esults that are unreasonable, illogical or inconsistent with common sense should be avoided ... with the real legislative intention prevailing____’” Id. at 516 , 525 A.2d 628 , quoting Potter v. Bethesda Fire Department, 309 Md. 347, 353 , 524 A.2d 61 (1987), quoting State v. Fabritz, 276 ³¹³ Md. 416, 421-422, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 , 96 S.Ct. 1680 , 48 L.Ed.2d 185 (1976). We view the language of § 36(a) as creating one offense—the carrying of a dangerous weapon.

The offense may be committed in two ways: with the weapon carried (1) concealed, or (2) openly with the intent to injure. Section 36B concerns handguns. Handguns were expressly excepted from the provisions of § 36 and § 36B was enacted to fill the void. We think that § 36B is persuasive in our consideration of whether § 36(a) contemplates only one offense.

We pointed out in Webb v. State, 311 Md. 610, 611 , 536 A.2d 1161 (1988) that the Legislature spurred by “a dramatic increase in the number of crimes perpetrated with handguns and a concomitant increase in the number of deaths and injuries caused by persons carrying handguns on the streets who were ‘inclined to use them in criminal activity,’ ” enacted “strong handgun control legislation.” State v. Crawford, 308 Md. 683, 693 , 521 A.2d 1193 (1987), referring to Acts 1972, Ch. 13 and citing the “Declaration of Policy” set out in Maryland Code (1957, 1982 Repl.Vol.) Art. 27, § 36B(a)(i)-(ii). We observed: As a part of a comprehensive legislative scheme “to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens,” § 36B(a)(iv), the Legislature made it a misdemeanor for [“][a]ny person [to] wear, carry, or transport any handgun, whether concealed or open, upon or about his person____[”] Art. 27 § 36B(b). Cole, J., speaking for the Court in Crawford , after tracing the history of the handgun control legislation, noted that § 36B(b) “sets forth a blanket rule,” 308 Md. at 693 , 521 A.2d 1193 , “designed to discourage and punish the possession of handguns on the streets and public ways,” id., at 695 , 521 A.2d 1193 . 311 Md. at 611-612 , 536 A.2d 1161 (footnote omitted). We determined in Webb that the unit of prosecution in § 36B(b) was “the wearing, carrying or transporting of any handgun, ³¹⁴ whether concealed or open, upon or about the person.” 311 Md. at 617 , 536 A.2d 1161 .

We explained: There is no requirement as to time, use, person at risk or incident. 311 Md. at 617-618 , 536 A.2d 1161 . We stated: We cannot read into the plain language of the section that a lapse of time or more than one person put at risk or multiple incidents [such as carrying the gun concealed, displaying it openly and again concealing it] would initiate separate offenses. at 618, 536 A.2d 1161 (footnote omitted). We think that § 36B, concerned with handguns, is, to all intents and purposes, the counterpart of § 36, concerned with deadly weapons generally, except handguns. The proscribed conduct in both § 36(a) and § 36B(b) is the same— the carrying of the designated weapon.

In- view of the similarity of the statutes and our holding in Webb , we conclude that the unit of prosecution in § 36(a), as we have found it to be in § 36B(b), is one offense—the carrying of a deadly weapon, regardless of whether it is carried concealed or openly. We pursue the results which would flow from the trial court’s construction of § 36(a)—that in the course of a single incident, 4 the act of carrying a deadly weapon concealed constitutes an entirely separate offense from the act of carrying the weapon openly, with separate punishments allowable for each offense. We conjure up this scenario. Eldridge parks his car on the bar’s parking lot.

He removes the starter pistol from the glove compartment, gets out of the car and puts the pistol in his pocket. He walks toward the bar and on the way removes the pistol from his pocket, checks it and replaces it in his pocket. He enters the bar. In the men’s room he again checks the pistol and ³¹⁵ then pockets it.

Entering the barroom, he pulls the pistol from his pocket and at pistol point commits the robbery, threatening to kill the victim. Upon fleeing the scene he again puts the pistol in his pocket. During the course of this conduct he carried the weapon concealed five times and carried it openly four times. Under the trial court’s interpretation, Eldridge could be convicted of five offenses of carrying a deadly weapon concealed and of four offenses of carrying the weapon openly.

He would be subject to a sentence of 3 years on each offense for a total 27 years. This would be absurd. We cannot conceive that such pyramiding of sentences reflects the intention of the Legislature. See Dickerson v. State, 324 Md. 163, 170-171 , 596 A.2d 648 (1991).

(4) Given that the Legislature intended that § 36(a) creates a single offense which may be committed in