Smith v. State

⁶¹³ Carter, J., delivered the opinion of the Court. The appellant, Charles Courtland Smith, was convicted by Judge William J. O’Donnell, sitting non-jury in the Criminal Court of Baltimore, of having concealed on or about his person a deadly weapon (pistol) and was sentenced to three years in prison. He contends that the evidence was legally insufficient to justify his conviction. The State’s evidence showed that on February 26,1972, at approximately 10 p.m., Detective Rush received a report from a reliable informer that the appellant was dealing in drugs at the corner of Baker Street and Fulton Avenue in Baltimore City.

The informer also gave a description of the dealer and his car that was parked at the designated location. Upon receipt of this information, Detective Rush and his police partners proceeded to the location. There they observed a person and a parked car corresponding to the descriptions. The appellant saw Detective Rush riding by, appeared to recognize him, and left the scene at a high rate of speed.

The detective and his associates followed in their car. After the appellant had traveled several blocks, he stopped at a red light. At that time Detective Rush went to the right front door of the appellant’s stopped car and Detectives Cash and Porter went to the left front door. Detective Cash ordered the appellant to get completely out of the car.

Detective Rush looked inside the car through the right front window and observed the handle of a pistol protruding above the front seat. The part of the pistol that was exposed was sufficient to permit him to identify it as a pistol. 1 He opened the right front door and retrieved a fully loaded .22 caliber revolver. The appellant concedes that since the location of the gun on the front seat was “such proximity to him as would make it available for his immediate use,” it would be deemed to have been carried on or about his person, under the authority of Shifflett v. State, 3 Md. App. 550, 554 , 240 A. 2d 286 . His contention below that his possession of the pistol ⁶¹⁴ should be excused because he was carrying it as a reasonable precaution against apprehended danger within the provisions of Md. Code, Art. 27, § 36 (b), is not pressed on appeal.

Therefore his contention before this Court is confined to the question of whether the evidence was legally sufficient to establish that the pistol was concealed within the contemplation of Md. Code, Art. 27, § 36 (a). The pertinent parts of the testimony of Detective Rush and the appellant related to this issue are as follows: TESTIMONY OF DETECTIVE RUSH “BY MISS SCHULTE (counsel for the State): Q What occurred at the corner or Warwick Avenue, you mentioned that he went from Fulton Avenue to Warwick Avenue? A * * * I went to the right front door and Detective Cash and Detective Porter went to the left front door of the car, at which time the Defendant was getting out of the car. Q What was said to him by the other Detectives, if anything?

A I believe Detective Cash made a statement in words to the effect, come on and get out of the car. At which time he was in the process of getting out of the car as Detective Cash had said that, and I was on the right side of the car and looked in the window and observed a pistol, the handle of a pistol which was partially sticking out from the front seat of the car. (emphasis added) Q Whereabout on the seat, the right side or left side or in the middle? A Right along the side of the operator, the right hand side on the seat. “THE COURT: How close was it to the operator when you observed it on the seat? “THE WITNESS: Directly alongside of him. * * * ⁶¹⁵ “BY MISS SCHULTE: Q When you saw the gun where was the Defendant at that time?

A The Defendant was getting out of the car. Q What did you do upon seeing the gun, what if anything, did you say? A I called to my partner, Detective Cash, and told him to watch himself, he didn’t see it and I couldn’t get to it. “THE COURT: How much of the gun did you see? “THE WITNESS: The entire handle. “THE COURT: How far down was it? “THE WITNESS: Down to where you could put your fingers around it. “THE COURT: You are indicating down to where the frame goes for the finger? “THE WITNESS: Yes, sir.” CROSS EXAMINATION “BY MR. THOMAS (defense counsel): Q Was it [pistol] stuck down in between the back in the seat?

A It was stuck between the part that you sit and the couch. “THE COURT: Where the two parts of the seat meet, the horizontal part and the perpendicular part meet? “THE WITNESS: Yes, sir.” TESTIMONY OF APPELLANT “THE COURT: Why didn’t you put the gun in the glove compartment or put it in the trunk of the car? Why did you have it out on the front seat? ⁶¹⁶ “DEFENDANT SMITH: I just put it on the seat, I was trying to conceal it, I was trying to take it home.” SUFFICIENCY OF THE EVIDENCE TO ESTABLISH CONCEALMENT Md. Code, Art. 27, § 36 (a) provides in pertinent part: “Every person who shall wear or carry any pistol * * * or any other dangerous or deadly weapon of any kind whatsoever * * * concealed upon or about his person, * * * shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined not more than one thousand (1,000.00) dollars or be imprisoned * * * for not more than three years; * * * ” 2 The test for determining the sufficiency of circumstances to establish concealment under the statute was enunciated by the Court of