Wynn v. State

ROBERT M. BELL, Judge,

dissenting.

I cannot agree that the legislature intended “use of a handgun in the commission of a crime of violence”, even in the context of a housebreaking, to be identical to the mere possession of a handgun. Accordingly, I dissent from the majority's holding that it is.

Maryland Code Ann. art. 27, § 36B(d), provides, in pertinent part:

Any person who shall use a handgun or an antique firearm capable of being concealed on the person in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor____

Section 441 defines housebreaking as a crime of violence. The legislature did not define the term “use,” as it applies to § 36B(d) and neither the Court of Appeals nor this Court has had the occasion squarely to do so.

To ascertain and effectuate the actual legislative intention in enacting any statute is, of course, the cardinal rule of statutory interpretation. Sites v. State, 300 Md. 702, 481 A.2d 192 (1984). In this regard, the primary source *549of legislative intent is the language of the statute itself. Blum v. Blum, 295 Md. 135, 453 A.2d 824 (1983). Where the statutory provisions are unambiguous, no construction is required, In Re Arnold M., 298 Md. 515, 471 A.2d 313 (1984), so that a plainly worded statute must be construed without forced or subtle interpretations designed to extend or limit the scope of its operation. Guy v. Director, 279 Md. 69, 367 A.2d 946 (1977). But where a statute is plainly susceptible of more than one meaning, construction is required; in such circumstances, courts may consider not only the literal or usual meaning of words, but their meaning and effect in light of the setting, the objectives and purpose of the enactment. Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597, 458 A.2d 758 (1983); State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975).

State v. Intercontinental, Ltd., 302 Md. 132, 137, 486 A.2d 174 (1985). See also In Re: Criminal Investigation No. 1-162, 307 Md. 674, 685, 516 A.2d 976 (1986).

If the statutory language of the particular provision or section in its context is ambiguous, the statute must be examined as a whole and the interrelationship or connection between all of its parts considered. The statute should then be construed so that all of its parts are given effect and harmonized if possible, and should not be construed so as to render any language surplusage or meaningless.

Scott v. State, 297 Md. 235, 245-56, 465 A.2d 1126 (1983). Moreover, while we “shun a construction of the statute which will lead to absurd consequences”, Erwin & Shafer, Inc. v. Pabst Brewing Co., 304 Md. 302, 311, 498 A.2d 1188 (1985), or which is “inconsistent with common sense,” Blandon v. State, 304 Md. 316, 319, 498 A.2d 1195 (1985), we “may not insert or omit words to make a statute express an intention not evidenced in its original form.” Mayor of Baltimore v. Hackley, 300 Md. 277, 283, 477 A.2d 1174 (1984). Of course, the context in which a term is used may *550render the term ambiguous. Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 517 A.2d 730 (1986).

Webster’s New Collegiate Dictionary 1279 (1980) defines “use” as “to put into action or service: avail oneself of: EMPLOY ... to carry out a purpose or action by means of: UTILIZE.” That work also defines the shared meaning element of the synonyms “use, employ, and utilize” as “to put into service esp. to attain an end.”

“Possess,” by contrast, is defined as “to have possession of ... to have and hold as property: OWN.” “Have” is listed as the synonym. Id., at 890.

It would appear that the literal and usual meaning of the word “use,” construed without forced or subtle interpretation designed to extend or limit its scope, is something different than “possess.” Putting a handgun into action or service is something more than merely having a handgun. One must possess a gun in order to use it; one does not use a gun by merely possessing it.

The language used in the statute is of clear import and the statute’s meaning is thus plain and unambiguous. Ordinarily, my inquiry would end here, see Bledsoe v. Bledsoe, 294 Md. 183, 189, 448 A.2d 353 (1982); however, consistent with Judge Davidson’s admonition in Scott, supra, my analysis will be taken to the next level. “In determining whether the meaning of a statute is ambiguous, it is not proper to confine interpretation to the isolated section to be construed. Rather, in determining the meaning of a particular provision or section, even where its language appears to be clear and unambiguous, it is necessary to examine that provision or section in context.” Id., 297 Md. at 245, 465 A.2d 1126.

The legislative policy in regulating handguns and pistols is contained in Maryland Code Ann. art. 27, § 36B(a):

(a) Declaration of policy.—The General Assembly of Maryland hereby finds and declares that:
(i) There has, in recent years, been an alarming increase in the number of violent crimes perpetrated in *551Maryland, and a high percentage of those crimes involve the use of handguns;
(ii) The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity;
(iii) The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and
(iv) Further regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens.

This policy has been implemented through the enactment of a comprehensive statutory scheme. See Maryland Code Ann. art. 27, §§ 36B-36F. Under this scheme, in addition to prohibiting their use in the commission of a felony or crime of violence, the legislature restricted the wearing, carrying and transporting of handguns. § 36B(b). See also Maryland Code Ann. art. 27, §§ 441-448 in which the legislature restricted the “sale or transfer” and “possession” of pistols and revolvers. Furthermore, the legislature prescribed a more severe penalty for carrying, wearing, or transporting a handgun “with the deliberate purpose of injuring or killing another person.” § 36B(b)(iv).

