*1
637
malice;
actual
wanton,
also
as
described
reckless
disregard
rights
for the
of others.”
Medina, Md.App.
248-49,
wanton, disregard reckless the rights of others. The conduct Cambridge, a light viewed favorable firefighters, mistake, amounts to no more than thoughtless- ness or inadvertence occasioned the excitement and confusion of the moment. certainly wilful, It was not a wanton or malicious act. Ross Judge rejected properly requested punitive firemen’s instruction damages. JUDGMENTS AFFIRMED. BE
COSTS TO DIVIDED BETWEEN APPELLANT AND APPELLEES.
v. Maryland. STATE of Term, Sept. No. 1985. Special Appeals
Court of Maryland.
Dec. 1985. *2 appellant. M. for Jacoby, Hyattsville, Steven Lane, Sachs, H. Atty. (Stephen Asst. Gen. Stephanie J. Marshall, Jr., Gen., Baltimore, Arthur A. Atty. State’s Atty. George’s Prince County and McManus, Thomas A. Asst. Atty. State’s for Prince George’s County brief, on the Upper Marlboro), for appellee.
Argued ALPERT, before BLOOM and ROBERT M. BELL, JJ.
ALPERT, Judge.
Originally, the appellant, Dunn, Waddell George charged with degree first murder. On May 1982 appel- lant given a six year suspended sentence, with five years probation, after his plea of guilty to an amended charge of assault with intent to maim was accepted by The Honorable E. Audrey Melbourne of the Circuit Court for Prince George’s County. On March charged the District Court for Prince George’s *3 County with carrying a concealed deadly weapon, in viola- 27, tion of Article Section 36 of the Annotated Code of Maryland, edition, as amended. He appeared trial, counsel, 1984, in May, on charge. Upon a Motion Suppress trial, made at that the knife seized from appel- lant by Corporal G.A. Groves of the Prince George’s County Police Department was suppressed and appellant acquitted. The knife was disposed later of by the police. appellant was subsequently charged with violating probation. his probation His officer alleged that he violated the following conditions:
Condition No. 4—in that he was arrested charged 14, 1984, on March with deadly weapon concealed, Case — No. 005033E0....
Condition No. 3D—In that Mr. Dunn was arrested and in charged P.G. Co. with a deadly weapon 1, June [on 1984]. 16,
On or about October probation agent filed an additional report that, for reason September 11, “[o]n 1984, Mr. Dunn appeared in Prince George’s County District Court. At that time Mr. Dunn was not guilty.” The agent further that, related in acquittal, view that she was
not “requesting any action Conditions Nos. 8 and 3D.” words, agent In other probation pressing was not charge. The issue that “deadly weapon” spawned this agreement to be or not the appeal appears by “whether defendant —there was evidence believe that the defend- in a possession dangerous deadly weapon, ant had his knife____” That is specifically prosecutor how the below alleged violation of probation. characterized Defense below, stating counsel while that he was probably 95% characterization, agreement prosecutor’s with the further basically stated: “We are down ... to whether or not Mr. probation by violating Dunn violated his of the laws Maryland by possessing concealed deadly weapon State 36____” under Article Section 17, 1985, in hearing January After a held on the Circuit George’s County, Maryland, Court for Prince before The Melbourne, E. the court Audrey Honorable revoked originally suspended status and reinstated the probationary 12 days sentence of 6 incarceration with credit for years A noted. timely appeal served. contends that the trial court erred
Appellant because: prove question 1. The failed to that the knife State and therefore did not meet its was not a it proving dangerous weapon. burden 2. The trial court the doctrine of collat- was barred estoppel finding
eral violation of he previously because had been found concealed weapon charge. guilty *4 the of his appellant 3. The trial court did advise allocution, of nor did it afford him that personal right imposed. sentence was right before 1. the erred in
Appellant argues finding court by possession danger of a appellant violated showing ous an affirmative that the knife weapon without switchblade, specifi- not a which is was without cally exempted statute, from the statute. The Art. Sec. 36(a), provides:
Every person
knife,
who shall wear or carry any dirk
knife,
knife,
bowie
sandclub,
knuckles,
switchblade
metal
razor, nunchaku, or
other
any
dangerous or deadly weap-
kind,
any
(penknives
of
whatsoever
without switch-
and handguns, excepted)
blade
upon
concealed
or about
his person,
every person
who shall
wear
carry any
weapon,
such
chemical mace or
gas
tear
openly
device
purpose
injuring
the intent or
of
any person in any
manner,
unlawful
shall be
guilty
a misdemeanor.
part
Appellant
large
upon
relies
case Mackall v.
