Clark v. State

Jamel Clark v. State of Maryland No. 23, September Term 2020 Criminal Law – Sentencing – Merger of Convictions – Required Evidence Test. A conviction for the crime of possession of an assault weapon does not merge into a conviction for possession of a firearm by a convicted drug felon under the required evidence test, even though both convictions are based on possession of the same weapon. Maryland Code, Criminal Law Article, §§4-303, 5-622. Criminal Law – Sentencing – Merger of Convictions – Rule of Lenity.

The rule of lenity is used as a last resort when the ordinary tools of statutory construction do not enable the court to discern the legislative intent underlying the statutes under which the defendant was convicted. The rule does not apply to merge convictions for sentencing where the legislative history shows that the purposes behind the statutes differed. Criminal Law – Sentencing – Merger of Convictions – Rule of Lenity. The rule of lenity does not apply to the question whether a conviction for the crime of possession of an assault weapon merges into a conviction for possession of a firearm by a convicted drug felon, even when both convictions are based on possession of the same weapon, because the two statutes, as demonstrated by their text, context, and legislative history were intended to serve distinct purposes.

Maryland Code, Criminal Law Article, §§4-303, 5- 622. Circuit Court for Baltimore City Case No. 118250011 Argument: January 7, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 23 September Term, 2020 _____________________________________ JAMEL CLARK V. STATE OF MARYLAND _____________________________________ Barbera, C.J., McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Opinion by McDonald, J. ______________________________________ Filed: May 27, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-05-27 14:12-04:00 Suzanne C. Johnson, Clerk It is common for a defendant in a criminal case to be charged with multiple offenses based on the same facts. If the defendant is found guilty of more than one of those charges, the sentencing court must decide whether to merge the convictions for purposes of sentencing. A merger limits the sentence that the defendant can receive to the maximum sentence for the conviction that survives the merger.

This appeal is about whether convictions for two statutory offenses must be merged for purposes of sentencing under either the “required evidence test” or the “rule of lenity.” Although the impetus for merging convictions is rooted in the constitutional and common law prohibition against double jeopardy – the idea that a person should not be punished twice for the same crime – its application under the required evidence test and rule of lenity is an effort to discern legislative intent. Under the required evidence test, a court assesses the elements of the two crimes and discerns whether the legislature intended to allow or to prohibit consecutive sentences. The rule of lenity tells a court what to do when that effort comes up empty. In March 2018, an assault pistol allegedly belonging to Petitioner Jamel Clark, who had previously been convicted of a drug crime, was seized from his girlfriend’s home.

After a jury trial in the Circuit Court for Baltimore City, he was convicted of two offenses defined by separate statutes: (1) illegal possession of an assault weapon and (2) possession of a firearm by a person disqualified from possessing a firearm as a result of a prior felony drug conviction. The Circuit Court imposed the maximum sentence on each charge, to be served consecutively. The sufficiency of the evidence to support the jury’s verdict is not at issue in this appeal. The sole issue concerns Mr. Clark’s sentence.

He argues that the required evidence test, the rule of lenity, or both, compel the merger of his convictions for purposes of sentencing, and thus the consecutive sentence on one of the charges must be eliminated. The Court of Special Appeals rejected those arguments. For the reasons discussed below, we do as well. I Background A. The Investigation and Search On February 28, 2018, Mr. Clark was arrested in Baltimore City on charges related to trafficking in illegal drugs.

On March 6, 2018, while confined in pretrial detention, Mr. Clark called his girlfriend, Ashley McGregor, from a jail telephone on which inmate calls are monitored and recorded.1 During the call, Mr. Clark asked Ms. McGregor if she had moved his “stuff.” She told him that the “stuff” was still wrapped up as he had left it and that she had put it in a back closet on top of a Christmas tree box. Mr. Clark asked “But you can’t see it?” and Ms. McGregor responded “No.” A police detective involved in the investigation of Mr. Clark listened to the recorded jail call the next day. According to the detective’s testimony at the trial of this case, he has listened to hundreds of recorded jail calls. Based on that experience, the detective 1 Inmates are advised at the beginning of a call on such a phone that the call will be recorded and monitored. 2 concluded that the “stuff” that Mr. Clark and Ms. McGregor were discussing was likely to be contraband.

The detective applied for a warrant to search Ms. McGregor’s house. While carrying out the search authorized by the warrant, officers asked Ms. McGregor if there was “anything in the house that we need to know about.” She replied that there was a weapon in the basement on top of a Christmas tree box, and directed the officers to it. The officers recovered a .45-caliber Encom semiautomatic assault pistol. Ms. McGregor told the officers that Mr. Clark had brought the gun to her house.

