Ford v. State

ROSALYN B. BELL, Judge. Robert A. Ford was convicted by a jury in the Circuit Court for Baltimore City of unlawfully carrying a handgun. At the conclusion of the trial, the court sentenced him to eight years imprisonment. On appeal, Ford raises two issues: 1.

The prosecutor’s closing argument was improper; and 2. The sentence was illegal. Baltimore City Officer Michael Vaughn was in a marked police car parked in the 2400 block of East Preston Street when a Toyota with four people in it passed him, traveling at a high rate of speed. Vaughn pursued the Toyota and followed it for three blocks.

During that time, he determined that the driver of the Toyota was exceeding the speed limit. Vaughn stopped the Toyota, but before he got out of his car, he radioed his dispatcher. He told the ³⁹⁴ dispatcher that he had stopped the Toyota and asked the dispatcher whether the car had been reported stolen. The dispatcher answered that the Toyota was not stolen. 1 After receiving this information, Vaughn got out of his car and approached the driver, Michael Green.

He asked Green for his driver’s license. Green did not have a license, so Vaughn asked Green to get out of the car. Vaughn began to write up a traffic citation, charging Green with speeding and driving without a license. Meanwhile, Officer Homer Pennington, another Baltimore City police officer, overheard Vaughn’s radio call.

Pennington was in his own police car a short distance from where the Toyota was stopped. He drove to the scene and arrived while Vaughn was writing the traffic citation. Pennington walked up to the Toyota and shined his flashlight into the back seat. Ford and Clinton Green were in the back seat.

Pennington saw a shiny handgun “sticking out partially under [Ford’s] foot.” Pennington immediately ordered the men out of the car and placed them under arrest. The officers then searched the car. They found a second handgun, some marijuana and drug paraphernalia. PROSECUTOR’S CLOSING ARGUMENT This issue concerns fingerprint evidence.

The police did not check the handguns for fingerprints and none of the witnesses made any mention of fingerprints during their testimony. Nevertheless, during his closing argument, defense counsel asked the jury to consider the fact that the State had not fingerprinted the handguns. Defense counsel asserted that, if the handguns had been fingerprinted, the police would not have found appellant’s fingerprints, but may have found fingerprints from the other men in the car. The prosecutor in rebuttal acknowledged that the guns had not been fingerprinted, but argued that “this is not the type of case that you are going to bother with finger ³⁹⁵ prints.” Defense counsel objected to this argument.

In doing so, counsel asserted that the prosecutor had the duty to place into evidence “the negative evidence of fingerprints.” He stated that, because the prosecutor had not submitted such evidence, his present argument amounted to impermissible testimony. The trial judge overruled defense counsel’s objections and permitted the prosecutor to pursue his argument. The prosecutor did so. In the course of his argument, he explained that the police search for fingerprints only “when they don’t know who committed the crime.” We are now asked to rule whether this argument was proper.

In order to do so, we must consider the law regarding the rights of the parties in a criminal case to comment upon the absence of an item of evidence. Such absent evidence may be termed “negative evidence.” Here, the negative evidence was the lack of fingerprint evidence. Two separate legal issues are present: the law regarding negative evidence and the law regarding closing argument. The Courts have only recently recognized the concept of negative evidence.

In Eley v. State, 288 Md. 548 , 419 A.2d 384 (1980), the Court of Appeals ruled that a defendant is entitled to comment on the fact that the State’s evidence contains an “unexplained silence concerning a routine and reliable method of identification especially in a case where the identification testimony is at least subject to some question____” Eley, 288 Md. at 555 , 419 A.2d 384 . It is important to note that the Court in Eley limited the use of a negative evidence argument to those situations where the absent evidence 1) could have been obtained by routine and reliable means; and 2) the State’s failure to offer it was unexplained. Thus, a negative evidence argument is appropriate only where it would be normal to expect that the State would present such evidence. In Bailey v. State, 63 Md.App. 594 , 493 A.2d 396 , cert. denied, 304 Md. 296 , 498 A.2d 1183 (1985), we ruled that a defendant could present evidence to show that a routine and ³⁹⁶ reliable means existed to secure some item of evidence and that no explanation had been offered as to why the State had not done so.

In other words, the defendant has the right to establish a foundation for a negative evidence closing argument. He is not, however, required, to offer any particular evidence to establish such foundation. He may rely simply upon the evidence presented and, if that evidence creates a negative evidence situation, he may make a negative evidence argument. If the State believes that the defense will present a negative evidence argument, the prosecutor may introduce evidence to explain why certain evidence was not secured.

Henderson v. State, 51 Md.App. 152 , 441 A.2d 1114 (1982). In sum, a defendant may attack the State’s case by arguing that the State has neglected to secure and/or present some item of evidence. The argument is proper, however, only if the absence is unexplained. One good explanation for not securing a particular item of evidence is that the fact which the evidence would tend to prove has been proven by better evidence.

Eley, 288 Md. at 553-54 , 419 A.2d 384 . The law regarding closing argument was set forth in great detail by Judge O’Donnell in Wilhelm v. State, 272 Md. 404 , 326 A.2d 707 (1974). There, Judge O’Donnell observed: “As to summation, it is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range.” Wilhelm, 272 Md. at 412 , 326 A.2d 707 . In the instant case, no mention of fingerprints was made at trial.

