McCallum v. State

BISHOP, Judge. Malcolm Duane McCallum, Jr., the appellant, was tried before a jury in the Circuit Court for Anne Arundel County for a series of violations of the Transportation Article. The jury convicted appellant of: driving a motor vehicle on a suspended license (Md. Transportation Code Ann. § 16-303 (1987)) (referred to hereinafter by section number); driving an unregistered vehicle (§ 13-401); unauthorized use of a registration card (§ 13-703); unauthorized use of a license plate (§ 13-703); failure to display registration card to a police officer upon request (§ 13-409); and failure to dis ⁴⁰⁷ play license to a police officer upon request (§ 16-112). For the conviction of driving on a suspended license, appellant was sentenced to one year in jail with all but ninety days suspended.

He was fined a total of $470.00 for the other five convictions. Appellant argues that: I. The charges should have been dismissed because he was not tried within the 180-day period required by Md. Rule 4-271; II. The trial judge erred when he refused to instruct the jury that in order to convict they had to be convinced he committed the crimes “knowingly;” and III. The trial judge erred in allowing the jury to have appellant’s entire driving record available for use during their deliberations.

FACTS On the morning of October 12, 1987, Officer Mike Rudiger of the Anne Arundel County Police Department investigated a motor vehicle accident in which appellant was involved. When the officer asked for his driver’s license, appellant was unable to produce it. Further investigation revealed that the license was suspended. When the officer asked appellant for the registration card to the 1982 Ford pick-up truck he was driving, appellant presented a registration card for a 1985 Ford pick-up truck.

Officer Rudiger then determined that the tags on the 1982 Ford pick-up truck involved in the accident were the tags which belonged to the 1985 Ford pick-up truck on the registration card. Appellant testified at trial that he had not intentionally committed any of the violations. As to the suspended license, he explained that his license had been suspended because he had not paid a fine. He said that he had since paid the outstanding fine and was, at the time of the accident, on his way to the Motor Vehicle Administration to ⁴⁰⁸ retrieve his license I.D. card. 1 He explained that he carried the wrong registration card and license tags because of a mistake.

Also, he testified that he owned the 1982 Ford pick-up truck that he was driving and that his step-father owned the 1985 Ford pick-up truck, the vehicle to which the tags on the 1982 truck had been affixed. He said that he had put the 1985 truck’s tags on his truck by mistake. DISCUSSION I. Rule 4-271(a) Appellant argues that he was not tried within the 180-day limit required by Md.Rule 4-271(a). That rule in pertinent part provides the following: (a) Trial Date in Circuit Court.—The date for trial in the circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall be not later than 180 days after the earlier of those events.

The issue in the case sub judice concerns the time at which calculation of the 180 day period is commenced. Appellant concedes that his counsel entered his appearance on May 6, 1988, and that, if the Rule 4-271 time clock starts on that date, the State complied with the rule. Appellant contends, however, that March 28, 1988 is the starting date. The charges were filed on March 24, 1988, and a preliminary hearing was scheduled for March 28, 1988.

At that time appellant was serving a six month sentence in the ⁴⁰⁹ Anne Arundel County Detention Center. For reasons not explained at the hearing, appellant was not transported to court on March 28, 1988 for his preliminary hearing. As a result, the hearing was postponed. No further action was taken in the case until May 6, 1988, when counsel entered his appearance.

Appellant argues that the State was responsible to produce him at the preliminary hearing, and because it did not do so it was the State’s fault that the hearing was not held on March 28, 1988. Appellant further contends that he had a right to have his preliminary hearing on the day it was originally scheduled. He concludes that because it was the State’s fault that the hearing was not held as originally scheduled, he is entitled to have the 180-day period begin the day the preliminary hearing was scheduled. As support for his position, appellant cites Brady v. State, 291 Md. 261 , 434 A.2d 574 (1981); Gee v. State, 54 Md.App. 549 , 459 A.2d 608 (1983) reversed on other grounds, 298 Md. 565 , 471 A.2d 712 (1984); and Strickler v. State, 55 Md. App. 688 , 466 A.2d 51 (1983) cert. denied 299 Md. 137 , 472 A.2d 999 (1984).