State,
(1978)
283 Md.
“Penknife” not defined in the if statute. Even General had Assembly dictionary definition in mind when it first enacted the concept statute this aof “penknife” obviously changed had when the exception “penknife amended to without Penk- switchblade.” nives are today commonly to encompass any considered handle, knife with folding the blade into very some large.
Appellant’s argument is misconceived and misdirected. Whether the knife he carrying when arrested Cpl. *5 meaning a of art.
Groves was within to No. 36(a) significance only respect is of Condition If it a would probation. penknife, 4 of his of the crime of a concealed guilty carrying been have and thus would not have been viola- dangerous weapon obey condition that he all laws. tion of however, can and all too is penknife, frequently a Even knife, larger danger- a the more weapon used as —the tools, Likewise, other or weapon. many objects, ous the weapons per dangerous are not se can be implements that boy A hatchet in the a if used as such. hands of weapons tool; campfire for a is a useful that chopping kindling scout dark thug lurking hands of a in a same hatchet in the unarmed awaiting approach pedes- an alleyway weapon indeed. A used dangerous penknife being trian ais that knife implement; to a is a useful same pencil trim And, as weapon. throat is a deadly directed at someone’s Judge in colloquy out a between Melbourne pointed cord, or a counsel, string, telephone or a piece defense a weapon, fingernail dangerous file could pen, or a become it is depending upon how used. us, therefore, not whether is question before knife was proving appellant’s met its burden of
State erred Judge Melbourne penknife, not a but whether at the determining dangerous weapon the knife being the circumstances of its time, place in the and under appellant by Cpl. taken from Groves. used, is weapon per an that is not a se object
Whether occasion particular as a on a possessed weapon carried or If object, surrounding circumstances. depends upon as a tool, to a closely weapon, akin although normally should be axe, proof required an far less knife or given weapon as a on a one of its character persuade little no object if the bears or resemblance occasion than file, pen, telephone fingernail as the weapons, traditional in the between cord, string colloquy mentioned piece mind, and defense counsel. With that Melbourne Judge *6 we now look the surrounding circumstances appellant and his knife the occasion of his arrest.
Corporal the George’s Groves of Prince Police County Department testified that he first acquainted became with George Waddell Dunn at approximately 11:45 A.M. on May 14, 1984, he saw the appellant when in front Street, Hyattsville, Madison Prince George’s County, Mary- (the Heights Apartments). land Corporal Chillara Groves responded had to the scene “in reference to an alleged in breaking entering progress____” and He was by advised the man that “there maintenance was a apartment, vacant Apartment Street, at 1511 Madison and he went to check the building apartment and the since it still was get vacant and apartment he couldn’t inside the because the lock was the broken on outside.” The maintenance man further to Corporal related Groves that he had seen a tall black man long hair actually inside the apartment without permission. After a search, three-to-four minute Corporal man, Groves found a young who the description fit given man, by the maintenance “to the right the building yard.” It was none other than the appellant. making
Upon weapons search, a the officer noticed a bulge appellant’s left rear pocket, from which he a removed folded knife that he described as having a handle long
five inches and a inch four-and-a-half blade that locked into position when opened. The knife itself had been dis- posed of by police department, Cpl. not but Groves only gave a detailed description of the knife but also furnished a drawing of it.1
Taking into the type knife, account size so a closely akin to dirk or dagger open, when as well as the manner in being which it was carried one by having no being work-related reason for in the vicinity appar- no ent need or use for the knife as a tool time and objection 1. description admissibility No to the made to the drawing. give circumstances were as to rise a
place, such as' inference that the knife was carried a being reasonable And if knife weapon weapon, and not tool. was a it Accordingly, one. hold that obviously dangerous we finding, erroneous in Judge clearly Melbourne was circumstances, that totality of the had appellant under the danger- probation by possessing condition of his violated a probation from his officer. permission ous without weapon 2. judge trial asserts barred
Appellant estoppel finding of collateral the doctrine charges of his based on of which he violation *7 Appellant’s argument is acquitted. was earlier based probation was revoked assumption the erroneous dangerous weapon he was concealed carrying because —a acquitted. he earlier As we observed charge of which was probation re part opinion, appellant’s in “1” of this probation to a condition of that was obey failure voked for acquit he independent charge of the criminal of which was case, appel if that not the we still hold ted. were Even lant’s to merit. argument be without estoppel applicable collateral is to
While the doctrine of
law,
of
Bowling
as
common
v.
