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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1432 SEPTEMBER TERM, 1996 ___________________________________

KEVIN JOSEPH WIEGMANN v. STATE OF MARYLAND ___________________________________ Murphy, C.J. Hollander, Bishop, John J. (Retired, Specially Assigned) JJ. ___________________________________ Opinion by Hollander, J. Dissenting Opinion by Murphy, C.J. ___________________________________ Filed: December 1, 1997

This criminal case arises from a courtroom brawl that erupted during domestic proceedings before a circuit court master. We must

determine whether the authority of a domestic master to conduct and regulate court proceedings includes the power to authorize the arrest of a litigant, pending judicial review of the master's recommendation incarceration. Kevin Joseph Wiegmann, appellant, appeared without counsel before a circuit court master for a contempt hearing in connection with his failure to pay court-ordered child support. At the of a finding of contempt and immediate

conclusion of the hearing, the master opined that appellant was in contempt and that immediate incarceration was warranted.

Consequently, two sheriff's deputies who were stationed in the courtroom attempted to handcuff appellant. A scuffle ensued that

culminated in criminal charges against appellant for resisting arrest and assault and battery. Thereafter, a jury in the Circuit

Court for Howard County acquitted appellant of resisting arrest, but convicted him of battery. The court sentenced appellant to

ninety days of incarceration, with all but ten days suspended, followed by fifteen months of probation. Appellant timely lodged his appeal and presents three

questions for our review, which we have reordered: I. Did the trial court erroneously restrict defense counsel's ability to present a defense? Did the trial court err in its instructions to the jury?

II.

III. Was the evidence sufficient appellant's conviction?

to

support

We answer the first two question in the affirmative.

Accordingly,

for the reasons that follow, we shall vacate appellant's battery conviction and remand for further proceedings.

Factual Summary The events that spawned the criminal charges occurred on September 21, 1995, when appellant appeared at a hearing before Howard County Circuit Court Master Elaine Patrick (the "master's hearing") with respect to his child support obligation.1 A

redacted version of the transcript from the master's hearing was admitted as an exhibit at the criminal trial.2 following, in pertinent part: It indicates the

If "a picture is worth a thousand words," we are fortunate here to have the thousand words. As the underlying events occurred at the master's hearing, they were captured by the official court reporter and memorialized in the transcript of the proceedings. Thus, we are not presented with any significant factual disputes or conflicting versions of events. To the contrary, we know precisely what the master and appellant said and when they said it. The State and the defense agreed that the master's hearing transcript was relevant, and a redacted version of the transcript was admitted as a defense exhibit. During questioning of a State's witness by defense counsel, the witness read portions of the transcript into the record. We note that there are insignificant variances between the version of the transcript that was read into the record and the transcript itself. To the extent there is any variation, we shall refer to the text as it appears in the transcript. - 2 2

1

[MASTER PATRICK]: Based on the evidence I've heard today, it is quite clear to me that the defendant is in contempt. * * * *

So I am going to hold you in contempt. I'm going to sentence you to forty-five (45) days' incarceration. I'm going to set a purge figure of Thirty-Five Hundred Dollars ($3,500.00), Mr. Wiegmann. That means, if you pay the thirty-five hundred dollars, you do not have to serve the time. That's the difference between civil and criminal contempt. In light of your claim to live in Georgia, I am going to recommend that the incarceration be immediate from the courtroom, and that an immediate Order be entered. I'm going to enter a judgment for the arrears, which is Fourteen Thousand, Nine Hundred and Ninety-Three Dollars and Sixty-Five Cents ($14,993.65). Payments through the Department of Social Services, secured by a wage lien. Future service by first-class mail. Mr. Wiegmann: The Master: Mr. Wiegmann: now. Your Honor? Yes, Mr. Wiegmann? Ah, I want to, like to file my exceptions

The Master: Mr. Wiegmann, you can file those prior to your exceptions. I'm going to recommend that an immediate order be entered, so we can-Mr. Wiegmann: Also, a motion for stay of sentence pending the outcome of the exceptions hearing. And a request for filing fees and costs be paid by the State for my transcripts and other related fees, since I was not-, Public Defender's-. (To the Deputy) Hold on a second. Hold on a second. Get, get away from me until I'm done. The Master: Excuse me, Mr. Wiegmann. you at this point. The Deputy: This is not up to

Put your hands behind your back.

