Hicks v. State

KEHOE, J. A jury sitting in the Circuit Court for Prince George’s County convicted Myron Xavier Hicks, appellant, of possession of a firearm after a felony conviction, possession of a regulated firearm after a conviction for a disqualifying crime, and possession of a regulated firearm after conviction for a crime of violence. The jury acquitted appellant of carrying a handgun, transporting a handgun on a roadway, of obliterating ¹¹⁵ the identification number of a firearm, and of resisting arrest. 1 The sentencing court imposed a five-year term of incarceration, without parole, for each conviction, with the terms to run concurrently. Appellant presents three questions for our review, which we quote: 1. Did the lower court err in denying appellant’s motion to suppress the firearm? 2.

Did the trial court err in allowing the jury to return inconsistent verdicts? 3. Did the trial court err in denying appellant’s motion to reconsider the prior motion for judgment of acquittal? For the reasons that follow, we shall affirm the judgments below. BACKGROUND The following facts were adduced at a suppression hearing held on August 24, 2007.

On April 25, 2007, Officer Noah Waters and Officer Kevron Gottlieb, of the Prince George’s County Police Department, were working a “special overtime assignment” in Oxon Hill. About 11:02 p.m., the officers observed a blue four-door sedan parked at the gas pumps of a Shell gas station located at Wheeler Road and Southern Avenue. Two people occupied the vehicle: a driver, later identified as Milton Lee Jennings, and appellant, who was seated in the front passenger seat. The vehicle was not running, its lights were off, and the occupants were not pumping gasoline.

The officers observed the vehicle and its occupants, who remained sitting in the car, for about 15 minutes. 2 ¹¹⁶ Officer Waters then observed Jennings get out of the vehicle. He testified that “another person approach[ed] him, they didn’t have conversation, and it appeared to be a hand-to-hand—... There was no conversation. I observed the gentleman approach [Jennings] and exchange and just walk away.” 3 Officer Waters testified that he had been trained in the “recognition of drug transactions” and had been involved in many drug arrests.

His testimony continued as follows: [STATE]: Describe the hand-to-hand. What were the things that you were taught in your training that were the characteristics of a hand-to-hand transaction? ****** WATERS: Usually, it’s a manner that is obscured, so you really don’t see what item is being exchanged. It is not a customary handshake that I guess we’re used to, but it’s an action with the palms touching palms and sliding through. [STATE]: What, if any, items in this case did you see exchanged? WATERS: I did not see what item was exchanged.

I just saw the activity which was suspicious to me. ****** [STATE]: Do you have any experience working in this area itself of Wheeler Road and Southern Avenue? WATERS: Yes, sir, that is my assigned area. [STATE]: How long have you worked in that particular area. WATERS: Approximately two years. [STATE]: Based on your experience, can you describe that area? WATERS: There’s a lot of drug activity in that area.

After observing the “hand to hand,” Officers Waters and Gottlieb, both in uniform, approached the vehicle without guns ¹¹⁷ drawn. Officer Waters asked Jennings what they were doing and “what did you just exchange with the gentleman that walked away.” 4 Officer Waters directed Jennings to remove the car keys, which he then placed on the roof of the vehicle, “ordered” him to produce identification, and “ordered him out of the vehicle.” He then did a “pat down” of Jennings for “officer safety.” Officer Waters was also “looking for what [he] felt would be the result of a drug transaction.” He did not, however, find any drugs, drug paraphernalia, or weapons on Jennings. After Officer Waters completed his pat down of Jennings, Officer Gottlieb “ordered” appellant out of the vehicle “and he stepped out.” Officer Gottlieb described what happened next: GOTTLIEB: I positioned [appellant] with his face away from me towards the car, and told him ... to interlock his fingers and put his hands over his head and he didn’t do it. He said, you know, “I ain’t done nothing, why are you messing with me,” and started to turn towards me a little bit and I was pushing him back towards the car and asked him to do it again.

He said, “I ain’t done nothing.” And he was looking back towards me. I just attempted to control him. And at one point he threw his right elbow back at me, missed, and got on the grass and ran toward the back of the car. I ran after him and caught up to him at the back of the car, pulled him to the ground, and Officer Waters came over and assisted and he was, basically, fighting us, elbowing us, trying to get away from us.

