Graham v. State

ADKINS, J. Paul Graham, appellant, was convicted by a jury in the Circuit Court for Baltimore City of wearing, carrying, or transporting a handgun and obliterating a manufacturer’s identification mark on a handgun. Appellant presents four questions for our review, which we have rephrased and reordered: I. Did the trial court err in refusing to instruct the jury on the defense of necessity?

II

Did the trial court err in instructing the jury that proof that the defendant possessed a weapon with an obliterated serial number was presumptive evidence that he obliterated that mark, without explaining that ⁴⁷⁰ such a rebuttable presumption did not shift the burden of persuasion to the defendant?

III

Was the evidence legally sufficient to sustain a conviction of obliterating an identification mark?

IV

Did the trial court err in permitting the State to engage in improper closing argument by telling the jury of the presumption? We find no error in the instructions on the wearing, carrying, or transporting charge, but conclude that the trial court did err in its instructions on the obliteration charge. We therefore affirm appellant’s conviction for wearing, carrying or transporting a handgun, and vacate appellant’s conviction for obliterating a manufacturer’s identification mark. We also find that if the jury had been properly instructed, there was sufficient evidence to convict appellant on the obliteration charge.

In light of our decision to vacate, we need not separately address appellant’s complaint about closing argument. FACTS AND LEGAL PROCEEDINGS Baltimore City Police Officer Scott Ripley testified that at approximately 12:25 a.m. on October 25, 2001, while he was riding in a marked police car in the 6200 block of Boston Street, he saw a man pointing a gun at another man and a woman. The woman was “lying on the ground face down” and the man had his hands up in the air and was moving “as if he was going to go down on the ground.” According to Ripley, the assailant was holding a dark blue steel .38 caliber revolver. As the officer was driving down the street, the assailant holding the gun looked at him, then turned and “took off running.” At trial, Ripley identified appellant as the man who had been holding the gun.

Ripley called for back up. He chased appellant, first by car, then on foot, for about six blocks, but lost sight of him in the 1200 block of Tennant Way. At times while appellant was running, the officer could see the gun in his hand. The last ⁴⁷¹ time the officer saw the gun was when appellant was turning onto Tennant Way.

Sergeant David Hendricks testified that when he was in the area of Elliott Street, Travers Way, and Toone Street, near Tennant Way, he saw Ripley running between buildings. After a brief conversation with Ripley, he and other officers began to canvass the area for appellant. Hendricks heard noise coming from some shrubbery. He shined his flashlight on the shrubbery and saw appellant.

After appellant came out of the shrubbery, Ripley arrived and identified appellant as the individual whom he had seen with the gun. Appellant was arrested. Ripley then returned to the 6200 block of Boston Street to find the man and woman at whom appellant had been pointing the gun, but they had left. Detective Frank Monday found a blue steel .38 caliber handgun under a bush at 1200 Tennant Way, about 25 feet from where appellant was found.

Hendricks retrieved the gun. According to Hendricks, the gun was distinctive because it was large-framed and short-barreled. Hendricks looked for the serial number on the gun, but was unable to find it. Hendricks handed the gun to Ripley.

At trial, Ripley said that he had seen appellant holding that gun. Ted Turner, a crime lab technician employed by the Baltimore City Police Department, testified that the gun was operable. He also said that when he received the gun, the serial number had been “scratched or obliterated,” explaining that it was “altered so that you could not clearly tell what the numbers were there.” We shall set forth additional facts as they pertain to our discussion of the issues. DISCUSSION I. Necessity Instruction After appellant was arrested, he explained to Detective Monday how he came to have the gun.

He told Monday that ⁴⁷² he had taken money out of his pocket because he was looking for bus fare. While he was counting his money, a man approached him and robbed him at gunpoint. A woman was with the man. Appellant grabbed the gun from the man to protect himself.

He ran because he was scared when he saw the police. Appellant’s tape-recorded statement was played for the jury. At trial, defense counsel told the jury in her opening statement that appellant’s defense was necessity. She said, “there was some physical force or circumstance that caused [appellant] to have the handgun at that time.” She recited the elements of a necessity defense in her opening.

When testimony concluded, defense counsel requested an instruction on “necessity,” as enunciated in State v. Crawford, 308 Md. 683, 698-99 , 521 A.2d 1193 (1987). The trial court gave the pattern instruction on duress instead. Appellant contends that the trial court erred in refusing to give the necessity instruction. The State counters, first, that the record on appeal does not include the actual instruction that appellant requested, and second, that appellant did not specifically request the necessity instruction.

In addition, the State maintains that it was not error for the trial court to use the duress instruction to instruct the jury. A. Failure To Include Instruction In The Record At trial, defense counsel told the trial court that she had given a request for an instruction on necessity to the court’s law clerk. When the court commented that it was a pattern jury instruction, defense counsel explained, “It’s in the notes. It’s under that rule of duress.” In the comment to the Maryland criminal pattern jury instruction for duress, the committee discusses the relationship between duress and necessity.

