Armstrong v. State

WILNER, Judge. Lester Armstrong and Ronald Johnson, appellants, were convicted in the Circuit Court for Baltimore City of possession of marijuana with intent to distribute and unlawful transportation of a handgun. Johnson was sentenced to concurrent one-year terms of imprisonment. Armstrong was given five years for the marijuana offense and a concurrent term of ten years for the handgun violation.

Together, appellants raise four issues in this appeal: ²⁶ “1. Did the trial court err when it denied Appellants’ motions to suppress the evidence obtained from the automobile as the fruit of an illegal search? 2. Did the trial court err when it admitted evidence of the estimated street value of marijuana seized from the car? 3. Did the trial court err when it admitted evidence regarding the nature of hollow point bullets? 4.

Did the trial court commit plain error in its instruction to the jury on the crime of transporting a handgun?” Armstrong, alone, raises two additional questions: “5. Should Armstrong’s statement have been suppressed? 6. Did the trial court err when it sentenced Armstrong for the handgun offense as a recidivist?” We shall answer the last question in the affirmative and the rest in the negative. I. Suppression While working a plainclothes narcotics detail on the evening of February 6, 1985, officers Elmer Pennington and John Welker saw a Ford Mustang automobile pull out of an alleyway and almost strike their unmarked car.

They followed the Mustang, which was being driven in an erratic manner, and eventually caused it to be stopped by a marked police car. Pennington approached the passenger side of the Mustang, shined his flashlight into the vehicle, and noticed what appeared to be the butt of a handgun sticking out from underneath the front passenger seat. He asked the passenger, appellant Armstrong, to get out of the car. Pennington then informed the other officers of the presence of the handgun, whereupon Officer Welker asked the driver of the vehicle, appellant Johnson, also to step out of the car.

Neither appellant replied when asked by Officer Pennington if he owned the handgun, and both were then placed under arrest for a handgun violation. After making the arrest, the officers searched the Mustang. In addition to the fully-loaded handgun retrieved ²⁷ from under the passenger seat, a brown paper bag containing marijuana was recovered from underneath the driver’s seat, and a fully-loaded ammunition pouch, commonly referred to as a “speed strip,” was discovered in the glove compartment. Appellants contend that Officer Pennington’s shining of a flashlight into the interior of the stopped vehicle constituted an illegal search, and that the evidence thereafter seized from the vehicle should be excluded. 1 They argue that the use of artificial illumination for the purpose of conducting a search into areas that probably would not have been visible in natural light is illegal in the absence of probable cause.

In support of their claim, appellants assert that the position of the handgun underneath the passenger seat, combined with Armstrong’s body position in the passenger seat of the vehicle, indicate an attempt by him to create an area where he had a legitimate expectation of privacy. Unfortunately for appellants, they failed to present this argument to the trial court and therefore have waived their right to appellate review of it. Armstrong’s attack below was grounded on the notion that Pennington’s order to him to exit the vehicle amounted to an arrest for which there was no probable cause and that the search, conducted as an incident to the arrest, was equally invalid. Johnson, on the other hand, asserted that the gun was not discovered until after the search had begun and thus could not form probable cause for the search.

Neither argued that the illumination itself constituted a search. ²⁸ It is well-settled, of course, that, “where one objecting to the admission of evidence, although not requested by the court to state his grounds, goes ahead and delineates the specific grounds for his objection, he will be bound by those grounds and will ordinarily be deemed to have waived other grounds not mentioned.” von Lusch v. State, 279 Md. 255, 263 , 368 A.2d 468 (1977). See also, e.g., Brecker v. State, 304 Md. 36, 39-40 , 497 A.2d 479 (1985); Thomas v. State, 301 Md. 294, 328 , 483 A.2d 6 (1984), cert. denied, 470 U.S. 1088 , 105 S.Ct. 1856 , 85 L.Ed.2d 153 (1985). 2 II. Value of Marijuana During the course of his direct examination, Officer Pennington was asked what the “street value” was of the marijuana taken from the Mustang. Over Johnson's objection, Pennington stated that it was worth “[ajbout $500.” That forms the basis of the second complaint.

The answer is twofold. As to Armstrong, it is one of non-preservation. He neither objected to the question nor moved to strike the answer. As to Johnson, who argues that Pennington was not sufficiently qualified to render such an opinion, we simply disagree.

