Williams v. State
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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 924 September Term, 2010 ______________________________________ GREGORY W ILLIAMS v. STATE OF MARYLAND ______________________________________ Graeff, Kehoe, Watts, JJ. ______________________________________ Opinion by Watts, J. ______________________________________ Filed: July 11, 2011 Following a trial held from April 19, 2010, through April 20, 2010, in the Circuit Court for Montgomery County, a jury convicted Gregory Williams, appellant, of possession of cocain e, and flee ing and eluding . See Md. C ode § 5-6 01 of the C riminal Law Article ( C.L. ) (possessing or administering controlled dangerous substance); Md. Code § 21904(c) of the Transportation Article ( T.A. ) (fleeing on foot). On May 18, 2010, the circuit court imposed a sentence of four years incarceration, with all but eighteen months suspended and three years supervised probation as to possession of cocaine, and one year concurrent as to fleeing and eluding. On June 9, 2010, appellant noted this timely appeal and set forth the f ollowing issues, wh ich we qu ote: I. Under the facts and theory of this case, did the trial court err in determining that possession of a controlled dangerous substance is a lesser included offense of distribution of a controlled dangerous substance and so instructing the jury? II. Did the trial court err by deciding, on its own initiative, without request by either party, to instruct the jury on a lesser included offense of possession of a controlled dangerous substance? III. Did the trial court err in its instruction to the jury on fleeing and eluding by including incorrect captions as an element of the offense and determining that the statutory requirement of a vehicle appropriately marked as an official police vehicle is not an element of the offense? IV. Was the evidence insufficient to sustain a conviction for fleeing and eludin g in violation of section 21-904(c) of the Transportation Article? For the reas ons set o ut below , we answer Questions I and II in the negative and therefore shall affirm the judgment of the circuit court as to appellant s conviction for possession of cocaine, in violation of C.L. § 5-601. We answer Question IV in the affirmative and shall reverse the judgment of the circuit court as to appellant s conviction for fleeing and elu ding, in violatio n of T .A. § 21 -904(c ). We n eed no t addres s Que stion III. FACTUAL AND PROCEDURAL BACKGROUND We draw the follow ing pertinen t facts from the eviden ce adduc ed at trial. Police Officer Britta Thomas of the Montgomery County Police Department testified that on November 25, 2009, she was conducting surveillance of a Shell gas station oppo site the Montgomery Mall in Bethesda, Maryland. At approximately 11:30 p.m., Officer Thomas noticed a white Jeep, with two occupants, in the gas station parking lot, near the convenience store. Officer Thomas testified that she observed the Jeep for about five minutes, before the driver of the Jeep exited the vehicle and entered the store. The driver of the Jeep was subsequently identified as Ricky M endez ( Me ndez ). As Mendez exited the convenience store, appellant approached him. Acco rding to Officer Thomas, appellant and Mendez had a brief conversation outside the store and walked together toward a silver sedan, subsequently identified as appellant s vehicle. Officer Thom as obse rved M endez enter the right rea r passen ger sea t of the v ehicle. As a witness f or the State, Mend ez testified tha t he had arra nged to m eet appellan t, known to him as Mean, at the Shell gas station to buy cocaine from him, in exchange for -2- $200.00. Mendez testified that when he approached appellant s vehicle, appellant informed him that the stuff is back there and instructed him to enter the back seat of the vehic le. According to Mendez, there was another person in the front passenger seat of appellant s car, but he did not s peak w ith this person n or see his fa ce. This pe rson was subseque ntly identified as appellan t s friend, Joh n Sullivan ( Sullivan ). Mendez entered the back seat of the car and saw a b aggy of w hite pow der wr apped in a pap er towe l on the s eat. Upon seeing the baggy of white powder Mendez dropped it in his hand and, in exchange, placed $200.0 0 on the back se at of the car. Appellant then entered the driver s seat of the car, drove around the station and dropped Men dez of f near h is Jeep. Mendez immediately exited the gas station in his vehicle. At trial, Mendez testified that he knew th e person w ho sold the drugs to him only as Mean and ind icated th at he did not see Mea n in the courtro om. Sergeant William Hill of the Montgomery County Police Department testified that on November 25, 2009, he too was conducting surveillance of the Shell station in plain clothes, in an unmarked car. Sergeant Hill observ ed appellan t s vehicle lap through slo wly around the gas station before exiting the gas station at a high rate of speed. Sergeant Hill followed appellant s vehicle on to I-270 an d observe d the vehic le accelerate to speeds of 70 or 75 miles per hour. Sergeant Hill initiated a traffic stop of the vehicle by turning on the police siren and flashing red and blue lights on the windshield visor of his vehicle. Sergeant Hill testified that appellant s vehicle momentarily moved toward the shoulder of the road, then moved -3- back into the travel lane and accelerated to speeds of over 110 miles per ho ur. Sergean t Hill testified that appellant s vehicle came to a stop after colliding into a curb off the exit ramp for Shady Gro ve Road , and the ve hicle slid into the grass. A t this point, both the driver and the passenger of the vehicle exited the vehicle and ran toward the woods. Sergeant Hill gave chase on foot. Sergeant Hill testified that the passenger, Sullivan, tripped attem pting to jump over a guardrail, at which point, Sergeant Hill drew his gun, ordered Sullivan to put his hands behind his back and placed him under arre st. Appellan t had run ab out fifty feet ah ead, into the woods, so Sergeant Hill called a canine unit and other officers to establish a perimeter. Police Officer Sharon Sparks of the Montgomery County Police Department answered Sergeant Hill s call and arrived at the scene with her canine partner, Ben. Officer Sparks testified that upon being given a command to track for scent, B en led her o ver the gua rdrail, and through the woods to a location where appellant was lying face down, attempting to hide. Officer Sparks ordered appellant to show his hands and threatened to release Ben, at which point, appellant cooperated and was placed under arrest. Up on a search of appella nt, Sergean t Hill found no drugs b ut found $200.00 in cash in ap pellant s pan ts pocket. Sullivan, the passenger in appellant s car, testified as a defense witness. Sullivan testified that ap pellant picke d him up from his home on November 25, 2009, at about 9:30 p.m., to go to a Holiday Inn. Sullivan testified that he and appellant had several drinks at the bar of the Holiday Inn and that appellant wanted to leave the bar to get high. Appellant and Sullivan lef t for the She ll gas station ne ar Mon tgomery Mall to meet Ricky Mendez. -4- Sullivan testified that he was in the front passenger seat when Mendez entered the back seat of appellant s se dan. Sulliva n testified that M endez w as behind him and he did not have an opportun ity to further observe Mendez. When asked on direct examination what observatio ns he ma de of app ellant at the time , Sullivan testifie d: [SULL IVAN]: I noticed [a ppellant], it look ed like he h ad some thing in his hand and he was looking at it. And I just noticed that he said it s a bad product. [APPE LLAN T S CO UNS EL]: I m s orry, it s bad prod uct? [SUL LIVA N]: Ba d prod uct, yes. [APPEL LANT S COUNSEL]: And based on that, what if anything did you observe [appellant] do? [SULL IVAN]: Well, he turned the car on, put it in reverse, went on the other side of the She ll gas station, and let Me ndez o ut. Sullivan testified that he did not observe any money change hands between appellant and Mend ez. Sullivan te stified it was h is understanding that after appellant let Mendez out of the car, he and appellant were traveling up I-270 to locate a different source for the purcha se of co caine. After Sullivan s testimony, during a bench conference with counsel, the trial court informed counsel of the court s intention to instruct the jury on the lesser included charge of possession of cocaine.1 At the close of all evidence in the case, during another bench 1 Appellan t was cha rged with distributing a c ontrolled da ngerous s ubstance, in violation of C.L. § 5-602, fleeing and eluding by failing to stop a vehicle, in violation of T.A. § 21-904(b) and fleeing and eluding b y fleeing on foot, in violation of T .A. § 21-904(c). -5- conference with coun sel, the trial court a gain advised counsel of his intent to instruct the jury on the lesse r included o ffense of possession of cocain e: THE C OUR T: I told you ab out the lesser in cluded, w hich I've dete rmined to include an d will. The question I h ave, did he give a statem ent? *** [PROS ECUT OR]: But Your Honor, the State would agree that the possession charge would b e approp riate if at least wh at his intent w as to possess cocaine accord ing to th e defe nse arg umen t. [APP ELL ANT S CO UNS EL]: A nd he d id poss ess it for a period of time . THE COU RT: O ne pers on at a tim e. [APP ELL ANT S CO UNS EL]: I'm sorry. [PROS ECUT OR]: His ow n witness te stified that in his opinion, [a ppellant] was holding that cocaine with the intent to keep it, to purchase it, and that he was in possession of the cocaine at that time. [AP PEL LANT S C OU NSE L]: U nder that theo