Starr v. State

MURPHY, Judge. In the Circuit Court for Wicomico County, a jury convicted Curtis C. Starr, petitioner, of first degree assault and related offenses, including openly wearing and carrying a dangerous weapon with intent to injure. After the Court of Special Appeals affirmed those convictions in an unreported opinion, petitioner requested that this Court issue a writ of certiorari to review the sufficiency of the evidence that he violated Section 4-101(c) of the Criminal Law Article. His petition presented us with a single question: Is the evidence insufficient to sustain [petitioner’s] conviction for wearing and carrying a dangerous weapon openly with intent to injure under Criminal Law Article, § 4-101 because a sawed-off shotgun does not meet the definition of a dangerous weapon for purpose of that statute?

The Court of Special Appeals concluded that (1) this argument was not preserved for appellate review, and (2) in the alternative, the evidence was sufficient to support petitioner’s conviction. For the reasons that follow, we shall affirm the ²⁹⁵ judgment on the ground that the sufficiency of the evidence issue was not preserved for appellate review. Background Petitioner was tried on a four count indictment that included the following charge: Count 4 THAT CURTIS C. STARR, on or about the 24th day of September, 2005, in Wicomico County, State of Maryland, did openly wear and carry a shotgun, a dangerous weapon, with the intent and purpose of causing injury to Kevin Lucas in an unlawful manner, contrary to the form of the Act of Assembly in such cases made and provided, against the peace, government and dignity of the State. Art. CR Sec. 4.101.(c)(2) The jurors were entitled to find beyond a reasonable doubt that about 11:30 p.m. on September 24, 2005, in the Salisbury Motor Home Park, petitioner fired a “sawed-off shotgun” over the head of one Kevin Lucas.

Prior to jury selection, petitioner’s trial counsel requested that the Circuit Court “consider asking the question about crimes involving firearms as there is an allegation that a firearm was involved in the commission of this crime.” When asked whether the firearm in question was a handgun, petitioner’s trial counsel responded, “No, sawed off shotgun is the allegation.” Mr. Lucas testified as follows on direct examination: A. He passed by and he started, you know, giving us a real mean look, it was like three of us. I asked him what was going on. And he reached inside his pants and he pulled out, it looked like a sawed off shotgun. And at that time he put it back in his pants and kept going.

A. ... And I had been in the house for a few minutes and I came outside and I heard someone call my name. And I looked and he was standing there with a shotgun pointing at me. ²⁹⁶ Q. When you say he, who are you referring to? A. [] the Defendant.

He was standing with a shotgun pointed at me ... Q. What kind of gun was it? A. It was a sawed off shotgun, it was wrapped in white tape and it had a pistol grip. Q. What part of it was wrapped in white tape?

A. The barrel. Q. How long was the gun? A. • About that long, whatever that is, about 12, 14 inches. Q. Where was he pointing the shotgun when he fired it?

A. In the air. He fired in the air. Q. Is it possible for you to demonstrate the angle with your hands for the jury, the angle when he fired the gun? A. Like that (indicating).

Q. Was he holding it with two hands? A. Yes, one here and one there (indicating). Q. How many times did he fire it? A. One time.

I think it was one shot because he loaded it up again. Q. Did you see how he loaded it? A. Yes, he flicked it down and pulled the one shell out and stuck the other shell in. Q. Where did he take the additional shell from?

A. I guess in his pocket. Q. Did you see what he did—was there an expended shell from inside the shotgun? A.- I think he put that inside his pocket, too, because it wasn’t found. The following transpired during Mr. Lucas’ cross-examination: ²⁹⁷ Q. Do you have prior contact with shotguns what enables you to identify something as a shotgun?

A. No, I don’t. But when he shot it two feet of fire came out of the end of it, that usually happens with a shotgun. Q. So what you’re indicating is when you saw the gun fire you saw something come out of the barrel? A. Fire came out of the barrel.

Q. Fire came out of the barrel? A. Right. Q. Did you observe anything except for fire come out of the barrel? A. Well, the trees and leaves and stuff moved, yes.

The State’s witnesses included Daniel Wiltbank, who testified as follows on cross-examination: Q. Do you have prior experience with firearms or shotguns that enables you to identify the object held by [the defendant] as a shotgun? A. Do I have professional training or do I own firearms? Q. Do you own firearms? A. Yes, I do.

