Green v. State

HOLLANDER, Judge. Lawrence E. Green, appellant, was convicted by a jury in the Circuit Court for Baltimore City of fourth degree burglary, in violation of Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 32(a)(1). After Green was sentenced to two years of incarceration, he noted the instant appeal. Appellant presents three questions for our review, which we have rephrased slightly: I. Did the trial court err in its instructions to the jury for the crime of burglary in the fourth degree?

II

Did the trial court abuse its discretion in restricting appellant’s closing argument?

III

Did the trial court err in admitting appellant’s response to police inquiries concerning his address? Because we answer the first question in the affirmative, we decline to answer appellant’s remaining questions. Accordingly, we shall reverse and remand. FACTUAL SUMMARY On April 3, 1997, appellant was arrested and charged with fourth degree burglary of the home of a former girlfriend with whom appellant has a child.

On May 7, 1997, appellant appeared for trial at the District Court for Baltimore City and requested a jury trial. Consequently, his case was promptly forwarded to the circuit court, and trial began there on May 9, 1997. ⁵⁵⁰ At trial, Sheila Marie McDougald (“McDougald”), appellant’s former girlfriend, was the State’s key witness. McDougald stated that, in the early morning hours of April 3, 1997, she awoke to find appellant on the top of the steps, coming into her residence, located at 4406 Pall Mall Road in Baltimore. Appellant seemed “high” and was carrying what appeared to be a “blade.” 1 When McDougald asked appellant how he got into the residence, appellant allegedly replied, “don’t you know I could rob you blind.” After waking the couple’s eight-year-old son and McDougald’s twelve-year-old niece, McDougald went downstairs and turned off the security alarm that had been activated by appellant’s entrance into the residence.

She then asked appellant again how he was able to enter her residence. Appellant did not respond, but he was “hooping and hollering and everything.” She claimed appellant was upset, because he believed that she “had some man in [her] house, in [her] bed or something.” McDougald testified that she neither invited appellant into her home’ nor gave him permission to enter her residence. She determined that appellant gained access to her residence by “[taking] the hinges off the door in the front part of the basement to go through the laundry room. He took the hinges off of that, had the door up on the side and broke the back window----he broke [a screen window] out and ... came through that way by opening up the ... window.” Although McDougald conceded that appellant had previously lived with her for a brief period, she claimed that appellant had not stayed with her during the week preceding the incident.

She also stated that, on one occasion when appellant had stayed at her home, he left his painting tools at her residence. McDougald asserted, however, that appellant removed the tools at some point during the week prior to the incident in issue. ⁵⁵¹ According to McDougald, her security company notified the police of the occurrence. McDougald had also instructed her niece to contact the police. At approximately 6:10 a.m., Officer Carlton Simms responded to a call for a breaking and entering in progress at McDougald’s residence.

Upon his arrival, Officer Simms observed, through the open door of the residence, that appellant and McDougald were “arguing and fussing.” After questioning McDougald, Officer Simms entered the basement in order to determine how appellant gained entry into the residence. There, he observed a window with a damaged locking mechanism. Simms arrested appellant and questioned him about his address. According to Officer Simms, appellant acknowledged that he did not live at McDougald’s residence.

Instead, he stated that he resided at 2440 Keyworth Avenue. Officer Simms also testified that, during the booking process, appellant repeated that he lived at 2440 Keyworth Avenue. After the defense motion for acquittal was denied, appellant testified in his own behalf. Appellant described his relationship with McDougald, stating: [McDougald] is my kid’s mother.

I’ve been knowing [sic] her for ten and a half years and we’ve been seeing each other on and off for that period of time. We may separate. Then we come back, separate and come back. Appellant further explained that, during the time in question, he had been staying with McDougald, and he “would come up there and stay with her maybe a couple of days a week____” Appellant also claimed that he was with McDougald at her home on the night before the incident, and then decided to go out drinking with friends.

He testified: I wanted to go out and hang out for awhile.... [S]he didn’t want me to leave the house. She wanted me to be there with her and sometimes I drink with the fellows. And ⁵⁵² she got a little uptight and I came back that morning. I rung [sic] the doorbell.

I called her on the phone. I didn’t get any answer. So I knew she usually got up about six-thirty. So I kind of [started] thinking is she all right, okay.

I had to get to work. My paint stuff — my clothes are there, my paint material is there, all of that’s there. I goes [sic] around the back and I had went [sic] in this morning before to get in the house. In response to his counsel’s inquiry concerning the reason he entered McDougald’s residence through the window, appellant explained: Because, again, usually she answers the door.

This morning, I don’t know what the problem was[.][S]he wouldn’t answer the door or the phone. So I figured ... maybe something is wrong or I mean, I didn’t know. And I had to get my stuff to go to work. She knows I got to get my stuff to go to work.

