King v. State

Wilner, J., delivered the opinion of the Court. On the evening of July 14, 1981, Baltimore City police officer Charles Gutberlet approached a van stopped at the corner of Fayette and Aisquith Streets. As he looked inside, the person occupying the front passenger seat drew a handgun and pointed it at the officer. Gutberlet promptly alerted other police officers in the area; and, upon doing so, he observed several other armed men in the back of the van discard their weapons, leave the van, and attempt to flee.

One of the men seen departing the van was appellant, who was arrested after he had traveled about ten feet and fell into some bushes. Following the hurried exodus, the police recovered five handguns from the floor of the van. As a result of that incident and the further fact that appellant had no permit to wear or transport a handgun, appellant was charged with and convicted of unlawfully wearing and transporting a handgun, for which he was sentenced to ten years in prison. The ten-year sentence was based upon ⁶⁷⁴ a finding that appellant had previously been convicted of a handgun offense, and thus was a "subsequent offender” eligible for an "enhanced” sentence provided for by Md. Ann. Code art. 27, § 36B (b) (ii).

Appellant raises two issues in this appeal: "(a) The trial court erred when it sentenced the Appellant as a second offender even though the State failed to comply with Maryland Rule 734. (b) The trial court erred when it permitted the State to introduce, over objection, records from the Department of Assessments and Taxation and from the Motor Vehicle Administration when they had not been provided to the Appellant during discovery procedures.” We shall address the second claim first. (1) Motor Vehicle And Corporate Records The State’s case against appellant was based on the inference that he wore, carried, or transported one or more of the guns found inside the van. He was not in possession of a gun when he was arrested outside the van.

Before trial, appellant had moved to suppress as evidence all items recovered from the van on the ground that they were unlawfully seized. In an effort to establish his standing to complain about the search of the van and the seizure of the weapons found in it, appellant conceded at the hearing on his motion (which occurred immediately before the commencement of trial) that (1) the van in question was owned by a corporation known as King & Meredith, Inc., and (2) appellant was the president of that corporation. Having conceded his vicarious connection with the van for the purpose of "standing”, he proceeded to elicit some evidence that there was more .than one van in the vicinity, this being, we gather, in the nature of groundwork for a trial defense that appellant was in a different van — not the one owned by his corporation in which the weapons were found. Indeed, ⁶⁷⁵ appellant tells us in his brief that such was precisely his intended line of defense.

In an effort to meet that anticipated defense, the State, at trial, placed into evidence certified records from the Motor Vehicle Administration and the Department of Assessments and Taxation showing essentially what appellant had willingly conceded the day before — that the van was owned by King & Meredith, Inc. and that appellant was a principal in that corporation. Appellant objected to these records, which he agreed were otherwise admissible, on the sole ground that they had not been disclosed by the State in its response to his pretrial discovery motion. H.e acknowledged that he had no evidence that the omission was deliberate or in bad faith. The only prejudice claimed by appellant was that, on the assumption that there would be no evidence regarding ownership of the van, he had intended to call two witnesses to testify that he was not in the van at the time of the incident, and that with the documentary evidence establishing his connection with the van, he would be forced to reconsider his decision to call those witnesses.

In fact, the witnesses were not called. The court offered appellant a short continuance in order to ponder the matter, but he declined the offer. On this record, we find no error in the admission of the certified records. (2) Enhanced Sentence Appellant was charged and convicted under Md. Code Ann. art. 27, § 36B (b), which prohibits a person from wearing, carrying, or transporting a handgun about his person or in any vehicle traveling the public roads without a permit to do so.

With respect to punishment, § 36B (b) (i) provides that for the first offense, the defendant may be fined from $250 to $2500 and be imprisoned from thirty days to three years. For a second offense — if he has once before been convicted of wearing, carrying, or transporting a handgun in violation of § 36B — § 36B (b) (ii) states that the defendant ⁶⁷⁶ "shall be sentenced... for a term of not less than 1 year nor more than 10 years, and it is mandatory upon the court to impose no less than the minimum sentence of 1 year. ...” This "enhanced sentence” or "subsequent offender” provision contains two elements, one mandatory and one permissive. It requires a minimum sentence of at least one year, which is more than the required minimum but less than the permitted maximum for a first offense; and it permits a maximum sentence of ten years, which exceeds the three-year maximum allowed for the first offense. Maryland Rule 734 places certain conditions on the implementation of "subsequent offender” statutes such as § 36B (b) (ii).