ry, cer tainl y -- I'm sorry. [PROS ECUT OR]: I'm sorry. It certainly was in his vehicle. So he had the possession. For all intents and pu rposes -THE C OUR T: I'm going to give it. [APPEL LANT S COU NSEL ]: May I just say that I think that is a lesser included, but that wo uld be a sep arate charg e and for a properly worded lesser included, you have to first find possession of cocaine and then the intent to distribute. And I don 't want to confuse the ju ry. If we're go ing to includ e all the different theories by whic h you can distribute, I don't want a transfer or exchange theory to be promulgated. I don't want him to go down on distribution because of this -THE COURT: Well, the question is did he have cocaine? If the jury answers that yes, he's in possession. Then they answer the next question. So -6- Prior to closing arg ument, alon g with other instructions, the trial court instructed the jury as follow s on posse ssion of co ntrolled dan gerous su bstance: The defendant is charged with the crime of possession of cocaine, which is a controlled dangerous substance. It is unlawfu l for any perso n to possess any controlled dangerous substance unless such substance was obtained pursuant to a valid presc ription or ord er from a p hysician, dentist, veterinarian, scientific investigator, or other person licensed, registered or otherwise permitted to distribute, dispense, administer or conduct research on a contro lled dan gerous substan ce, wh ile the pe rson w as acting , of course, in the cou rse of h is profe ssional p ractice. In order to con vict the defe ndant of p ossession o f a controlle d dangerous substance , the State must prove - - number one, that the defendant knowin gly possessed the substance; number two, that the defendant knew the general character or elicit nature of the substance; and number three, that the substan ce wa s cocain e. In oth er wor ds, all thre e eleme nts mu st be pro ven. Possession means having control over a thing, whether actual or indirect. The defenda nt does no t have to be the only perso n in possession of the substance. More than one person may have possession of the substance at the same time. A person not in actual possession who knowingly has both the power and the intent to exercise control over a thing, either personally or throug h anoth er perso n, has in direct po ssession . In determining whether the defendant had indirect possession of the substance, consid er all of th e surrou nding c ircums tances. T hese circumstances include the distance between the defendant and the substance, whe ther the defendant had some ownership or possessory interest in the place or automob ile where the substance was found, and any indications that the defendant was participating with others in the mutual use and enjoyment of the substan ce. The cou rt instructed the jury on the fleein g and elud ing offen ses as follow s: In this case, defendant is charged with the crime of fleeing and eluding on foot. Well, let me say there are two theories and two counts that will be on the verdict s heet, an d they are slightly dif ferent f rom on e anoth er. And I m going to give you tw o sets of instru ctions that are slightly different from each -7- other to get you through unde rstanding the fleeing -- there are two fleeing and eluding charge s. So on e is by foo t and on e is by auto mobile . Defendant is charged with the crime of fleeing and eluding o n foot. In order to convict defendant, the State must prove, number one, that the defendant was driving or had been -- and I think you can infer -- or had been driving a vehicle; that the police gave an audio or visual signal to stop, and that the police off icer was in a vehicle app ropriately marked as a police vehicle and that the police officer gave an audio or visual signal to stop; or defendant willfully failed to stop the vehicle or fled on foot or eluded the officer by any other means. Visual or audible signal includes a signal by hand, voice, emerg ency ligh t or siren . Now, the statute involved here comes from the tra nsportation article which enforc es the co nduct w ith the us e of au tomob iles. So you have to take this in the context of the use of an automobile, but that at some point after giving of a signal, that the defendant attempted or did flee by foot. Now, that s contrasted to the next, that defendant is charged with the crime of fleeing and eluding by failing to stop a vehicle . In order to c onvict def endant, the S tate must prove one, that the defendant was driving a vehicle; that the police gave and [sic] audio or visual signal to stop; and three, that the police officer was in unifor m. Note, that s not part of the other instruction. When it comes to an automobile, the officer has to be in uniform. And four, that the police officer was prominently displaying his badge or other insignia of office and that five, the police officer in uniform, while prominently displaying his badge or other insignia, gave an audio or visual signal to stop defendant, who willfully failed to stop his vehicle or fled on foot or eluded the officer by other means. Very confu sing, bu t that s the way it s w ritten. Th at s how the statu te is writte n. So to clarify, there is a charge of fleeing on foo t. It does not require that the police officer who gave the signal to be [sic] in uniform. And then there is a failure to stop the motor vehicle, and that does require that the officer be in un iform, a long w ith the ot her elem ents. During deliberations, the jury delivered a note to the trial court, which read: If he intends to purchase cocaine and has the money to do so, does that constitute indirect possession even if he does not go through w ith the purch ase? A fter consu lting with -8- counsel, as to how to respond, the trial court responded with a note, which read: As you have identified in your question, a per son p osse ssing the inten t to buy a controlled dangerous substance and who also possesses the money to accomplish a purchase, does not have indirect possession of the illicit drugs. Appellant s counsel agreed with the court s respon se, stating that the c ourt s re sponse was ac ceptab le to the d efense . Upon receipt of the trial court s response, the jury forwarded another note, which read: Please reconcile your instruction (as marke d) with your re sponse. A fter consu lting with counsel the circuit court replied with a note, which read: The Court declines to further define or reconcile the Court s instructions. When asked her position as to the court s response, appellant s counsel neither objected to nor agreed with the court s proposed response, b ut stated: [APPEL LANT S COUNSEL ]: Possession is the exercise of actual or constructive dominion or control over a thing by one or m ore persons. It requires both a restraining or direc ting influen ce over the thing alleged ly possessed. So if what they re intimating - - if we want to give them - - if you want to instruct them any further on that specific point, I can say as an attorney it would be helpful to me to understand it in that sense, that you have to be able to have some restr aining or directing influence over it and that is the domin ion or c ontrol o ver the th ing by on e or mo re perso ns. DISCUSSION I. Appellant argues that the circuit court erred in instructing the jury on possession of cocaine as a lesser included charge of distribution of cocaine b ecause u nder the fa cts of this case possession of cocaine is not a lesser included offense of distribution. Appellant -9- maintains that, in this case, the jury s obligation was to determine whether appellant was a seller or buyer of cocaine, and that possession is not a lesser included offense of distribution as appellant was only a potential buyer. Relying on the jury notes, appellant contends that the jury rejected the State s theory of the case that appellant sold cocaine to Mendez and convicted based on inform ation as to appellant s desire to purchase cocaine. Appellant also contends that inclusion of the possession charge after the close of the evidence was prejud icial as h e was d eprived of fair n otice of the off ense. The State contends that appellant failed to preserve an objection to the circuit court instructing the jury on the les ser included offense o f possessio n of coca ine. The S tate maintains that appellant objected only to the framing of the presented instructions, rather than to the circuit court s giving the instruction to the jury. The State contends that the issue may no t be pre served for app eal. The State argues that, if preserved, appellant s complaint is without merit. Relying on Skrivanek v. Sta te, 356 Md. 270, 281 (1999), the State points out that [t]he Court of Appea ls has held, co nsistent with virtually every jurisdiction in the United States which has passed upon the issue, that a defenda nt, charged with a greater offense, can be convicted of an uncharged lesser included offense. Relying on Hankin s v. State, 80 Md. App. 647, 659 (1989), the State argues that under the elements test, [p]ossession is without question a lesser-included offense of the crime of distribution. Relying on Smith v. S tate, 412 Md. 150 (2009), the State m aintains that ap pellant w as properly on notice of th e fact that a le sser -10- included offense w as being co nsidered an d had the o pportunity to make whatever argument he wis hed reg arding the lesse r charg e. It is well settled that a defendant charged w ith a greater offense can be convicted of an uncharged lesser include d offe nse. Skrivanek, 356 Md. at 281; Hagan s v. State, 316 Md. 429, 447 (1989). In Hagans, the Court o f Appe als explaine d that: The principle that a defendan t, charged with a greater o ffense , can be convicted of an uncharged lesser included offense, has been adopted by virtually every jurisdiction in the United States which has passed upon the issue. Today, in many jurisdictions the doctrine has been codified either by statute or rule. 316 Md. at 447 (citations omitted) (footnotes omitted). The Court, in Hagans, stated: Since the rule permitting a conviction on an uncharged lesser included offense was well-established at common law, it is accepted throughout the United States today, and generally promotes a ju st result in crimin al cases, we shall adhere to it. 316 Md. at 448 (footnote omitted). In Hagans, the Court held that although an uncharged lesser included offense is accepted throughout the United States today, at the same time, there are recognized limitations to which the court shall also adhere. 