Hallowell v. State

Panel: Wright, Shaw Geter, James R. Eyler, Senior Judge, Specially Assigned, JJ. Eyler, James R., J. ⁴⁹² Sean Prince Hallowell, appellant, was charged with second-degree murder and use of a firearm in the commission of a crime of violence. The State proceeded under both a specific- ⁴⁹³ intent theory as well as a felony-murder theory, and the jury was instructed, in accordance with Maryland law at the time of his trial, Roary v. State , 385 Md. 217 , 867 A.2d 1095 (2005), and without objection, that first-degree assault (an uncharged offense in this case) was a valid predicate felony for second-degree felony murder. The jury, sitting in the Circuit Court for Prince George's County, convicted appellant of both offenses, ⁶¹⁵ and he noted a timely appeal.

During the pendency of that appeal, the Court of Appeals overruled Roary , holding "that first-degree assault that results in the victim's death merges with the homicide and therefore cannot serve as an underlying felony" for second-degree felony murder. State v. Jones , 451 Md. 680 , 708, 155 A.3d 492 (2017). Appellant raises the following issues, which we have reordered for clarity 1 : I. Did the trial court err when it instructed the jury?

II

Did the trial court err when it denied appellant's motion to dismiss for a speedy trial violation?

III

Did the trial court err when it permitted the State to introduce a CAD [computer aided dispatch] report, when the report contained inadmissible hearsay? For the reasons that follow, we shall reverse the judgments and remand for further proceedings. BACKGROUND Taken in a light most favorable to the State, the evidence adduced at trial established the following: During the evening of February 7, 2013, appellant, Charles "Chucky" Thompson, Terrance "TJ" Stoney, and Gary "Big Man" Bishop gathered together at a friend's house 2 to consume ⁴⁹⁴ drugs and alcohol. Some of the partygoers were drinking alcoholic beverages, some were smoking "weed," and others were "drawing cocaine." As the party drew to a close, appellant, Thompson, Stoney, and Bishop left in separate cars.

Appellant was the first to leave, followed by Thompson, who was driving a bluish grey Chevrolet Malibu, and then Bishop and Stoney, who left together in Bishop's white Lexus. All of them ultimately reconvened outside of the home, in Forestville, Maryland, where appellant lived with his mother and sister as well as Gary Bishop. After appellant had left the party but before the others did, he called Bishop and asked him to retrieve a bag of cocaine that he had left in Thompson's car. Bishop asked Thompson to produce the cocaine, and Thompson gave Bishop a bag containing just "crumbs." Bishop informed appellant, who replied that he had given Thompson "a full bag" and that he would "be back." Appellant never returned to the party.

When Bishop and Stoney arrived outside of appellant's home, they were met by another friend, identified in the record only as "Daronte," who drove a gray Chevrolet Monte Carlo. Daronte was accompanied by another man, whom Bishop identified as Daronte's "cousin" or "little brother" and whom Stoney identified as "Marcus." As Daronte and Marcus sat in the Monte Carlo, Stoney stood outside the driver's side door, smoking marijuana with Daronte, while the trio watched a music video that Daronte was playing in his car. Bishop was also nearby, although Stoney was "not sure" where he was. At that time, Bishop's car was parked behind Daronte's Monte Carlo, with space between the two vehicles sufficient for another car. ⁶¹⁶ Thompson was the next to arrive, pulling up in his bluish grey Malibu and parking in the space between Daronte's Monte Carlo and Bishop's Lexus.

Shortly thereafter, appellant arrived, in a "black" car driven by an unidentified woman. Appellant exited the vehicle, walked over to Thompson's vehicle, and "pulled [him] out [of] the car." Thompson then approached ⁴⁹⁵ Bishop and asked him whether he had "[said] anything to his cousin about his cocaine." Before he could say anything else, appellant "grabbed" Thompson, "pulled [him] toward his chest," and "[s]hot him in the head" with a handgun. Appellant picked up Thompson, carried him to his Malibu, placed him in the back seat, climbed in the front seat, and drove away. Shortly thereafter, Officer Mosell Jones, Jr., of the Prince George's County Police Department, received a 911 call, informing him that there had been a report of shots fired in "the 2500 or 2600 block of Timbercrest Drive," near appellant's home.

