Handy v. Maryland

CATHELL, Judge. Mark Handy, petitioner, was convicted by a jury in the Circuit Court for Baltimore City of robbery with a dangerous or deadly weapon, robbery, and wearing and carrying a weap ⁶⁸⁹ on openly with intent to injure. The weapon petitioner used during the robbery was pepper spray (also called “pepper mace”). The circuit court sentenced petitioner to twenty years imprisonment for the robbery with a dangerous or deadly weapon charge, with all but twelve years suspended in favor of five years probation.

The other charges were merged for sentencing purposes. Petitioner appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court. Handy v. State, 126 Md.App. 548 , 780 A.2d 710 (1999). This Court granted petitioner a writ of certiorari based on the following issue: “Whether pepper spray or mace qualifies as a dangerous or deadly weapon for purposes of proving the crime of robbery with a dangerous or deadly weapon[J” We hold that pepper spray or mace may be considered a deadly or dangerous weapon when used during the commission of a robbery.

Because there was sufficient evidence in this case for the jury to find that petitioner’s use of pepper spray constituted the use of a dangerous weapon during the commission of a robbery, we affirm. I. Facts Harry Sparks, a letter carrier with the United States Postal Service, was delivering mail on his usual route in Baltimore on October 3, 1996, when he was approached by petitioner in front of 134 North Edgewood Street. Petitioner asked him for change of address cards. Mr. Sparks informed petitioner that he did not have any change of address cards and that he normally did not carry them.

Petitioner proceeded up the stairs to 134 North Edgewood and blocked access to the porch. He then stepped down as if to let Mr. Sparks pass. As Mr. Sparks began to head up the stairs to Number 134, petitioner sprayed him in the eyes with pepper spray. Mr. Sparks attempted to wrestle with petitioner but fell to the ground, after which petitioner grabbed the mail bag and fled.

As Mr. Sparks would later testify at trial, October 3, 1996, was the day for that month in which retirees received their Social Security payment checks in the mail. Mr. Sparks gave a partial description of the robber to the police when they ⁶⁹⁰ arrived and identified petitioner six months later from a photo array. At trial, counsel for petitioner moved for a judgment of acquittal at the close of the State’s evidence. She argued that pepper spray was not a dangerous or deadly weapon under the robbery statute petitioner was charged with violating, Maryland Code (1957, 1996 Repl.Vol.), Article 27, section 488. 1 The trial judge denied the motion.

Defense counsel renewed the motion at the end of trial, which the trial judge again denied. The jury convicted petitioner of all charges against him. Petitioner appealed to the Court of Special Appeals. That court affirmed petitioner’s conviction, holding, inter alia, that pepper spray may become a dangerous weapon ... when it is used as an offensive weapon to injure and overcome the intended victim.

The temporary blinding of an individual qualifies as serious harm, and one of the primary purposes of pepper spray is to provide personal protection in defending against criminal assaults. It is the use to which the object is put that determines whether a particular object is a dangerous or deadly weapon. Handy, 126 Md.App. at 553 , 730 A.2d at 712 . The intermediate appellate court also held that “whether an object that is not necessarily a dangerous weapon, but can be used as such, may be considered a dangerous weapon under the applicable statute is a question of fact to be resolved by the trier of fact.” Id. at 555 , 730 A.2d at 713 .

We shall affirm the result, but upon slightly different reasons. . We hold that whether it is possible for an object to be used as a deadly or dangerous weapon and whether its use in a particular way constitutes the use of a dangerous or deadly weapon in the commission of a criminal offense is a matter of law for the court. In any given case, whether the facts alleged by the State are proven is for the trier of fact to ⁶⁹¹ determine. Whether pepper spray can be used as a deadly or dangerous weapon, and whether spraying pepper spray into a person’s face for the purpose of robbing that person constitutes robbery with a deadly or dangerous weapon are questions of law for the court.

Here, because the jury found that petitioner did, in fact, discharge the pepper spray into the face of the victim during the course of a robbery, we shall affirm the Court of Special Appeals’s affirmance of petitioner’s conviction for that offense.

II

Discussion Article 27, section 488, the section with which petitioner was charged and convicted of violating reads: § 488. Robbery with deadly weapon. Every person convicted of the crime of robbery or attempt to rob with a dangerous or deadly weapon or accessory thereto is guilty of a felony, shall restore to the owner thereof the thing robbed or taken, or shall pay him the full value thereof, and be sentenced to imprisonment for not more than 20 years. This Court has noted previously that “[r]obbery with a [dangerous or] deadly weapon is not a separate substantive offense, but if the State can prove that a defendant used a [dangerous or] deadly weapon during the commission of a robbery, the defendant is subject to harsher penalties.” Conyers v. State, 345 Md. 525, 558 , 693 A.2d 781, 796-97 (1997) (citing Whack v. State, 288 Md. 137, 140-41 , 416 A.2d 265, 266 (1980)); cf. Eldridge v. State, 329 Md. 307, 316 , 619 A.2d 531, 536 (1993).

