Hurd v. State

SALMON, Judge. Arthur Pereschuk, in July of 2007, owned a two-year-old Labrador Retriever named Bristol. 1 Mr Pereschuk and his ⁴⁸³ dog lived in a rural area of Washington County near the appellant, Jeffrey Hurd. Also living nearby was Mr. Pereschuk’s son-in-law, James Randolph. Randolph owned a German Shepherd named Harley.

On July 22, 2007, Hurd saw Mr. Pereschuk’s dog chasing a deer on his (Hurd’s) property. Hurd picked up his high power rifle and shot Bristol twice. The second shot was fatal. About ten months after Hurd killed Bristol, on May 8, 2008, Hurd saw Randolph’s German shepherd chasing a wild turkey on his property.

Once again Hurd acted unhesitantly. He fired his rifle twice from his kitchen window at Harley, who was 170 yards away. The first bullet struck Harley and crippled him. The second shot missed.

He got more shells, reloaded, and shot at the Gemían shepherd a third time. Hurd’s last shot killed the dog. At the time of his death Harley was one year old. Hurd faced criminal charges in the Circuit Court for Washington County as a consequence of having killed the dogs.

He elected a bench trial and proceeded on an agreed statement of facts. The trial judge found Hurd guilty of two counts of aggravated cruelty to animals in violation of Md.Code (2002), § 10-606 of the Criminal Law Article, and two counts of violating section 6-301 of that same article, which prohibits the malicious destruction of property valued under $500.00. Sentencing took place on December 5, 2008. As to the aggravated cruelty to animals charges, Hurd was sentenced to two concurrent three-year terms of imprisonment, to be served at the Washington County Detention Center, with all but ninety days suspended in favor of three years of probation.

As to each of the malicious destruction of property charges, Hurd was sentenced to sixty days imprisonment, but the sentences were to run concurrent with those imposed for aggravated cruelty to animals. Hurd noted a timely appeal and presents four questions for our review: ⁴⁸⁴ I. Did the circuit court err in ruling that Maryland Code, Natural Resources Article, § 10-416(b)(3), was not a complete defense to both counts related to the July 22, 2007, incident?

II

Did the circuit court err in finding that Hurd “cruelly killed” the dogs as that term is used in Maryland Code, Criminal Law Article § 10-606?

III

Did the circuit court err in rejecting Hurd’s necessity defense where it discounted Hurd’s property interests and over-valued the dogs as a matter of law?

IV

Did the circuit court err in finding Hurd guilty of malicious destruction of property where there was no evidence in the agreed statement of facts from which it could properly infer maliciousness? I. A statement of facts was read into the record at trial describing what each witness would testify to in regard to the shootings that occurred in 2007 and 2008. A. The July 22, 2007, Incident Arthur Pereschuk was the owner of the black Labrador retriever that was killed by Hurd on July 22, 2007. Mr. Pereschuk provided the following written statement, which was read into evidence: On Sunday July 22, my family and I had a cookout and afterwards was playing badminton.

I [had] taken Bristol, my Labrador Retriever down to be with us. I fastened him to a tree with a cable. My son came with his Golden Retriever, Jake. Jake likes to tease Bristol by getting close to her but just far enough away that she could not jump on him or touch him.

After about five minutes of this I’d left [sic] Bristol lose [sic] to play with Jake. They run up to the house and back and forth at around the area where we were. I started playing badminton and forgot about the dogs. About ten minutes later I heard two [gun]shots.

My son immediately began calling our dogs. Jake came back ⁴⁸⁵ within a minute but there was no Bristol. I called Jeff Hurd and left a message that I was looking for my dog. Then my son and I drove back to Hurd’s house.

His wife came to the door and told us her husband was not there. When I got back to the house 1 was outside looking for my dog. My wife told me Hurd was on the phone. He said he was in his tree stand.

He said he was reading his Bible, looked up and saw my dog holding on the hind quarter of a deer and that he shot and killed the dog. Mr. Pereschuk did not report immediately to the police the fact that Hurd had shot his Labrador retriever because he was intimidated by “previous comments” made by Hurd. A report was made only after Hurd killed Harley. In May of 2008, Hurd gave a written and oral statement to Trooper First Class Ford, a Maryland State Police Trooper.