In these cases, criminal trials were delayed because the State failed to locate the defendant within the Maryland correctional system. The delay in each case was attributed to the State and their analysis rests on lack of prosecutorial diligence in producing an incarcerated individual for trial. These cases provide constitutional speedy trial analysis, but do not involve a determination of when the period for the running of 4-271 is triggered. See, State v. Brown, 307 Md. 651, 657 , 516 A.2d 965 (1986) (Rule not intended to be codification of right to speedy trial).

Md.Rule 4-271(a) clearly states that the 180-day period begins upon “the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213.” See also Fuget v. State, 70 Md.App. 643, 649 , 522 A.2d 1371 (1987). Since no preliminary hearing was ever conducted, counsel’s appearance on May 6, 1988 triggered the starting date. The fact that the State may by its ⁴¹⁰ neglect have caused the preliminary hearing to have been postponed is irrelevant.

II

Jury Instructions Appellant contends that the trial judge erred when he refused to instruct the jury that, in order to convict appellant of the charges, the jury had to be convinced that appellant possessed criminal intent—mens rea. Appellant asserts that the trial court erroneously interpreted all of the charges as strict liability offenses. Trial judges are required, upon the request of any party, to instruct the jury as to the applicable law and to give a requested instruction which correctly states the law if it has not been fairly covered in the instructions actually given. Md.Rule 4-325; Lansdowne v. State, 287 Md. 232 , 412 A.2d 88 (1980).

Trial judges are not, however, required to give instructions in the precise language requested by counsel. An instruction is sufficient if it fairly covers all of the points of law contained in the requested instruction. Smith v. State, 66 Md.App. 603, 621 , 505 A.2d 564 cert. denied, 306 Md. 371 , 509 A.2d 134 (1986). At common law, conviction of a crime required proof of mens rea. 2 Legislatures in this century have imposed criminal liability without the requirement of mens ⁴¹¹ rea for “regulatory” or “public welfare offenses”. 3 C. Torcia, Wharton’s Criminal Law § 23, 14th ed. at 100-111, 106 (1978); Clark and Marshall Crimes, 7th ed. at 303-307.

These strict liability offenses were tailored to alleviate the unique problems created by the industrial revolution. Dawkins v. State, 313 Md. 638 , 547 A.2d 1041 (1988), citing Morissette v. United States, 342 U.S. 246, 254 , 72 S.Ct. 240, 245 , 96 L.Ed. 288 (1951). The United States Supreme Court has defined public welfare offenses as those which “depend on no mental element but consist only of forbidden acts or omissions.” Morissette v. United States, 342 U.S. 246, 252-253 , 72 S.Ct. 240, 244 , 96 L.Ed. 288 (1952). “Public Welfare Offenses” are generally regulatory in nature. The earliest cases involved liquor and adulterated milk.

See, e.g., Barnes v. State, 19 Conn. 398 (1849); Commonwealth v. Boynton, 2 Allen 160 (Mass. 1861). Later cases expanded the doctrine to apply to violations of traffic regulations and motor vehicle laws, sales of misbranded articles, and sales or purchases in violation of anti-narcotics laws. See, Sayre, supra, 33 Colum.L.Rev. at 73. These offenses commonly involve light fines or penalties.

Morissette v. United States, supra, 342 U.S. at 256 , 72 S.Ct. at 246 . As Sayre notes, “... the penalty in such cases is so slight that the courts can afford to disregard the individual in protecting the social interest.” Sayre, supra, 33 Colum.L.Rev. at 70. Dawkins, supra, 313 Md. at 644-645 , 547 A.2d 1041 . The omission of the scienter requirement for motor vehicle offenses was a reaction to the dangers and problems caused by the increased use of motor vehicles and the dangers attendant thereto.