Because the words “deadly or dangerous weapon” are stated in the disjunctive, the State need not prove that the weapon is deadly; the dangerousness of the weapon used will suffice to sustain a conviction. See Hayes v. State, 211 Md. 111, 116 , 126 A.2d 576, 578-79 (1956); Bell v. State, 5 Md.App. 276, 279 , 246 A.2d 286, 288 (1968). A. Treatment of Pepper Spray as a Dangerous Weapon This Court examined what constitutes a dangerous or deadly weapon under section 488 in Brooks v. State, 314 Md. ⁶⁹² 585, 552 A.2d 872 (1989). We noted two approaches: the subjective test, in which “a weapon is deadly or dangerous if the victim believes it to be of that character and is, therefore, intimidated by its use,” and the objective test, in which “to be deadly or dangerous a weapon must be inherently of that character or must be used or useable in a manner that gives it that character.” Id. at 590, 552 A.2d at 875 .

We ultimately adopted the objective test. Id. at 600, 552 A.2d at 880 . In doing so, we held that a related statute, Article 27, section 36, which prohibits the concealed wearing or carrying of a dangerous or deadly weapon, or the wearing or carrying of a dangerous or deadly weapon openly with intent to injure, embodied the Legislature’s intent that the trier of fact determine objectively whether the facts supported that an object was used as a dangerous or deadly weapon: One aspect of context is the “relationship [of the statute under consideration] to earlier and subsequent legislation ” Wynn [v. State], 313 Md. [533,] 539, 546 A.2d [465,] 468 [ (1988) ] (quoting Kaczorowski [v. Mayor of Baltimore], 309 Md. [505,] 515, 525 A.2d [628,] 632-633 [ (1987) ]). On the statute books when Chapter 457, Acts of 1927, was enacted, [creating section 488,] was the predecessor to Article 27, § 36.

In 1927, that provision was Article 27, § 42, and it read thus: Every person who shall wear or carry any pistol, dirk-knife, bowie knife, slung shot, billy, sand club, metal knuckles, razor, or any other dangerous or deadly weapon of any kind whatsoever (pen knives excepted) concealed upon or about his person, and every person who shall wear or carry any such weapon openly with the intent or purpose of injuring any person in any unlawful manner, shall be guilty of a misdemeanor. This statute gives us an indication of what sort of implements the legislature believed to be dangerous or deadly weapons. It is apparent that the term encompasses only those devices that are inherently dangerous or deadly or that may be used with dangerous or deadly effect. See Walker v. State, 53 Md.App. 171, 204 , 452 A.2d 1234 , 1251 ⁶⁹³ (1982), cert. denied, 296 Md. 63 (1983).

As in the case of § 488, we have held that an unloaded pistol is covered. Wallace v. Warden, 226 Md. 670 , 174 A.2d 435 (1961). So is a starter’s pistol. Jackson [v. State ], 231 Md. 591 , 191 A.2d 432 [ (1963) ].

But § 36 was not aimed at minimizing intimidation of victims. A victim or potential victim cannot be intimidated by the carrying of a concealed weapon. It was designed to penalize those who had in their possession, with evil intent, instruments that were likely to be used to inflict serious or deadly injury. In short, the objective approach to determining what was dangerous or deadly was embodied in this statute.

It is not unreasonable to assume that the legislature that adopted what is now § 488 transported into that statute the “dangerous and deadly” language of old § 42, intending it to carry the same meaning as it then bore. Id. at 599-600, 552 A.2d at 879-80 (first alteration in original). Based on the previous cases concerning dangerous or deadly weapons, we developed three objective tests, only one of which need be satisfied, to determine that an object used during the commission of a robbery was a dangerous or deadly weapon: [F]or an instrument to qualify as a dangerous or deadly weapon under § 488, the instrument must be (1) designed as “ ‘anything used or designed to be used in destroying, defeating, or injuring an enemy, or as an instrument of offensive or defensive combat,’ ” Bennett [v. State ], 237 Md. [212,] 214-215, 205 A.2d [393,] 394 [ (1964) ]; (2) under the circumstances of the case, immediately useable to inflict serious or deadly harm (e.g., unloaded gun or starter’s pistol useable as a bludgeon); or (3) actually used in a way likely to inflict that sort of harm {e.g., microphone cord used as a garrote). Id. at 600, 552 A.2d at 880 . 2 Petitioner asks this Court to hold that pepper spray per se is not a dangerous weapon under all three of the Brooks objective tests. ⁶⁹⁴ It is for the trial court to determine initially, as a matter of law, whether an object can be considered a deadly or dangerous weapon under any of the Brooks categories.