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The Master: (Emphasis added.)

Cooperate with the deputies, Mr. Wiegmann.

The State also called Master Patrick as a witness. explained that after she announced her findings,

She

appellant

approached the bench to file handwritten exceptions and a motion to stay the sentence.3 The master planned "to pass them along to the

Judge" so that the court could consider the pleadings in its evaluation of her recommendation. Master Patrick, she observed that the deputies were standing, and [appellant] said--he was saying stop, or back up or something. I didn't understand that because they were just--in my recollection they were just standing there. And then I had his paper, the deputy stepped forward, and then he started saying get away from me, get away from me. I said Mr. Wiegmann, it's not up to you at this point. When the master saw appellant's "arm going up," she left the courtroom to find another deputy, out of concern that there might be an "incident." Master Patrick explained that she recommended immediate As appellant was speaking to the

incarceration because she did not want appellant, who resided in Georgia, to avoid a jail sentence by flight. Her "concern" about

flight was fueled by her belief that appellant had "failed to appear for a prior hearing," he was in her court on a "cash only bond," and appellant might not "hang around" if she gave him a surrender date. The parties stipulated that appellant did file his exceptions and his motion to stay at the master's hearing. - 4 3

Nevertheless, the master recognized that she had no express authority to detain appellant. Indeed, she knew that only a The master

circuit court judge could have incarcerated Wiegmann.

believed, however, that Maryland Rules 2-541 and S74A4 did not require her to give appellant "an opportunity to make it out the door if what I'm recommending is an immediate incarceration." Thus, she steadfastly maintained that she was entitled to detain appellant, pending the circuit court's consideration of her

recommendation, because a contempt order may be entered at any time and because "the proceeding isn't actually complete until the Judge has an opportunity to rule" on the recommendation for immediate incarceration. Consequently, she thought that "in that moment

between making the recommendation for immediate incarceration . . . and getting the file down to the Judge and making sure that the hearing proceeds on the recommendation . . . in appropriate

instances someone may need to be detained in order to insure the . . . orderly action on the recommendation." The master acknowledged, however, that appellant never made any statements about fleeing. She also conceded that appellant

appeared for the hearing even though, based on his own experience, "he understood that one potential outcome of a contempt finding Effective January 1, 1997, Rule S74A was redesignated, without substantive change, as Rule 9-207. Maryland Rule 9-207(f)(3) provides: "On the recommendation by the master that an individual be found in contempt, the court may hold a hearing and direct the entry of an order at any time." - 5 4

could be incarceration."5

Nor did the master ever ask appellant to

"have a seat" and wait while she referred the matter to a judge. Moreover, in the particular segment of time that is especially relevant here -- when appellant was at the bench filing exceptions -- there is absolutely no indication in the record of any attempt by appellant to flee the courtroom. During direct examination, the prosecutor asked the master what she meant when she said it "is not up to you at this point." The master responded: I meant that I was going -- I wanted the deputies to detain [appellant] because I was going to . . . try to get a hearing arranged that day on my recommendation for immediate incarceration, and I was going to have him detained while that process was going forward so we could get it resolved that day. . . . That's what I meant by that, that I wanted the deputies to detain [appellant] pending disposition on my recommendation for immediate incarceration. Master Patrick never specifically instructed the deputies to detain appellant, but she admitted that she intended "to

communicate to . . . [the deputies] to please escort [appellant] out the back door and hold him until [she] had an opportunity to make arrangements with the Judge to hear the remainder of the proceeding."6 The master agreed that, when the deputies sought to

detain appellant, they were doing just what she wanted them to do, The master was referring to a prior sentence of 45 days that appellant had received, which was later found illegal. Contrary to the suggestion in the dissent, the master never declared a "recess" in order to pursue immediate judicial action in connection with her recommendation for contempt and incarceration. - 6 6 5

so

that

she

could

arrange

for

a

judge

to

review

her

recommendations. Although the master had not anticipated that the deputies would seek to handcuff appellant, she acknowledged that she

expected appellant to comply.