When he arrived, Officer Jones encountered Bishop and Stoney, who gave conflicting accounts of whether there had been a shooting and from what direction, if any, the gunshots had been fired. "[J]ust after midnight" on February 8, 2013, Richard Peterson, a volunteer firefighter stationed at the nearby Ritchie Volunteer Fire Department, 3 was awakened by a ringing doorbell. Upon answering the doorbell, Peterson encountered a "black male," matching the description of appellant, "saying that there was somebody who needed our help," but he "wouldn't elaborate on what exactly was wrong." Peterson walked over to the fire truck, grabbed a flashlight and jacket and, accompanied by another firefighter, walked to the parking lot alongside the fire station. By that time, appellant, according to Peterson, was already across the street at a nearby 7-Eleven, having "made incredibly good time making his way down that way." Peterson and the other firefighters then discovered a Chevrolet Malibu, in the middle of the driveway, with its engine running and its headlights on, and all of its doors closed.

Upon further examination, they found the victim, Thompson, slumped in the rear, "suffering from a gunshot wound to the left temple." Thompson still "had a pulse but ... was not breathing spontaneously" when firefighters first discovered him slumped in the back seat of his ⁴⁹⁶ car. The emergency responders administered cardio-pulmonary resuscitation ("CPR") to him, but he did not respond and died shortly thereafter. When appellant approached the door of the fire station, he inadvertently dropped his wallet on the ground, and it was recovered about an hour later by Steve Wilson, a volunteer firefighter who was reporting to the station to begin his shift. Wilson notified the police, who identified appellant as a suspect in the murder.

On April 9, 2013, a grand jury returned a two-count indictment, charging appellant with murder in the first degree and use of a handgun in the commission of a crime of violence. A jury trial ensued, and on September 12, 2014, the jury acquitted appellant of murder in the first degree but failed to reach a verdict on the lesser included offense of murder in the second degree as well as the handgun charge. A mistrial was declared, and after three continuances, appellant was tried again, in April 2016. Following a three-day trial, the jury convicted him of murder in the second degree and use of a handgun in the commission of a crime of violence.

Upon receiving a sentence of thirty years' imprisonment for second-degree murder and a ⁶¹⁷ consecutive sentence of twenty years' imprisonment for use of a handgun in the commission of a crime of violence, appellant noted this timely appeal. Additional facts will be noted as pertinent to discussion of the issues. DISCUSSION I. A. Appellant argues that his conviction for second-degree murder must be reversed because the circuit court erroneously instructed the jury that first-degree assault could serve as the underlying felony for second-degree felony murder, and it cannot be determined from the jury's general verdict whether it found that he had committed second-degree specific-intent ⁴⁹⁷ murder or second-degree felony-murder. He then pivots to the conclusion that, because we must reverse his conviction for second-degree murder, the only crime of violence for which he was convicted, we must also reverse his conviction for the use of a firearm in the commission of a crime of violence.

Appellant argues that the objection made by his trial counsel, prior to the trial court's instructions to the jury, adequately preserved this claim for appeal. In the alternative, he argues that we should address his claim for plain error because it is grounded upon a conviction for what he terms a "non-existent crime." Appellant further argues that the court erred in giving a flight instruction, which, he maintains, was not generated under the facts of this case. Moreover, he asserts, because that purportedly unwarranted flight instruction "permitted the jury to infer guilt merely from the fact that" he left the scene, and the State's case otherwise rested "primarily" upon the testimony of two unreliable witnesses, that alleged instructional error was not harmless. Appellant also argues that the trial court erred in denying his motion to dismiss on the ground of a speedy trial violation.