If the trial court is satisfied that an object can fit into any of the Brooks tests, then the trier of fact is left to determine whether the criminal use of a deadly or dangerous weapon, actually occurred. Some of the cases assuming the potential deadly or dangerous nature of objects, have addressed only the issue of whether the facts support the use of such weapons, and have done so in a less than complete analysis of which issues are matters of law for the court and which are purely factual matters. They have nonetheless supported the general proposition that factual matters are for the trier of fact. In arriving at the correct bottom line holdings, the language of the opinions has sometimes missed the intervening step we have described above, and further discuss, infra.

The cases include: People v. Davis, 42 Cal.App.4th 806, 819 , 49 Cal.Rptr.2d 890, 898 (1996) (noting that certain weapons, as a matter of law, may be classified as per se deadly or dangerous for the purposes of first-degree robbery and that whether other weapons that “are not weapons in the strict sense, yet may become such according to the manner of use,” were used as such “is a question of fact”); People v. Elliott, 299 Ill.App.3d 766, 773 , ⁶⁹⁵ 234 Ill.Dec. 303 , 702 N.E.2d 643, 647 (1998) (recognizing that if the trial court is unable to determine as a matter of law that an object per se is a dangerous or deadly weapon or that it per se can never be categorized as such, then the jury must decide whether the object, in that case, actually was used or usable as a deadly or dangerous weapon); Commonwealth v. Tarrant, 367 Mass. 411, 416 , 326 N.E.2d 710, 714 (1975) (“[WJhere the instrumentality is not per se harm-inducing it is a question of fact ... whether the circumstances surrounding the presence of the instrumentality suggest its latent character as dangerous.”); State v. Howard, 125 N.J.Super. 39, 45 , 308 A.2d 366, 369 (App.Div.1973) (holding that a straight razor is neither per se a lethal weapon or per se excluded from that categorization as a matter of law, but can be a lethal weapon if used as such under the facts of the case); State v. Bonner, 118 Ohio App.3d 815, 823 , 694 N.E.2d 125, 131 (1997) (holding that a robbery while the defendant held a metal bludgeon constituted sufficient evidence as a matter of law to submit the issue to the jury of whether the bludgeon was actually used for the purposes of aggravated robbery); Beeler v. State, 334 P.2d 799, 806 (Okla.Crim.App.1959) (noting that it is for the jury to decide whether weapons that are not “clearly lethal,” but are capable of being so used, were actually used in a manner to produce death or great bodily harm). The issue of whether an object not dangerous or deadly per se may nevertheless be usable in a dangerous and deadly manner is a matter of law for the court to determine. The issue of whether use of the object in the particular way in which the State alleges it to have been used constitutes the commission of a crime, e.g., robbery with a deadly or dangerous weapon, is also a matter of law for the court to determine. An example of how a trial court might perform this duty could be an instruction informing the jury that if a particular object is used in a particular way, it is being used as a dangerous or deadly weapon for the purpose of whatever criminal statute or offense is at issue. ⁶⁹⁶ The issue for the trier of fact is whether the evidence supports, beyond a reasonable doubt, that the facts alleged by the State have happened.

If the objects are not susceptible of being used as deadly or dangerous weapons, or .if the alleged facts, if true, do not constitute the commission of the crime charged, the trial court, upon proper motion, should dismiss or grant an acquittal of that charge. Only if the objects are, or are susceptible to being, dangerous or deadly weapons, and only if the facts alleged and the evidence in support thereof would permit, as a matter of law, a finding that the particular crime has been committed, should the jury normally be permitted to determine whether those facts did occur. In Brooks, 314 Md. at 600-01 , 552 A.2d at 880 , for instance, this Court held, as a matter of law, that a lightweight plastic toy gun generally may not be classified as a deadly or dangerous weapon under the tests enunciated by the Court. The spraying of pepper spray into a person’s face for the purpose of facilitating a robbery of that person is, as a matter of law, the use of a dangerous and deadly weapon in the commission of robbery because pepper spray may be classified as a deadly or dangerous weapon under any of the three Brooks categories.