The record shows that Officer Pennington had nearly 12 years of service as a police officer—close to five years in Baltimore City and seven years in Concord, New Hampshire. Although not a full-time narcotics officer, he had occasionally been “detailed to work narcotics.” He was, as noted, on narcotics detail on the night he arrested appellants. In Fitzwater v. State, 57 Md.App. 274, 281 , 469 A.2d 909 (1984), we summarized the rule regarding expert opinion testimony thusly: “The Court of Appeals of Maryland has established the test for admissibility of expert testimony. That test is whether the jury can receive appreciable help from the ²⁹ particular witness on the subject____ The determination of whether the expert testimony will be of appreciable help and therefore admissible is within the sound discretion of the trial court____ The court’s exercise of that discretion will not be disturbed on appeal unless clearly erroneous____ A witness may be competent to express an expert opinion if he is reasonably familiar with the subject under investigation, regardless of whether special knowledge is based on professional training, observation, and/or actual experience---- A police officer possessing a special knowledge gained from a background of experience, in the discretion of the trial court, may be permitted to express an expert opinion in the area of that special knowledge.” (Citations omitted.) We find no abuse of discretion in allowing Officer Pennington to state his opinion of the value of the seized marijuana. 3 III.

Hollow Point Bullets Officer James Perry, a firearms examiner with the Baltimore City Police Department, was questioned by the State’s Attorney about the handgun and the five rounds of ammunition inside it which were seized. Two of the rounds were jacketed hollow point bullets. When asked to describe the purpose for which hollow point bullets were designed, Officer Perry testified, over Armstrong’s objection, that “[t]hey are designed so when they hit you, they smack, it gives you a greater knock down power.” Appellants now argue that the testimony was irrelevant and that the trial court erred in admitting it into evidence. Here again, the answer is a dual one.

Johnson, by neither objecting to the question nor moving to strike, has waived his right to appeal this issue. With regard to ³⁰ Armstrong’s complaint, although we agree that the relevance was, at best, tenuous, we think that the error, if any, was harmless beyond a reasonable doubt. See Johnson v. State, 292 Md. 405, 430 , 439 A.2d 542 (1982).

IV

Instruction Md.Code Ann. art. 27, § 36B(b), makes it a misdemeanor for any person to “knowingly transport any handgun ... in any vehicle traveling upon the public roads ... in this State.” It also states that “it shall be a rebuttable presumption that the person is knowingly transporting the handgun.” In its instructions on this offense, the court stated, “Now, the second charge is transporting a handgun. It is a crime to transport, that is to carry, a handgun on the public streets and highways of this State.” Appellants offered no objection to that instruction. Now, they complain about the omission of the word “knowingly,” asking us, pursuant to Md.Rule 4-325(e), to take cognizance of what they regard as plain error material to their rights. We shall decline the invitation.

If error at all, the omission was one that was both obvious and easily correctable had the matter been brought to the court’s attention. See Medley v. State, 52 Md.App. 225 , 448 A.2d 363 , cert. denied 294 Md. 544 (1982). Appellants have failed to preserve the point for appellate review. V. Armstrong’s Statement On May 27, 1985, as part of its “discovery” disclosures, the State informed appellants that neither of them had made a “statement or confession, oral or written, which is known to the State at the present time.” At the suppression hearing held on July 19, the State’s Attorney informed the court that he had just that morning learned from Officer Pennington of an oral statement made by Armstrong at or about the time of a bail hearing in District Court.

The prosecutor stated that he intended to offer the statement at trial and wanted a preliminary ruling on its ³¹ voluntariness. Armstrong, though denying that he had ever made the statement, objected on the dual grounds that the statement, if made, was involuntary and that the State had failed to make a timely disclosure of it, as required by Md.Rule 4-263. The court rejected those defenses and the statement was indeed placed into evidence at trial. The statement at issue concerns the handgun found in the car.

As noted, both appellants had denied any knowledge of the gun. Officer Pennington testified at the suppression hearing that, after Armstrong had been arrested and taken to the station house, he told Pennington that he had information concerning “some narcotics violations” in Baltimore and New York. Pennington told Armstrong that he “would give him a number and he could call our CID Narcotics Unit.” Pennington himself informed the CID Unit that Armstrong had been incarcerated and that he had some information about narcotics. Sometime later, apparently in connection with Armstrong’s bail hearing, Pennington saw Armstrong in the hallway of the District Court building.

He testified: “I initiated the conversation. I went up to him and asked him how he was doing. I also asked him if he was contacted by our CID Unit or if he had contacted them and he had said no, not at that point, and that’s when he told