criminal cases
a matter
(1984),
State,
396, 401,
645
proceeding for
of probation
revocation
is not one of
[A]
formal procedure ‘either with
respect
specifi-
notice or
charges
cation of
upon
a trial
charges. The
question
simply whether there has been an abuse of discretion and
is to
in
be determined
accordance with familiar principles
governing
judicial
the exercise of
discretion.’
State,
Scott v.
272,
238
Md. at
revocation of hearing are not equivalent those at a accorded criminal trial. Formal procedures and the rules evidence are not employed. Finally, probation revoked, before may be the trial court need only be reasonably was, fact, satisfied that there in violation of probation. State,
Dean v.
291
(1981).
Md. 198
In
Stevens v.
164,
(1976),
Md.App.
tion
to
nature as a
resentencing proceeding
same
trial,
of former
implications
criminal
with its
subsequent
265,
Scott,
265,
575,
factually analogous
to
at
208 A.2d
charged with assault with
Defendant Scott was
hand.
he
rape, alleged
to
to
been committed while was
intent
have
certain
robbery.
inculpatory
Because
evi-
probation
on
for
evidentiary
on
jury
rulings,
from the
based
kept
dence
the
judge
trial
revoked
acquitted. Subsequently,
Scott
condition
violating
probation
the
of
probation for
Scott’s
in a law abiding
he “shall conduct himself
manner.”
that
evidence, the
hearsay
judge reinstituted
Relying heavily
sentence,
original
saying:
the
But,
of
I
jury.
I
on the verdict
the
do
will not comment
evidence, and
proffered
was certain
know
there
hear,
evidence,
jury
the
did not
important
which
the
/
it
not hear under
rules of evidence.
which
could
believe,
mind, that
my
regard-
not
own
help
can
but
apparently
the
evidence which
less
technical rules
of
of
skill
not
guilty, plus
resulted in the verdict
of
did
this one
counsel,
you actually
commit
your
charged
act,
you
with which
were
two
assault
obligation
public by
I
fulfill
to the
my
counts.
can not
free,
knowledge
allowing you
having
my
this
go
hear.
mind that the
could not
jury
added).
(emphasis
Thus, judge’s trial approval court’s Scott criminal acquittal conduct makes clear that defendant’s instituting parole or estop does charges State based on conduct proceedings revocation if even such charge, the criminal which formed basis Id. support conviction. Un- evidence insufficient Scott, sentencing judge’s properly der it was within Code, of Md.Ann. alleged to consider the violation discretion Weapon, in Wearing a Concealed Carrying art. in Scott, like though, even revoking appellant’s probation, *9 647 the of acquitted defendant was the charge and the physical the suppressed. evidence of knife was The trial court err in did not that finding the District acquittal prosecution Court did not bar for violation of probation arising out of same the conduct which precipitat- ed the District Court prosecution.
3.
Preliminarily, appellee asserts
this
court should
the issue of appellant’s right
review
to allocution guar
4-342(d)
anteed in
(formerly
Rule
Maryland
772(d)),
Rule
as
the issue
preserved
was not
for appeal by the proper
objection
Rule
Maryland
below.
1085.