It provides, in section c, that "[i]f a mandatory sentence is prescribed by law because of a specified previous conviction, the State’s Attorney, at least 15 days prior to sentencing, shall serve upon the defendant or his counsel a notice of the alleged prior conviction which would require imposition of the mandatory sentence.” (Emphasis supplied.) Section b, dealing with permissive enhanced sentences, provides that, except as provided in section c, "no defendant shall be sentenced as a subsequent offender unless prior to acceptance of a plea of guilty or nolo contendere or at least 15 days prior to trial, whichever is earlier, the State’s Attorney serves a notice on the defendant or his counsel that the State will seek increased punishment as authorized by law. The notice shall set forth each prior conviction to be relied upon.” (Emphasis supplied.) Appellant was initially charged, on July 14 or 15,1981, in the district court. The case was transferred to the Criminal Court of Baltimore (now the Circuit Court for Baltimore City) because of his election to have a jury trial. Initial arraignment in the circuit court took place on September 14, 1981, at which time the State sent to him or his counsel a "Notice of Additional/Mandatory Sentence”.

The notice stated, in relevant part, that ⁶⁷⁷ "[T]he State will seek increased punishment as authorized by law since Maurice King, Defendant, was convicted of the violation(s) of Art 27 Sections 36: 36B of the State of Maryland. The maximum increased/mandatory punishment, if the Court determines that the Defendant is a subsequent offender, is imprisonment for 10 years and/or a fine of_, or both on the above stated charges.” (Underscoring in original, indicating blanks filled in by handwritten interlineation.) Trial of the case was delayed for nearly eleven months — until August, 1982 — because of appellant’s involvement in certain Federal court proceedings. Following the jury verdict on August 10, 1982, the court deferred sentencing until September 17,1982, in order to consider a presentence investigation report. At no point prior to September 17, 1982, did appellant make any complaint or raise any question about the form or adequacy of the State’s notice of intent to seek enhanced punishment.

At the sentencing hearing, the State placed into evidence a certified docket entry showing that in 1979 appellant had been convicted in the Criminal Court of Baltimore of a handgun violation for which he received a three-year sentence, subsequently reduced to three years probation. Appellant objected to any enhanced sentence on the sole ground that the September, 1981, notice did not comply with the requirement of Maryland Rule 734 b in that it failed to specify the prior conviction relied upon. Through counsel, appellant conceded the 1979 conviction, and made no claim of surprise or prejudice with respect to the State’s reliance on it. Indeed, it is clear from the colloquy between counsel and the court that appellant was fully aware that it was the 1979 conviction that was alluded to in the notice.

His argument to the trial court and to us is a very precise and technical one; despite his actual knowledge of the basis of the State’s warning, because the State’s notice failed of technical compliance with the rule, the court was precluded from imposing a sentence specifically authorized ⁶⁷⁸ by the Legislature. Candidly, counsel stated that "when the State served Notice it was obvious to us the Notice was insufficient under the law”, but that "[i]t is not my obligation to notify the State that they are proceeding improperly”. The trial coúrt concluded that there had been substantial compliance with the rule, especially in light of appellant’s actual knowledge of what was afoot. We agree with appellant that the notice did not adequately set forth "each prior conviction to be relied upon”, as required by Rule 734 b.

Allusion or reference to "Art 27 Sections 36; 36B” simply does not suffice. Those sections proscribe a range of activities relating to handguns and other weapons, 1 and a mere reference to the statutes gives no clear or reasonable indication of the convictions upon which the State intends to rely. Cf. Sullivan v. State, 29 Md.App. 622 (1976).

