Walker v. State

SALMON, J. Leon Walker was charged in the Circuit Court for Baltimore County with, among other things, possessing a regulated firearm after having previously been convicted of a felony. He was convicted by a jury of that offense and received a mandatory five-year sentence. The jury acquitted appellant of first-degree assault and use of a handgun in the commission of a crime of violence. The main issue to be resolved in this appeal is whether we should reverse this case under the plain error doctrine because the trial judge instructed the jury that a “firearm” is defined “as a handgun such as a pistol, revolver, or starter pistol.” Walker contends that this instruction was erroneous because a weapon can only be characterized as a “firearm” if it “expels, is designed to expel, or may readily be converted to expel a projectile by the action of an explosive.” Walker contends that this instruction prejudiced him in light of the fact that although he admitted to the jury that he possessed a starter pistol, the State’s own evidence demonstrated 1) the starter pistol he possessed could not expel a projectile by the action of an explosive, 2) that his starter pistol was not designed to expel a projectile by the action of an explosive, and 3) the starter pistol he possessed could not be readily converted into a weapon capable of expelling a projectile by the action of an explosive.

I. Set forth in part I below is a brief summary of the evidence produced in the trial court that is relevant to the issue presented. On October 1, 2007, appellant and his wife, Donna Walker, lived in Essex, Maryland. Residing with them were three children from Mrs. Walker’s previous relationship with one Nathaniel Gale and two of appellant’s children. On the after ⁶⁸¹ noon of October 1, 2007, Mr. Gale came to the Walker home to take his three children to football practice.

Mr. Gale and appellant got into an argument that arose because Mr. Gale had heard that appellant had “put his hands on” Gale’s youngest son. According to Gale, appellant was standing nearby while he (Gale) was looking in the direction of his children when he heard a loud gunshot sound. Gale ducked behind a nearby car, and heard appellant say, “See what you did? You sent me to jail.” Gale then got into his truck and drove off with his children.

Appellant did likewise. A few hours after Gale heard a gunshot fired, appellant returned to his residence and consented to a search of his home by the police. During the consent search, the police recovered a starter pistol in appellant’s kitchen. Appellant was later to testify that the starter pistol recovered by the police was the one he used when he fired the gun in Nathaniel Gale’s presence.

The State called a firearm expert who examined the starter pistol recovered from appellant’s house. He told the jury that the starter pistol had several physical characteristics that did not allow it to fire or to be readily modified to fire a projectile by the action of an explosive. In the expert’s words: The chambers on this cylinder is so short that it doesn’t have any room to put a bullet, a bullet and a cartridge in. There are blocks in each one of those chambers that prevent anything longer going into it.

Now, on that cylinder, the front of the cylinder is hollowed out. That would prevent someone from modifying that and putting a bulleted cartridge in and getting it to be able to fire. Also there’s a block that’s cast into the barrel that goes from one side to the other and the full length that would prevent the bullet from coming out this barrel. The State’s theory at trial was that Walker had fired a fully operational handgun to scare Mr. Gale.

There was ample evidence to support that theory, including the testimony of appellant’s neighbors, Michael Wiatrowski and Steven Wilson. Wilson testified that the starter pistol, which appellant claimed ⁶⁸² he used, was not the weapon he saw appellant with immediately after he heard the shot. Wilson said that he could tell the weapon was “a handgun,” “could see the silverness of it,” and could also see the “little revolver part of it.” Wilson also said that immediately after the shooting he saw a bullet hole in the side panel of a vehicle that was parked in the vicinity of the shooting. Near that car, the police recovered a spent bullet, later determined to be a .22 caliber bullet.

The owner of the vehicle damaged by the bullet testified that he had parked the car a few hours before the shooting, at which time it had no bullet holes in it. When he examined the vehicle shortly after the shooting, he saw the bullet hole that was also observed by Wilson. Michael Wiatrowski saw appellant immediately after the shooting holding what looked like “a small caliber automatic handgun.” Appellant was holding the weapon “in his hand, aiming like, in a 45 degree angle down towards the back of a neighbor’s vehicle.” Appellant testified that when Gale came to his house on the morning in question, he and Gale got into an argument. He (appellant) went inside his house and retrieved a starter pistol, then came outside and fired it to frighten Gale.