Regarding the killing of Bristol, Hurd’s written statement read: least Fall I shot a big black dog five feet behind a deer and I did know that dog belonged in those four houses and those seven acres and I shot one of their dogs twenty five years ago and if they want their dogs I think they should keep them on their own property. Hurd also told TFC Ford that after Bristol was killed, Mr. Pereschuk told him (Hurd) that he “would not pen his dogs up.” James Rudolph (“Rudolph”), Mr. Pereschuk’s son-in-law, telephoned Hurd after he heard the news that Bristol had been shot. The purpose of the call was to make arrangements with Hurd so Rudolph could pick up Bristol’s body. During the telephone call, Hurd told Rudolph: “You know, I didn’t kill [the dog] with the first shot.” The next day, as Rudolph was putting Bristol’s body in his vehicle, Rudolph told Hurd: “I have a German [Shepard] and a Daschund [sic] and if you ever see either one on your property I expect a call first.” Rudolph said that Hurd then shook his head like he understood. ⁴⁸⁶ B. The May 8, 2008, Incident On May 8, 2008, at 6:20 p.m., TFC Ford responded to 15707 Jones Chapel Lane, Hagerstown, Maryland, in Washington County, in reference to an animal cruelty complaint.

He was met by James Rudolph, who advised that Harley, Rudolph’s German shepherd, had just been killed by Hurd. Rudolph provided TFC Ford with the license number of the dog and also gave a written statement that read: On May 8th of 2008 I walked my dog with a leash out our lane at Jones Chapel Lane. After returning, by Arthur Pereschuk, my father-in-law’s house I stopped to talk with him. At that point I let Harley off his leash like I did daily to play with Cookies, Arthur’s new dog.

After about five minutes I motioned to Harley[, the German shepherd,] it was time to go. He ran in front of me about ten yards. At that point he saw a rabbit and took off running. My son Kevin was rounding the corner of the lane and told me Harley ran on Hurd’s property.

I ran over to the property line and started yelling, “Harley, come. Harley, come,” and clapping my hands. And within fifteen seconds I heard a high-powered rifle shot. Immediately I ran towards Hurd’s property.

I had a difficult time crossing the bob wire fence and pushing through the thick wooded area. Once I arrived in the clearing I saw Harley on the ground. I ran up to him and he was still breathing. As I was trying to make it through the woods two other shots rang out after the first shot.

There was a pause and the two shots followed. I yelled out in the open area. “I told you to call me if you ever saw my dogs on your property.” Jeff [Hurd] came down from his house and started yelling. Yelling, “He was over here all the time.” I said, “He is penned up and you’re a liar.” Jeff said, “I will show you paw prints.” ... I was approximately half the distance of a football field away when the first shots were fired.

TFC Ford also interviewed Hurd at his residence at 11845 Camden Road, Williamsport, Maryland. Hurd admitted to shooting Harley. He said that the German shepherd was ⁴⁸⁷ chasing a turkey that was on his property. Hurd showed TFC Ford the Browning 243 caliber rifle that he had used to kill Harley.

Hurd voluntarily went to the Maryland State Police Hagerstown Barracks where he provided a written statement that, in pertinent part, read: I came home from work and came into the house. I see the German Shepherd chasing [a] turkey in my yard on the other side of the pond and I seen this dog chase deer and turkey many times in the past year. I did not know who the dog belonged to. 1 got the gun, 243 Winchester Short Magnum, opened the kitchen window and shot the dog two times out of three shots at one hundred and seventy yards. First shot T crippled the dog so I shot real quick and missed and went into another room and got two more shells and I shot three shots, third shot and that killed him.

II

A. Issue One Because Bristol, the Labrador retriever killed by Hurd on July 22, 2007, was chasing a deer at the time she was shot, appellant argues that Md.Code (2000, 2007 Repl.Vol.), § 10— 416(b)(3)(ii) of the Natural Resources Article provided him with a complete defense to all charges arising out of the July 22, 2007, incident. He does not contend that section 10-416 has any relevance to the two charges arising out of the May 8, 2008, incident when he shot Rudolph’s German shepherd. Section 10-416 of the Natural Resources Article reads: § 10-416. Deer hunting—Prohibited methods.