So I went in and proceeded to get my stuff to go to work and I went upstairs. I didn’t think she’d make no big deal out of this. This happened before, this happened before, honestly, this happened before. And I went upstairs to get my stuff and she’s looking at me kind of mad.

I just said, well, you act like you had somebody in here last night and we wasn’t really arguing. It was just one of them things, you know. Everybody has problems in their relationship. We were just having a problem at that time.

So I proceeded down the steps. She went and cut the alarm off and the phone had rang [sic]. Appellant also contended that he had gained access to the house through the window on prior occasions, because “[McDougald] would not distribute the key to me because she wants control, okay. And a lot of times when she had to go somewhere in the evening, I will tell her, well, I know how to get in, you know, I’ll be there when you get there.” At the close of the evidence, defense counsel renewed her motion for judgment of acquittal, which the court denied.

The court and defense counsel then engaged in the following exchange with respect to jury instructions: ⁵⁵³ [DEFENSE COUNSEL]: See, I don’t know that the pattern — I was looking at an old pattern book I believe, but I don’t know that that one goes into that there has to be a criminal intent. There does have to be a criminal intent. I have case law on it, Warfield v. State [ 315 Md. 474 , 554 A.2d 1238 (1989) ]. I have the case.

THE COURT: I’m giving the pattern jury instruction. [DEFENSE COUNSEL]: Does it say anything about necessary intent? THE COURT: I’m giving the pattern jury instruction. Either it does or it doesn’t. If you want to take an exception to it later you can, but that’s the instruction that I’m giving. [DEFENSE COUNSEL]: Okay, but can I just tell you one thing?

I do have a case, Warfield v. State, which specifically addresses this issue, not the jury instruction issue, but the issue of whether there is a criminal intent necessary. THE COURT: This is an annotation that is part of the pattern jury instruction, but I’m giving the pattern jury instruction. [DEFENSE COUNSEL]: Okay. Thereafter, the court charged the jury concerning fourth degree burglary. The court said, in pertinent part: In order to convict the defendant, the State must prove, one, that there was a breaking, two, that there was an entry, three, that the breaking and entering was into someone else’s dwelling house, and, four, that the defendant was the person who committed the breaking and entering.

Breaking means the creation of an opening such as a breaking or opening of a window or pushing open a door. Defense counsel timely noted her exception to the instruction. The following colloquy is relevant: [DEFENSE COUNSEL]: Yes, I would like that you include in your instruction that he had to have believed that he was not — that his entry was unwarranted, unlicensed, or ⁵⁵⁴ unprivileged, because based on what you’re saying I think it’s very misleading. It makes it like it’s a— THE COURT: I am giving the pattern jury instruction. [DEFENSE COUNSEL]: I know.

THE COURT: It’s not a specific intent that’s required. It is a general intent. [DEFENSE COUNSEL]: Yes. THE COURT: And if you want to argue that he did not have the intent and he has to have some sort of general intent, you’re perfectly welcome. You can do that, but I’ve given them the instruction— [DEFENSE COUNSEL]: I know, but your instruction makes it sound like a strict liability crime which it’s not, which this case Warfield specifically says it is not.

THE COURT: I didn’t make it sound like a strict liability crime. [DEFENSE COUNSEL]: Well, it sounds like if you go into the home of another you’re guilty. THE COURT: If you want to argue that he didn’t intend to do it, he’d done it in the past, he thought that this was perfectly all right with her, that’s fine. You make that argument. I think that under the case you’ve cited a specific intent is not called for but it does require a general intent that you can argue that he did not have the intent.

Be my guest. During appellant’s closing argument, the court did not permit defense counsel to argue that appellant lacked criminal intent when he entered McDougald’s residence. The following colloquy is illustrative: [DEFENSE COUNSEL]: Thank you, Your Honor. Ladies and gentlemen, to find [appellant] guilty you have to — the State must prove that he had the intent, the criminal intent that’s necessary to sustain a conviction for breaking and entering and that simply is not here. [THE STATE]: I would object, Your Honor.

THE COURT: All rights- ⁵⁵⁵ [THE STATE]: To the reference of criminal intent. The discussion continued at the bench: [DEFENSE COUNSEL]: I’m saying that the State has to prove that he had criminal intent. THE COURT: No, you may not say that. They don’t have to prove that. [DEFENSE COUNSEL]: They don’t have to prove that— THE COURT: No, ma'am, that is not an element of the crime in this case.

No specific intent has to be proven. It’s a general intent crime. So you may argue that he did not intend to do it, but the State does not have to prove intent.... The court then instructed the jury that it was to disregard the statements that defense counsel had made.