316 Md. at 448. One limitation involves the definition of a lesser included offense.2 Id. Maryland a ppellate cou rts have applied the elements test or required evidence test to determine the existence of a lesser in cluded offen se. Id. at 449. The Court, in Hagans, explained: 2 Other limitations include that, for the doctrine to apply: (1) the lesser included offense must not be more serious in terms of the maximum penalty prescribed by the legislature; (2) the statute of limitations must not have run for the lesser included offense; and (3) the lesser included offense must be of the same general character as the greater offen se. Id. at 451- 52. -11- Under the required evidence or elements tests, courts look at the elemen ts of the two offenses in the abstract. All of the elements of the lesser included offense must be included in the greater offense. Therefore, it must be impossible to comm it the greater without also having committed the lesser. 316 M d. at 449 . (citation s omitte d) (foo tnotes o mitted). In Anderso n v. State, 385 Md. 123, 132 (2005 ), the Court o f Appe als unamb iguously held possession of a controlled dangerous substance is a lesser included offense of distribution of a controlled dangerous substance. Applying the required evidence test, the Court exp lained: In State v. Woodson, 338 Md. 322, 329, 658 A.2d 272, 276 (1995), we reached the necessary conclusion that, because every element of the crime of possessio n is also an elem ent of the c rime of po ssession w ith intent to distribute and only the latter offense contains an element - intent to distribute not contained in the former, the two offenses are deemed the same offense for double jeopardy purposes. In Hankin s v. State, 80 Md. App. 647, 565 A.2d 686 (1989), the C ourt of Sp ecial App eals correctly con cluded tha t the same result pe rtains w ith respe ct to pos session and dis tribution . Id. In Anderson, the Court sta ted: Criminal Law Art. § 5-601(a)(1) makes it unlawful to possess a controlled dangerous substance. The w ord poss ess is defin ed in § 5-1 01(u) as to exercise actual or constructive dominion or control over a thing by one or more persons. Section 5-602(1) m akes it unlaw ful to distribute a controlled dange rous su bstanc e. . . . . . . It is not possible, under these statutes, to distribute a contro lled dangerous substance in violation of § 5-602 unless the distributor has actual or constructive possession (dominion or control) of the substance. Thus, possession of the substance distributed is necessarily an element of the distribution. The crime of distribution obviously contains an element not contained in the crime of possession - the distribution - but there is no element in the crime of possession not contained in the crime of distribution. Upon the same analysis used in Woodson, therefore, possession and distribution are the -12- same offenses for double jeopardy purposes. 385 Md. at 132-33. As a threshold matter, prior to addressing the merits, we will examine whether appellant preserved for review the contention that the trial court erred in instructing the jury on the lesser included offense. The State contends that because appellant fa iled to explicitly articulate an objectio n to the instruction in its entirety but rather objected to the phrasing of the instruction, the issue is not preserved fo r review. At the conc lusion of the trial court s instructions to the jury, however, the trial court asked whether the parties wer e satisfied w ith the instructions and the following colloquy occurred: [APPEL LANT S COUN SEL]: Your Honor, with respect to the possession, we would again except to the distribution. It s not -- and under the State s theory of the case, I don t think that a lesser included simple pos session is pro perly generated and I would also say that I think that -- we take exception to the transfer and exchange language in that with the Court s inclusion of the possession count, that it could lead to confusion in the jury as to what constitutes transfer or exchange and he could be inadvertently convicted on a distribu tion cha rge bas ed on th at. THE COU RT: W ell, I m satisfied it sh ould be given as stated. I overruled the exception and I said I d deny the motion and then I overruled the exception then and now. I believe th at that s a jury question for it to determine in accordance with whatever the evidence is. But you re preserved. Okay? In light of appellant s counsel s objection to the phrasing of the instruction and the exchange with the trial court in which the court indicated the issue would be preserved, we conclude that the is sue is pr operly be fore us . -13- With the issue properly before us, applying the case law discussed above, we conclude that the circuit court did not err in instructing the jury on the lesser included offense of possession of cocaine. Appellant s contention that the trial court erred in instructing the jury on possession is based sole ly on the prem ise that notes f rom the jury de monstrate th e jury convicted on testimon y that appellant so ught to purchase cocaine rather than on the State s theory of distribution. In appellant s sight, the jury notes establish that the jury accepted the defense theory of the case. Appellant s view is not consistent, however, with applicable case law on the sufficiency of evide nce for giving an instruc tion to the jury or the sufficiency of evidence for conviction. As to jury instructions, in Cost v. State , 417 Md. 360, 369 (2010) (citing Fleming v . State, 373 M d. 426, 433 (2003)), the Court of Appea ls recently stated: On review, jury instructions [M]ust be read together, and if, taken as a whole, they correctly state the law, are not misleading, and cover adequately the issues raised by the evidence, the defendant has not been prejudiced and reversal is inappropriate. Reversal is not req uired where the jury instructions, taken as a whole, sufficiently protect[ed] the defe ndant's rights and adequately covered the theory of the defense. In this case, the trial court instructed the jury only as to the elements of the possession offense and refrained from making any references to either the State or the d efense s theory of the case. In the absence of the jury notes, there w ould be no question as to the propr iety of the trial court s instruc tion on po ssession. A t oral argum ent, appellant acknowledged that under the State s theory of the case, possession is a lesser included offense of distribution. -14- The jury instruction given in this case contained language nearly identical to Md. Criminal Jury Instruction § 7.45, entitled Possession (Actual and Constructive). As such, the trial court gave an objective instruction as to the possession offense, which correctly stated the law, an d was not con tingent o n either v ersion o f the fa cts at han d. Insofar as sufficiency of the evidence is concerned, in Hall v. State , 119 M d. App. 377, 392 -93 (1998 ), we expla ined: The standard f or our revie w of the s ufficiency of the eviden ce is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact-finder. In performing this fact-finding role, the jury has authority to decide which evidence to accept and which to reject. In this regard, it may believe part of a particular witness s testimony, but disbelieve other parts of that witness s testim ony. Circums tantial eviden ce is entirely suff icient to supp ort a conviction, provided the circum stances support rational inferences from which the trier of fact could be convinced beyond a reasonable doubt of the guilt of the accused[.] The same standard applies to all criminal cases, including those resting upon circu mstantial ev idence, sinc e, generally, proo f of guilt based in whole or in part on circumstantial evidence is no different from proof of guilt based on direct eyewitness accounts. (Citations omitted.) In Morga n v. State, 134 Md. App. 113, 12 6, cert. denied, 361 Md. 232 (2000), this Court h eld that an a ppellate court does not inquire into and measure the weight of the eviden ce to ascertain whether the State has proved its c ase beyond a reasonab le doubt, but merely ascertains whether there is any relevant ev idence, pro perly before the jury, legally sufficient to sustain a conviction. In this case, there was relevant evidence prop erly before the jury sufficient to sustain a conviction for possession of controlled dangerous substance. -15- Mendez testified unambiguously that the person known as Mean directed him into the back of the sedan where a baggy of drugs awaited sale.3 Defense witness S ullivan testified that, prior to letting Mendez out of the car, appellant held the bag of drugs but determined it to be bad stuff. Mendez, of course, testified that appellant sold the drugs to him in exchange for $200.00. Without doubt, through testimony, the State generated sufficient evidence to warrant giving the possession instruction and to support the conviction. Under the circumstances, the trial court did not err in instructing the jury on the lesser included offense of pos session of coc aine. As to notice, both