The officers also recovered a box of ammunition for a .22 caliber firearm – apparently not for the semiautomatic pistol that they seized from the closet.2 B. Indictment, Trial, and Sentencing On September 7, 2018, Mr. Clark was indicted in the Circuit Court for Baltimore City on six charges related to possession of the firearm and ammunition. On March 29, 2019, at the outset of the trial, the State nolle prossed three of the counts. The case proceeded to trial on the remaining three counts – possession of a firearm by a person previously convicted of a felony involving a controlled dangerous substance in violation of Maryland Code, Criminal Law Article (“CR”), §5-622; possession of an assault weapon in violation of CR §4-303; and possession of ammunition in violation of Maryland Code, Public Safety Article (“PS”), §5-133.1. 2 In the Circuit Court, Mr. Clark moved to suppress evidence seized pursuant to the warrant. The Circuit Court denied that motion.

Mr. Clark has not appealed that ruling. 3 At trial, the State presented testimony of the police detective who had obtained, and helped execute, the search warrant, as well as the testimony of Ms. McGregor.3 The State also played excerpts of video from two officers’ body cameras, which had recorded the officers’ encounter with Ms. McGregor during execution of the warrant and the recovery of the gun. The firearm and ammunition were introduced into evidence. A stipulation between the prosecution and defense concerning Mr. Clark’s disqualification from possessing a firearm was admitted in evidence as an exhibit and read to the jury. It stated: The Defendant has been charged with the offense of possession of a firearm.

The parties hereby stipulate that the Defendant is prohibited from possession of a firearm because of a previous conviction that prohibits his possession of a firearm. The parties also stipulate that the firearm in question is classified as an assault pistol. The parties thus agreed that the gun in question was a “firearm” that also met the definition of “assault pistol.”4 3 At trial, Ms. McGregor stated that she had lied when the officers asked her about the source of the gun. She testified that the gun actually belonged to another friend who, unlike Mr. Clark, was not in jail at the time of the search and might have posed a threat to her and her young daughter. 4 Such stipulations are often used when a disqualified person is prosecuted for illegal possession of a firearm in order to avoid the possible prejudice that a defendant may incur if details of the basis for the disqualification – usually a prior conviction – are presented to the jury.

See Carter v. State, 374 Md. 693, 715-23 (2003). In this case, Mr. Clark was disqualified from possessing a firearm as a result of a 2005 felony conviction for distribution of a controlled dangerous substance in violation of CR §5-602. According to the trial transcript, in reading the stipulation to the jury, the prosecutor referred to the disqualification as a “condition” rather than a “conviction” – which may be a typographical or transcription error. In its jury instructions, the trial court 4 In closing argument, counsel focused on the question whether Mr. Clark had possessed the weapon.

After deliberating, the jury convicted Mr. Clark of the two remaining charges relating to possession of the weapon, but acquitted him of the charge concerning possession of ammunition. Mr. Clark was sentenced to the statutory maximums for both offenses to be served consecutively – five years for the violation of CR §5-622 and three years for the violation CR §4-303 – for a total of eight years imprisonment. C. Appeal Mr. Clark appealed. In the Court of Special Appeals, he argued that, for several reasons, the two convictions should merge for purposes of sentencing.

The intermediate appellate court rejected those arguments and affirmed his sentence. Clark v. State, 246 Md. App. 123 (2020). We granted Mr. Clark’s petition for a writ of certiorari to consider whether the two convictions should be merged for sentencing under either the required evidence test or the rule of lenity.5 noted that the State and Mr. Clark had stipulated that he had a prior disqualifying conviction. 5 Before the Court of Special Appeals, Mr. Clark also argued unsuccessfully that merger was required under the principle of fundamental fairness. See 246 Md. App. at 138-40 .

He has not repeated that argument before us. 5 II Discussion A. Standard of Review Merger of convictions based on the same set of facts under the required evidence test derives from the protection against double jeopardy afforded by the Fifth Amendment of the federal Constitution and by Maryland common law. Brooks v. State, 439 Md. 698, 737 (2014). In the case of the rule of lenity, merger is required to reach a fair result when the court cannot decipher legislative intent as to whether separate sentences are permitted. See Oglesby v. State, 441 Md. 673, 681 (2015).

In both cases, whether the convictions are to be merged poses a question of law that we review without deference to either the sentencing court or the intermediate appellate court. B. Whether the Convictions Merge Under the Required Evidence Test The Required Evidence Test Under the required evidence test,6 convictions of two charges based on the same facts merge for sentencing purposes when the two charges are effectively the same offense or when one of the charges is a lesser-included offense of the other – i.e., the lesser offense consists of the same elements as the other, but the other offense also requires proof of an additional element. See generally Nicolas v. State, 426 Md. 385 , 401–09 (2012). If each 6 The required evidence test is also known as the Blockburger test, in reference to a seminal Supreme Court decision that applied that test to determine whether convictions of two offenses amounted to one offense for which only a single penalty could lawfully be imposed.

See Blockburger v. United States, 284 U.S. 299 (1932). 6 offense contains an element that the other does not, then convictions of the two offenses do not merge under the required evidence test. State v. Lancaster, 332 Md. 385 , 391–92 (1993).7 And, even if it is concluded that the two offenses share the same elements under the required evidence test, the protection against double jeopardy, at least in the constitutional sense, does not require merger when the legislature intended to permit separate punishments for the two offenses. See Missouri v. Hunter, 459 U.S. 359 (1983). There is no question that Mr. Clark’s two convictions are based on the same underlying facts.

