Mangum v. State

RAKER, Judge. In this case, we are asked to decide whether the State must introduce direct evidence of a recovered firearm’s operability to prove a violation of Maryland Code (1957, 1992 Repl.Vol., 1995 Cum.Supp.) Article 27, § 36B(b). 1 We shall hold that direct evidence is not required, and that operability of a firearm can be proved solely by circumstantial evidence. ³⁹⁴ I. On the evening of April 24,1993, at approximately 9:30 p.m., off-duty police officer Robert Johnson, Jr. observed Petitioner, Steven Mangum, with a male companion in the lobby of the Motel Six. Johnson saw Mangum repeatedly adjusting his jacket, while exiting and reentering the motel lobby at least three times. When he noticed a bandolier of shotgun shells draped over Mangum’s shoulder, Officer Johnson suspected criminal activity and requested that the motel’s night clerk telephone for police back-up.

In response to the call for assistance, uniformed police officer Rubin Johns arrived at the motel. Johns asked Man-gum to step outside with him. As Officer Johns was about to conduct a pat-down of Mangum, several shotgun shells fell to the ground. Officer Johns then felt what he believed to be a sawed-off shotgun underneath Mangum’s left armpit.

Man-gum was arrested for possession of a handgun. The weapon was a sawed-off shotgun with a barrel length of 14 inches and an overall length of 22 inches. Mangum related to Officer Johns that certain individuals were following him, and that, fearing for his life, he rented a room at the motel. 2 At the trial, Officer Johns testified that Mangum told him he had just been released from the Baltimore City Jail, where he had been held in connection with a shooting incident involving a shotgun that had occurred at his home less than twenty-four hours earlier. Mangum was subsequently charged in the District Court of Maryland for Baltimore County with one count of carrying a handgun in violation of § 36B(b) and one count of possession of an unregistered short-barreled shotgun in violation of § 481C.

He requested a jury trial, and the case was transferred to the Circuit Court for Baltimore County pursuant to ³⁹⁵ Maryland Rule 4-301. At his trial, Mangum asserted the defense of “necessity” based on his alleged fear of imminent death or serious bodily injury. See State v. Crawford, 308 Md. 683, 698-99 , 521 A.2d 1193, 1200-01 (1987). In his motion for judgment of acquittal, Mangum argued that the State had not proven that the weapon was operable because the State failed to prove that the weapon was capable of firing a projectile.

The State contended that circumstantial evidence was sufficient to meet the State’s burden of proof, and that test-firing the weapon was not required to prove operability. Sitting without a jury, the trial court convicted Mangum of both firearm offenses. 3 The Court of Special Appeals affirmed Mangum’s convictions in an unreported opinion. We granted a writ of certiorari to resolve a single issue presented by this case: In a prosecution under § 36B(b), can proof of operability be supplied by inference when the gun has been recovered and the State is able to provide direct evidence on that issue?

II

Article 27, § 36B(b) provides, in pertinent part: (b) Unlawful wearing, carrying, or transporting of handguns; penalties.—Any person who shall wear, carry, or transport any handgun, whether concealed or open, upon or about his person ... shall be guilty of a misdemeanor; and it shall be a rebuttable presumption that the person is knowingly transporting the handgun[.] Section 36F(b) defines a handgun as “any pistol, revolver, or other firearm capable of being concealed on the person, including a short-barreled shotgun ... as these terms are defined below[.]” Section 36F(e) defines a “short-barreled shotgun” as any “shotgun having one or more barrels less than eighteen inches in length and any weapon made from a shotgun (wheth ³⁹⁶ er by alteration, modification, or otherwise) if such weapon, as modified, has an overall length of less than twenty-six inches.” A “shotgun” is further defined by § 36F(g): (g) Shotgun.— “Shotgun” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger. In other words, a shotgun with a barrel length of less than eighteen inches and an overall length of less than twenty-six inches is by definition a “handgun” in the context of § 36B(b). Cf. Parrison v. State, 335 Md. 554, 563 , 644 A.2d 537, 541 (1994).

These broad statutory strokes, however, do not fully explicate Maryland’s prohibition against carrying, possessing, or transporting a handgun. See Howell v. State, 278 Md. 389, 391-96 , 364 A.2d 797, 798-801 (1976). In determining whether a tear gas pistol met the statutory definition of a “handgun” in § 36B(b), we observed in Howell that while the statute details what the term “handgun” includes, the word is not in any way further defined. Howell, 278 Md. at 391 , 364 A.2d at 798 .