(a) Use of automatic firearms and certain bullets.—(1) A person may not hunt deer in the State with any automatic firearm. In this subsection, an automatic firearm means a firearm designed to fire, or which is mechanically altered to fire, 2 or more shots with 1 continuous pressure on the trigger. ⁴⁸⁸ (2) A person may not use full metal-jacketed, incendiary, or tracer bullets in hunting deer in the State. However, the use of metal-jacketed bullets designed to expand on impact is not prohibited. (3) A person may not hunt deer with any firearm that uses an ammunition clip holding more than 8 cartridges or bullets.

In this paragraph, “ammunition clip” includes a cartridge or bullet holder called a banana clip. (b) Hunting with dogs.-—(1) Except as provided in regulations adopted by the Department under paragraph (2) of this subsection, a person may not: (i) Take a dog into the woods or possess or control a dog in the woods; and (ii) Use the dog to hunt or pursue deer. (2) The Department shall adopt regulations governing the me of dogs to aid in the prompt recovery of killed, wounded, or injured deer. (3) (i) In Baltimore, Harford, Howard, Montgomery, Prince George’s, Somerset, and Worcester counties [2] a person may not kill a dog found pursuing a deer.

(ii) In all other counties, any Natural Resources police officer, law enforcement officer, or any other person may kill any dog found pursuing any deer, except in accordance with regulations adopted under paragraph (2) of this subsection. (iii) In Caroline, Dorchester, Talbot, Kent, Anne Arundel, Cecil, Charles, Garrett, St. Mary’s, Queen Anne’s, Frederick, Carroll, and Calvert counties, dogs that are engaged in fox hunting and ivho have broken away may not be killed under this paragraph. (c) Hunting with spotlights.—A person or 2 or more persons together may not throw or cast the rays of a spotlight, headlight, artificial light, battery, or other device ⁴⁸⁹ on any highway or in any field, woodland, or forest while possessing or having under control a firearm or other implement by which any deer could be killed, even though the deer is not shot at, injured, or killed. The provisions of this subsection do not apply where the headlight of a motor vehicle, operated by any person traveling on a highway in the usual way, casts a light upon deer on or adjacent to the highway and there was no attempt or intent to locate the deer.

(d) Penalties for hunting deer with spotlight.—Any person who violates any provision of subsection (c) of this section is guilty of a misdemeanor and upon conviction is subject to a fine not exceeding $2,000 or imprisonment for not more than 6 months or both, with costs imposed in the discretion of the court. Any person convicted of violating the provisions of this subsection shall have the person’s hunting license revoked and shall bo denied the privilege of hunting in the State for at least 2 and not exceeding 5 years. In addition to these penalties, every spotlight, artificial light, battery, or device to spot, locate, or hunt for deer, and every firearm, bow and arrow, or device capable of killing a deer, found in or on any vehicle or in possession of the person convicted, or used to violate the provisions of this subsection, shall be confiscated and disposed of by the Secretary as the Secretary deems advisable. (Emphasis added).

In this Court, as well as in the trial court, appellant argued that under the language of section 10—416(b)(3)(ii) he was permitted to kill Bristol. Put another way, appellant contends that, except for dogs being utilized in accordance with regulations governing the use of dogs to aid in the “prompt recovery of killed, wounded, or injured deer,” in Washington County “any ... person may kill any dog found pursing any deer.” See section 10-614(b)(2) and 10-614(b)(3)(ii). In a written Opinion and Verdict filed on November 6, 2008, the trial judge said: ⁴⁹⁰ Defendant maintains the language of 10—416(b)(3), in conjunction with the Stipulation, which indicates Brist[o]l was pursuing a deer, renders the shooting justifiable; however, this argument fails to address both the context and scope of 10—416(b)(3). Within the Natural Resources Article, 10-416(b)(3) under subtitle 4, “Hunting Restrictions—in General” 10-416(b)(3) is titled “Deer Hunting—Prohibited Methods” and subsection (b) of 10-416(b)(3) bears the title “Hunting with dogs.” The context of 10-416(b)(3) makes clear the purpose behind the statute is two-fold: to prohibit the act of humans hunting deer with dogs; and not penalize those aiding in the prevention of such hunts, and the record discloses in this case that a deer-hunting situation did not occur.

More importantly, the elements of both crimes charged in relation to the 2007 shooting have been proven beyond a reasonable doubt. There is no evidence to indicate 10-416(b)(3) acts to provide a defense to the crimes charged in the instant case, and Defendant’s assertions his actions were justified under 10—416(b)(3), are without merit and fail. In