According to appellant, the delay of eighteen months and twenty-two days in commencing his retrial was chargeable to the State, he "frequently and forcefully" asserted his speedy trial rights, and the lengthy pretrial incarceration to which he had been subjected caused him prejudice; the sum total of which, he contends, should have resulted in dismissal. Finally, appellant argues that the trial court erred in admitting a computer aided dispatch ("CAD") report because that report contained inadmissible hearsay. To the extent that the court below ruled that the CAD report was offered for a non-hearsay purpose, appellant argues that its probative value was substantially outweighed by its potential for unfair prejudice. B. The State concedes that appellant's second-degree murder conviction should be reversed (regardless of non-preservation) ⁴⁹⁸ but otherwise disagrees with appellant.

As for the conviction for use of a firearm in the commission of a crime of violence, the State argues that that conviction should stand. The State explains that although it may have been predicated upon a conviction for a crime of violence, second-degree felony murder, which cannot be sustained in light of Jones , the firearm conviction may nonetheless be sustained because the jury necessarily found that appellant had committed a crime of violence, either first-degree assault (the uncharged predicate felony) or second-degree specific-intent murder, and it is not required that the State charge the underlying crime of violence ⁶¹⁸ when charging illegal use of the firearm. 4 With respect to the flight instruction, the State argues that there was testimony that appellant had left the dying victim at a fire department station house, in the back seat of a car, and then left before any of the firefighters could speak with him. Under those circumstances, which, according to the State, could support "a reasonable inference of consciousness of guilt," a flight instruction was appropriate. With respect to the speedy trial claim, the State argues that the delays, though ultimately chargeable to the State, were neither negligent nor intentional, as they were primarily due to delays in procuring transcripts of the prior trial, as well as the necessity of bringing up to speed two new prosecutors who had taken over the case upon the resignation of their predecessors; consequently, the delays should not be weighed heavily against the State.

As for prejudice, the State points out that appellant concedes, in his brief, that he has not suffered any "actual prejudice." Accordingly, the State concludes that dismissal was not warranted, and the trial court did not err in denying appellant's motion to dismiss. ⁴⁹⁹ Finally, with respect to the alleged error in admitting the CAD report, the State argues that the report was offered "to establish for narrative purposes why officers acted as they did in pursuing the investigation," as well as "to establish the timing of events." Moreover, according to the State, the CAD report "was not more prejudicial than probative," and even if it were inadmissible, any error by the trial court in admitting it was harmless.

II

We first address whether appellant's claims of instructional error were preserved and conclude that only the claim concerning the flight instruction was preserved. We then consider his claim of plain error concerning the instruction for second-degree felony murder, as well as the effect of that error on the conviction for use of a firearm in the commission of a crime of violence. Finally, we address the merits of appellant's preserved claim concerning the flight instruction. A. Preservation After the close of all of the evidence, the parties discussed jury instructions.

Regarding the instructions for second-degree murder, the following colloquy took place: [THE STATE]: So, I believe the pattern instruction should be followed up into the point to convict the defendant of first degree assault. It shouldn't say to convict[ ], but to prove the defendant committed first degree assault, the State must prove, one, that the defendant intentionally caused serious physical injury to Charles Thompson and that the injury was not consented to or legally justified. Or two, that the defendant used a firearm and-I'm sorry. As I had typed it up, or to use a firearm to intentionally frighten Charles Thompson with the threat of immediate physical harm. ⁶¹⁹ And all of that should be a subsequent paragraph to the first four, just as it's shown in the pattern. ⁵⁰⁰ [DEFENSE COUNSEL]: And again from my position, Your Honor, the first degree assault by means of use of a handgun is not a predicate offense for [second] [ 5 ] degree felony murder.

That's why it's not in the pattern. That's why the pattern requires the other kind of first degree assault, the one that is an intentional causing of serious physical injury. So that's why we're objecting to using the instruction the State is now requesting. [THE STATE]: If the Court wants to leave it as is that's fine. I think then that the only thing that needs to change is the language to convict the defendant of first degree assault.