Subsequently, when defense counsel asserted that the jury had “to find ... that [appellant] had a criminal intent,” the court again sustained the State’s objection and told the jury to disregard defense counsel’s remark. At another bench conference, the court admonished defense counsel that she could “argue that [appellant] did not intend to break and enter but that’s different from saying the State has to prove criminal intent. ...” The following colloquy ensued: [DEFENSE COUNSEL]: Well, okay, but I just said that they have to believe that he had the criminal intent, that he had— THE COURT: No, they don’t. No, they don’t. [DEFENSE COUNSEL]: They don’t have to believe that he had the criminal intent[?] THE COURT: No. [DEFENSE COUNSEL]: To find him guilty[?] THE COURT: No, you may argue that he did not intend to break into the house, but the elements that I read to them are what they, the State has to prove and what factual findings they have to make, and part of that is a general intention.... [DEFENSE COUNSEL]: But you’ve given me no defense. ⁵⁵⁶ THE COURT: I don’t agree with you. During the remaining course of her closing, defense counsel revisited the topic of appellant’s intent: [DEFENSE COUNSEL]: Now, what else — why does this make sense?

He knew he set the alarm off. He knew that the alarm was going to trigger a 911 call and the police were going to be coming to the home. Did he run away? No, he stayed there because he felt like he had every right to stay there.

You can’t be found guilty of this crime unless you have a criminal intent, unless you believe— [THE STATE]: Objection. THE COURT: Sustained and I instruct the jury to disregard what the defense attorney just said. Defense counsel then resumed her closing: [DEFENSE COUNSEL]: What else makes sense about this? They say that when he’s arrested, he has the paint scraper.

He works as a painter. Even Ms. McDougald tells you that he works as a painter. Ladies and gentlemen, you simply cannot find this man guilty of this crime. That would mean that every time you went into the home if you had a relative or something, that you had left something in their home and you went in to get it and you couldn’t get it, you could be arrested and charged with breaking and entering. [THE STATE]: Objection.

THE COURT: Sustained. Golden rule, disregard what this defense attorney just said. We will include additional facts in our discussion. DISCUSSION A. As we noted, appellant was convicted of fourth degree burglary, pursuant to Code, Article 27, § 32.

It provides, in part: ⁵⁵⁷ (a) Breaking and entering dwelling or storehouse. — (1) A person may not break and enter the dwelling of another. (2) A person may not break and enter the storehouse of another. (d) Penalty. — A person who violates this section is guilty of the misdemeanor of burglary in the fourth degree and on conviction is subject to imprisonment for not more than 3 years. In instructing the jury as to the elements of this offense, the court’s charge, which we quoted earlier, was taken almost verbatim from section 4:06.3 of the Maryland Criminal Pattern Jury Instructions.

See Maryland State Bar Ass’n, Maryland Criminal Pattern Jury Instructions 4:06.3, at 148 (1986, 1995 Supp.). Relying on Warfield v. State, 315 Md. 474 , 554 A.2d 1238 (1989), appellant urged the trial court to expand on the pattern instruction. In essence, appellant argued that the court’s instructions were deficient because they failed to inform the jury about the element of intent. Appellant contends that the evidence adduced at trial showed that he reasonably believed he had implied permission to enter McDougald’s residence, which constituted a defense to the charge under Warfield .

Thus, he argues that the court should have instructed the jury that, in order to convict, appellant had to know that “his entry was unwarranted, unlicensed, or unprivileged.” We agree. In Warfield, 315 Md. 474 , 554 A.2d 1238 , the Court discussed Maryland Code (1957, 1987 RepLVol.), Article 27, §§ 31A and 31B, which then contained the statutory misdemeanor of breaking and entering “the dwelling house of another” (§ 31A) and so called “storehouse” breaking and entering (§ 31B). These offenses are now codified in Code, Article 27, § 32. The Court characterized both offenses as forms of criminal trespass, in that they “proscribe the intrusion upon the property of another with the general intent to break and enter but without the specific intent to commit a ⁵⁵⁸ crime therein.” Id. at 498, 554 A.2d 1238 (emphasis added).

In addressing the criminal intent requirement applicable to section 31A, the Warfield Court said: “The gravamen of the offense is the breaking and entering of the dwelling of another. To be convicted of statutory breaking and entering, as is evident from the legislative intent of the bill, no intent to commit a felony or to steal personal property need be shown____ The misdemeanor crime of statutory breaking and entering, therefore, is a nebulous one as it relates to the intent of the perpetrator, since no showing of any particular intent is required for a conviction under art. 27, § 31A. All that must be shown is that the perpetrator broke and entered a dwelling place of another.” Id. at 496, 554 A.2d 1238 (quoting Bane v. State, 73 Md.App. 135, 149-50 , 533 A.2d 309 (1987)). As a violation of § 31A was malum in se, however, the Court reasoned that proof of a general intent to break and enter is required.

The Court said: A criminal intent requirement is usually