Frazier v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. I The General Assembly of Maryland has long been concerned with the unlawful use of handguns. From time to time, it enacted legislation encompassing these types of weapons. One of the statutes early enacted was codified as § 445(c), Article 27 of the Maryland Code (1957).

As set out in the 1987 Replacement Volume, it reads, in part pertinent to this appeal: It shall be unlawful for any person who has been convicted of a crime of violence ... to possess a pistol or revolver.[ 1 ] “Pistol or revolver” was defined as meaning “any firearm with a barrel less than twelve inches in length, including signal, starter, and blank pistols.” Section 441(c). “Crime of violence” was defined as including robbery; robbery with a deadly weapon; ... or an attempt to commit any of the aforesaid offenses____ Id,., § 441(e). The penalty upon conviction of violating the statute was a fine of not more than $1,000 or imprisonment for not more than three years, or both. Id., § 448. 2 In 1972, the Legislature, more and more concerned with the increasing use of handguns in the commission of crimes, enacted a comprehensive handgun control statute. Acts ⁶⁰⁰ 1972, Ch. 13, codified as Article 27, §§ 36B-36F. 3 The Legislature announced its policy in § 36B(a): Declaration of policy. — The General Assembly of Maryland hereby finds and declares that: (i) There has, in recent years, 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; (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; (iii) The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and (iv) Further regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens.

In furtherance of that policy, the Legislature declared: Any person who shall wear, carry, or transport any handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads, highways, waterways, or airways or upon roads or parking lots generally used by the public in this State shall be guilty of a misdemeanor; and it shall be a rebuttable presump ⁶⁰¹ tion that the person is knowingly transporting the handgun.... Section 36B(b). The penalty upon conviction was made to depend on certain circumstances in which the offense was committed. Section 36B(b)(i)-(iv).

Under § 36F(a) The term “handgun” as used in this subheading shall include any pistol, revolver, or other firearm capable of being concealed on the person, including a short-barreled shotgun and a short-barreled rifle as these terms are defined below, except it shall not include a shotgun, rifle or antique firearm as those terms are defined below.[ 4 ] See Howell v. State, 278 Md. 389, 394-396 , 364 A.2d 797 (1976). Some weapons may be such as to fall within the ambit of both statutes. The revolver found in the possession of Frazier was such a weapon. II A Around midnight on 8 May 1987, Officer Frederick Bealefeld of the Baltimore City Police Department, assigned to the Western District Drug Enforcement Unit, “was teamed up with the rest of [the] Drug Enforcement Unit and in the process of executing a narcotics search and seizure warrant” for the second floor apartment of 624 Baker Street, a three-story rowhouse in Baltimore City.

Bealefeld described the premises: [E]ntrance is gained to that house through the front by means of going up a series of cement steps to the landing and then there’s a small vestibule area and then there’s a common door which leads into a hallway and there’s steps to go up into the apartment, the second floor, and then ⁶⁰² there’s a door right at the top of the steps that blocks entry to go up to the third floor apartment. The police pulled up to the house. Bealefeld was in the lead car with several other officers. They were followed by “at least one more carload of police officers.” As they pulled up in front of the house, two persons were seated on the front steps, one of whom was later identified as “[William] Donald Frazier.” As we began rushing towards the house, Frazier jumped up from the steps and immediately reached towards his waistband area and was moving backwards toward the small vestibule area of the building.

Bealefeld saw Frazier pulling an object from his waistband. The officer could not see clearly what the object was when he first got out of the car, but as he rushed toward the steps, with his pistol drawn, ordering Frazier to stop, he saw that the object “appeared to be a revolver.” “It looked to me to be a revolver in his hand.” Bealefeld and several other officers arrived at the steps at the same time. Officer Maurice Price grabbed Frazier’s wrist and “began wrestling for the gun.” Bealefeld and other officers were able “to force [Frazier] down” and Price pulled the gun from him. Frazier was restrained and the raid proceeded.

The officers gained entrance to the second floor apartment by battering down two doors. Narcotics were found in the apartment. The weapon seized from Frazier was a Colt .38 caliber revolver. It was an “air-weight type model, meaning it’s a .38 caliber but on a very light frame.” The gun is very light to carry around.