It is clear
the
from
record that no
made.
objection was
Ordinarily, appellant
estopped
would
raising
be
this issue on appeal. Rule
provisions
We hold that
the
Maryland Rule
1085.
of
4-3J¡.2(d)
mandatory
are
are not waived
mere
object
State,
the time
trial. Dishman v.
failure
of
236, 241,
45 Md.App.
(1980).
Maryland 772(d)) Rule are the mandatory____ Although counsel, court did hear from appellant’s the rule is clear that must be afforded an opportunity, both personally through counsel. Failure to afford error, opportunity, personally, proper remedy for which is remand resentencing.
As
provides,
sentence,
the rule
“before imposing
shall
court
afford the
defendant
the opportunity, personally
counsel,
and through
to make a statement
and present
in mitigation
punishment.”
information
(emphasis add
ed).
Additionally,
it is clear
since
court
could cause
of a
sentence,
27,
execution
lesser
portion
art.
allocution at a
hearing
revocation
must
State,
v.
Sellman
afforded.
47 Md.App.
512-13,
denied,
cert.
(1981).
A.2d
(Thereupon, a conference Dunn.) Mr. Mr. between McGann that, told him Your He the Court says MR. McGANN: Honor.
THE COURT: What? that. If he thinks he remembers says
MR. He McGANN: him further on that. interrogate Your Honor wants I on placed you I tell when you THE What did COURT: sir, I to check box you going and I told probation, did I that meant? you What tell IV? make sure I told me I was to Your Honor
MR. DUNN: my probation. don’t violate happen? would THE COURT: Or what might get I sentenced. MR. DUNN: Or THE What? COURT: I sentenced. might get Or
MR. DUNN: get? might THE You COURT: sentenced, I get MR. DUNN: will Your Honor.
THE COURT: That’s more like it.
Anything further? Mr. McManus?
MR. merely McMANUS: The State asks that the original execution,
sentence ordered into Your Honor. We will submit that.
Plainly,
defendant was not “personally afforded the
opportunity to make a statement
present
information in
mitigation
punishment.”
4-342(d).
Rule
Defendant was
merely answering a
question
judge,
not pleading his
*11
sufficient to
hardly
compliance
constitute
with the
case—
rule.
Appellee’s
contention plainly contravenes the rule
judge
that a trial
should leave no room for doubt that the
defendant has
a personal
been issued
to speak
invitation
States,
v.
Green United
prior
sentencing.
301,
365 U.S.
653,
(1961),
81 S.Ct.
The mandates of Rule
having not
complied
been
with,
proper
is to
remedy
vacate the sentence and
remand the case for
resentencing
accordance with the
State,
Brown v.
rule.
27, 34,
11 Md.App.
REVOCATION OF PROBATION SEN- TENCE VACATED AND CASE REMANDED FOR RE- SENTENCING IN ACCORDANCE WITH THIS OPINION. ONE-HALF BE PAID APPELLANT; OF COSTS TO BY ONE-HALF OF COSTS TO BE PAID BY PRINCE GEORGE’S COUNTY. BELL, M. Judge,
ROBERT dissenting. my position misunderstood, Lest I begin this dissent- ing opinion recognition that, with the grant rather than a immunity punishment, “probation is a matter grace, entitlement, permits a wrong-doer keep which 650
freedom
long
‘as
as he conducts himself in a manner
consonant with established communal standards and the
State,
society’ Kaylor
v.
safety
”.
66, 75,
285 Md.
400
State,
(1979),
A.2d 419
Scott v.
quoting
265, 275,
238 Md.
(1965).
208 A.2d
revocation,
575
To avoid
probationer
is
obliged to substantially comply with the conditions of his
probation; unless resulting from circumstances beyond his
control,
or her
the violation of one or more
condi-
lawful
tions of
justification
sufficient
for its revoca-
State,
v.
tion.
Humphrey
164,
290 Md.
167-68, 428 A.2d
State,
Dean
(1981).
440
See
v.
198,
291
Md.
434 A.2d
(1981).
course,
552
lawful,
Of
to be
the conditions must be
State,
basis,
reasonable and
a rational
Watson v.
have
263, 274,
Md.App.