We concur as well that a defendant has no duty to bring a defective notice to the State’s attention. That does not end the inquiry, however, or necessarily compel the result urged by appellant. As has been stated almost ad nauseam, the Maryland Rules "are not guides to the practice of law but precise rubrics 'established to promote the orderly and efficient administration of justice and are to be read and followed.’ ” See Countess v. State, 286 Md. 444, 463 (1979), and cases cited therein. This maxim or precept, though used most often as a basis for imposing sanctions for the violation of a court rule, really states a more fundamental principle; namely, that these precise rubrics are not ends in themselves, but rather are designed either to articulate or to serve some more basic purpose. ⁶⁷⁹ The more recent cases emanating from the Court of Appeals and this Court acknowledge that principle and recognize that, in determining the consequences that ought to flow from the violation of a rule, the underlying function or purpose of the rule must be taken into account.

If the violation punctures more than the rule itself — i.e., if it impairs as well the right or the "good” sought to be protected by the rule — the sanction must likewise suffice to repair more than merely the wound to the rule. It must vindicate or restore the underlying interest. See, for example, State v. Hicks, 285 Md. 310 (1979); Johnson v. State, 282 Md. 314 (1978); Countess v. State, supra, 286 Md. 444 . But if the effect of the violation is to offend only the rule — the shield — and not that which it guards, a lesser sanction, or perhaps no sanction, may be appropriate.

See In re Dewayne H., 290 Md. 401 (1981); In re Howard L., 50 Md.App. 498 (1982). Maryland Rule 734 has both a purpose and a history, and the purpose has to be viewed in light of the history. Initially, the Maryland Court of Appeals adopted the theory that, when a defendant was being proceeded against as a subsequent offender subject to an enhanced punishment, the earlier convictions necessary to establish that status constituted an element of the prosecution that had to be averred in the indictment and proved at trial. This was made clear in Maguire v. State, 47 Md. 485 (1878), where the Court concluded that (1) "[I]f the party be proceeded against for a second or third offense under the statute, and the sentence prescribed be different from the first, or severer, by reason of its being such second or third offense, the fact thus relied on must be averred in the indictment; for the settled rule is, that the indictment must contain an averment of every fact essential to justify the punishment inflicted.” (Emphasis supplied.) Id. at 496 .

(2) Such an "averment of prior conviction can only be sustained by the production of the record... sustained by proof of the identity of the person ⁶⁸⁰ on trial with the one described in the former indictment.” Id. at 497 . and (3) The practice in Maryland is "to allow the prosecution to put the prior conviction before the jury as part of its evidence in chief, and before the accused commenced his evidence in defense.” Thus, it was proper not only that the averment in the indictment be read to the jury at the opening of the case "but that the record of such prior conviction was admitted in evidence in support of the indictment, or rather of the particular averment therein of former conviction.” Id. at 497 . These requirements, which in Maguire seemed to be derived from historical practice, were "constitutionalized” thirty-five years later in Goeller v. State, 119 Md. 61 (1912). The Court there declared a subsequent offender/enhanced punishment statute that permitted the trial court to ascertain the fact of a prior conviction from a perusal of its own docket and thus excused the State from having to aver and prove such conviction to be unconstitutional as a deprivation of the defendant’s right under art. 21 of the Md. Decl. of Rights to be "informed of the accusation against him.” The purpose of that constitutional right is to enable the defendant to prepare his defense; and that, said the Court at p. 63, "he cannot do without a full knowledge, both of every element of the offence charged, and of the penalty or penalties to which he may be subjected in event of conviction.” See also Hall v. State, 121 Md. 577 (1913). It is noteworthy that six months before Goeller was decided, the United States Supreme Court had concluded in Graham v. West Virginia, 224 U.S. 616 (1912), that the procedure called for in Maguire and Goeller was not required under the Fifth and Fourteenth Amendments to the United States Constitution.

At p. 629, the Court stated: ⁶⁸¹ "Although the state may properly provide for the allegation of the former conviction in the indictment, for a finding by the jury on this point in connection with its verdict as to guilt, and thereupon for the imposition of the full sentence prescribed, there is no constitutional mandate which requires the state to adopt this course even where the former conviction is known. It may be convenient practice, but is not obligatory.” Graham was not cited in the Goeller opinion. Requiring the State to aver the prior conviction in the indictment and prove it at trial, though asserted by the Court to be of State constitutional dimension, raised a number of practical problems in terms of how the conviction was to be averred and how such averment was to be regarded by the jury. The Court wrestled with some of those problems in Beard v. State, 216 Md. 302 , cert. den. 358 U.S. 846 (1958).

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