parties were given an opportun ity to present arguments regarding the possession offense to the jury and arg uments to th e trial court as to the propriety of giving the instruction. The offense of possession is not so far removed or remote from the offense of distribution of a controlled substance that conviction could not stand for lack of notice. Hagans, 316 Md. at 450 (citing People v. Cooke, 525 P.2d 426, 42 8-29 (Colo. 1974 )) ( While holding that a defendant charged with possession of a narcotic dru g with inten t to distribute may be convicted of simple possession, the Supreme Court of Colorado cautioned: Mindful of the primacy of notice within the constitutional guarantee of due process of law and of the duty o f the co urts to sa fegua rd this rig ht, we h old onl y that, wh ere, as h ere, the lesser included offense upon which the prosecution req uested an in struction is (1) e asily ascertainab le from the charging docume nt, and (2) no t so remote in degree from the offense 3 Appellant did not raise id entity as a defen se. Appe llant ackno wledged his encounter with Mendez, but denied the sale of drugs. -16- charged that the prosecution s request appears to be an attempt to salvage a conviction from a case which has pr oven to b e we ak, th e pro secu tion may obtain a lesser included offense instruction over the defendant s objection. ). In Smith, 412 Md. at 173-74, the Court of Appea ls held that the introduction of a lesser included offense instruction is proper, so long as the instruction is introduced before closing arguments, where the parties have the opportunity to address the offe nse before the fact-find er.4 Here, the trial judge notified counsel of his intent to give the possession instruction at the conclusion of Sullivan s testimony, and again at the conclusion of all the evidence in the case. The trial court instructed the jury on the lesser included offense of possession of cocaine before clo sing argum ents, at whic h point, appellant h ad an opp ortunity, through his counsel, to address the charge in front of the jury. We perceive no error in the c ircuit court s instructio n to the ju ry on pos session of coc aine. 4 In Smith, the Co urt held that, a trial court may not convict a defendant of an uncharged lesser included offense unless the parties are given an opportunity to present argumen ts on that o ffense in the tria l court. 4 12 M d. at 172 . Though the Court s holding in Smith concerne d bench tria ls, the Court c ontinued: This rule is consiste nt with ou r decisions in both Hagans and Brooks [v. State, 314 Md. 585 (1989)], which provide the parties with an opportunity to address, in closing arg uments, all the offenses that the fact-f inder is considering. In Hagans, we allowed the trial judge to instruct the jury on an uncharged lesser included offense. 316 Md. at 455, 559 A.2d at 804. Closing arguments occur after the jury is given its instructions, so, under Hagans, the parties must know by closing arguments what offenses the fact-finder is consid ering. See Md. Rule 4 -325(a ). 412 M d. at 173 -74. -17- II. Appellant argues that the circuit court erred by instructing the jury, on its own initiative, regarding p ossession o f cocaine a s a lesser inclu ded offe nse of dis tribution of cocaine. Appellant contends that by initiating discussion with counsel, concerning the giving of an instruction for a lesser included offe nse, the trial court improperly inserted itself in the procee ding. Relying on Skrivanek, 356 Md. 270, appellant argues that an affirmative agreeme nt from one of the parties is required before the trial court may instruct the jury on a lesser included offense. Appellant asserts that neither party affirmatively agreed to the court s instruction on possession of cocaine as a lesser included offense. Appellant argues that while the State ultimately gave qualified acquiescence to inclusion of the charge, it was well after the court s inclusion of the charge was a foregone conclusion. In contrast, the State contends that it explicitly agreed to the instruction being given to the jury. In Hagans, the Court recognized that there is disagreement among jurisdictions as to whether the trial court should, sua spon te, give a jury instruction on an uncharged lesser included offen se. 316 Md. at 454. The Court pointed out that some courts uphold the trial court s giving the instruction where it was neither requested nor supported by either side. Id. (citing U.S. v. Cooper, 812 F.2d 1283 (10 th Cir. 1987) ; People v. Wickersham, 32 Cal.3d 307, 650 P.2d 311, 319, 185 Cal.Rptr. 43 6 (1982); People v. Johnson, 409 Mich. 552, 297 N.W.2d 115 (198 0); State v. Pribil, 224 Ne b. 28, 395 N .W.2d 54 3 (1986); State v. Hicks, 241 -18- N.C. 156, 84 S .E.2d 545 (1954); State v. Cook, 319 N.W.2d 809 (S.D. 1982 )). Other co urts take the view that it is appropriate for the parties to decide whether the instruction is to be given. Id. (citing Walker v. United States, 418 F.2d 1116, 11 19 (D.C . Cir. 1969); People v. Sowinski, 148 Ill.App.3d 231, 247, 101 Ill.Dec. 326, 335, 498 N.E.2d 650, 65 9 (1986)). In Hagans, the Court h eld that: The better view , we believ e, is that the trial cou rt ordinarily shou ld not give a jury an instruction on an uncharged lesser included offense where neither side requests or affirmatively agrees to such instruction. It is a matter of prosecution and defense strategy which is best left to the parties. There is no requirement that the jury pass on ea ch possible offense th e defend ant could have committed. We permit, for example, the State to nolle prosse an offense, and we allow plea bargains. When counsel for both sides consider it to be in the best interests of their clients not to have an instruction, the court should not override their judgment and instruct on the lesser included offense. 316 M d. at 455 . The issue was addressed squarely by the Court in Skrivanek, 356 Md. 270 . In Skrivanek, the defendant was charged with possession of a controlled dangerous substance, and possession of a controlled dangerous substance with the intent to distribute. 356 Md. at 277. The trial court explained to the prosecutor: I think the State is going to have an awful tough time with this thing when you have a person almost in custody. However, you are probably entitled to a lesser included offense instruction. Id. at 278. The prosecuto r replied: With these cases I am not going to object to the [c ]ourt offering that to the jury and I would like to have the [c]our t keep a ttempt a live. Id. at 279 (emphasis removed). The Court of Appeals held that, [t]he prosecutor not only stated that he was not going to object -19- to the [c]ourt offering [the attempt theory] to the jury, but he also affirmatively said that he would like to have the [c]ourt keep attempt alive. Id. at 282. In Skrivanek, the Court explained: Like the trial judge in Hagans, the trial judge in the present case initiated the discussion of the le sser incl uded o ffense instructio n. . . . A prosecutor may be said to request or affirma tivel y agree to such an instruction even though the judge initially raises the possib ility of givin g the ins truction . 356 M d. at 282 . In Skrivanek, the Court sta ted: Here, the instructions given on the lesser included offenses supported the State s stated strategy. The prosecutor s adherence to the viability of the charges of actual poss ession did n ot reflect an all or nothing strategy in favor of those charges. Faced with the trial court s view that the State s case on the greater charged o ffenses w as legally insufficient, and anticipating the grant of a motion for acquittal, the prosecutor enlarged his theory of the case and adopted a fall-back position. In other words, the State s modified strategy included the alternative of a lesser included offense instruction. Thus, the court s submission of the attempt instruction to the jury cannot be viewed as a decision by the trial judge acting without the affirmative agreement of at least on e party. 356 M d. at 283 (emph asis in or iginal). In this case, the re cord reflec ts, the State affirmatively agreed to, and indeed argued for, the possession of cocaine instruction. The State advised the circuit court tha t the State would agree that the poss ession cha rge wou ld be appropriate if at least what his intent was to possess cocaine according to the defense argument. In addition to agreeing that the instruction was wa rranted, the S tate affirma tively argued for inclusion of the lesser included offense instruction on possession of cocain e. The Sta te pointed out that defense witness, Sullivan, testified appellant held the cocaine and that the cocaine was in appellant s vehicle. -20- Based on this evidence, the State argued that appellant had the p ossession[ ,] [f]or all intents and purposes. It is only when counsel fo r both sides consider it to be in the be st interests of th eir clients not to have an instruction given that it is inappropriate for the circuit court to give an instructio n on the lesser in cluded offen se. Hagans, 316 M d. at 455 (emph asis add ed). In light of the aff irmative agr eement an d argum ent of the S tate, the trial court d id not err in instructin g the jur y on the le sser incl uded o ffense instructio n on po ssession of coc aine. III. Appellant contends that evidence introduced at trial was not sufficient to sustain a conviction for fleeing and eludin g, in violation of T.A. § 21-904(c). Appellant argues that T.A. § 21-904(c) prohibits fleeing and eluding a police off icer, who is in a vehicle appropriate ly marked as an official police vehicle, and that the evidence introduced at trial established that the officer who pursued him was in an unmarked vehicle. Appellant maintains that the evide nce wa s insufficien t as a factual a nd legal m atter to convict