(1973),
Section weapon; carrying openly with intent to injure; carrying *12 by person under eighteen night counties, at in certain by terms, (a), its in subsection expressly exempts from its coverage, penknives without switchblades and handguns. Unlike handguns, wearing, carrying, the and transporting Ann, of which are by 36B, covered Code Maryland art. 27 § there is no separate special or statutory treatment of penk- Thus, nives. their exclusion from 36(a) the reach of § inexorably leads to the conclusions that a carrying penknife without switchblade in one’s is pocket illegal and that such a knife is not and deadly weapon per se. dangerous Mackall supports both conclusions: whereas the Court characterized the items in specifically enumerated the stat- se “dangerous ”, ute as and deadly weapons per it charac- penknives terized without switchblades as simply “danger- ous and deadly weapons”, which it found did not simply fall
651
36(a).
106,
within the
of
ambit
Md. at
I person am satisfied that a eighteen over may carry switchblade, though without even in very large, pocket, day night, or without violating the law of this hand, state. On the other the same may not be said for a person age under the of in eighteen certain counties be- tween certain hours.1 That legislature drew this dis- 36(a), majority 1. Since light has not set out all of above, I will do so here: (a) Carrying openly injure; carrying by concealed or with intent to persons eighteen Every person night under in certain counties.— knife, knife, carry any who shall wear or dirk bowie switchblade knife, sandclub, knuckles, razor, nunchaku, any metal or other kind, dangerous deadly weapon any (penknives or of whatsoever handguns, excepted) upon without switchblade and concealed or person, every person any about his carry who shall wear or weapon, gas openly such intent or chemical mace or tear device with the manner, purpose injuring any person any unlawful misdemeanor, conviction, guilty upon shall be of a shall $1,000 imprisoned jail, fined not more than the years; or be or sentenced to Maryland Department of Correction for not more than three conviction, appear and in case of if it shall from the evidence carried, weapon openly, that such concealed or with the delib- purpose injuring person destroying erate or the life of another, impose highest imprison- the court shall sentence of Cecil, prescribed. Arundel, Talbot, Caroline, ment Harford, In Anne Worcester, George’s, Montgomery, Mary’s, Washington, Prince St. Kent, and Baltimore Counties it shall also be and a misde- unlawful meanor, punishable forth, any person eighteen as above set under for years age carry any dangerous deadly weapon, or other than a handgun, between one hour sunset and one hour after before sunrise, not, except whether concealed or while on a bona fide hunting trip, except engaged way returning while in or on the to or *13 shoot, event, trap sport shooting any organized bona or fide military activity. civic or
tinction is very significant of the argument view ad- by vanced majority p. 641 of the majority opinion. See page it, As the majority sees infra. us,
The question therefore, before is not whether the State met its of proving appellant’s burden that knife was penknife, not a Judge but whether Melbourne erred in determining that the knife was a dangerous weapon at time, in the and place under the circumstances of its being appellant taken from by Cpl. Groves.
It question by answers that that holding “Judge Melbourne was not erroneous in clearly finding, under the totality circumstances, appellant that had violated a condition of probation his by possessing dangerous weapon without permission from his officer.” Along the way, the concludes majority that whether the knife appellant was carrying penknife was a the meaning within of Art. 27 36(a) has no significance except with respect condition § number four of his probation, required which that he obey laws, items, all and that recognizes variety some quite innocuous weapons se, and clearly per may be used or and, intended to used as weapons used, or, be when so by circumstances, are shown to have intended been to be so used, may dangerous deadly weapons.
I agree with the that the condition majority appellant that all obey however, laws is not here at issue. I disagree, the statute is not relevant to the determination required to it, 36(a) be made the trial I by judge. provides As see against standard which action appellant’s knowledge regarding the of the knife must carrying be measured. If switchblade, the knife is a in the without absence of a specific instruction to the it contrary, may not be assumed that carrying partic- was aware that prohibited ular knife was probation order. This is against true because it is not to carry law such a knife If, anytime or on the anyplace, day night. other amendment, 1, 1984, By July effective a star knife was included in the prohibited list of items and defined. *14 hand, knife penknife, is not a it would be a dangerous se, and deadly weapon per the mere possession of which probation. would be violation of By permitting the trial to judge appellant’s probation revoke without first deter- mining if the knife penknife, is a majority, effect, endorses the of probation revocation for something the probationer could not possibly have known to be a violation This, the terms of his probation. think, I is fundamental- ly unfair.