It should say to prove the defendant committed first degree assault since first degree assault. The court then engaged in an extended discussion with the prosecutor to clarify that she was not requesting a separate instruction for first-degree assault, because the pattern instruction for second-degree felony murder 6 contained an adequate instruction for first-degree assault. Thereafter, the court gave jury instructions for both second-degree specific-intent murder and second-degree felony murder, the latter substantially similar to Maryland Criminal Pattern Jury Instruction ("MPJI-Cr") 4:17.7.2 (Maryland State Bar Association 2012) 7 : ⁵⁰¹ All right, so, the defendant is charged with second degree murder. Second degree murder is the killing of another person with either the intent to kill or the intent to inflict such serious bodily harm that death would be the likely result.

Second degree murder does not require premeditation or deliberation. ⁶²⁰ In order to convict the defendant of second degree murder, the State must prove that the defendant caused the death of Charles Thompson and that the defendant engaged in the deadly conduct either with the intent to kill or with the intent to inflict such serious bodily harm that death would be the likely result. Second degree murder is also second degree felony murder, which does not require the State to prove that the defendant intended to kill the person who was killed. In order to convict the defendant of second degree felony murder, the State must prove that the defendant committed the crime of first degree assault, that the defendant killed Charles Thompson, and that the act resulting in the death of Charles Thompson occurred during the first degree assault. ⁵⁰² First degree assault requires the State to prove that the defendant intentionally caused serious physical injury to Charles Thompson and that the injury was not legally justified. For second degree felony murder, serious physical injury means injury that creates a substantial and foreseeable risk of death.

The defendant is also charged with the crime of use of handgun in the commission of a crime of violence. The crime of violence in this case is second degree murder. In order to convict the defendant, the State must prove that the defendant committed the crime of violence of second degree murder and that the defendant used a firearm or handgun in the commission of the crime of violence of second degree murder. Upon the conclusion of the jury instructions, the court convened a bench conference, where the following exchange took place: THE COURT: Satisfied with the jury instructions? [DEFENSE COUNSEL]: Yes. [THE STATE]: Yes, Your Honor. [DEFENSE COUNSEL]: As I noted, Your Honor, I object to the flight instruction.

I don't think it's been raised by the evidence in this case. THE COURT: Okay, thank you. Claims of instructional error are governed by Maryland Rule 4-325, which states in pertinent part: (e) Objection. No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.

Upon request of any party, the court shall receive objections out of the hearing of the jury. An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instructions, material to the rights of the defendant, despite a failure to object. ⁵⁰³ With respect to the second-degree felony murder instruction, trial counsel plainly did not object "promptly after the court instruct[ed] the jury," on the ground now raised in this appeal. Although, "if certain conditions are met, substantial compliance with Rule 4-325(e) may be sufficient to preserve arguments for appellate review even if the party fails to renew the objection on the record after the jury has been instructed," Horton v. State , 226 Md. App. 382 , 413-14, 130 A.3d 1002 (2016) (citing Gore v. State , 309 Md. 203 , 209, 522 A.2d 1338 (1987) ), those conditions have not been met here. Among those conditions are that "the objection must be accompanied ⁶²¹ by a definite statement of the ground for objection unless the ground for objection is apparent from the record," and "the circumstances must be such that a renewal of the objection after the court instructs the jury would be futile or useless." Gore , 309 Md. at 209 , 522 A.2d 1338 .

To understand the ground for objection raised below, it is helpful to examine the "Notes on Use" appended to MPJI-Cr 4:17.7.2. That note states in pertinent part: Use Part A of this instruction if the defendant is charged with second degree felony murder and the predicate felony is first degree assault under Md. Code Ann., Crim. Law I § 3-202 (a)(1) (2012). The first-degree assault statute, Criminal Law Article ("CL"), § 3-202, is a multi-purpose criminal statute.

