Harris v. State

ROBERT M. BELL, Judge. We granted certiorari in this case to consider whether under Maryland Code (1957, 1992 Repl.Yol.) Article 27, ¹⁴² § 281A(b), a firearm is “used” during and in relation to a drug trafficking offense when it is neither actively employed nor brandished. 1 327 Md. 304 , 609 A.2d 312 . In addition, because we granted certiorari prior to argument or decision by the Court of Special Appeals, we must address two other issues. One involves the application of Maryland Rule 1-351, which pertains to ex parte orders.

The other involves the propriety of the trial court’s allowance of cross-examination of the appellant concerning the defendant’s income and Maryland State income tax returns. I. 2 Cecil Harris, the appellant, was convicted by a jury in the Circuit Court for Baltimore City of possession of cocaine in sufficient quantity to indicate an intent to distribute, possession of marijuana, and feloniously using, wearing, carrying, or transporting a firearm, to wit, an Uzi semi-automatic 9mm assault firearm, during and in relation to a drug trafficking crime. 3 He was sentenced to concurrent terms of imprisonment—ten years for the cocaine charge, six months for the marijuana charge and ten years without parole for use of the ¹⁴³ firearm. 4 The charges arose out of the Baltimore City Police Department’s execution of a search and seizure warrant, at premises at which the appellant maintained a part-time residence and, out of which, he had, at one time, operated a restaurant and car repair business. The appellant and three others were found on the first floor, seated on the sofa in the living room. Neither weapons nor drugs were found on that floor or on the person of the appellant and his companions.

All of the drugs and weapons were found on the second floor. In a hallway closet, 96.6 grams of 70% pure cocaine, valued at $36,000, were found in the false bottom of a “Fix-A-Flat” container. Eleven bags of cocaine and a bag of marijuana were found in the pocket of a man’s leather jacket, which was located in the middle room closet. The Uzi semi-automatic 9mm firearm was seized, in plain view, from the appellant’s room, the front bedroom.

In that same room, the police recovered a loaded .357 handgun which was stuffed between pillows in a couch and three unloaded shotguns, all located in the closet. A .22 caliber Derringer handgun containing one round, was found in a drawer of the dresser in that room. The appellant owned all of the firearms. The State offered expert testimony as to the significance of the evidence recovered.

According to Officer Glenn Williams, to whose qualifications in narcotics investigation the parties stipulated, the quantity and purity of the cocaine found in the ¹⁴⁴ Fix-A-Flat can indicated distribution rather than personal use. He also testified that the premises was a narcotics stash house, in which guns are ordinarily kept to protect the narcotics from rival dealers and police. That was the purpose of the Uzi found in appellant’s bedroom, Officer Williams opined. Testifying in his defense, the appellant described the businesses he operated at the premises as a carry-out restaurant and a mechanic shop and a tire shop.

Although the carry-out had been closed, he testified that he made some money in that store. On cross-examination, the appellant testified that he supported himself from the proceeds of his businesses. He characterized his car repair business as profitable, as long as his physical condition permitted him to work, and his carryout restaurant business as doing pretty well. This prompted inquiry concerning his income, his 1989 and 1990 taxes, and his expenses, generally.

The appellant’s 1989 and 1990 Maryland tax returns, showing income of $2,909 in 1989 and $18,441 in 1990, which were admitted into evidence, formed the basis for much of the questioning. The appellant objected to being questioned about the tax returns and to their admission in evidence. On redirect, as he had also done on cross-examination, the appellant testified to having other income from insurance and disability payments. The appellant’s tax returns were obtained during the course of the trial.

The prosecutor obtained a court order for their disclosure without notice first being given to the appellant that they were being sought. Neither was the appellant or his counsel present when the State presented the court with the petition and order. 5 II. Section 281A(b), by its plain language, makes it a crime for a person to use or to wear, carry or transport a ¹⁴⁵ firearm during, and in relation to, a drug trafficking crime. There are three prerequisites: the firearm must be 1) used, worn, carried or transported, 2) during a drug trafficking crime, and 3) in relation to it.