See MPJI-Crim. 5:03 (2001). Quoting Crawford, 308 Md. at 698-99 , 521 A.2d 1193 , the comments set out the five elements of a necessity defense ⁴⁷³ listed by the Crawford Court, which are the same factors that defense counsel listed in her opening statement. After the court gave the pattern instruction on duress, defense counsel excepted, saying that she had asked for the necessity instruction. The trial court responded that “[t'lhe necessity exception is really the duress instruction.” Defense counsel then asked that a copy of the necessity instruction be marked as an exhibit and included in the court’s file, which it was.

In these circumstances, the record does include the instruction that defense counsel requested, and the exception was preserved for our review. B. Merits Md. Rule 4-325(c) provides that “[t]he court may, and at the request of any party shall, instruct the jury as to the applicable law[.]” Upon request, the trial court is required to give an instruction that correctly states the applicable law if it has not been fairly covered in other instructions. See State v. Martin, 329 Md. 351, 356 , 619 A.2d 992 , cert. denied, 510 U.S. 855 , 114 S.Ct. 161 , 126 L.Ed.2d 122 (1993); Mack v. State, 300 Md. 583, 592 , 479 A.2d 1344 (1984). If the requested instruction is fairly covered by the instructions actually given, however, it need not be given.

See Grandison v. State, 341 Md. 175, 211 , 670 A.2d 398 (1995), cert. denied, 519 U.S. 1027 , 117 S.Ct. 581 , 136 L.Ed.2d 512 (1996). Defense counsel requested the following necessity instruction: Necessity is a valid defense to the crime of unlawful possession of a handgun when five elements are present: (1) the defendant must be in present!,] imminent, and impending peril of death or serious bodily injury, or reasonably believe himself or others to be in such danger; (2) the defendant must not have intentionally or recklessly placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct; ⁴⁷⁴ (3) the defendant must not have any reasonable, legal alternative to possessing the handgun; (4) the handgun must be made available to the defendant without preconceived design; and (5) the defendant must give up possession of the handgun as soon as the necessity or apparent necessity ends. The duress instruction that the trial court gave instead was: You’re instructed of the following, is that there will be claimed or argued, if you will, or that evidence before you has been heard[,] that the defendant acted under the influence of a overpowering force. This is called “duress.” Duress will excuse an act that would otherwise be criminal.

You’re required to find the defendant not guilty if all of the following four factors are present: (1) that the defendant actually believed that duress placed him in immediate and impending danger of death or serious bodily harm; (2) that the defendant’s belief was reasonable; (3) that the defendant had no reasonable opportunity for escape; and (4) that the defendant committed the crime because of the duress. The defense of duress is not established by proof that the defendant had been threatened with violence at an earlier time, but must have been under a present threat at the time of the actual commission of the crime charged. According to the Maryland pattern jury instruction comment, necessity is not listed as a separate instruction because of the interrelationship between duress and necessity. See MPJI-Crim. 5:03 & cmt.

The comment explains that duress is the result of pressure by a person, and necessity is the result of pressure from circumstances. The “Notes on Use,” indicate that the trial court should use the duress instruction “if the defendant is charged with an offense other than escape, murder or assault with intent to murder and there is an issue of excuse generated by evidence of duress or necessity.” Id. ⁴⁷⁵ The instruction that the court gave was sufficiently broad that, if the jury believed appellant, it could have found him not guilty of possessing a handgun. If the jury believed appellant’s claims that the couple threatened him using the gun, the jury would have applied this instruction to reach a not guilty verdict. The trial court did not err in failing to give the necessity instruction that appellant sought.

Citing Crawford as reason to reverse, appellant contends that his version of events, “which was far more straightforward and likely than Crawford’s, clearly generated the defense of necessity.” In Crawford , however, the problem was not that the trial court gave the duress instruction, rather than the necessity instruction, but that the trial court gave no necessity or duress instruction at all. See Crawford, 308 Md. at 691 , 521 A.2d 1193 . Here, the trial court recognized that necessity was a valid defense and gave an appropriate instruction.

II

Instructions On “Presumptive Evidence” Of Obliteration Appellant contends that his conviction for obliterating an identification number on the handgun must be vacated. He argues that the trial court’s instructions unconstitutionally permitted the jury to conclude that a statutory presumption that a person who possesses a gun with an obliterated serial number is the person who obliterated the mark, shifted the burden of proving that he obliterated the mark from the State to the appellant. The error, he contends, was that the court refused defense counsel’s request that it “explain to the jury what ‘rebuttable’ means.” The State counters that the trial court correctly instructed the jury that the presumption was rebuttable. It asserts that “the presumption is not ‘mandatory’ and the presence of a rebuttable presumption does not alter the prosecution’s burden of proof of guilt beyond a reasonable doubt.” For that reason, the court did not abuse its discretion in refusing to define the term “rebuttable.” ⁴⁷⁶ A. The Jury Instructions When the trial court instructed the jury regarding the charge of obliterating the identification mark, it stated: In this case, the second charge is whether or not the defendant, Paul Graham, did obliterate from the gun, remove or change or alter, the manufacturer’s identification mark on the firearm, whether from the evidence beyond a reasonable doubt it proves that the defendant here in court, as charged, did, in fact, cause the obliteration, removal of the identification mark from the said firearm.