There are two distinct ways in which a person may commit a first-degree assault: by "intentionally caus[ing] or attempt[ing] to cause serious physical injury to another," CL § 3-202(a)(1) ; or by "commit[ting] an assault with a firearm." CL § 3-202(a)(2). In Roary v. State , supra , 385 Md. 217 , 867 A.2d 1095 , upon which MPJI-Cr 4:17.7.2A is based, the first-degree assault at issue was the intent-to-cause-serious-physical-injury variety, Roary , 385 Md. at 230 , 867 A.2d 1095 , 8 and that case did not expressly ⁵⁰⁴ consider whether the other type of first-degree assault, involving the use of a firearm, could serve as a predicate felony for second-degree felony murder. Nor, for that matter, did MPJI-Cr 4:17.7.2 expressly address whether first-degree assault, involving the use of a firearm, may serve as a predicate felony for second-degree felony murder. When the prosecutor requested that the court modify the pattern instruction to include an instruction that first-degree assault, involving the use of a firearm, could also serve as a predicate felony for second-degree felony murder, appellant's trial counsel noted an objection.

Trial counsel made it clear that his objection was based upon the proposed deviation from the pattern instruction. Thereafter, the court adhered to the pattern instruction. Finally, when appellant's trial counsel entered an objection to the instructions as given, the only objection made was to the flight instruction, not to the second-degree felony murder instruction. Indeed, trial counsel had no basis to renew his previous objection to the second-degree felony murder instruction, because the court had acceded to his wishes.

Under these circumstances, appellant's present claim, that the court should not have instructed the jury, in accordance with the pattern instruction, that intent-to-cause-serious-physical-injury first-degree assault is a valid predicate felony for second-degree felony murder, was not preserved. B. Felony Murder Instruction In overruling Roary , the Court of Appeals advised: "The rule of law we announce today in this case regarding the use of willful injury as a predicate felony for felony-murder purposes shall be prospective only and applicable to this case and those cases not resolved finally on direct appeal ." Jones , 451 Md. at 696 , 155 A.3d 492 (emphasis added). Whether that represents a departure from ordinary principles of the prospective application of appellate decisions that change the common law is unclear. By way of comparison, in Price v. State , 405 Md. 10 , 949 A.2d 619 (2008), which announced a new common-law rule disallowing inconsistent verdicts in criminal jury trials, the Court stated: "Accordingly, with regard to the ⁵⁰⁵ instant ⁶²² case, similarly situated cases on direct appeal where the issue was preserved , and verdicts in criminal jury trials rendered after the date of our opinion in this case, inconsistent verdicts shall no longer be allowed." Id. at 29 , 949 A.2d 619 (emphasis added).

Accord Owens-Illinois, Inc. v. Zenobia , 325 Md. 420 , 469-70, 601 A.2d 633 (1992) (discussing the effective date of changes in the common law). Assuming that Jones did not depart from ordinary principles governing the prospective-versus-retroactive application of appellate decisions that change the common law, we shall review appellant's claim for plain error. Md. Rule 4-325(e). In Newton v. State , 455 Md. 341 , 168 A.3d 1 (2017), the Court of Appeals set forth the following framework for that analysis: Plain error review is reserved for those errors that are compelling, extraordinary, exceptional or fundamental to assure the defendant of a fair trial.

Before we can exercise our discretion to find plain error, four conditions must be met: (1) there must be an error or defect-some sort of deviation from a legal rule-that has not been intentionally relinquished or abandoned, i.e. , affirmatively waived, by the appellant; (2) the legal error must be clear or obvious, rather than subject to reasonable dispute; (3) the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the [trial] court proceedings; and (4) the error must seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings. Id. at 364 (citations and quotations omitted). Ordinarily, for an error to be "plain," it must have been plain at the time of trial. James v. State , 191 Md. App. 233 , 247, 991 A.2d 122 (2010) (observing that an "error would not be 'plain' unless it is wrong under current law") (citing United States v. Olano , 507 U.S. 725 , 734, 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) ).