As the Supreme Court observed in Morissette v. United States, supra (1952), “[tjraffic of velocities, volumes and varieties unheard of ⁴¹² came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct.” Accord, Wharton’s Criminal Law, supra, at 109-110; Dawkins v. State, supra; R.M. Perkins, Criminal Law, 2d ed. at 802 (1969); Mueller, How to Increase Traffic Fatalities: A Useful Guide For Modern Legislators and Traffic Courts, 60 Colum.L.Rev. 944, 959 (1969); Robinson, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 Stan.L.Rev. 681, 701 (1983). The imposition of strict liability for public welfare offenses is currently disfavored by both commentators and a number of courts. “The scholarly comment opposing imposition of criminal sanctions for strict liability offenses is overwhelming.” Robinson, supra, n. 88 at 701. While the United States Supreme Court notes this opposition to criminal offenses requiring no mens rea, Liparota v. United States, 471 U.S. 419, 426 , 105 S.Ct. 2084, 2088 , 85 L.Ed.2d 434 (1985), it recognizes that the definition of the elements of a criminal offense is entrusted to the legislature, id. at 425 , 105 S.Ct. at 2088 . Liparota reconciles the significant elimination of explicit mens rea requirement in criminal statutes with the need to follow legislative intent by implicitly creating a presumption that mens rea is required in criminal cases.

To hold that a statute does not require the element of intent necessitates that there be a clear indication to that effect from the legislature. Absent indication of contrary purpose in the language or legislative history of the statute, we believe that § 2024(b)(1) requires a showing that the defendant knew his conduct to be unauthorized by statute or regulations. “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Morissette v. United ⁴¹³ States, supra, 342 U.S., at 250 , 72 S.Ct., at 243 . Thus, in United States v. United States Gypsum Co., 438 U.S. 422, 438 , 98 S.Ct. 2864, 2874 , 57 L.Ed.2d 854 (1978), we noted that “[cjertainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement” and that criminal offenses requiring no mens rea have a “generally disfavored status.” Similarly, in this case, the failure of Congress explicitly and unambiguously to indicate whether mens rea is required does not signal a departure from this background assumption of our criminal law.

Id. at 425-426 , 105 S.Ct. at 2088 . Appellant suggests that in Dawkins v. State, 313 Md. 638 , 547 A.2d 1041 (1988) the Court of Appeals rejected the application of strict liability to criminal offenses in this State. We disagree. While Dawkins acknowledged that the contemporary view disfavors imposition of strict liability, id. at 650 , 547 A.2d 1041 , it applied traditional statutory construction to determine and follow the intent of the legislature.

In general, whether scienter is a necessary element of a statutory crime is a question of legislative intent to be answered by a construction of the statute. McIntosh v. Washington, 395 A.2d 744, 756 (D.C.App.1978). In Dawkins , the appellant successfully challenged this Court’s interpretation of the Maryland Controlled Substances Act by which we found that scienter was not an element of the crime of possession of a controlled substance. The Court of Appeals observed that the express language of the statute was silent as to scienter, id. at 645-646, 547 A.2d 1041 .

The Court then examined the entire statutory scheme and surveyed the law of other states which had adopted the Uniform Controlled Substances Act and held that, with regards to drug possession, scienter was an element of the crime. The sections of the Transportation Article considered sub judice do not expressly require scienter. While a statute’s ⁴¹⁴ explicit language is an obvious manifestation of legislative intent, the overall statutory scheme and the nature of its provisions also indicate the legislature’s purpose. In Dawkins, supra, the Court of Appeals utilized the following three factors as indicia of whether the legislature intended to create a public welfare offense: 1.

Public welfare offenses are generally regulatory rather than punitive in nature. 2. Such offenses usually carry a penalty which is “so slight that the courts can afford to disregard the individual in protecting the social interest.” They typically carry light fines or penalties. 3. An individual charged with such a crime is generally in a position to prevent its violation. Dawkins, supra, at 644-45 , 547 A.2d 1041 (citations omitted).

See also, LaFave and Scott, Basic Premises of Criminal Law at 219-220. Appellant McCallum was convicted of six violations of the Transportation Article. 4 After an examination of the over ⁴¹⁵ all statutory scheme, its penalty provisions, and the