Wright v. State

WILNER, Judge. As a result of an incident that occurred on December 9, 1984, appellant was convicted by a jury in the Circuit Court for Baltimore City of attempted robbery with a dangerous or deadly weapon, unlawfully carrying a handgun, and unlawful use of a handgun in the commission of a crime of violence. From the judgments entered on those convictions, appellant has brought this appeal, raising four issues: “1. Did the trial judge err in refusing to give a requested handgun instruction? 2.

Was the evidence sufficient to sustain Appellant’s convictions? 3. Was Appellant’s sentence based, in part, upon impermissible considerations? 4. Did the trial judge abuse his discretion in refusing to grant Appellant’s request for a continuance?” We shall answer the first question in the affirmative, the others in the negative. ⁶¹⁹ Jury Instruction The victim, Rodney Brown, testified that appellant approached him on the street, pulled a gun, and said, “You know what it is, give it up.” When Mr. Brown refused to give up his property, including a lambskin jacket and some gold chains he was wearing, appellant stated, “You are going to die with it on” and pulled the trigger. The gun “clicked” but did not fire, whereupon appellant left the scene.

In light of this evidence, counsel requested the following instruction on the handgun counts: “The term ‘handgun’ means any pistol, revolver, or other firearm which is: (1) capable of being concealed on the person, and (2) operable or easily made operable, and (3) capable of firing a missile or projectile as a result of a gunpo[w]der or similar explosive. Couplin v. State, 37 Md.App. 567 [ 378 A.2d 197 ] (1977) Neither a C02 gun, tear gas gun or toy gun is a handgun under this section. Douglas v. State, 37 Md.App. 557 [ 378 A.2d 189 ] (1977).” Denying appellant’s request, the court, over appellant’s objection, instead instructed the jury that, “A handgun is defined and [sic ] including a pistol, revolver or other firearm which is capable of being concealed upon one’s person.” Appellant contends that the instructions actually given did not fairly cover the issue he wished the jury to consider, as required by Md.Rule 4—325(e), and, consequently, that the trial judge committed reversible error by refusing to give the instruction requested. We agree. “[I]t is incumbent upon the court, ... when requested in a criminal case, to give an ... instruction on every essential question or point of law supported by evidence.” Smith v. State, 302 Md. 175, 179 , 486 A.2d 196 (1985) (quoting Bruce v. State, 218 Md. 87, 97 , 145 A.2d 428 (1958)).

The evidence in support of an essential question or ⁶²⁰ point of law may be “well-nigh incredible as a matter of fact, but not necessarily so as a matter of law.” See Howell v. State, 56 Md.App. 675 , 468 A.2d 688 (1983), cert. denied 299 Md. 426 , 474 A.2d 218 , 469 U.S. 1039 , 105 S.Ct. 520 , 83 L.Ed.2d 408 (1984), — U.S.-, 106 S.Ct. 412 , 88 L.Ed.2d 362 (1985). The “bottom line” is that, if a prima facie case is generated on a particular point of law, the defendant is entitled to a jury instruction on that point. See id. The handgun instruction given by the trial court essentially encompassed the statutory definition of “handgun” under Md.Code Ann. art. 27, § 36F(a), but, under the circumstances, that was not enough.

In Howell v. State, 278 Md. 389, 396 , 364 A.2d 797 (1976), the Court looked at the statutory definition and decided that, to be a “handgun” the device had to be a “firearm,” and that, to be a “firearm,” it “must propel a missile by gunpowder or some such similar explosive” or “be readily or easily converted into” a device capable of so propelling a missile. As subsequent cases illustrate, that definition has two aspects to it. Generically, it serves to exclude entirely such weapons as starter pistols, C02 guns, and B-B guns, which are simply not designed or constructed to fire missiles by gaseous explosion and, because of their design and construction, are not capable of doing so. See Howell, supra, 278 Md. 389 , 364 A.2d 797 ; Douglas v. State, 37 Md.App. 557 , 378 A.2d 189 (1977); Grant v. State, 65 Md.App. 547 , 501 A.2d 475 (1985), cert. denied 306 Md. 70 , 507 A.2d 184 (1986).

Secondarily, it requires even a weapon designed and constructed as a firearm actually to be capable of discharging the missile. Referring to the expressed legislative intent in enacting the handgun law, we observed in York v. State, 56 Md.App. 222, 229 , 467 A.2d 552 (1983), cert. denied 299 Md. 137 , 472 A.2d 1000 (1984), that the potential for the special harm addressed by the statute “exists only when the weapon, at the time of the offense, is useable as a ⁶²¹ handgun”—that “[i]f it is not then so useable, its likelihood of inflicting injury is no greater than that produced by a knife or a club—bad enough, but different from the special hazard to the victim that the legislature attached to the use of handguns.” This secondary aspect—that of operability—is the one at issue here. There is nothing to suggest that the weapon employed by appellant was not designed and constructed to fire a missile by gaseous explosion. Most of the cases involving this secondary aspect have concerned the sufficiency of the evidence presented by the State.

Couplin v. State, 37 Md.App. 567 , 378 A.2d 197 (1977), cert. denied 281 Md. 735 (1978), is a prime example; the weapon itself, although described by the victim, was never recovered, and the argument was made that the State had failed to prove that the weapon was, in fact, capable of firing a projectile by an explosive propellant. We rejected that argument, concluding, in effect, that where the gun is not available for empirical inspection an inference of operability can be drawn from other extrinsic evidence as to the nature of the weapon. See also Brown v.