The Supreme Court, however, has recognized an exception to that rule where, as here, "the law at the time of trial was settled and clearly contrary to the law at the ⁵⁰⁶ time of appeal," in which case "it is enough that an error be 'plain' at the time of appellate consideration." Johnson v. United States , 520 U.S. 461 , 468, 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997). The Court reasoned that were the rule otherwise, defense counsel would be obligated to "inevitably [make] a long and virtually useless laundry list of objections to rulings that were plainly supported by precedent." Id. Applying Johnson , we conclude that the felony murder jury instruction in this case amounted to plain error, although, in arriving at that conclusion, we certainly do not fault the trial judge, who was merely (and correctly) following what was, at the time of appellant's trial, settled Maryland law. Similarly, we do not fault trial counsel, who could not reasonably have been expected to object to the judge's decision to give the pattern instruction.

See , e.g. , Yates v. State , 202 Md. App. 700 , 724, 33 A.3d 1071 (2011) (recognizing that, when the law did not change during the pendency of appeal, the "use of a pattern jury instruction, without objection, weighs heavily against plain error review of the instructions given"). In any event, it is undisputed that the error affected appellant's substantial rights, as it created the distinct possibility that he was convicted of, in his words, a "non-existent crime," given that, on the record before us, we cannot determine whether the jury found appellant guilty of second-degree specific-intent murder or second-degree felony murder. Thus, we conclude that the error ⁶²³ seriously affected the fairness, integrity or public reputation of judicial proceedings. We acknowledge that our recognition of plain error is extraordinary.

We do so only after a careful consideration of substantial rights. See Garner v. State, 183 Md. App. 122 , 152, 960 A.2d 649 (2008), aff'd 414 Md. 372 , 995 A.2d 694 (2010) ("One must remember, however, that a consideration of plain error is like a trip to Angkor Wat or Easter Island. It is not a casual stroll down the block to the drugstore or the 7-11.") Accordingly, we exercise our discretion and reverse appellant's conviction for second-degree murder. Upon remand, the State is free to retry him for second-degree specific-intent murder. ⁵⁰⁷ C. Use of a Firearm in the Commission of a Crime of Violence We next address whether we should affirm appellant's conviction for use of a firearm in the commission of a crime of violence, notwithstanding that we are reversing his conviction for the underlying crime of violence, second-degree murder.

The Court of Appeals, in State v. Hawkins , 326 Md. 270 , 604 A.2d 489 (1992), examined the problem we face here: Under the law of this State, where there is a conviction for only one offense and an erroneous instruction on that offense, the judgment is ordinarily vacated and the case remanded for a new trial. However, where there are multiple offenses involved, as is the case here, the remedy for an error in the instructions on one of the offenses depends upon the degree to which the erroneous instruction taints each individual conviction. Id. at 290-91 , 604 A.2d 489 (citations omitted). Thus, we must determine "the degree to which the erroneous instruction" for second-degree felony murder "taint[ed]" appellant's conviction for use of a firearm in the commission of a crime of violence.

Use of a firearm in the commission of a felony or crime of violence is a statutory offense, defined by CL § 4-204, which provides in pertinent part: (b) A person may not use a firearm in the commission of a crime of violence, as defined in § 5-101 of the Public Safety Article, or any felony, whether the firearm is operable or inoperable at the time of the crime. The elements of that offense are (1) that a firearm was used by the defendant, and (2) that he used it in the commission of a felony or crime of violence. Hoffert v. State , 319 Md. 377 , 379-80, 572 A.2d 536 (1990). 9 ⁵⁰⁸ The latter element is actually a compound element, comprising a "definite, ascertainable and limited" number of felonies, ⁶²⁴ as well as those misdemeanors constituting crimes of violence under Public Safety Article ("PS"), § 5-101. State v. Ferrell , 313 Md. 291 , 300, 545 A.2d 653 (1988).