him of fleeing and eluding, in violation of T.A. § 21-90 4(c), because the legislatu re failed to provide a definition of the phra se a vehicle appropriately marked as an official police vehicle . The State responds that the eviden ce adduc ed at trial was sufficient f or the jury to conclude that Sergeant Hill was in a vehicle appropriately marked as an official police vehicle because no definition of the phrase vehicle appropriately marked as a police -21- vehicle is required as the words have common sense meanings. The State contends that Sergeant Hill s initiation of the siren and red and blue lights on the windshield visor of the vehicle provide[d] approp riate not ice to [a ppellan t] of the vehicle s use b y a police o fficer. The State points out that the testimony of defense witness, Sullivan, confirmed the S tate s contention that appellant knew he was being pursued by a police vehicle. The State contends that whether Sergeant Hill was operating a vehicle appropriately marked as an official police v ehicle was a f actual d etermin ation fo r the jury. Maryland s tatute T.A. § 21-904(c ) provides: (c) Fleeing on foot. -- If a police officer gives a visual or audible signal to stop and the police officer, whether or not in uniform, is in a vehicle approp riately marked as an official police vehicle, a driver of a vehicle m ay not attempt to elud e the police of fice r by: (1) Willfully failing to stop the driver s vehicle; (2) Fleeing on foot; or (3) An y other m eans. (Empha sis added). When an issue on appeal involves an interpretation and application of Maryland statutory law, this Court must determine whe ther the trial court s conclusions are legally correct under a de novo standard of review . Schisler v. S tate, 394 Md. 519, 535 (2006). In our view, with the argument that the legislature has not defined the phrase approp riately marked as an official police vehicle, appellant raises an issue of statutory interpretation. Maryland a ppellate cou rts have no t yet commen ted on w hat constitutes a vehicle appropriately marked as an official police vehicle under T.A. § 21-904(c) or -22- whether the existence of lights and sirens on a vehicle satisfies the definition of a vehicle so marked. Courts in other jurisdictions, interpreting similar statutes, have addressed the issue. We sh all discu ss those author ities belo w. A. Other Jurisdictions (1) Washington In State v. Ritts, 973 P.2d 493, 49 4 (Wash. Ct. Ap p. 1999), 5 the Court of Appeals of 5 In a precursor to Ritts, the Court of Appeals of Washington, Division One, in State v. Trowbridge, 742 P.2d 1254 (Wash. Ct. App. 1987), held th at the eluding statute simply requires know ledge th at the pu rsuing v ehicle is a police vehicle . 742 P.2d at 1256. In Trowbridge, the defendant was signaled to stop by two uniformed police officers, one of whom was standing by a fully marked police vehicle and the other standing next to an unmarked police vehicle. 742 P.2d at 1255. W hen the de fendant f ailed to sto p, the uniformed office r in the u nmark ed car f ollowe d the de fenda nt. Id. The defendant admitted she had seen the accident scene, that she knew it was a police officer who had motioned her to stop, and that she made a mistake and took off. Id. Trowbridge argued that approp riately marked within RCW 46.61.024 must be read in conjunction with RCW 46.08.065, the ma rking sta tute. Id. The Court disagreed, and further held that the signal to stop need not be given by the officer while the officer is pursuing in a police vehicle . Id. at 1256. Therefore, when the defendant was given the visual and audible signal to stop by the two uniformed officers who were standing near their police vehicles, the signal to stop elemen t was m et. Id. Ritts distinguished Trowbridge, explaining: The eluding statu te expressly requ ires that the sign al to stop come from a uniformed officer whose vehicle is appropriately marked showing it to be an official police vehicle. RCW 46.61.024. Appropriate marking is described in RCW 46.08.065 as identifying lettering or logo. The undercover exemption of RCW 46.08.065(1) waives the administrative marking r equireme nt to permit the sheriff's department to operate unmarked cars for investigations. Howeve r, the criminal statute cannot be read to w aive the requirement that the police vehicle be marked. .... In Trowbridge, relied on by the State, the statute was held satisfied when an unmarked vehicle actually gave chase after the signal to stop had been given by a uniformed officer whose vehicle was marked with the letters and stripes (continued ...) -23- Washington, Division Three,6 affirmed the trial court s granting of the defendant s motion to dismiss the charge of attempted felony eluding where the police car the defendant attempted to elude was not marked with identifying police lettering or insignia, although the car was equipped with flashing lights and a si ren. In Ritts, the facts were undisputed. 973 P.2d at 494. The police officer was in uniform; however, he was driving an unmarked vehicle. Id. The [vehicle] was equipped with alternating high bea m and he adlights (wigwags), siren, red and blue strobe lights mounted at the top of the windshield and inside the front grill, and blue and yellow flashers in the rear window. It was not marked with lettering or a logo on the doors. Id. at 495. The defendant when first approached by the officer braked hard and then drove off at a high sp eed fo r about two m iles. Id. The (...continued) of an o fficial p olice ve hicle. Trowbridge, 49 W n. App . at 363. That did not happen here. Although the Bronco s emergency lights, including a blue light, were flashing, the statute requires a signal to stop by a uniformed officer whose vehicle is marked. Mr. Ritts admission that he knew his pursuer was a law enforcement officer does n ot reliev e the Sta te of pro ving th e eleme nts of th e eludin g statute . 973 P.2d at 496. 6 The Court of Appea ls of Was hington is se parated into three divisions. Rev. Code Wash. (A RCW ) § 2.06.020 (2011), pro vides, in part: The [Court of Appeals] shall have three divisions, one of which shall be headquartered in Seattle, one of which shall be headquartered in Spokane, and one of which shall be headq uartere d in Ta coma . . . . Appea ls from the [Court of Appeals] to the supreme court shall be only at the discretion of the supreme court upon the filing of a petition for review. R ev. Code W ash. (ARCW ) § 2.06.03 0 (201 1). -24- defendant subsequently abandoned the car and ran on foo t. Id. The defendant admitted he saw the officer behind [him]. Id. The def endant w as charged with violating Washington, Rev. Code W ash. (RCW ) § 46.61.024 , which pro vided: Any driver of a motor vehicle who w ilfully fails or refus es to imme diately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or wilful dis regard for the lives or pro perty of others w hile attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felo ny. The signal given by the police officer may be by hand, voice, emergency light, or s iren. The officer giving such a signal sha ll be in uniform and his vehicle shall be appropriately marked showing it to be an official police vehicle. (Empha sis added). T he Cou rt addressed whethe r the flashing lights and sire n approp riately marked the undercover Bronco as a police vehicle, absent a police logo or lettering on the sides. Id. The Court explained RCW § 46.08.065 requires that all public vehicles including police cars must be marked on the sides with identifying lettering or logo. Id. Undercover sheriff s office and police vehicles, however, are exempt from the lettering or logo requireme nt. Id. The Court also observed that because RCW § 46.61.024 is a criminal statute, it m ust be str ictly constr ued in f avor of the def endan t. Id. The Co urt reasone d: The eluding statute expressly requires that the signal to stop come from a uniformed officer whose v ehicle is app ropriately mark ed show ing it to be an official police veh icle. RCW 46.61.024 . Approp riate marking is described in RCW 46.08.065 as identifying lettering or logo. The undercover exemption of RCW 46.08.065(1) waives the administrative marking r equireme nt to permit the sheriff s department to operate unma rked cars for investigations. H owever, the criminal statute cannot be read to waive the requirement that the police vehicle be marked. -25- The plain language of RCW 46.61.024 expressly requires both a signal and a marked car. It does not require one or the other. If either the presence of signaling equipmen t or the nature of the signal itself renders a police vehicle appropriate ly marked, the language requiring appropriate identifying marking is superfluous. The statutory language includes no exception for unmarked undercover vehicles, with or without flashing lights. .... . . . The undercover vehicle pursuing Mr. Ritts was not appropriately marked as a police vehicle. Therefore, the State failed to prove the elements of RCW 46.61.024. This may not be the result the Legislature intended by this statute, but it is nonetheless the result required by the present wording of the statute. We are c onstrained to therefore affirm the order of d ismissal. Id. at 496. The Court held that even though the defendant admitted he knew an officer was behind him, this did not relieve the State of proving the elements of the eluding s tatute. Id. Similarly, in 2001, the Court of Appeals of Washington, Division One, in State v. Argueta , 27 P.3 d 242, 2 43 (W ash. Ct. A pp. 200 1), supersede d by statute as stated in State v. Hunley, 2011 Wash. App. LEXIS 1184 (Wash. Ct. App. Ma y 17, 2011), reversed the defendant s conviction for attempting to elude a police officer, as the vehicle the defendant attempted to elude w as not app ropriately mark ed show ing it to be a p olice vehic le. In Argueta , the officer was in uniform, driving an unmarked vehicle equipped with black push bars on the front bum per, several ante nnas, an ex terior spotlight m ounted to the driver s door post, several emergency lights visible when activated, and a three-tone siren. 