According to appellant, the starter pistol he fired was the same one the police found in his house. In argument to the jury, the State’s primary theory was that appellant had used a functional handgun, but as a secondary theory, the prosecutor argued to the jury that even if appellant had used a starter pistol he was still guilty of illegal possession of a regulated firearm. The trial judge instructed the jury that a starter pistol met the definition of a handgun but appellant’s trial counsel did not object to that instruction. This failure to object is somewhat puzzling in light of the fact that prior to trial, counsel for appellant argued that a motion in limine should be granted to prevent the prosecutor from arguing to the jury that it could convict appellant of unlawfully possessing a regulated firearm even if the jury were to find that the starter pistol was not a ⁶⁸³ weapon “that expels and is designed to expel or may readily be converted to expel a projectile by the action of an explosive.” The court denied the motion in limine, saying: I think the statute is abundantly clear.

They got [sic] a firearm, in quotations, includes a starter gun. Under 5-101(h)(2) it’s abundantly clear. They intended to include starter guns.

II

As already mentioned, appellant maintains that the trial judge committed plain error when he told the jury, without qualification, that a starter pistol was a firearm. Appellant contends that the court should have told the jury that a starter pistol could only be a “firearm” if it expels, is designed to expel, or may readily be converted to expel a projectile by the action of an explosive. We agree with appellant. The statute under which appellant was convicted was Md. Code (2003 Repl.

Vol.) § 5-133(c)(l), of the Public Safety Article (“PS”), which provides: “A person may not possess a regulated firearm if the person was previously convicted of’ certain drug felonies. Appellant had previously been convicted of a drug felony that disqualified him from possessing a firearm. Appellant points out, correctly, that if his testimony was believed he merely possessed a starter pistol; that testimony, coupled with the testimony of the State’s ballistic expert, showed that the starter pistol he possessed was not a weapon that “expels, is designed to expel, or may readily be converted to expel a projectile by the action of an explosive.” During closing argument the prosecutor argued: His Honor told you that whether it is a starter pistol, or a handgun, or a revolver, they’re all considered handguns in the State of Maryland. If he simply pointed the starter pistol and shot it, that still counts. ⁶⁸⁴ You’ve heard the law that a starter pistol is a firearm in this case.

Whether you believe the Defendant used a handgun or revolver or a starter pistol when committing this assault on Mr. Gale, he’d be guilty of being in possession of a firearm. By his own admission, he’s guilty. He admits being in possession of that starter gun, at the very least, which is a crime because of his prior conviction. But by his own admission, him owning the starter pistol, possessing the starter pistol, ... without any doubt makes him guilty of ... being a prohibited person in possession of a firearm.

(Emphasis added.) The first issue we must address is whether a starter pistol is a “firearm” even if it is incapable of expelling a projectile by the action of an explosive or is designed to expel an explosive in that fashion or may readily be converted so that it is capable of expelling a projectile by the action of an explosive. PS section 5-101(p) reads, in relevant part: (p) “Regulated firearm” means: (1) a handgun; or (2) a firearm that is any of the following specific assault weapons.... The portion of the definition set forth in section 5-101 (p)(2), dealing with certain assault weapons, is here irrelevant. Thus we turn to the definition of “handgun” as defined in subsection (n) of PS, section 5-101, viz: (n)(l) “Handgun” means a firearm with a barrel less than 16 inches in length.

(2) “Handgun” includes signal, starter, and blank pistols. Section 5-101(h) defines a firearm as follows: (h)(1) “Firearm” means: ⁶⁸⁵ (1) a weapon that expels, is designed to expel, or may readily be converted to expel a projectile by the action of an explosive; or (ii) the frame or receiver of such a weapon. (2) “Firearm” includes a starter gun. In interpreting the definitions of the word “handgun” and “firearm” it is important to bear in mind that both definitions use the word “includes.” Appellant argues: The definition of a “firearm” in 5-101 is clear and unambiguous on its face.