Although the trial court had not told the jury about the statutory presumption, the prosecutor was permitted to argue it in his closing. He advised jurors that, “[ujnder the law in the State of Maryland, a person in possession of a handgun with an obliterated serial number is presumed to be the person who obliterated the serial number.” Defense counsel objected, but the trial court overruled that objection. After both counsel had completed their closing arguments, the trial court told the jury: Ladies and gentlemen of the jury, Madam Forelady, you have heard in argument as to what the law is. The Court instructs you that obliterating a firearm is under Article 27, Section 444.

It reads, as follows: “It shall be unlawful for anyone to obliterate, remove, change, or alter the manufacturer’s identification mark or number on any firearm. Whenever on trial for a violation of this section the defendant is shown to have or have had possession of any such firearm, such fact shall be presumptive evidence that the defendant obliterated, removed, changed or altered the manufacturer’s identification mark or number.” The Court further instructs you that the word “presumption” is a rebuttable presumption and that must be reviewed as to the evidence as before you. (Emphasis added.) ⁴⁷⁷ At a bench conference, the court denied defense counsel’s request for an explanation of “what ‘rebuttable’ means!,]” and noted her exception for the record. B. Jury Instructions Regarding Evidentiary Presumptions And Inferences “Inferences and presumptions are a staple of our adversary system of factfinding” because they are “often necessary for the trier of fact to determine the existence of an element of the crime—that is, an ‘ultimate’ or ‘elemental’ fact—from the existence of one or more ‘evidentiary’ or ‘basic’ facts.” County Court of Ulster County v. Allen, 442 U.S. 140, 156 , 99 S.Ct. 2213, 2224 , 60 L.Ed.2d 777 (1979).

These “staples” are not without important constitutional limits, however. “[I]n criminal cases, the ultimate test of any device’s constitutional validity in a given case remains constant: the device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Id. The Supreme Court has made it clear in a series of cases that, regardless of whether an evidentiary presumption or inference is constitutional on its face, jury instructions regarding such a presumption or inference can be unconstitutional. The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” This “bedrock, ‘axiomatic and elementary’ [constitutional] principle,” prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.... The question ... is ... “whether the challenged jury instruction had the effect of relieving the State of the burden of proof ... on [a] critical question!,]” ... by creating a mandatory presumption!.] ⁴⁷⁸ Francis v. Franklin, 471 U.S. 307, 313 , 105 S.Ct. 1965, 1970-71 , 85 L.Ed.2d 344 (1985) (citations omitted); see Sandstrom v. Montana, 442 U.S. 510, 520-24 , 99 S.Ct. 2450, 2457-59 , 61 L.Ed.2d 39 (1979); County Court of Ulster County, 442 U.S. at 157-63, 99 S.Ct. at 2224-28 (1979); Mullaney v. Wilbur, 421 U.S. 684, 698-701 , 95 S.Ct. 1881, 1889-91 , 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068, 1072 , 25 L.Ed.2d 368 (1970).

To answer that question, courts must examine the specific language of the challenged instruction. See Franklin, 471 U.S. at 315 , 105 S.Ct. at 1971 . If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves that State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption.

This analysis “requires careful attention to the words actually spoken to the jury ..., for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” Id. (quoting Sandstrom, 442 U.S. at 514 , 99 S.Ct. at 2454 ) (citation omitted). In these instruction cases, “[t]he federal constitutional question is whether a reasonable juror could have understood the [challenged language in the instruction] as a mandatory presumption that shifted to the defendant the burden of persuasion on the [contested] element ... once the State had proved the predicate acts.” Id., 471 U.S. at 316 , 105 S.Ct. at 1972 . In Sandstrom v. Montana, 442 U.S. at 523-24, 99 S.Ct. at 2459 , the Supreme Court explained that jury instructions are unconstitutional when a reasonable juror might understand them to create either an irrebuttable presumption, or to create a mandatory but rebuttable presumption that shifts the bur ⁴⁷⁹ den of persuasion on any element of the offense to the defendant. 1 Sandstrom confessed to killing a young woman, but argued that his personality disorder, aggravated by alcohol consumption, prevented him from doing so “purposely or knowingly.” Id., 442 U.S. at 512, 99 S.Ct. at 2453.

The trial court instructed the jury that a competent person’s acts are presumed to be the product of