Speaking for the Court, Judge Smith reasoned that in order to effectuate the intent of the General Assembly, a “handgun,” as contemplated within the meaning of § 36F(b) and § 36B(b), must also be a “firearm”: If we regard the statute here as intending to define the term handgun as “any pistol, revolver, or other firearm” then the only way that “no word, clause, sentence, or phrase [may not] be rendered surplusage, superfluous, meaningless, or nugatory,” is to conclude that the presence of the word “other” before “firearm” is an indication that the General Assembly intended that to be a “handgun” the device under consideration must be a firearm. Id. at 394, 364 A.2d at 800 (citations omitted). Thus, we concluded that to be a “handgun” in violation of § 36B(b), “[the weapon] must be a firearm or it must be readily or easily ³⁹⁷ convertible into a firearm.” Id. at 396, 364 A.2d at 801 . We further concluded that “to be a firearm it must propel a missile b3A gunpowder or some such similar explosive....” Id.

The Court of Special Appeals assumed that in order to sustain a conviction under § 36B(b), the State must prove, beyond a. reasonable doubt, the operability of the handgun at the time of the alleged offense. Therefore, for purposes of this case, we shall assume arguendo that the statute requires proof of operability.

III

Petitioner concedes that when the State does not recover the weapon upon which the handgun charge is predicated, the State may still prove operability beyond a reasonable doubt solely by the introduction of circumstantial evidence. See Brown v. State, 64 Md.App. 324, 333-37 , 494 A.2d 999, 1003-05 (1985), cert. denied, 304 Md. 296 , 498 A.2d 1183 (1985); Johnson v. State, 44 Md.App. 515, 516-19 , 411 A.2d 118, 119-21 (1980), cert. denied, 287 Md. 753 (1980); Couplin v. State, 37 Md.App. 567, 575-78 , 378 A.2d 197, 202-03 (1977), cert. denied, 299 Md. 137 , 472 A.2d 1000 (1978). Thus, according to Petitioner, the manner in which the State may meet its burden of proof depends upon whether the weapon is recovered. Petitioner advances several arguments to support this proposition.

He initially urges that, as a polcy matter, there would be little incentive for the State to test a weapon for operability if it were allowed to rely exclusively upon circumstantial eviolenee. Mangum also contends that since the State can test the weapon with negligible inconvenience, it should be required to introduce the results of a test-firing as the “best evidence” of operability. Finally, Petitioner asserts that because the recovered weapon is “peculiarly available” to the State, olue process considerations require the State to perform the additional task of test-firing the weapon. Thus, he reasons that if the State recovers the handgun, then the prosecution must introduce the results of a test-firing, or the defendant is entitled to an acquittal on the handgun charge.

By contrast, the State urges that precedent does not support an ³⁹⁸ evidentiary distinction between direct and circumstantial evidence based merely upon the fortuitous contingency of whether the police recover the weapon. Such a policy, argues the State, penalizes the prosecution when the police recover the weapon in question, and also ignores the modern principle that circumstantial evidence carries the same probative force as direct evidence. We agree with the State.

IV

It has long been the rule in Maryland that “there is no difference between direct and circumstantial evidence.” Hebron v. State, 331 Md. 219, 226 , 627 A.2d 1029, 1032 (1993). Neither policy nor logic supports a special evidentiary distinction when the issue is operability of a firearm. We hold that operability may be proved by circumstantial evidence. “[WJhether direct evidence or circumstantial evidence is more trustworthy and probative depends upon the particular facts of the case and no generalizations realistically can be made that one class of evidence is per se more reliable chan is the other class of evidence.” Hebron, 331 Md. at 225 , 627 A.2d at 1032 (quoting State v. Gosby, 85 Wash.2d 758, 766 , 539 P.2d 680, 685 (1975)); see 1 McCormick on Evidence § 185, at 777 n. 19 (J. Strong ed., 4th ed. 1992). Petitioner’s arguments implicitly embrace the premise that circumstantial evidence is in some manner inferior to direct evidence.

This rationale relies upon the assumption that, while direct evidence tends to establish the existence of a fact in question without resort to inference, circumstantial or indirect evidence requires the factfinder to undertake certain inferential steps before the fact in question is proved, and is therefore less reliable. Our cases, and the great weight of persuasive authority, have consistently rejected this distinction. 4 Hebron v. State, 331 ³⁹⁹ Md. at 226, 627 A.2d at 1032 ; Wilson v. State, 319 Md. 530, 536 , 573 A.2d 831, 834 (1990). See also Payne v. Borg, 982 F.2d 335, 339 (9th Cir.1992), cert. denied, 510 U.S. 843 , 114 S.Ct. 131 , 126 L.Ed.2d 94 (1993); United States v. Casamento, 887 F.2d 1141, 1156 (2d Cir.1989), cert. denied, 493 U.S. 1081 , 110 S.Ct. 1138 , 107 L.Ed.2d