At one point I said,[“ Wou’re under arrest for assault, stop resisting.1”1 And he continued to struggle until we got control of his wrist and were able to handcuff him. $ $ $ $ $ * ¹¹⁸ [STATE]: Once you had gotten the defendant on to the ground, what, if anything, did you do? GOTTLIEB: After we got him down on the ground and we got him handcuffed, then he was under arrest, and I got him up in order to search him before transporting him. At one point I reached into his right front pocket and I pulled out a black handgun and it turned out to be a Davis Industries .380 automatic handgun. We cleared it for safety reasons.

It had a round in the chamber and two in the magazine. [STATE]: Why did you place him under arrest? GOTTLIEB: Because he assaulted me and he assaulted Officer Waters. Officers Waters and Gottlieb were the only witnesses at the suppression hearing. Defense counsel argued that the handgun recovered from appellant should be suppressed because the police did not have probable cause or a reasonable articulable suspicion justifying the stop and frisk of appellant.

The court denied the motion, stating: THE COURT: All right. As both sides know, I have to look at the totality of the circumstances. When [the driver] and the defendant, Hicks as a passenger, were sitting at a gas station for 10 to 15 minutes ... not purchasing gas, just sitting there, and then somebody comes up and one of the officers observes what appears to him by his training and experience [to be] a hand-to-hand transaction, that is reasonable articulable suspicion to investigate. What you’re overlooking, [defense counsel], is the fact that they’re sitting there at a gas pump for 10 to 15 minutes doing nothing.

That is not [sic] in a high drug area. As far as this member of the bench is concerned, that certainly gives them reasonable articulable suspicion to investigate. That’s not what, generally, persons do, sit at a pump and not get gas. Once they go to investigate it, the officer does have the right to ask the passengers to get out of the car.

And once they’ve asked them to get out of the car, they do have the ¹¹⁹ right to search for weapons. For officer safety, the officer does have the right to detain Mr. Hicks temporarily and do a pat down search. When Mr. Hicks decides he wants to resist and starts elbowing the police officer, he is then arrested for assault. Once he’s placed under arrest for unlawful assault, they certainly have the right to do the search.

When doing the search, they find out that he has a revolver on him. Motion to suppress is denied. Additional facts will be provided as needed for a discussion of the issues. DISCUSSION I The Motion to Suppress the Handgun Appellant contends that the trial court erred in denying the motion to suppress the handgun.

Specifically, appellant claims that, even if Officer Waters observed what he thought was a hand-to-hand transaction outside the vehicle between Jennings and a third person, that “could not provide the required individualized suspicion to stop and frisk appellant.” Moreover, he asserts that, “by the time of appellant’s frisk, [Jennings] had already been searched and nothing had been discovered,” and thus any “reasonable suspicion to initiate an investigatory stop ... was dispelled once the initial contact and search of [Jennings] yielded nothing.” Appellant further maintains that Officer Gottlieb “had no right to restrict [his] freedom to leave the scene and certainly had no right to tackle [him] when he chose to leave,” and thus, he was “entitled to resist an unlawful arrest.” The State counters that the trial court did not err in finding that the police had a reasonable, articulable suspicion to conduct a stop and frisk, but, even assuming it was not reasonable, appellant’s “assault on the officer during his resistance to the stop and frisk was not privileged and provided probable cause for his arrest.” Thus, the State asserts that the trial court properly denied the motion to suppress the ¹²⁰ handgun as it was the fruit of a lawful search incident to a lawful arrest. When determining whether a detention or search of an individual’s person or property violates the Fourth Amendment, we “ ‘make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.’ ” Crosby v. State, 408 Md. 490, 505 , 970 A.2d 894 (2009) (quoting State v. Williams, 401 Md. 676, 678 , 934 A.2d 38 (2007)). However, our assessment is performed within certain limitations. First, we look only to the record of the suppression hearing.