One who uses or wears, carries or transports a firearm during a drug trafficking crime is not guilty of a violation of section 281A(b) unless the evidence also establishes that the use, wearing, carrying or transporting was in relation to that crime. While penal statutes are to be strictly construed against the State and in favor of the defendant, State v. Kennedy, 320 Md. 749, 754 , 580 A.2d 193, 195 (1990); Davis v. State, 319 Md. 56, 61 , 570 A.2d 855, 858 (1990); Wynn v. State, 313 Md. 533, 539 , 546 A.2d 465, 468 (1988); 3 Norman J. Singer, Statutes and Statutory Construction, § 59.03 (4th ed. 1986), so that only punishment contemplated by the words of the statute is meted out, Davis, 319 Md. at 61 , 570 A.2d at 858 , the construction to be given a statute must depend upon discerning the intention of the Legislature when it drafted and enacted it. Kennedy, 320 Md. at 755 , 580 A.2d at 196 . This requires reading and interpreting the entire statute, neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the words actually used.

Bd. of Educ. of Garrett County v. Lendo, 295 Md. 55, 63 , 453 A.2d 1185, 1189 (1982); Smelser v. Criterion Ins. Co., 293 Md. 384, 389 , 444 A.2d 1024, 1027 (1982); Pappas v. Pappas, 287 Md. 455, 465 , 413 A.2d 549, 553 (1980). Moreover, construction requires that the statute be given a reasonable interpretation, not one that is illogical or incompatible with common sense. D & Y, Inc. v. Winston, 320 Md. 534, 538 , 578 A.2d 1177, 1179 (1990); Blandon v. State, 304 Md. 316, 319 , 498 A.2d 1195, 1196 (1985); Erwin and Shafer, Inc. v. Pabst Brewing Co., 304 Md. 302, 315 , 498 A.2d 1188, 1194 (1985).

Our inquiry into legislative intent begins with the words of the statute and, ordinarily, will also end there. Where the words of the statute are clear and unambiguous, there usually is no need to go further in construing the ¹⁴⁶ statute, Mustafa v. State, 323 Md. 65, 73 , 591 A.2d 481, 485 (1991); G. Heileman Brewing Co. v. Stroh Brewery Co., 308 Md. 746, 755 , 521 A.2d 1225, 1230 (1987); In re Criminal Investigation No. 1-162, 307 Md. 674, 685 , 516 A.2d 976, 982 (1986); Comptroller of Treasury v. Fairchild Industries, Inc., 303 Md. 280, 284 , 493 A.2d 341, 343 (1985). Giving the words their ordinary and common meaning “in light .of the full context in which they appear, and in light of external manifestations of intent or general purpose available through other evidence,” Dickerson v. State, 324 Md. 163, 170-71 , 596 A.2d 648, 651-52 (1991), quoting Cunningham v. State, 318 Md. 182, 185 , 567 A.2d 126, 127 (1989), normally will result in the discovery of the Legislature’s intent. State v. Bricker, 321 Md. 86, 92 , 581 A.2d 9, 12 (1990).

In the interest of completeness, however, we may look at the purpose of the statute and compare the result obtained by use of its plain language with that which results when the purpose of the statute is taken into account. Sabatier v. State Farm Mut. Auto. Ins.

Co., 323 Md. 232, 250 , 592 A.2d 1098, 1107 (1991); Mustafa, 323 Md. at 73 , 591 A.2d at 485 ; Baltimore County Coalition Against Unfair Taxes v. Baltimore County, 321 Md. 184, 203 , 582 A.2d 510, 519 (1990); Cunningham, 318 Md. at 185 , 567 A.2d at 127 ; Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505, 514-15 , 525 A.2d 628, 632-33 (1987). We may also consider such evidence as “a bill’s title and function paragraphs, amendments that occurred as it passed through the legislature, its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal----” Wynn, 313 Md. at 539 , 546 A.2d at 468 , quoting Kaczorowksi, 309 Md. at 515 , 525 A.2d at 632-33 . And we may look to the Court’s interpretation or treatment of another statute treating the same or similar subject matter. Bridges v. Nicely, 304 Md. 1, 10 , 497 A.2d 142, 146 (1985).

A. The appellant insists that the evidence in the case sub judice showed only that he possessed the firearm and that the General Assembly did not make it a crime to possess a firearm ¹⁴⁷ during and in relation to a drug trafficking crime. The language of section 281A(b), the appellant argues, is plain and unambiguous, and in that regard, cannot be construed to cover mere possession. He posits that “possession” and “use” have different meanings; while one necessarily possesses a firearm while using it, it is not necessarily true that one who possesses a firearm also uses it. The State does not dispute, nor can it, that the appellant was not wearing, carrying or transporting 6 a firearm during and in relation to a drug trafficking crime; direct evidence established that no firearms were found on the appellant and, in fact, that the only firearms recovered were located on the second floor, one floor removed from the appellant.