Q. Do you own shotguns? A. Yes, I do. Q. Can you describe the size of the firearm that you described as a shotgun that was held by [the defendant]? A. Pretty much, yes, sir.

Q. Okay, what was its size? A. It was probably anywhere from I’d say 28 to maybe 32 inches total length. I do believe it was a double barrel. Stock was cut off, the barrel was modified and cut off as well. * * * ²⁹⁸ Q. And could you describe the angle at which the gun was pointed when it was shot, when it was fired?

A. Pretty much up in the air. Q. Okay. Did you see anything become expelled from the barrel when it was fired? A. Yes, I did.

Q. What did you see that was expelled from the barrel? A. I stated I saw a muzzle blast which looks like, in my experience before, looks like fire. Q. Did you see the person who you’ve described as [the defendant] reload the gun? A. No, sir.

Q. WTiy do you believe it was a double barreled shotgun? A. Because I saw it and it looked to me like it was. But that I’m not 100 percent sure. Q. But it looked to you like it had two barrels?

A. Yes, sir. Petitioner testified that he was not at the scene of the crime. The firearm described by the State’s witnesses was never recovered. At the conclusion of the State’s case-in-chief, petitioner’s trial counsel moved “for judgment of acquittal with respect to all counts,” and presented the following argument in support of those motions: Specifically with respect to the fourth count, the justification is that under the current State of Maryland case law it’s not against the law to possess a shotgun or sawed off shotgun or at the very least Criminal Law Article Section 4-101(c)(2) doesn’t prohibit it.

The Court will notice in the annotations following the section of the case U.S. versus One 1967 Ford Thunderbird, 316 F.Supp., 391 , it’s a Federal District of Maryland case that was affirmed. Simply put shotguns, even sawed off shotguns aren’t dangerous weapons as contemplated by this particular statute. There are prohibitions against, obviously, using a weapon against someone in a particular manner but that case as well as Anderson ²⁹⁹ versus State, 328 Maryland 426 , 614 A.2d 963 , a 92 case, the Anderson case stands for the proposition if it’s not listed in the statute the State has to show that it was intended to be included and the federal U.S. versus One 1967 Ford Thunderbird case, taken in conjunction with the Anderson case points out the reason why count four at this point, the charge is openly wearing and carrying a shotgun is not an appropriate charge under the circumstances. I would also note, for the record, that in order to be charged with and successfully convicted for wearing and carrying a shotgun the State has to show more than just plain use of it, but that it was worn around in some sort of general way.

Specifically there’s a court case where a person was accused of wearing and carrying a beer bottle for purposes of assaulting someone and what the Court of Special Appeals said is just because you carry around a beer bottle doesn’t mean that you violate the requirement of Criminal Law Article Section 4—101(c)(2). That’s the extent of argument with respect to count four. (Emphasis supplied). The record shows that the following transpired at this point: THE COURT: The way I read the Thunderbird case, according to the annotations it says mere possession is not a crime, it didn’t say it wasn’t a dangerous weapon. [DEFENSE COUNSEL]: That’s why it’s not a crime, Your Honor, because it’s not a dangerous weapon under the Statute, that’s the proposition to which the case stands.

THE COURT: Well, that’s not what the annotation says. [DEFENSE COUNSEL]: That’s the proposition for which the case stands. [PROSECUTOR]: I thought the important factor there was whether it was being worn and carried as opposed to possessed. Just possessing isn’t a crime, it has to be carried. In this case, you have the victim saying he saw him carrying it down the street in his waistband, lifted it up ³⁰⁰ and put it back down, then came back and fired the shot and then walked away with it again. That’s carrying, not just possessing. [DEFENSE COUNSEL]: If the State wants to rely upon that theory, it’s a concealed weapon theory and so under my theory—what the victim says is that he sees him earlier with it tucked in his pants, which is not openly wearing and carrying anything but is in fact carrying it concealed which is an entirely different crime. ❖ * * THE COURT: Well I’m not convinced a sawed off shotgun is not a dangerous weapon.

I don’t think the case you cited stands for that proposition. There is evidence from which the jury could infer that the Defendant was carrying a sawed off shotgun, certainly he pulled it out of his pants and held it. And they can infer that he was carrying it openly with the intent or purpose of