Moreover, the master conceded that To the

appellant was not free to leave of his own accord.

contrary, the master agreed that appellant's "freedom[] was taken from him by State authority." Master Patrick explained that, when

she recommends immediate incarceration, "[t]hose gets [sic] done the same day [by the judge] one way or the other." Two sheriff's deputies, Corporal James Horan and Deputy Andre Lingham, were assigned to Master Patrick's courtroom on the day of the incident. Corporal Horan, who testified for the State,

recounted that the events in the courtroom unfolded rapidly and simultaneously. Notwithstanding his fourteen years in the Sheriff's office, Horan testified that he did not know the legal distinction between a master and a judge, the extent of a master's authority, or the difference between a master's recommendation and a judge's order. As a deputy sheriff, Horan stated that he is "the law enforcement arm of the court," and his duties include courtroom security. He

explained that "when a Judge or a Master advises that somebody is going to be taken into immediate custody from the courtroom that is directing that the subject is going to be taken into custody, to our lockup and then to the Detention Center." - 7 Moreover, in his

"mind," the master had ordered appellant taken into custody, and the master is "the ruler of the court . . . ." wears the black robes . . . . and I did it . . . ." Horan thought, based on the master's initial remarks, that the deputies were supposed to take appellant into custody. When he He said: "She

And I was directed to do something

heard Master Patrick say "immediate incarceration," he walked to the right side of appellant and Deputy Lingham stood by appellant's left side. Lingham took out his handcuffs, but the sherriffs

"paused" as appellant discussed the matter with the master at the bench. Appellant then told the deputies to "[h]old on a second" When the master said "it's

and "get away from me until I'm done."

not up to you at this point," Horan and Lingham "attempted to take [appellant] in custody." As Lingham tried to handcuff appellant,

Wiegmann "jerked and pulled away" and "clench[ed] his fist." Because appellant raised his fist, Horan believed appellant was going to strike Lingham, and he grabbed appellant's arm to prevent him from hitting Lingham. and snapped Horan's head Appellant then struck Horan in the jaw back. Horan thought appellant was

attempting to run out of the courtroom. During the altercation that ensued, the deputies grabbed appellant and all three men fell to the floor "in a big pile." Fearing that appellant might take Lingham's weapon, Horan yelled to the master to "hit the alarm." Horan then grabbed appellant around When

the neck, jaw, and face, and sprayed him with pepper mace. - 8 -

other deputies arrived in the courtroom, appellant was handcuffed. As a result of the melee, Horan suffered shoulder and back

injuries, for which he was placed on disability for one month and then light duty for several more months. Malcolm Jacobson, an Assistant State's Attorney assigned to the Child Support Enforcement Division of the State's Attorney's office, appeared as counsel at the contempt proceeding. He

testified that he heard Master Patrick find appellant in contempt and "would recommend immediate incarceration." According to

Jacobson, when appellant handed various motions to the master, the two deputies approached appellant; while appellant was talking, one of the deputies "said something about lowering his hands or putting his hands behind him." Jacobson related that Master Patrick then

said something to the [e]ffect that this was not the right time, referring to the Motions, and the deputies continued to approach Mr. Weigmann. And Mr. Wiegmann said, wait a minute, wait a minute. The deputies were there, and Mr. Wiegmann started to scream, no, no, no, no, no, and started punching at the deputies and a scuffle ensued from there. Jacobson did not recall that the deputies tried to hit appellant, although "they were trying to restrain him. [Appellant] was doing all the hitting," and was "struggling violently." At the end of the State's case, the court denied appellant's motion for judgment of acquittal. Laura Rosenthal, appellant's She recounted the

girlfriend, then testified for the defense. following: - 9 -

The Master recommended that Mr. Wiegmann be incarcerated after the hearing, and Mr. Wiegmann proceeded to file exceptions and things that you would file if you were going to be incarcerated. After that -- well, he wasn't even finished. He was in the middle of handing these to the Master and the Sheriff came up behind him and went to grab him. He put his hand back, like this, and he said, I'm not done yet. And then the same Sheriff grabbed him by his arm, shoved it up behind his back and started shoving him toward the other Sheriff who grabbed him by the neck. After that I don't exactly -- everything happened so fast, I don't know what happened. I mean, the next thing I knew four guys were on top of him. Appellant, a construction superintendent for a builder of single family homes, testified in his own behalf. He stated that

the deputies started to "manhandle" him while he was attempting to file his exceptions and, in a matter of seconds, "the thing got out of hand." Appellant explained:

[T]he Sheriff had come up behind me and started messing with my left hand as I was trying to hand the documents to the Master at that time. And -* * * *

[The deputy] was trying to place it behind my back and put what we would call in the military as an arm jack, trying to jack your arm to make you submit to what he was doing. * * * *

I motioned to him to wait until I was done and then I would go with him, and I started to try to file the things again, and the . . . Deputy . . . started pushing me in the direction of the other Deputy who immediately came up and grabbed me around the neck area.

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Wiegmann further stated that he pushed away one deputy who had grabbed him around the neck in a choke hold because he could not breathe. He was trying to push the deputy away "at the time that According to appellant, no one ever told

[the deputy] was struck."

him he was under arrest or ordered him to submit to an arrest. Appellant also thought that, as an experienced litigant, his filing of exceptions would result in an automatic stay of any sentence. In rebuttal, over defense objection, Corporal Horan testified that he decided to handcuff Wiegmann in the courtroom rather than wait until he had exited the courtroom, because he had been told of an incident in August 1995 when appellant was in court and fled out of the custody of the Sheriff's Department. Horan admitted,

however, that he had no personal knowledge about the incident. We shall include additional facts in our discussion of the issues.

Discussion I. As we noted, appellant was charged with resisting arrest and battery. Appellant's defense rested on his claim that he was

illegally arrested and, therefore, he was entitled to resist with reasonable force. battery. In so doing, he denies that he committed a

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It is beyond cavil that "the right to resist an unlawful, warrantless arrest remains the law of Maryland." 106 Md. App. 376, 397 (1995). In re Albert S.,

Moreover, "an essential element of

[the crime of] resisting arrest is that the arrest be lawful." Monk v. State, 94 Md. App. 738, 742 (1993). Thus, when confronted

with an unlawful, warrantless arrest, one may lawfully resist by resorting to reasonable force. Dennis v. State, 342 Md. 196, 212 Barnhard v. State,

(1996), aff'd after remand, 345 Md. 649 (1997);

325 Md. 602, 614 (1992); Rodgers v. State, 280 Md. 406, 410, cert. denied, 434 U.S. 928 (1977); Monk, 94 Md. App. at 745. The right

to resist by the use of reasonable force is sometimes referred to as a "privilege." In re Albert S., 106 Md. App. at 396-97.

Even when threatened with an illegal, warrantless arrest, however, one may not resist with excessive or unreasonable force. See Rodgers, 280 Md. at 421; Jenkins v. State, 232 Md. 529, 534 (1963). The use of excessive force may constitute a battery. See

Jenkins, 232 Md. at 534.

In addition, one has no right to use

force to resist an unlawful arrest effectuated pursuant to a facially valid warrant. Rodgers, 280 Md. at 419. In that

circumstance, the arrestee must submit and challenge the legality of the arrest in a subsequent judicial proceeding. Id.

As appellant's defense is grounded on the claim of an unlawful arrest, we pause to consider first whether he was actually

arrested.