The State does argue, however, that the appellant “used” a firearm during and in relation to a drug trafficking crime. It concedes that section 281A(b) does not punish the mere possession of a firearm, unrelated in any way to a drug trafficking offense. Nonetheless, specifically, citing Rich v. State, 93 Md.App. 142, 154-61 , 611 A.2d 1034, 1039-43 (1992), the purpose of the Drug Kingpin Act, and the cases construing the federal statute, which is similar to section 281A(b), the State, argues that it does not follow that the statute requires proof of the active use or brandishment of a firearm. As the State sees it, the statute ought to be read so as to encompass any case in which a firearm in any way facilitates a drug offense.

In other words, the State urges us to construe the statute so that it covers the drug dealer who keeps a firearm accessible to protect his drugs. B. In Wynn v. State, 313 Md. 533, 543 , 546 A.2d 465, 470 (1988), this Court defined “use.” At issue in that case was the ¹⁴⁸ interpretation of Md.Code (1957, 1982 Repl.Vol., 1986 Cum. Supp.) Art. 27, § 36B(d), which proscribes the “use of a handgun in the commission of a felony or crime of violence,” a crime very much like that proscribed by section 281A(b). In Wynn , the defendant was carrying a loaded .38 revolver during a housebreaking, a crime of violence.

See Md.Code (1957, 1992 Repl.Vol.) Art. 27, § 441. Although the evidence did not establish that he actively employed or brandished the handgun while engaged in the housebreaking, he was charged with “using” the handgun during its commission. 313 Md. at 535 , 546 A.2 at 466. Favorably citing the Supreme Court of California’s interpretation, we defined “use” as “ ‘to carry out a purpose or action by means of;’ to ‘make instrumental to an end or process;’ and to ‘apply to advantage.’ ” 313 Md. at 543 , 546 A.2d at 470 , quoting People v. Chambers, 7 Cal.3d 666, 672 , 102 Cal.Rptr. 776, 779-80 , 498 P.2d 1024, 1027-28 (1972). We held that, by possessing the gun while committing the crime of housebreaking, the defendant did not “use” the gun, as the Legislature contemplated when it enacted section 36B(d); rather, we said, what he did constituted the lesser crime proscribed in section 36B(b), “wearing, carrying, or transporting any handgun.” Id. at 544, 546 A.2d at 471 . 7 In reaching this conclusion, we did not confine our analysis to the words of the affected section.

Rather, taking to heart the lesson of Kaczorowski that “ ‘the search for legislature intent is most accurately characterized as an effort to discern ¹⁴⁹ some general purpose, aim, or policy of the statute,’ ” id. at 539 , 546 A.2d at 468 , quoting Kaczorowski, 309 Md. at 513 , 525 A.2d at 632 , we examined the whole of section 36B, of which section 36B(d) was only a part, in an effort to discover the policy underlying it and “to harmonize the language in question in that context.” Id. at 540 , 546 A.2d at 469 . As to the former, we said: In examining the preamble we note that the legislature specifically distinguished between the wearing, carrying, and transporting of handguns and the use of handguns in criminal activity. In particular, in § 36B(a)(ii) the legislature emphasized that the increase in the number of persons killed or injured by handguns was directly related to the carrying of handguns by persons inclined to use them in criminal activity. This comment clearly indicates that the legislature considered the use of a handgun to be something more than mere illegal possession of a handgun and that the legislature contemplated use of a handgun in an active as opposed to a passive manner.

Death and injury do not arise from a handgun which remains holstered. Id. at 541, 546 A.2d at 469 . Next, the Court considered the substantive provisions of the statute and found them to be inconsistent with giving the term “use” a meaning equivalent to bare possession. 313 Md. at 541 , 546 A.2d at 469 . Focusing particularly on section 36B(b), we observed that it prohibits the unlawful wearing, carrying or transporting of handguns and provides for enhanced penalties based on the particular defendant’s criminal history.

Moreover, the Wynn court made specific mention of the enhanced punishment provided by section 36B(b)(iv), when the evidence establishes that the purpose for which the defendant was wearing, carrying or transporting the handgun was to injure or kill another person. Id. at 541-42 , 546 A.2d at 469 . Finally, we recognized the relative severity of the prescribed penalty, in section 36B(d), for “use” of a handgun, in contrast to that prescribed by section 36B(b). Id. at 542 , 546 A.2d at 469-70 .