Accordingly, whether the convictions merge for sentencing under the required evidence test depends on a comparison of the elements of the two offenses. Comparison of Elements of the Two Offenses Mr. Clark was convicted of possession of an assault weapon in violation of CR §4- 303. That statute provides, in relevant part, that “a person may not … possess, sell, offer to sell, transfer, purchase, or receive an assault weapon.” CR §4-303(a)(2). The definition of “assault weapon” includes an assault pistol and, as the parties stipulated, the semiautomatic pistol model seized from Ms. McGregor’s home.

CR §4-301(c)(5), (d)(2). Mr. Clark’s other conviction was for possession of a firearm after having been convicted of a drug felony, in violation of CR §5-622(b)(1). For purposes of that statute, “firearm” includes: 7 Mr. Clark asserts that such legislative intent must be expressed in an explicit statutory anti-merger provision. However, as indicated later in the text of this opinion, neither the Supreme Court nor this Court has adopted such a rule. 7 (1) a handgun, antique firearm, rifle, shotgun, short-barreled shotgun, and short-barreled rifle, as those words are defined in §4-201 of [the Criminal Law] article; (2) a machine gun, as defined in §4-401 of [the Criminal Law] article; and (3) a regulated firearm, as defined in §5-101 of the Public Safety article.

CR §5-622(a). This definition encompasses assault weapons, as well as many other types of firearms. See PS §5-101(r) (definition of “regulated firearm” includes various assault weapons). Each of these two offenses includes an element that the other does not.

On the one hand, to prove a violation of CR §5-622(b)(1), the State must establish that the defendant was previously convicted of a drug felony, while CR §4-303(a)(2) does not require proof of a prior conviction. On the other hand, to prove a violation of CR §4-303(a)(2), the State must establish that the defendant possessed an assault weapon, while a violation of CR §5- 622 does not require proof that the particular firearm possessed by the defendant was an assault weapon. As the Court of Special Appeals succinctly noted, “while all assault weapons may be firearms, not all firearms are assault weapons.” 246 Md. App. at 134 . Thus, merger would not be required under a straightforward application of the required evidence test.

Nevertheless, Mr. Clark argues that, in the particular circumstances of this case, his violation of CR §4-303(a)(2) was a lesser-included offense of his violation of CR §5-622(b) because the same weapon satisfied both the “assault weapon” element of the former crime and the “firearm” element of the latter crime. That argument is based on the premise that 8 CR §5-622 is a “multi-purpose criminal statute.” In addition, he argues that the convictions merge because neither statute contains an express anti-merger provision. Multi-Purpose Criminal Statutes Mr. Clark relies on a prior decision of this Court that held that, in the circumstances of that case, a conviction of child abuse and a conviction of a sex offense should have been merged for purposes of sentencing. Nightingale v. State, 312 Md. 699 (1988).

The Nightingale decision was based on the understanding that the child abuse statute was a “multi-purpose criminal statute.” 312 Md. at 705 . Such a statute sets forth different modalities for committing the particular offense, which means that proof of the offense may involve different elements, depending on the particular modality. Therefore, when a court applies the required evidence test in a case involving a multi-purpose criminal statute, the court must consider the elements of the offense relevant to the particular case. E.g., Nicolas, 426 Md. at 403 (applying required evidence test in context of specific alternative modality of second-degree assault); Abeokuto v. State, 391 Md. 289, 353-55 (2006) (applying required evidence test in context of specific alternative elements of kidnapping and child kidnapping statutes).

For example, in Nightingale, the child abuse statute set forth two alternative ways for satisfying the “abuse” element of the offense – (1) physical injury as a result of cruel or inhumane treatment or (2) sexual abuse, regardless of any physical injury. 312 Md. at 9 703 & n.3. At the trials at issue in that appeal,8 the prosecution relied solely on the sexual abuse modality of the child abuse offense. Under those circumstances, this Court held that the defendants’ convictions of certain sexual offenses were effectively lesser-included offenses of their child abuse convictions and had to be merged for sentencing purposes under the required evidence test. Id. at 708 .9 The holding in Nightingale does not apply here because CR §5-622 is not a multi- purpose criminal statute.

In contrast to the statute in Nightingale, CR §5-622 does not set out different modalities — each with its own set of sub-elements — for committing the same offense. The list of firearms in CR §5-622(a) and the other definitions incorporated by reference is not an outline of different modalities, but simply an elaboration in tabular form of the definition of “firearm.” The definition of “firearm” in CR §5-622(a) encompasses more than 50 types or models of firearms that the term “includes.” Moreover, the General Assembly’s use of the word “includes” – as opposed to the word “means” – establishes that the list of types or models is not an exhaustive list of weapons that can satisfy the statute. The General Assembly