Also it has a certain type hammer [designed so it] would not get hung up in clothing and it could be easily carried and not snag on clothing when carried. The gun was loaded with six .38 caliber cartridges, three of ⁶⁰³ which were semi-jacketed hollow-point. 5 B After Frazier was placed under arrest, it was ascertained that he had been previously convicted in the Circuit Court for Baltimore City of attempted robbery with a deadly weapon upon his plea of guilty, that he had been sentenced, and that the judgment had been affirmed on appeal. Three statements of charges were filed against him, alleging, respectively, that he “[d]id wear, carry and transport a handgun upon and about his person in Baltimore City,” that he “[d]id possess a revolver, after being convicted of a crime of violence in Baltimore City,” and that he did conspire to distribute controlled dangerous substances. The statements of charges were sent to the Circuit Court for Baltimore City for trial.

Frazier filed a pretrial motion in which he represented [t]hat [he] is charged with the commission of two or more unrelated crimes, the joint trial of which would prejudice [his] right to a fair and impartial trial as to each charge. “Wherefore,” he prayed, that the court “sever the trial of these indictments.” Upon a hearing the court denied the motion. Trial proceeded before a jury. At the conclusion of the State’s case-in-chief, the court granted Frazier’s motion for judgment of acquittal as to the conspiracy charge. The jury rendered verdicts of guilty on the remaining two charges, designated on the verdict sheet given the jurors as “wearing, carrying and transporting a handgun,” and “possession of a revolver after being convicted of a ⁶⁰⁴ crime of violence.” Sentences were imposed.

Frazier appealed from the judgments. A majority of the panel of the Court of Special Appeals affirmed the judgments. Frazier v. State, No. 1317, September Term, 1988, filed 25 April 1989, unreported. We granted Frazier’s petition for a writ of certiorari and ordered that the case be certified to this Court, accepting for review the two questions presented in the petition: 1) Did the trial judge err by denying [Frazier’s] request for a separate trial on the charge of possessing a pistol or revolver by one who has been convicted of a crime of violence? 2) Must the convictions and sentences for wearing, carrying, or transporting a handgun and for possessing a pistol or revolver by a person who has been convicted of a crime of violence be merged?

Ill Joint or Separate Trials A At the hearing on the motion to sever, defense counsel pointed out that an essential element of Art. 27, § 445(c) is that there be a prior conviction of a crime of violence. He observed: [t]hat particular evidence would not be admissible against [Frazier] as far as the other two charges are concerned ... until and unless my client testified and then that evidence would only be admissible insofar as it goes to his credibility. Defense counsel declared that “under these circumstances ... it would be highly prejudicial, as far as disposition and the jury’s consideration on the [other two counts].” The prosecutor agreed that “it would be prejudicial, but that is, of course, the nature of the offense before the court.” The court asked: ⁶⁰⁵ Well wouldn’t a better way to do it be to deny the motion and let it be tried and I will instruct the jury appropriately? Isn’t that the way this matter shall be handled?

Defense counsel brought to the court’s attention the teachings of McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977), to the effect, in his words, limiting instructions in the situation where the evidence that is admissible on the one charge and not to the other is evidence of another crime, but the limiting instructions are not sufficient to overcome the prejudice. The trial judge did not read McKnight that way. He opined that the factual situation in McKnight — “a series of ... eight separate assaults and robberies or holdups” — is “not this case.” The judge explained: This man is charged in the same happening, all out of the same happening with possession of a handgun as a felon____ I think the jury has a right to know exactly what the facts behind the happening resulting in a charge, all arising out of the same happening at the same time____ Therefore, the motion is denied. The judge said: “I will grant the curative instruction.” Defense counsel asked the judge to defer the ruling on the motion until after Frazier had made a decision either to testify or to remain silent.