A firearm is “a weapon that expels, is designed to expel, or may readily be converted to expel a projectile by the action of an explosive.” Id. § 5-101(h). Contrary to the trial court’s conclusion [when ruling on the motion in limine ] the General Assembly’s inclusion of the phrase “includes a starter gun” does not mean that every gun described as a “starter gun” is a firearm. Id. § 5-101(h)(2). Rather, “when the drafters use the term ‘includes’ it is generally intended to be used as ‘illustration and not ... limitation.’ ” Tribbitt v. State, 403 Md. 638, 648 [ 943 A.2d 1260 ] (2008) (citing Md.Code Ann., Art. 1, § 30 (1957, 2005 Repl.

Vol.)). Thus, the reference to “starter gun” is merely an illustration of an instrument that will constitute a firearm provided that it meets the definition of a “firearm.” Appellant’s argument is fully supported by Tribbitt v. State, 403 Md. 638 , 943 A.2d 1260 (2008). In Tribbitt , the Court of Appeals was called upon to interpret Md. Code (2002, 2007 Cum. Supp.), Criminal Law Article (“CL”), section 3-602, which reads, in part, as follows: Sexual abuse of a minor.

(a) Definitions. — (1) In this section the following words have the meanings indicated. (2) “Family member” has the meaning stated in § 3-601 of this subtitle. (3) “Household member” has the meaning stated in § 3-601 of this subtitle. ⁶⁸⁶ (4)(i) “Sexual abuse” means an act that involves sexual molestation or exploitation of a minor, whether physical injuries are sustained or not. (ii) “Sexual abuse” includes: 1. incest; 2. rape; 3. sexual offense in any degree; 4. sodomy; and 5. unnatural or perverted sexual practices.

(Emphasis added.) Tribbitt’s interpretation of section 3-602(a)(4) was that the items following the word “includes” limited the definition of sexual abuse to the five enumerated criminal acts set forth in subsection (a)(ii). Id. at 648, 943 A.2d 1260 . The Tribbitt Court rejected that argument. It first interpreted the word “means” as used in CL, section 3-602(a)(4), as follows: As in Hackley [v. State, 389 Md. 387 , 885 A.2d 816 (2005) ], however, the term “means” is exhaustive.

The words following “means” form the broad definition of “sexual abuse.” Therefore, “sexual abuse” is defined by the Legislature as “an act that involves sexual molestation or exploitation of a minor, whether physical injuries are sustained or not.” Id. at 648, 943 A.2d 1260 . The Tribbitt Court then explained the meaning of the word “includes” when used in a criminal statute. The list in § 3-602(a)(4)(ii) merely provides examples of acts that come within that definition. See United States, v. Gertz, 249 F.2d 662, 666 (9th Cir.1957) (“The likelihood that ‘includes’ is used in this sense in § 11 is fortified by the fact that in one of the definitions set out in chapter 1 of title 18(§ 9) U.S.C.A., ‘means’ is used instead of‘includes,’ and in another such section (§ 6) both ‘means’ and ‘includes’ are used.

It would therefore appear that in chapter 1, ‘means’ is used when the term and its definition are to be interchangeable equivalents, and ‘includes’ is used when it is desired to eliminate any doubt as to the inclusion in a ⁶⁸⁷ larger class of the particular class specifically mentioned. ”); Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 , 62 S.Ct. 1, 4 , 86 L.Ed. 65 (1941) (noting that generally “the term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle”); Helvering v. Morgan’s, Inc., 293 U.S. 121 , 126 n. 1, 55 S.Ct. 60 , 62 n. 1, 79 L.Ed. 232 , 1934- 2 C.B. 267 (1934) (“That the draftsman used these words in a different sense seems clear. The natural distinction would be that where ‘means’ is employed, the term and its definition are to be interchangeable equivalents, and that the verb ‘includes’ imports a general class, some of whose particular instances are those specified in the definition.”); Guar. Trust Co. of N.Y. v. W. Va. Tpk.

Comm’n, 109 F.Supp. 286, 296 (S.D.W.Va.1952) (“Clearly, by use of the word ‘including’ the lawmakers intended merely to list examples of known safety devices, but not to exclude others equally well known.”); Lyman v. Town of Bow Mar, 188 Colo. 216 , 533 P.2d 1129,1133 (Colo.1975) (“Further, the word ‘include’ is ordinarily used as a word of extension or enlargement, and we find that it was so used in this definition. To hold otherwise here would transmogrify the word ‘include’ into the word ‘mean.’ ”); Norman J. Singer & J.D. Shambie Singer, 2A