From that contrast we concluded: ¹⁵⁰ The separate treatment of the carrying and wearing of a handgun in one instance, and use of a handgun in another, convinces us that if the legislature had intended for use of a handgun to encompass the conduct in this case it would have expressly so provided. As we see it, the legislature would have drafted § 36B(d) so as to specifically proscribe the “carrying, wearing, transporting, or use” of a handgun in the commission of a crime of violence. 313 Md. at 542 , 546 A.2d at 470 (emphasis added). See also Webb v. State, 311 Md. 610, 617 , 536 A.2d 1161, 1165 (1988), in which, discussing section 36B(b), this Court said, “In addition to the handgun use prohibition, the Legislature enacted § 36B(b) ... [and] [t]he unit of prosecution of that continuing crime is the wearing, carrying, or transporting of any handgun .... There is no requirement as to ... use.... ” Our opinion in Wynn was filed.

September 1, 1988. The Drug Kingpin Act, of which section 281A(b) is a part, see Ch. 287, Acts of Md. 1989, was enacted May 19, 1989, effective July 1, 1989. Therefore, when it was passed, the Legislature knew, or, at least, is presumed to have known, how we had defined “use.” See State v. Bricker, 321 Md. 86, 93 , 581 A.2d 9, 12 (1990); Mayor and City Council of Baltimore City v. Hockley, 300 Md. 277, 283 , 477 A.2d 1174, 1177 (1984). Possessed of that knowledge, the Legislature’s proscription of “use” without any clear indication that it intended that a different meaning be given the term leads inevitably to the conclusion that it adopted the definition we had theretofore given it.

C. As we have indicated, section 281A was enacted in 1989 as part of the Drug Kingpin Act. See Williams v. State, 329 Md. 1, 3 , 616 A.2d 1275, 1276 (1992). Its purpose was “to reduce the supply of drugs in Maryland by establishing harsher penalties for drug dealers and by decreasing the profitability of participation in a drug trafficking crime.” Floor Report for S.B. 400. That purpose is similar to that attending the ¹⁵¹ passage, in 1971, of the Maryland Controlled Dangerous Substance Act: “to turn the screw of the criminal machinery— detection, prosecution and punishment—tighter and tighter.” Cunningham v. State, 318 Md. 182, 189 , 567 A.2d 126, 129 (1989), quoting Albernaz v. United States, 450 U.S. 333, 343 , 101 S.Ct. 1137, 1144 , 67 L.Ed.2d 275, 284 (1981).

As initially proposed, see S.B. 400 and H.B. 502, it was contemplated that section 281A(b) would punish anyone who “uses or possesses” a firearm during or in relation to a drug trafficking crime. The briefing document that accompanied the Senate and House bills explained the reason for using that language and its contemplated effect: 1. Why is it necessary to establish that use or possession of a firearm be a separate offense when Article 27, § 36B, already makes it unlawful to use a handgun in the commission of a felony or crime of violence? The current statute is restricted to handguns.

The proposed bill would include all firearms. Many drug dealers are using automatic weapons, assault rifles and other firearms that may not fall within the current definition of handgun. In addition Article 27, § 36B prohibits the “use” of a handgun. In the Wynn case, the Court of Appeals made it clear that “use” does not pertain to an individual who merely possesses a firearm for possible further use.

The language in this bill prohibits anyone to “use or possess” a firearm during and in relation to a drug trafficking crime. It would affect an individual who carries a handgun while dealing drugs, even though he does not use it. 2. Wouldn’t this provision make it possible for a person to be convicted, if they distributed a small quantity of marijuana downstairs and had a shotgun on the wall upstairs? No. The statute provides that the firearm must be used or possessed “during and in relation to a drug trafficking crime.” That provision requires that a nexus be shown between the use or possession of a firearm and the drug trafficking crime.

If the State cannot establish that the gun was being used or was kept for the purpose of being used to ¹⁵² further the drug trafficking crime, then the possession of the firearm would not be covered by this provision. It also reflects that the Legislature was very much aware of Wynn and its recognition that “use” differs from “possess”. According to the Conference Committee Report for S.B. 400, the House Judiciary Committee proposed amending section 281A by simply deleting “possesses;” however, that proposal was rejected by the Conference Committee. While that Committee did delete “possesses,” in its place it added “wears, carries, or transports.” By deleting “possesses,” and replacing it with “wears, carries, or transports,” terms that, while less active than “use,” are more active than “possesses”, the Legislature clearly expressed an intention to require, for conviction, something more than the mere possession of a handgun during and in relation to a drug trafficking crime.