The majority recognizes that a penknife is not a weapon per se and it correctly observes that its character as a weapon, therefore, must be determined from the surround- ing I quarrel circumstances. do not with this observation. And I ordinarily quarrel would not with the majority’s assertion that object, although tool, normally “[i]f akin closely weapon, axe, to a as a knife or an far proof less should required be to persuade one of its character as a weapon given on a occasion if than the object bears little or no resemblance to weapons not, traditional ...”. This is however, Here, the ordinary case. a statute may specifical- ly exempt the knife from coverage. its This circumstance distinguishes this case from the case postulated by the and, mind, majority requires to my greater, rather than lesser or equal, showing even by State that the knife weapon occasion, was a on this than would required be item, case of an which could be used as both a tool or weapon, but as to which there is no statutory pronounce- ment as to its status.
In the prior absence of a determination that the knife is penknife, not a the circumstances of this case do not sup- port the court’s finding. Appellant was found near a va- apartment, cant on which the outside lock was broken. He had the knife in question pocket. There is no require- that, ment in law for the qualify exception, a penknife switchblade, without one “closely even akin to a dirk or dagger open” when must be shown to have been carried for tool, use as a rather than as a weapon. The majority has engrafted 36(a), requirements onto it, that neither nor Therefore, in the of a absence contemplates.
Mackall I find these not a would penknife, the knife was finding being the knife to show that insufficient circumstances it so used. Were intended be weapon used as a is not a without switch- that the knife determined clearly would blade, majority inference drawn rational. given does not contend
The State weapons the nature respecting instructions specific *15 weapons there are about not While possess. that he could instructed, in view of to have not need been he would which not knife, if a does penknife, this it is 36(a)’s exemption, mentioned, carry- As category. previously that fall within and, the knife itself is illegal, not se per ing penknife a weapon. dangerous deadly and not se a per carry not a that he could had advised If been different, in- switchblade,2 equally but without penknife amay probation would be before teresting question us— act?—an lawful doing of an otherwise prohibit condition problems. fewer which, I I have suspect, as to would issue advised, apply to however, so When, specifically he is not without switchblade penknife to include a the condition condition, as that unfair fundamentally because would be probationer “provide did not expressed, initially Pro- requirements. to its reasonable, directions” as specific fair, fundamentally must be proceedings revocation bation only be ordered that revocation necessarily requires which fails to probationer if the only and on sufficient evidence his conditions of requirements conduct to the conform his allegedly provides: violated probation rule 2. The Agent before: permission his Probation 3. Get any using having his control owning, possessing, under or d. any description. dangerous weapon or firearm of "firearm”; term, following any punctuation of kind no There is only and not thus, description", to “firearm" any refers phrase, "of therefore, conclude, that this rule weapon." "any dangerous I carry a advising appellant he could not read as cannot be penknife switchblade. without If probation. probationer cannot conform his conduct because he requirements, advised pro- ceedings are unfair and the evidence insufficient. That is the case here. things
Because so can many weapons be and no because clear rule is announced for assessing given whether a item dangerous is a deadly weapon, possession of which probation, is a violation of this decision dangerous sets a precedent. It has reasoned: just been as a may be cord, weapon, piece so too could a a musical instrument or necktie. It is essential that before someone’s probation revoked for may possessing object be an is not a se, weapon per proof being substantial clear that it is used or is intended to used weapon be as a must be Otherwise, adduced. how would one on know he could safely hang up whether his laundry, serenade friend, lady get up dressed for a job interview? the majority opinion,
Under he could not. I do not consider the majority’s discussion of collateral estoppel part opinion two of its necessary to the Therefore, decision this case. I will limit my comments *16 thereon to a query unique facts of this case justify —Do application of the doctrine?—and a tentative answer—I am not so sure.
I would remand to the trial court for a determination whether the in question knife is a without switch- blade.