Thus, CL § 4-204 is a multi-purpose criminal statute, "embracing different matters in the disjunctive," and a court, in applying the required evidence test, "must examine the alternative elements relevant to the case at hand." Id. at 298 , 545 A.2d 653 (citation and quotation omitted). What that means for our purposes is that we must select the alternative element that was actually included in the jury instruction for the firearm offense-in this case, murder in the second degree. Thus, in the context of this case, the elements of the firearm offense were (1) that appellant used a firearm, and (2) that he used it in the commission of a murder in the second degree. 10 As the State points out, the firearm offense "is separate and distinct from the felony or crime of violence during the commission of which the [firearm] was used," and, therefore, "an individual on trial for the [firearm] charge does not necessarily need to have been separately accused of the commission of a felony or crime of violence in an additional count or indictment before he can be charged with or convicted of the crime established in [ CL § 4-204 ]." ⁵⁰⁹ Ford v. State , 274 Md. 546 , 551, 337 A.2d 81 (1975), overruled on other grounds by Price v. State , 405 Md. 10 , 949 A.2d 619 (2008). Accord Kohler v. State , 203 Md. App. 110 , 119, 36 A.3d 1013 (2012) (observing that it is not necessary "for the State to separately charge the defendant with the predicate felony" when charging felony murder) (citation omitted).

As the State further points out, the element undermined by our holding in this case, that the defendant used the firearm in the commission of a felony or crime of violence, was, arguably, found by the jury 11 : The general verdict, maintains the State, leaves only two possibilities for inferring what the jury necessarily found as to the disputed element of the firearm offense; the jury either found appellant guilty of second-degree specific-intent murder, or it found him guilty of second-degree felony murder. If it was the former, then it is obvious that the jury found the necessary part of the missing element, because second-degree specific-intent murder is both a felony and a crime of violence. But if it was the latter, then the jury necessarily found that appellant had committed a first-degree assault, as that was the only predicate felony on which the jury had been instructed as to felony murder, and first-degree assault is also both a felony and a crime of violence. Although the State's argument has superficial appeal, the difficulty is that it ignores that appellant was never actually charged with first-degree assault and, therefore, was not and could not have been convicted of that offense.

Indeed, upon vacatur of appellant's conviction for second-degree murder, he does not stand convicted of a predicate felony or crime of violence. In fact, the jury was instructed that, "[i]n order to convict [appellant]," the State was required to "prove that [he] ⁶²⁵ committed the crime of violence of second degree murder and that [he] used a firearm or handgun in the commission of the ⁵¹⁰ crime of violence of second degree murder." Accordingly, given that we are reversing appellant's conviction for second-degree murder, we shall also reverse his conviction for use of a firearm in the commission of a felony or crime of violence, a charge for which he may be re-tried upon remand. See , e.g. , Newton v. State , 280 Md. 260 , 274, 373 A.2d 262 (1977) (where the defendant had been convicted of two felonies and two use-of-handgun charges, and one of the felony convictions was vacated on grounds of merger, the Court also vacated one of the handgun convictions, reasoning that, as "only one felony has been committed, there can be only one judgment of conviction of use of a handgun in the commission of a crime of violence"); Williams v. State , 117 Md. App. 55 , 69-71, 699 A.2d 473 (where the defendant had been convicted of assault with intent to maim and use of a handgun in the commission of a felony or crime of violence, and the assault conviction was vacated because of an instructional error, the Court also vacated the use-of-handgun conviction), appeal dismissed , 347 Md. 253 , 700 A.2d 1214 (1997). See also Nottingham v. State , 227 Md. App. 592 , 612, 135 A.3d 541 (2016) (where the defendant had been convicted of misdemeanor manslaughter and three separate predicate offenses, and one of the predicate convictions was reversed because of an instructional error, the Court affirmed the manslaughter conviction, because the jury had convicted the defendant of two other valid predicate offenses, which were unaffected by the instructional error).

D. Flight Instruction We turn next to appellant's preserved claim that the circuit court abused its discretion in giving a flight instruction. Under "appropriate circumstances where the evidence supports an inference of consciousness of guilt," a trial court may give a flight instruction to a jury in a