We have little trouble in concluding that he was. - 12 -

It

is

undisputed

that

the

deputies

sought

to

handcuff An

appellant, and this act amounted to an attempt to arrest him.

arrest is defined as "the taking, seizing or detaining of the person of another, inter alia, by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest." v. State, 284 Md. 526, 530 (1979). explained: Morton

The Court of Appeals has

"We have defined an arrest in general terms as the

detention of a known or suspected offender for the purpose of prosecuting him for a crime. An arrest is effected (1) when the arrestee is physically restrained or (2) when the arrestee is told of the arrest and submits." Little v. State, 300 Md. 485, 509-10 In

(1984) (citations omitted); see also Barnhard, 325 Md. at 611.

addition, a person is seized within the meaning of the Fourth Amendment when, "`in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" Timms v. State, 83 Md. App. 12, 17 (quoting

Michigan v. Chesternut, 486 U.S. 567, 573 (1988)) (citations and internal quotations omitted), cert. denied, 320 Md. 801 (1990); see also In re Joshua David C., 116 Md. App. 580, 593 (1997). In reaching our conclusion that appellant was arrested, we consider it significant that the State candidly conceded at oral

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argument that the deputies sought to arrest appellant.7

Similarly,

at trial, the prosecutor told the judge that "it was by [the master's] Order that he was detained . . . . ordered him detained." She's the one who

The prosecutor also told the trial judge

that it was clear that the law enforcement officers were trying to arrest appellant, but asserted that it was not necessary for them to advise appellant of that fact. Further, the master acknowledged In addition, the trial

that appellant was deprived of his liberty. court

essentially found that appellant was arrested, but she

determined that it was under circumstances analogous to an arrest pursuant to a warrant. That the deputies attempted to arrest

appellant is also evidenced by the State's subsequent decision to charge appellant with resisting arrest. In concluding that appellant was, indeed, arrested, we do not attach significance to the absence of a formal arrest order from the master. In this regard, we observe the State does not seek to

uphold the verdict because of the lack of an order from the master directing the deputies to arrest appellant. As we noted, it It

concedes that the master's conduct was tantamount to an arrest.

also acknowledges that the master's remarks were construed by the

In its brief, the State neither concedes nor disputes appellant's contention that he was arrested. Instead, it argues, that the master had implied authority to detain Wiegmann briefly and to arrest him. The State also asserts that, even if the master lacked such power, "Wiegmann's arrest was analogous to an arrest pursuant to a warrant," thereby precluding appellant's right to resist. - 14 -

7

deputies

as

an

order

to

arrest.

Additionally,

there

is

no

question, based on the master's testimony, that she intended to detain appellant, with handcuffs if need be, and would actually have so ordered, had it the been necessary. It was, however, the

unnecessary,

because

deputies

immediately

understood

master's remarks as an instruction to take appellant into custody.8 Thereafter, the master condoned the deputies' actions. She told

appellant to cooperate with the deputies as they sought to handcuff him and said that it was "not up to [him] at this point." At the

very least, it is clear that the deputies were doing exactly what the master intended, and the master sanctioned the deputies'

conduct. We turn to consider the legality of the arrest. II. Appellant contends that his arrest was unlawful because the master lacked either express or implied authority to arrest him. He also contends that the arrest was not accomplished pursuant to a warrant, and thus he disputes the trial court's finding that the arrest was analogous to an arrest pursuant to a warrant, thereby

Even with our after-the-fact opportunity to reflect on the master's exact words at the contempt hearing, it was, at best, unclear whether the master actually (albeit improperly) imposed a sentence, thereby prompting the deputies' actions, or merely recommended imposition of one. Initially, the master said, "I am going to hold you in contempt. I'm going to sentence you to fortyfive (45) days' incarceration." Later, she said, "I am going to recommend that the incarceration be immediate from the courtroom." (Emphasis added). - 15 -

8

defeating his right to resist.

In addition, he claims that he did

not commit a crime in the presence of the deputies, so as to entitle them to arrest him. Appellant also argued below that he

never refused to submit to an arrest, because "an arrest was never communicated to him. All that was communicated to him was force."

For its part, the State contends that the master had the right to detain appellant "to insure that her recommendation of immediate incarceration could be implemented," and that the Maryland rules "implicitly give a master such authority." In particular, it

points to the master's right to conduct and regulate proceedings in court and argues that this provision inherently includes the power "to briefly detain a defendant for the short time it takes for the court to issue an order in accordance with the master's

recommendation."9

(Emphasis added).