27 P.3d at 243. During the pursuit o f the defe ndant, the o fficer con tinuously activated his lights and siren. Id. at 244. Th e Court of Appea ls was called upon to in terpret RCW § 46.61 .024. Id. -26- The Court, in Argueta , reached the same conclusion as the Court in Ritts, but for different re asons. Th e Court ex plained: [W]e conclude that to be marked under the eluding statute, a vehicle must bear some type of insignia that identifies it as a police vehicle. Emergency equipment does not constitute a m ark under the ord inary dictionary definition of the term. Emergency equipment is a signaling device, not an identifying device. The ordinary meaning of the term mark connotes writing or other characters affixed to the vehicle that conveys its identity or ownership, such as a decal bearing the name of the polic e departm ent to whic h the vehic le belongs. We therefore hold that to be appropriately marked for purposes of the eluding statute, a vehicle m ust bear an in signia that ide ntifies the ve hicle as an official police vehicle. Our conclusion is supported by another rule of st atuto ry con struc tion, nam ely, that we will not interpret statutes in such a way that would render a word or provision superfluous. In a provision separate from the one imposing the approp riately marked requirement, the eluding statute contains the term attempting to elude a pursuing police vehicle. A car with flashing strobe lights, headlights flashing fro m one side to the other and from high to low beam, a flashing re d and blu e light on the dashboard, and a three tone siren that is pursuing a civilian vehic le would be understood by a person of ordinary intelligence to be a pursuing police vehicle. So, under the common and ordinary meaning of the term pursuing police vehicle, [the officer s] v ehicle would constitute such a vehicle. Were we to conclude that the evidence is sufficient to sustain A rgueta s co nviction, we would improperly render the approp riately marked requireme nt superflu ous beca use the con viction cou ld be based on the fact that Argueta attempted to elude a pursuing police vehicle even though it was n ot app ropriate ly marked . To give meaning to the appropriately marked requirement, we must assume that the Legislature intended to req uire something more than the presence of activated emergency equipment in order to render a p olice vehicle appropriate ly marked for purposes of the eluding statute. That something more the Legisla ture required is a mark, which, under the ordinary meaning of the term, means an insignia identifying the vehicle as an official police vehicle. -27- Id. at 245-46 (footnote omitted). In Argueta , the Court c alled for actio n by the legislature stating: The logic and practicality of this result are, in our view, matters worthy of the Legislature s atten tion. The elud ing s tatut e, as p rese ntly worded, requires the presence of some identifying insignia in order for a vehicle to be appropriately marked. Witho ut it, a defen dant ca nnot be convic ted und er the sta tute as w ritten. 2 7 P.3d at 246. In 2003, the W ashington State Leg islature amen ded RC W § 46 .61.024 to re ad, in pertinent pa rt: (1) Any driver of a motor vehicle who willfully fails or ref uses to imm ediately bring his or her vehicle to a stop and who drives his or her vehicle in a reckless manner while attem pting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or s iren. The offic er giving s uch a sign al shall be in unifor m and the veh icle sha ll be eq uippe d wi th light s and s irens. Ann. Revised Code Wash. § 46.61.024 (emphasis added). The amendment changed the requirement that the officer s vehicle be appropriately marked showing it to be an official police vehicle to include the language that the vehicle be equipped with lights and sirens. (2) Arizona The Court of Appea ls of Arizona, Division Two, in State v. Sch ultz, 597 P.2d 1023 (Ariz. Ct. App. 1979), reversed a defendant s conviction for fleeing from a law enforcement vehicle, in vio lation of A rizona Re vised Statute s (A.R.S.) § 28-622.0 1, which p rovides: Any driver of a motor vehicle who wilfully flees or attempts to elude a pursuing official law enforcem ent vehicle w hich is being operated in the manner described in subsection C of § 28-624 is guilty of a felony punishab le by imprisonment in the state prison for not less than one year nor more than -28- five years or by a fine of not less than on e hundred dollars nor more than five thousand dollars, or both. Such law enforcement vehicle shall be approp riately marked showing it to be an official law enforcement vehicle. Id. at 1023 (em phasis add ed). A.R.S . Subsection C of § 2 8-624 pro vides: C. The exemptions authorized by this section for an authorized emergency vehicle apply on ly if the driver of the vehicle while in motion sounds an audible signal by bell, siren or exhau st whist le as re ason ably n eces sary and if the vehicle is equipped with at least one lighted lamp displaying a red or red and blue light or lens visible under normal atmospheric conditions from a distance of five hundred feet to the front of the vehicle, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or disp lay a red or red a nd blue ligh t or lens visible from in front of the vehicle. In Schultz, the pursuing officer w as in an un marked p olice car. Th e Court he ld that: The state argu es that it m ay be inferred that the pursuing vehicle was appropriate ly marked so as to show it to be an official law enforcem ent vehicle from the fact that it was a police vehicle equipped with a radio, blinking red lights and a revolving yellow light, a siren, and flashing headlights. We disagree. If every police vehicle so equipped were appropriately ma rked with in the meaning of § 28-622.01, there would be no need for the last sentence of the statute inasmuch as the opera tion of such lights or siren is required by the reference in the first sentence to § 28-624. It is presumed that the legislature did not intend to do a futile thin g by including in a statute a provision that is non-o perative . State v. Cassius, 110 Ariz. 485, 520 P .2d 1109 (1974 ). The legislature has established as an essential element of the crime of unlawful flight from a pursuing law enforcement vehicle that the pursuing vehicle be appropriate ly marked. In the absence of any proof of that element appellant s conviction cannot stand. 597 P .2d at 10 24. -29- (3) Georgia The Court of Appeals of Georgia in Stephens v. State , 629 S.E.2d 565, 566 (Ga . Ct. App. 2006), reversed the defen dant s con viction for p ossession o f cocaine w ith the intent to distribute. In Stephens, the defendant was arrested for attempting to elude a non-uniformed detective, who w as follow ing the def endant in a n unmar ked car, in violation of Official Code of Geo rgia Ann otated ( O .C.G.A. ) § 40-6-39 5(a) whic h provide s, in part: It shall be unla wful fo r any driver of a vehicle w illfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a v isual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in unifo rm prom inently displaying h is or her bad ge of off ice, and his or her vehicle shall be appropriately marked [7] showing it to be an official 7 O.C.G.A. § 40-8-91 (2011) provides, in part, the Marking and equipment of law enforcement vehicles: (a) Except as provided in subsection (b) of this Code section, any motor vehicle which is used on official business by any person authorized to make arrests for traffic violations in this state, or an y municipality or county thereof, shall be distinctly marked on each side and the back with the name of the agency respo nsible theref or, in letters not les s than fou r inches in h eight. (b) Any motor vehicle, except as hereinafter provided in this subsection, used by any employee o f the Geo rgia State Patrol for the purpose of enforcing the traffic laws of this state shall be distinc tly painted, mark ed, and eq uipped in such manner a s shall be pre scribed by the comm issioner of p ublic safety pursuant to this Code section. The commissioner in prescribing the mann er in which su ch vehicles shall be pain ted, marke d, or equipp ed shall: (1) Requ ire that all such motor veh icles be painted in a two-ton ed uniform color or a solid color. For vehicles painted in a two-toned color, the hood, top, and the top area not to exceed 12 inches below the bottom of the window opening thereof shall be a light gra y color and the remaining portion of s aid motor vehicle shall be pa inted a dark blue color; (2) Require that any such motor vehicle be equipped with at least one lamp (continued ...) -30- police vehicle. 629 S.E.2d at 567 (emphasis added) (emphasis in original omitted). The Court concluded that: Where the record is devoid of any evidence that the officer who signaled appellant to stop was in un iform pro minently displa ying his badge of office or th at the office r s vehicle was appropriately marked showing it to be an off icial polic e vehic le, the essential e lements of the crime are not present. Id. (citing Phillips v. State , 291 S.E.2d 776, 777 (Ga. Ct. App. 1982) ( The record in the instant case is devoid of any evidence that the officer who signaled appellant to stop wa s in uniform prominen tly disp laying his badge of office or that the officer s vehicle was appropriately marked showing it to be an official police vehicle. Therefore, the state failed to p rove essential elements of the offense charged . )). (4) North Dakota The Supreme Court of North Dakota in State v. Erdman, 422 N.W.2d 808 (N.D. 1988), reversed the defendant s conviction for fleeing a p olice office r, in violation of North Dakota Century Code ( N.D.C.C. ) § 39-10-71 (1985), which provided: Any driver of a m otor vehicle who w illfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given a visual or audible signal to bring the vehicle to a stop, shall (...continued) which when lighted shall display a flashing or revolving colored light visible under normal atm ospheric conditions for a distance of 500 feet from the front and rear of such vehicle; and (3) Require that any such motor vehicle shall be distinctly marked on each side and the back thereo f with the wordin g State Patrol in letters not less than six inches in height of a contrasting color from the background color of the mo tor veh icle. . . . -31- be guilty of a class A misdemeanor. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer givin g such signal shall be in unifo rm, promin ently displaying his badge of office, and his vehicle shall be appropriately marked showing it to be an official police vehicle. (Emphasis added) (emphasis in original omitted). The Court found that it was undisputed that the police officers were not wearing uniforms and were in unmarked vehicles; therefore, the defendant s conviction for violating N.D.C.C. § 39-10-71 was reverse d. Id. at 810. The Court exp lained: The State contends section 39-10-71, N.D.C.C., must be interpreted with a sense of reasonableness and an examination of legislative intent. T he State supports its reasonab leness stan dard of inte rpreting secti on 39-10-71, N.D.C .C., with the following hypothetical question: What if the police officer in civilian clothing drove a patrol car with permanent overhead lights and markings on the front doors. Shouldn t that officer be justified in expecting a subject vehicle to respond accordingly when signale d to stop ? I think so. Whether or not an officer in such a situation should reasonably expect the driver to stop is arguable. Interpretation of this section, however, is not controlled by an officer s reasonab le expectatio ns. Furtherm ore, we thin k it improper to attempt to discern legislative intent from anything other than the language of the statute when the language specifically requ ires the offic er to wear a uniform and display a badge when attempting to signal a stop. Discerning legislative intent in this case is precluded by section 1-02-05, N.D.C .C., which reads: when the wording of a statute is clear and free of all amb iguity, the letter of it is no t to be disregarded under the pretext of pursuing its spirit. Id. (footn ote om itted). (5) Wisco nsin The Court of Appeals of Wisconsin in State v. Opperman, 456 N.W.2d 625, 626 (Wis. Ct. App. 1990), rejected the trial court s find ing that so lo ng as a car is equipped with lights and a siren, whether visible to the public or not, it is a police vehicle and therefore is marked -32- in some fashion as a police vehicle. In Opperman, the defend ant was convicted of knowin gly fleeing a marked police vehicle in violation of Wisconsin Statutes ( Wis. Stat. ) § 346.04 (3), which provides: No operator of a vehicle, after having received a visual or audible signal from a traffic officer, or mar ked polic e vehicle, shall know ingly flee or attem pt to elude any traffic off icer by willful o r wanton disregard o f such sign al so as to interfere with or endanger the ope ration of the police veh icle, or the traff ic officer or other vehicles or pedestrians, nor shall he incre ase the spee d of his vehicle or extinguish the lights of his vehicle in an attempt to elude or flee. 456 N.W.2d at 626 (em phasis add ed). The C ourt addres sed whe ther a vehic le equippe d only with red lights and a siren is a marked police car. Id. The Co urt explaine d: The keystone of the fleeing charge is k nowing ly fleeing an o fficer. Eve n if a citizen does not observe that it is an officer pursuing the person, that citizen will still be held to knowledg e if the vehicle has decals or o ther markers identifying the auto as a law enforcement vehicle. Howeve r, the legislature did not state that just because a vehicle has flashing red lights and a siren it is automatically considered a police vehicle. Indeed, as the 1987 a ttorney ge neral s o pinion points o ut, the legislature ha s expressly provided, in sec. 347.25(lm) (b), Stats., that red and blue lights may be used on an unmarked police vehicle. Consequently, the fact that a police v ehicle disp lays both red an d blue lights w ould not make it a marked police vehicle. 76 Op. Att y Gen. at 215 n.1. Id. at 627. (6) Florida The Court of Appea l of Florida, T hird District, in Gorsuch v. State, 797 So. 2d 649, 650 (Fla. D ist. Ct. App. 2001), reversed a defendant s conviction for fleeing or attempting to elude a police officer in violation of Florida Statutes ( Fla. Stat. ) § 316.1935 (2000), -33- which p rovided: (1) It is unlawful for the operator of any vehi cle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the veh icle in compliance with such order or, hav ing stoppe d in know ing comp liance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (2) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle with a gency in signia and other jurisdictional markings prominently displayed on the vehicle with siren and lights activated commits a felony of the third degree, punishable as provid ed in s. 7 75.082 , s. 775.0 83, or s. 7 75.084 . (3) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle with siren and lights activated, and during the course of the fleeing or attempted eluding drives at high speed, or in any manner which demonstrates a wanton disregard for the safe ty of persons o r property commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Id. (emphas is in original). In Gorsuch, it was undisputed that the defendant was involved in a high speed chase with three police vehicles, two of which were unmarked and one which bore a 15 inch City of Miami seal, on the car s door. 797 So. 2 d at 650-5 1. The C ourt held that, [t]here was no evidence, however, that any of the vehicles had an agency insignia as required by Fla. Stat. § 316.1935. Id.; see also, Slack v. Sta te, 30 So. 3d 684, 687 (Fla. Dist. Ct. App. 20 10) ( W hile Depu ty Stone testified h e was driv ing a mark ed patrol ca r with lights on top and that he activated his lights and siren, there was no evidence of agency insignia and other jurisdictional markings prom inently displayed on the vehicle. § -34- 316.1935(2), Fla. Stat. (2006). That not all markings on law enforcement vehicles constitute agency insignia was made clear in Gorsuch. By neglecting to adduce any evidence that Deputy Stone s ve hicle had ag ency insignia or other jurisdictional markings, the State failed to make ou t a prima fac ie case of f leeing or attem pting to elud e a law en forceme nt officer in violation of section 316 .1935(2), an d the trial cour t erred in denying Mr. Slack s motion for judgment of acquittal. ); Jackson v. Sta te, 818 So. 2d 539, 541-42 (Fla. Dist. Ct. App. 2002) ( We also agree with Jackson that the State failed to prove felony fleeing or attempting to elude. To convict for this offense, the State must prove that the defendant fled from a law enforcement officer in an authoriz ed law en forceme nt patrol veh icle with ag ency insignia and other jurisdictional markings prominently displayed on the vehicle with siren and lights activate d. See § 316.1935(2), Fla. Stat. (2000). Here, the State presented Officer Newcom b s testimony that his overhead lights and siren were activated, but there was no testimo ny that his v ehicle w as othe rwise m arked. ). (7) California In People v. E stralla, 31 Cal. App. 4th 716 (1995), the relevant flight from peace officer statute require d the police vehicle to be distinctively marked. In Estralla, the Court of Appeal of California, Fifth Appellate District, found that although a red light and siren alone do not distinctively mark a police vehicle, under the circum stances of the case, w here there were additional devices on the poli ce vehicle such as - hea dlights (wigwag lights), flashing blue and clear lights, and the officers be ing in police department clothing - the -35- vehicle was distinctively marked as a police vehicle. 31 Cal. App. at 723. Ca lifornia Ve hicle Code ( C al. Veh. C ode ) § 2 800.1 pro vides: Any person who, w hile operating a motor ve hicle and w ith the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer s motor vehicle, is gu ilty of a misdem eanor if all of the follow ing conditio ns exist: (a) The peace officer s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen th e lamp . (b) The peace officer s motor vehicle is sounding a siren as may be reason ably necess ary. (c) The peace officer s motor vehicle is distinc tively m arked . (d) The peace officer s motor vehicle is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform. (Stats. 1988, ch. 504, § 1, p. 1918.) Id. at 721 (emphasis ad ded). The Cou rt noted that the Webster Third Intern ational Dictionary (1986) defines the adjective marked to mean having a mark of a specific kind, or having a distinctive or stro ngly pronounced character. A mark is a character, device, label, brand, seal or other sign put on an article, e specially to show the make r or owne r, to certify quality or for identification. Id. at 722. In Estralla, the Court opined it may reasonably be concluded that a vehicle is distinctively mark ed if it bears a symbol or device that identifies it as a peace officer s vehicle. 