The General Assembly has thus clearly addressed both the situation in which an individual’s involvement with a handgun is passive, i.e. wearing, carrying or transporting, and that in which it is active, i.e. using a handgun for criminal purposes. And its recognition, in § 36B(b)(iv), that “possession” of a handgun may be a prelude to its “use” leads me to conclude that the legislature did not equate mere possession with “use.” Therefore, if the statute is to be construed so that all of its parts are given effect and harmonized, and none is rendered surplusage or meaningless, Scott, supra, “use” must mean something more than “possess”, that is to say something more than “wear, carry, *552or transport.” This construction of § 36B(d) is consistent with the construction given similarly worded statutory provisions by our sister States. See e.g., Jordon v. State, 274 Ark. 572, 626 S.W.2d 947 (1982); State v. Chouinard, 93 N.M. 634, 603 P.2d 744 (1979); People v. Donnell, 52 Cal.App.3d 762, 125 Cal.Rptr. 310 (1975); People v. Chambers, 7 Cal.3d 666, 102 Cal.Rptr. 776, 498 P.2d 1024 (1972).

Chambers and Chouinard are of particular significance. In Chambers, the statute construed provided, in pertinent part, that “Any person who uses a firearm in the commission or attempted commission of [certain felonies] shall ... be punished by imprisonment ... for a period of not less than five years____” Cal.Penal Code § 12022.5 (West 1970).1 Although recognizing that the legislative intent required that “uses” be broadly construed, the Court held:

By employing the term “uses” instead of “while armed” the Legislature requires something more than merely being armed____ One who is armed with a concealed weapon may have the potential to harm or threaten harm to the victim and those who might attempt to interrupt the commission of the crime or effect an arrest____ Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. “Uses” means, among other things, “to carry out a purpose or action by means of,” to “make instrumental to an end or process,” and to “apply'to advantage.” ... (citations omitted)

Id., 102 Cal.Rptr. at 779-80.

The Court in Chouinard was called upon to interpret the New Mexico firearm enhancement statute, which provided:

*553A. When a separate finding of facts by the court or jury shows that a firearm was used in the commission of: (1) any felony except a capital felony, the minimum and maximum terms of imprisonment prescribed ... shall each be increased by five years. ...

Relying on Chambers, the Court found the statute to be free from ambiguity and, thus, flatly held that “ ‘use’ is different from ‘possession’ ” and that “[t]he use of a firearm is something beyond mere possession of it.” Id, 603 P.2d at 745. Moreover, it observed:

If the Legislature had intended the firearm enhancement provision to apply whenever a person committing a felony was armed, it would have written such a provision into the statute. Compare the New Mexico armed robbery statute, § 30-16-2, N.M.S.A. (1978) (applicable to anyone who “commits robbery while armed with a deadly weapon”); 18 U.S.C. § 924(c) (1970) (penalty for using or carrying a firearm during the commission of a felony); Cal.Penal Code § 12022(a) (West Cum.Supp.1979) (enhancement for attempt or commission of felony while armed); Mich.Comp.Laws Ann. § 750.277b (Cum.Supp. 1979-1980) (carrying a firearm at commission of a felony is in itself a felony).

The majority asserts that because housebreaking was defined as a crime of violence prior to the enactment of § 36B(d), “the legislature intended to deter criminals from carrying handguns into the homes of others and to protect the citizens of this State from the violent crimes perpetrated by gun-carrying burglars.” What they do not tell us is why the legislature did not simply make it a crime for one to carry a handgun while committing a crime of violence. They cannot, because the legislature was quite precise in its choice of language: in enacting § 36B(b), it chose the words, “wear, carry, transport”; and in enacting § 36B(d), the word “use”. It cannot be presumed that the legislature did not know the difference; in fact, the opposite must be presumed. See Police Comm'r v. Dowling, 281 Md. 412, 419, 379 A.2d 1007 (1977); Glidden-Durkee (SCM) Corp. v. *554Mobay Chemical Corp., 61 Md.App. 583, 595, 487 A.2d 1196 (1985).

The majority also maintains that construing the statute so that “use” and “possess” are not synonymous would lead to absurd consequences. Without conceding the correctness of that view, I again remind the majority that the language of the statute is unambiguous. If the result is absurd, it is a matter that is properly addressed not to the courts, but to the legislature for correction. We may not under the guise of statutory interpretation, change the plain meaning of the statute, “to supply omissions or remedy possible defects in the statute, or to insert exceptions not made by the legislature.” Amalgamated Casualty Insurance Co. v. Helms, et al, 239 Md. 529, 535-36, 212 A.2d 311 (1965).

No evidence was presented in the instant case which would permit the reasonable inference that the appellant did anything more than “wear, carry, transport, or possess” a handgun during the commission of the housebreaking. It follows that the evidence was insufficient to sustain his conviction for “using” a handgun in the commission of that crime.

. It is interesting that the Chambers Court did not find it necessary to refer to Cal.Penal Code § 12022(a) which, since 1956 prohibited the commission or attempted commission of a felony by “[a]ny person who is armed.”