The State also posits that,

At oral argument, the State suggested that the master could hold a litigant for a reasonable time. Based on the record before us, there is little basis to conclude that the seizure here would have been for a "reasonable" time. The record does not reflect how long it ordinarily or actually takes to procure judicial review of the master's recommendation; the master commented only, other than the master's comment that her requests "gets [sic] done the same day." Howard County has only a few circuit judges, and we would have to speculate as to their availability at any given time. In any event, waiting in a cell for the day would hardly seem to qualify as a "brief" or "reasonable" detention. See Terry v. Ohio, 392 U.S. 1, 16 (1968) (permitting an investigative stop and frisk to verify or dispel the officer's reasonable, articulable suspicion of criminal activity). See also Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) ("If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed."). - 16 -

9

even if the arrest were illegal, the situation here was analogous to the execution of a facially valid but defective warrant; just as in the case of a defective warrant, the deputies were "merely following the order of a judicial authority." Therefore, the State

suggests that appellant was not entitled to resist, just as one cannot resist an arrest pursuant to a warrant. At trial, the State had the burden of proving that the arrest was lawful. It is undisputed that there was no warrant for Nor did appellant commit a crime in the

appellant's arrest.

presence of the deputies before they approached him with handcuffs. Thus, the legitimacy of the arrest necessarily depends on: (1) the authority of the master, express or implied, to order the seizure of a litigant under the circumstances attendant here or (2) the comparability of the situation here to an arrest pursuant to a facially valid but defective warrant, founded upon the deputies' good faith belief as to the master's authority to order appellant's arrest. We shall consider first whether the master had the

authority to arrest appellant. A. We recently observed that "the authority of the master[] is limited by the Maryland Rules and the statutes providing for the use of masters in domestic relations cases." Wise-Jones v. Jones,

____ Md. App. ____, No. 196, Sept. 1997 Term, slip. op. at 9 (filed Sept. 29, 1997). This suggests that the master's authority must

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derive either from a statute or a rule.

We look to Maryland Rules

9-207 and 2-541(c), which govern the powers of a domestic master. Pursuant to Rule 9-207(a)(1), matters of contempt for noncompliance are routinely referred by the clerk to a master "as of course," unless the circuit court directs otherwise. Rule 9-207(a)(1)

specifically authorizes a master to preside at a hearing regarding contempt for noncompliance with an order relating to the payment of alimony or child support. Further, Maryland Rule 9-207(b)

provides: "The master shall have the powers provided in Rule 2541(c) and shall conduct the hearing as provided in Rule 2-541(d)." In turn, Maryland Rule 2-541(c), states, in part, that a master has the power to regulate all proceedings in the hearing, including the powers to: (1) Direct the issuance of a subpoena to compel the attendance of witnesses and the production of documents or other tangible things; Administer oaths to witnesses; Rule upon the admissibility of evidence; Examine witnesses; Convene, continue, and adjourn the hearing, as required; Recommend contempt proceedings or other sanctions to the court; and Make findings of fact and conclusions of law.

(2) (3) (4) (5) (6) (7)

(Emphasis added).

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It is patently clear that the rules do not grant express power to a domestic master to hold a litigant against his will after a non-support hearing,10 although masters are authorized to conduct evidentiary hearings and to make findings of fact and

recommendations to the circuit court.

Indeed, even Master Patrick The

agreed that she lacked express authority to arrest appellant.

State is of the view, however, that the rules do not contain an exhaustive list of the master's powers. In addition to the

explicit powers conferred by Rule 2-541(c), the State asserts that the rule implicitly includes the power to detain, because such power is inherent in the authority conferred upon a master to "regulate all proceedings" at a hearing. It thus posits that the

master had implied authority, under Maryland Rule 2-541, to detain appellant for a reasonable period, pending judicial review of the master's recommendations. Therefore, we must determine if the

phrase "regulate all proceedings," as used in Rule 2-541(c), confers upon the master the power to hold someone in custody pending judicial review of a master's recommendation for immediate incarceration. As we set about to interpret the rule, we must apply the same standards of construction that apply to the interpretation of a

This omission contrasts with the authority of a juvenile court master. Pursuant to Md. Code (1974, 1995 Repl. Vol.),

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