Had the punishment of one who possesses a firearm during and in relation to a drug trafficking crime been the Legislature’s goal, it would not have been necessary for it to delete that term. 8 ¹⁵³ By inserting “wears, carries or transports,” the terms used in section 36B(b), the Legislature made section 281A(b) the near equivalent of the combined effect of sections 36B(b) and 36B(d). Consequently, the State finds significant the statement in Wynn that, had the Legislature intended that “use” cover the conduct in that case, it would have “specifically proscribe[d] the ‘carrying, wearing, transporting, or use’ of a handgun in the commission of a crime of violence.” 313 Md. at 542 , 546 A.2d at 476 . The Wynn Court was not suggesting, by that statement, that the definition of “use” would change if the terms “wear, carry, or transport” were inserted in subsection (d). As we have seen, the Court held in Wynn that “use” means something different from the conduct characterized by “wear, carry or transport.” In that case, that conduct was the equivalent of “mere possession” of a handgun; by having the gun on his person during the housebreaking the defendant possessed it.

Thus, the court was simply recognizing that including those terms in subsection (d) expanded the conduct prohibited from that characterized by the active term, “use,” to include that characterized by the less active terms, “wear, carry or transport.” No different result is required in this case. The definition of “use” in section 281A(b) is not changed from that announced in Wynn , and, certainly, is not diluted, simply because it is coupled with ¹⁵⁴ “wear, carry, or transport.” All that means is that the conduct prohibited includes conduct other than “use,” conduct which the State concedes is not implicated in this case. In conclusion, the context in which the charged offense arose in Wynn is critical. Wynn was in possession of the handgun, i.e., he wore, carried or transported it.

Here the State does not even argue that the appellant wore, carried, or transported the firearm; it argues only that he possessed it in relation to a drug trafficking offense; hence, he “used” it. 9 D. The State seeks support for its argument in the federal counterpart to section 281A(b), 18 U.S.C. § 924 (c)(1) (1979, 1993 Cum.Supp.) and the cases interpreting it. That statute provides: Whoever, during and in relation to any crime of violence or drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years.... Although it has not addressed the issue presented by this case, the Supreme Court has construed “uses” in § 924(c)(1) to have a meaning broader than brandishment or display. Smith v. United States, — U.S. -, 113 S.Ct. 2050 , 124 L.Ed.2d 138 (1993).

The majority of federal courts that have defined “uses” in that statute have held that a firearm is “used,” for purposes of the statute, if possession is an integral part of the predicate offense or if the firearm is within easy reach and available to protect the user during the ongoing drug trafficking offense. See, e.g., United States v. Abreu, 962 ¹⁵⁵ F.2d 1425, 1431 (10th Cir.1992) (a defendant “uses” a firearm when he or she has ready access to the firearm and the firearm was an integral part of the criminal undertaking); United States v. Duke, 940 F.2d 1113, 1119 (8th Cir.1991) (guns found in house where defendant stored and processed drugs were “used” if their availability increased likelihood criminal undertaking would succeed); United States v. Harrison, 931 F.2d 65, 71 (D.C.Cir.), cert. denied, - U.S. -, 112 S.Ct. 408 , 116 L.Ed.2d 356 (1991) (constructive possession of a firearm is sufficient to establish a violation of § 924(c)(1) if the firearm is within easy reach and available to protect the user during an ongoing drug trafficking offense); United States v. Paz, 927 F.2d 176, 178-79 (4th Cir.1991) (evidence that gun was present and accessible and that its presence would help facilitate success of criminal undertaking was sufficient to support defendant’s conviction for use of firearm during and in relation to drug trafficking, even though gun was under mattress); United States v. Brown, 915 F.2d 219, 224 (6th Cir.1990) (evidence of use sufficient where defendant admitted carrying a pistol to protect his curbside drug sales); United States v. Bullock, 914 F.2d 1413, 1416 (10th Cir.1990) (defendant could be convicted for “use” of firearm in commission of drug trafficking crime, even though he did not have firearm on his person at time he was arrested; there were guns in virtually every room of the defendant’s house, with a loaded shotgun on bed within a few feet of the defendant); United States v. Vasquez, 909 F.2d 235, 239 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2826 , 115 L.Ed.2d 996 (1991) (guns kept in trunk of car with cocaine stash in locked garage were “used”); United States v. Alvarado, 882 F.2d 645, 653 (2nd Cir.1989), cert. denied, 493 U.S. 1071 , 110 S.Ct. 1114 , 107 L.Ed.2d 1021 (1990) (evidence was sufficient to sustain conviction for using and carrying firearms during and in relation to drug crimes; several loaded firearms in the defendant’s apartment were strategically