31 Cal App. 4th at 722. The Court stated: Therefore, to construe distinctively marked to mean simply exhibiting a red light and soun ding a siren would re sult in section 2800.1, subdivision (c) (requiring the vehicle to be distinctively marked ) being considered mere surplusage. Id. at 723. -36- B. Plain Language Statutory construc tion begins w ith th e pla in lan guage of the statu te, an d ord inary, popular understanding of the English language dictates in terpreta tion of it s termin ology. Tribbitt v. State, 403 M d. 638, 6 45-46 (2008 ) (citation s omitte d). If the plain language of the statute is unambiguous, the inq uiry as to legislative in tent ends; w e do not the n need to resort to the various, and sometimes inconsistent, external rules of construction, for the Legislature is presumed to have meant what it said and said what it meant. Id. If, however, the meaning of the plain language is ambiguous or un clear, we seek to discern legislative intent from surrounding circumstances, such as legislative history, prior case law, and the purposes upon which the statutory framework was based. Id. As to the plain language of the s tatute, Merriam-W ebster s Collegiate Dictionary, 61, 760 (11th ed. 2003), defines the word appropriate as especially suitable and compatible or to set apart for or assign to a particular purpose or use, the w ord marked as having an identifying mark and the word mark as a sign, indication, a symbol used for identific ation. Although not dispositive, applying these definitions to the statute at hand contributes to a conclusion that one interpretation of the phrase a v ehicle appr opriately marked as an offic ial police veh icle is that the vehicle must bear a type of sign, symbol, or insignia. In this instance, after examining the language of the statute, we conclude that the meaning of the phrase vehicle appropriately marked as an official police vehicle, is not -37- capable of final determination ba sed on a plain reading. In other w ords, the lang uage is ambig uous. A s such, w e shall ex amine the legis lative his tory of the statute. C. Legislative History The legislature enacted § 11-904 of the Annotated Code of Maryland, Vehicle Laws entitled Fleeing or attempting to elude a po lice officer originally in 197 0. The 19 70 statute provided : Any driver of a moto r vehicle w ho wilfu lly fails or refuses to bring his ve hicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given visual or audible signal to bring the v ehicle to a stop , shall be guilty of a misdem eanor. Th e signal give n by the police officer may be by hand, voice, emerg ency ligh t, or siren . The offic er giving th e signal sh all be in uniform, prominently displaying his badge or other insignia of office, and his vehicle sh all be app ropriately marked showing it to be an official police vehicle. 1970, c h. 534, § 1. In United States v. Goodw in, 637 F.2d 250, 25 6 (4th Cir. 1981) rev d on other grounds, 457 U.S. 368 (1982), in considering T.A. § 21-904, the Fourth Circuit Court of Appeals found that the purpose of the then existing 1970 version of the statute was to affect co mpliance with an officer s signal to stop. The Court explained: Not unreasonably, notice of the authority of the officer to g ive the signa l is an essential element of the crime of failing to obey. That notice is given when the officer is on foot and is wearing his uniform and insignia of office, or, if the officer is in a vehicle, when the vehicle is marked as an official police vehicle. In the latter instance, additional notice from the wearing of a uniform and displaying an insignia o f office is u nnecessa ry, especially when it is remembered that the garb of the polic eman w ithin the offic ial police vehicle may not even be visible. A contrary reading would lead to som e bizarre results. If both conditions must be alle ged and p roved in o rder to render § 21-904 applicable, a motorist -38- with impunity could ignore a signal to stop from a plainclothes policeman in an official police car or an off-duty policeman in a official car. We do not think that these possibilities were intended by the Maryland legislature. Id. In Goodw in, the defendant had been convicted of Fleeing and Eluding under T.A. § 21-904, which at th at time require d that an of ficer give a v isual or aud ible signal to stop , in an appropriately marked police vehicle and that the officer be in uniform prominently displaying his badge or the insignia of office. 637 F.2d at 251, 255-56. In Goodw in, although the indictment charged that the defendant had been given a signal to stop by an officer in a vehicle appropriately marked as a police vehicle, the indictment did not, however, allege that the officer was in uniform or displaying a badge. 637 F.2d at 256. Against this background, the Fourth C ircuit Court o f Appe als found that [i]f both conditions [of the statute] must be alleged and proved to render [T.A .] § 21-9 04 app licable, a motorist cou ld ignore a s ignal to stop from a plainclothes police officer in an official police car. Id. Following the Court s decision in Goodw in, the statute was amended by the legislature, in 1981, to separate the requirem ents that the o fficer be eith er in uniform or in a vehic le appropriate ly marked as an official police vehicle. The 1970 statute was repealed and reenacted as T.A. § 21-904 in 1981, with amendments, and was subsequently amended in 1986 and 2005. The discernable legislative history of the statute consists of Bill Number 1707, Chapter 471 (1981), Bill Number 596, Chapter 472 (1986), and Bill Number 429, Chapter 482 (2005). 2005 Md. ALS 482; 1986 Md. A LS 472 ; 1981 M d. ALS 471. Bill Numb er 1707 p rovides tha t the statute w as amend ed in 1981 with the fo llowing inte nt: -39- For the purpose of prohibiting the driver of a moto r vehicle from attem pting to elude a police of ficer not in u niform w hen signa led to stop by that police officer, if the officer is in an officially m arked p olice vehic le . . . . (Empha sis added). Although the purpose of Bill Number 1707, as set forth in the legislative histo ry, was to prohibit a driver from eluding a police officer in an officially marked police vehicle, the sta tute, as reenac ted in 1981 , read: (a) This section applies when a police officer gives a signal to stop, whether by hand, voic e, emergen cy light, or siren if: (1) The police officer is in uniform, prominently displaying h is badge or other insignia o f office or (2) The police officer, whether or not in uniform, is in a vehicle appropriately marked as an o fficial po lice veh icle. (Emp hasis ad ded). The original version of the statute in 1 970 requ ired that the ve hicle be appro priately marked showing it to be an officia l police v ehicle, and the pu rpose of th e 1981 am endmen t, as stated in Bill Number 1707, was to prevent the elusion of officially marked vehicles.8 Thus the evolution of the language in the statute from 1970, requiring that the vehicle be appropriately marked s howing it to be an of ficial police v ehicle, alon g with the s tated purpose of the 1981 amendment to prohibit flee ing an of ficially marked vehicle, lead s to the conclusion that the phrase appropriately marked as an official police vehicle was intended by the legislature to require a v ehicle with the official markings or designations of a police vehicle. 8 There is no indication in the 1986 Bill or 2005 Bill as to the intended definition of the phr ase a v ehicle a pprop riately mar ked as a n offic ial police vehicle . -40- D. Ana lysis In sum, our examination of the plain meaning and legislative history of T.A. § 21904(c), as well as the case law in other jurisdictions that we review ed, leads to th e inescapa ble conclusion that a vehicle appropriately marked as an official police vehicle is not synonymous with a veh icle equipp ed simply w ith lights and sire ns. We co nclude, as C ourts in other jurisd ictions have in analyzing analogous statutes, based on the language of T.A . § 21-904(c), and the facts of this case, that the State failed to prove that Sergeant Hill was operating a vehicle appropriately marked as an official police vehicle. To the extent the State contends that the testimony of defense witness, Sullivan, confirmed the State s point that appellant knew he was being pursued by a police vehicle, this is of no significance, as we, like other Courts, observe that the State bears the burden to prove all elements of an offense beyond a reasonab le doubt. The activation of the lights and siren did not transform the unmarked police veh icle into a vehicle appropriately marked as an official police vehicle as required by the statute. Wh en constru ing a statute, w e recogniz e that it should be read so that no word, clause, sentence or phrase is ren dered sup erfluous o r nugatory. W e will [n]either add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute. Tribbitt, 403 Md. at 645. Reading the statute to perm it an officer s activation of lights and sirens to satisfy the requirement that the officer give a visual or audible signal to sto p and the re quiremen t that the offic er be in a v ehicle appropriately marked as an official police vehicle would render the language requiring the marking of the vehicle to be superfluous or nugatory. Id. -41- There is no rational counte rvailing reason ing wh ich neg ates the c onclus ion that, if every vehicle equipped with lights and sirens is a vehicle appropriately marked as an official police vehicle there would be no need for the statuto ry language re quiring that th e vehicle be approp riately marked. We hold that withou t proof of e ach of th e statutory elements, appellant s conviction of fleeing and eluding in violation of T.A. § 21-904(c) cannot stand. JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED AS TO APPE LLAN T S CONVICTION FOR POSSESSION OF CDS IN VIOLATION OF C .L. § 5-601; REVERSED AS TO APPELLANT S CONVICTION FOR FLEEING AND ELUDING IN VIOLATION OF T.A. § 21-904(c); COSTS TO BE PAID 50% BY APPELLANT AND 50% BY MONTGOMERY COU NTY . -42-
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