The judge declined to do so. I want to give you a better shot at it if you feel I am wrong. I’m going to make it right now because I don’t want it conditioned upon whether he’s going to testify or not to testify because he has an absolute right not to testify and I don’t want to be part of the pressure one way or the other as to that decision, and if I withhold my decision at this time, it may well be so conceived or construed by another Court, and, therefore, my decision is a denial____[ 6 ] ⁶⁰⁶ At the trial, a certified copy of the docket entries with respect to Frazier’s prior conviction was admitted in evidence over his objection and given to the jury. The judge included in his instructions that if the jury found that Frazier was in possession of a revolver, it was the jury’s “job to determine whether or not [Frazier] has been previously convicted of a crime of violence.” He cautioned: You have heard evidence of a previous conviction of the defendant. 'You may consider this conviction in determining the guilt or innocence of the defendant with respect to the crime charged of possession of a revolver after having been convicted of a crime of violence; however, you may not consider this conviction in determining the defendant’s guilt or innocence of the crime of wearing, carrying, or transporting a handgun.

Defense counsel requested clarification. The court further instructed on the matter: [I]n order to be able to consider the second charge in this case, that is, possession of a revolver after having been convicted of a crime of violence, you must have , already then found the defendant guilty of the first charge [wearing, carrying or transporting a handgun]. If you have found the defendant not guilty of possession of a revolver, then, of course, you can't find him guilty of the second charge. The jurors said that they understood.

Defense counsel requested further clarification respecting the two elements of the second charge. The judge complied. He told the jury that it had two things to consider as to the second charge. In addition to the element of possession of a ⁶⁰⁷ revolver, “it is your job to determine whether or not he has previously been convicted of a crime of violence----” B The matter of a severance or a joinder is ordinarily committed to the discretion of the trial judge.

Grandison v. State, 305 Md. 685, 705 , 506 A.2d 580 , cert. denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 , reh. denied, 479 U.S. 1001 , 107 S.Ct. 611 , 93 L.Ed.2d 609 (1986); Graves v. State, 298 Md. 542, 544 , 471 A.2d 701 (1984). And, ordinarily, when only one defendant is involved, the judge may order two or more offenses, whether felonies or misdemeanors, or any combination thereof, to be tried together if the offenses are of the same or similar character. Graves at 544, 471 A.2d 701 . But we have specifically authorized the judge, in ruling on a motion for a joint trial when a defendant is charged in two or more charging documents, to “inquire into the ability of either party to proceed at a joint trial.” Md. Rule 4-253(b). 7 This was in accord with the overbearing concern of the law of this State with respect to joint or separate trials of a defendant charged with criminal offenses to safeguard against potential prejudice.

To this end we adopted Maryland Rule 4-253(c): If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires. In the light of this caveat, we examined in McKnight the propriety in a jury trial of a joinder, permissible in the first instance because the offenses were of similar character, ⁶⁰⁸ where the evidence would not be mutually admissible at separate trials. We observed that in any given case of similar offense joinder, tried before a jury, the likely prejudice caused by the joinder must be balanced against the considerations of economy and efficiency in judicial administration. McKnight, 280 Md. at 609-610 , 375 A.2d 551 .

In doing so, consideration should be given to likely prejudice to a defendant in three important respects: First, he may be embarrassed, or confounded in presenting separate defenses____ Secondly, the jury may cumulate the evidence of the various crimes charged and find guilt when, if the offenses were considered separately, it would not do so. At the very least, the joinder of offenses may produce a latent hostility, which by itself may cause prejudice to the defendant’s case. Thirdly, the jury may use the evidence of one of the crimes charged, or a connected group of them, to infer a criminal disposition on the part of the defendant from which he may also be found guilty of other crimes charged. Id. at 609 , 375 A.2d 551 (citations omitted).

We opined, particularly in light of the third aspect of likely prejudice, that “where offenses are joined for trial because they are of similar character, but the evidence would not be mutually admissible, the prejudicial effect is apt to outweigh the probative value of such evidence.” Id. at 610 , 375 A.2d 551 . We concluded that, at a jury trial, “a defendant charged with similar but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials.” Id. at 612 , 375 A.2d 551 (emphasis added). We iterated and applied this holding in State v. Jones, 284 Md. 232 , 395 A.2d 1182 (1979), recognized it with approval in Tichnell v. State, 287 Md. 695 , 415 A.2d 830 (1980), and explicated it in Graves, 298 Md. at 545 , 471 A.2d 701 . We said in Graves, at 545, 471 A.2d 701 : The McKnight holding took away the discretion of the trial judge presiding at a jury trial to join similar offenses where the evidence as to them was not mutually admissi ⁶⁰⁹ ble.

As we have indicated, in such circumstances, there was prejudice as a matter