Petitioner argues that pepper spray does not fall under the first category, instruments “used or designed to be used in destroying, defeating, or injuring an enemy, or as an instrument of offensive or defensive combat,” Brooks, 314 Md. at 600 , 552 A.2d at 880 , because pepper spray “is designed to temporarily disable an attacker to provide a means of hasty escape [and] is designed not to cause serious bodily injury or death.” Although this Court has never addressed whether pepper spray could fall under this first category of weapons, other jurisdictions have done so for various reasons. The great majority of these courts hold that pepper spray, as a matter of law, can be used as a dangerous weapon, including when it is used during the commission of a robbery. For instance, in People v. Norris, 236 Mich.App. 411 , 600 N.W.2d 658 (1999), the defendant sprayed several employees of a ⁶⁹⁷ jewelry store with a mixture of tear gas and pepper spray during a robbery. The employees testified to numerous maladies: “extreme eye pain and irritation, burning sensations on the skin and in the nose, mouth, and lungs, and breathing difficulties.

One of the victims suffered a cornea defect in both eyes....” Id. at 412-13 , 600 N.W.2d at 660 . The Michigan Court of Appeals held that these types of injuries were sufficient enough to classify the tear gas and pepper spray mixture as a dangerous weapon under Michigan’s armed robbery statute. Id. at 418-19 , 600 N.W.2d at 662-63 . In United States v. Neill, 166 F.3d 943, 949-50 (9th Cir.), cert. denied, — U.S. —, 119 S.Ct. 2037 , 143 L.Ed.2d 1046 (1999), the United States Court of Appeals for the Ninth Circuit held that pepper spray was a dangerous weapon for the purpose of increasing a bank robbery sentence under the federal sentencing guidelines.

The court noted that, under the federal guidelines, dangerous weapons are those that inflict “serious bodily injury,” which means “extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty....” Id. at 949 (quoting U.S. Sentencing Guidelines Manual § 1B1.1 cmt. l(j) (1997)). The court noted that one victim testified that she choked and coughed during the attack, while her eyes and nose burned. She suffered asthma attacks for a week after the incident. Because the pepper spray “caused extreme pain and prolonged impairment” of the victim’s lungs, the court held it was proper to increase the defendant’s sentence for the use of a dangerous weapon.

Id. at 950. See also Elliott, 299 Ill. App.3d at 773 , 234 Ill.Dec. 303 , 702 N.E.2d at 648 (holding that the use of pepper spray during a bank robbery constituted use of a dangerous weapon when the victims experienced difficulty breathing, nausea, and burning in the eyes); cf. United States v. Taylor, 135 F.3d 478, 481-82 (7th Cir.1998) (holding that “bodily harm” caused by the use of pepper spray on several victims was sufficient to increase the sentence under the federal guidelines); United States v. Robinson, 20 F.3d 270, 278-79 (7th Cir.1994) (same). ⁶⁹⁸ Mace and tear gas, which cause similar effects as pepper spray, 3 have also been treated as dangerous weapons in courts of other jurisdictions. In United States v. Dukovich, 11 F.3d 140 (11th Cir.), cert. denied, 511 U.S. 1111 , 114 S.Ct. 2112 , 128 L.Ed.2d 671 (1994), the government sought a sentence enhancement under the federal guidelines because the defendant had sprayed tear gas in the air during a bank robbery.

The Eleventh Circuit noted that one victim “experienced eye pain and a severe headache,” that the gas made everyone in the bank “tear up,” and that a teller “was struck near her left eye, causing a severe burning sensation.” Id. at 142 . The court agreed that the tear gas constituted a dangerous weapon for sentencing purposes. Id. The Eighth Circuit also held in United States v. Bartolotta, 153 F.3d 875, 879 (8th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 850 , 142 L.Ed.2d 703 (1999), that the defendant’s act of spraying mace on two victims during an attempted robbery of an armored car, which caused them “serious bodily injury,” was proved sufficiently to enhance the sentence for use of a dangerous weapon.

See also United States v. Brown, 508 F.2d 427, 430 (8th Cir.1974) (noting that the defendant could be convicted for attempting to board an aircraft with a concealed dangerous weapon when he possessed a tear gas gun in his suitcase); State v. Johnson, 730 So.2d 1035, 1038 (La.Ct.App.1999) (affirming a conviction for armed robbery with a dangerous weapon when the defendant blinded a correctional officer with mace and took his billfold); Barrett v. State, 105 Nev. 361, 361-62 , 775 P.2d 1276, 1277-78 (1989) (upholding a sentence enhancement for using a deadly weapon when the defendant sprayed a robbery victim with mace); Pitts v. State, 649 P.2d 788, 791 (Okla.Crim.App.1982) (holding that a can of mace used to threaten a robbery ⁶⁹⁹ victim was a dangerous weapon under Oklahoma’s aggravated robbery statute); cf. Hartman v. State, 403 So.2d 1030, 1031 (Fla.Dist.Ct.App.1981) (holding that the defendant was properly convicted of armed robbery when the weapon was a can of mace). 4 These cases indicate that pepper spray, mace, and tear gas canisters generally are designed in such a way that they may fit within the first category of Brooks . We agree with the bottom line of the cases