The defense gave no indication that it was going to make a negative evidence argument regarding the State’s failure to offer fingerprint evidence. Not surprisingly, the State made no attempt to offer evidence to explain why it ³⁹⁷ had no fingerprint evidence. Nevertheless, at the close of the case, defense counsel presented a negative evidence argument. The prosecutor rebutted the argument by saying that “this is not the type of case that you are going to bother with fingerprints” and “they will ... take fingerprints ... when they don’t know who committed the crime.” Appellant interprets these remarks as being an explanation of police procedures.

No one at trial testified about how the Baltimore City police handle fingerprints. Thus, according to appellant, the prosecutor’s remarks amounted to comment on facts not in evidence. Because the law prohibits counsel from commenting on facts not in evidence, appellant urges us to rule that the argument was improper. The prosecutor is entitled to rebut any defense argument.

Wilhelm, 288 Md. at 413 , 326 A.2d 707 . The argument at issue here is a negative evidence argument. In order for a negative evidence argument to be valid, the facts must show that there is no explanation for the absence of the evidence. The prosecutor was entitled to rebut appellant’s argument by arguing that an explanation did exist as to why the fingerprint evidence was not offered.

In doing so, however, he was entitled to comment only on the facts in evidence and the logical inferences which could be drawn from those facts. The evidence presented showed that appellant was found in a car with three other men. The handgun was found under appellant’s foot. The handgun was seized by the police, but they made no attempt to examine it for fingerprints.

The reasonable and legitimate inferences which could be drawn from this evidence are: 1. That appellant had the gun. 2. Whether appellant’s fingerprints were on the gun would not add to or detract from the State’s case. 3. Whether someone else’s fingerprints were on the gun would not detract from the State’s case. ³⁹⁸ We believe the prosecutor’s remarks must be read in the context of the trial.

Read in context, it is clear that the idea he was trying to convey to the jury was that there was an explanation as to why the State had not secured fingerprint evidence. The prosecutor’s explanation was that the fingerprint evidence was unnecessary because the fact which the fingerprints could prove—appellant was in possession of the handgun—had already been established by better evidence. From this we conclude that the prosecutor’s argument was based on legitimate inferences drawn from the facts in evidence. As such it was a proper argument.

SENTENCE Appellant also argues that his eight-year sentence for carrying a handgun was illegal because the State failed to give proper notice; and the State failed to prove that appellant had committed a predicate crime. —Notice— Section 36B of the Maryland Code establishes a penalty for unlawfully carrying a handgun. Md.Code Ann. Art. 27, § 36B (1957), 1982 Repl.Vol., 1987 Cum.Supp.). Section 36B(b)(i) provides a maximum sentence of three years for a first offender. Section 36B(b)(ii) provides for enhanced penalties for certain subsequent offenders.

The Court of Appeals, through its rule-making authority, has in Rule 4-245(c) established the procedures which must be followed when the State seeks a mandatory sentence such as is provided in § 36B(b)(ii). Armstrong v. State, 69 Md.App. 23, 33-36 , 515 A.2d 1190 (1986), cert. denied, 309 Md. 47 , 522 A.2d 392 (1987). Rule 4-245(c) reads: “Required Notice of Mandatory Penalties.—When the law prescribes a mandatory sentence because of a specified previous conviction, the State’s Attorney shall serve a notice of the alleged prior conviction on the defendant or counsel at least 15 days before sentencing in circuit ³⁹⁹ court or five days before sentencing in District Court. If the State’s Attorney fails to give timely notice, the court shall postpone sentencing at least 15 days unless the defendant waives the notice requirement.” 2 In King v. State, 300 Md. 218, 231 , 477 A.2d 768 (1984), the Court of Appeals said: “The purpose underlying the notice provision of the enhanced punishment statute is, and always has been, to inform a defendant fully of the nature of the State’s case against him in order that he may intelligently conduct his defense.” In King , the Court found that the notice was inadequate because it did not indicate the date of the prior conviction, the court in which the proceedings occurred, the statute under which the prior conviction was obtained, and the exact nature of the offense with which the defendant was charged.

King, 300 Md. at 231 , 477 A.2d 768 . Despite the inadequate notice, the Court held that the error was harmless beyond a reasonable doubt as the defendant was aware of the prior conviction which the State intended to rely upon to establish the defendant’s subsequent offender status. King, 300 Md. at 232 , 477 A.2d 768 . The defendant was neither surprised nor prejudiced by the inadequate notice.

In the case sub judice, more than 15 days before trial, the State served defense counsel with a document entitled “Notice of Additional Penalties.” The notice announced that the State intended to request the court to impose a sentence of up to 10 years. The notice also contained a notation that the State had evidence that appellant had been convicted of possession of a handgun on October 24, 1979. Finally, the notice incorrectly informed appellant that upon conviction ⁴⁰⁰ he faced additional penalties pursuant to § 36. 3 Appellant claims that the notice given by the State was grossly deficient. He argues that the alleged prior conviction—possession of a handgun—is a nonexistent and thus nonqualifying crime.

In addition, appellant claims that the notice failed to include any of the information required by the Rule with the exception of the date of the alleged prior conviction. While we agree with appellant that the State’s notice of enhanced punishment did not completely comply with Rule 4-245, we hold that the deficiency was harmless