Owens v. State, 399 Md. 388, 403 , 924 A.2d 1072 (2007), cert. denied, - U.S. -, 128 S.Ct. 1064 , 169 L.Ed.2d 813 (2008); Paulino v. State, 399 Md. 341, 348 , 924 A.2d 308 (2007) (citing Carter v. State, 367 Md. 447, 457 , 788 A.2d 646 (2002)), c ert. denied, 552 U.S. 1071 , 128 S.Ct. 709 , 169 L.Ed.2d 571 (2007). Second, we defer to “the findings of the motions court as to first-level findings of fact and as to the credibility of witnesses, unless those findings are clearly erroneous.” Brown v. State, 397 Md. 89, 98 , 916 A.2d 245 (2007). Finally, “ ‘we view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion____’” Owens, 399 Md. at 403 , 924 A.2d 1072 (quoting State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439 (2003)). The Fourth Amendment 5 to the United States Constitution protects against unreasonable searches and seizures, “including seizures that involve only a brief investigative detention.” Crosby, 408 Md. at 505 , 970 A.2d 894 (citations omitted). “The default rule requires that a seizure of a person by a law-enforcement officer must be supported by probable cause, and, absent a showing of probable cause, the seizure violates the Fourth Amendment.” Id.

There are exceptions. “ ‘A police ¹²¹ officer who has reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime may detain that person briefly in order to investigate the circumstances that provoked suspicion.’ ” Id. at 506 , 970 A.2d 894 (quoting Nathan v. State, 370 Md. 648, 660 , 805 A.2d 1086 (2002) and citing Terry v. Ohio, 392 U.S. 1, 17 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)). Reasonable suspicion “ ‘has been defined as ... a particularized and objective basis for suspecting the particular person stopped of criminal activity----’” Crosby, 408 Md. at 507 , 970 A.2d 894 (quoting United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981) and Stokes v. State, 362 Md. 407, 415 , 765 A.2d 612 (2001)). In Crosby , the Court of Appeals explained: First, reasonable suspicion is a “common sense, nontechnical conception that considers factual and practical aspects of daily life and how reasonable and prudent people act.” Bost v. State, 406 Md. 341, 356, 958 A.2d 356 (2008) (quoting Stokes, 362 Md. at 415 , 765 A.2d 612 ). While the level of required suspicion is less than that required by the probable cause standard, reasonable suspicion nevertheless embraces something more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry, 392 U.S. at 27 , 88 S.Ct. 1868 .

Second, a court’s determination of whether a law enforcement officer acted with reasonable suspicion must be based on the totality of the circumstances. Bost, 406 Md. at 356 , 958 A.2d 356 . Thus, “the court must ... not parse out each individual circumstance for separate consideration.” Ransome v. State, 373 Md. 99, 104 , 816 A.2d 901 (2003). As recently articulated by the Fourth Circuit, “context matters: actions that may appear innocuous at a certain time or in a certain place may very well serve as a harbinger of criminal activity under different circumstances.” United States v. Branch, 537 F.3d 328, 336 (2008). . . .

In making its assessment, the court should give due deference to the training and experience of the law enforcement officer who engaged the stop at issue. Ransome, 373 Md. at 104-05 , 816 A.2d ¹²² 901. Such deference “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them.” [United States v.] Arvizu, 534 U.S. 266, 273 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002). To be sure, “[a] factor that, by itself, may be entirely neutral and innocent, can, when viewed in combination with other circumstances, raise a legitimate suspicion in the mind of an experienced officer.” Ransome, 373 Md. at 105 , 816 A.2d 901 .

Third, the reasonable suspicion standard carries limitations; it “does not allow [a] law enforcement official to simply assert that innocent conduct was suspicious to him or her.” Bost, 406 Md. at 357 , 958 A.2d 356 . Rather, the officer must explain how the observed conduct, when viewed in the context of all of the other circumstances known to the officer, was indicative of criminal activity____As this Court observed previously, we shall not “ ‘rubber stamp’ conduct simply because the officer believed he had the right to engage in it.” Ransome, 373 Md. at 111 , 816 A.2d 901 . In other words, there must be an “articulated logic to which this Court can defer.” United States v. Lester, 148 F.Supp.2d 597, 607 (D.Md.2001). Id. at 507-09 , 970 A.2d 894 (Some internal citations omitted).

In the case before us, we hold that the suppression court did not err in denying the motion to suppress the handgun. We perceive no error in the suppression court’s conclusion that Officers Waters and Gottlieb reasonably suspected that criminal activity may have been afoot and that this suspicion was sufficient to support the investigatory detention of Jennings and appellant. Jennings’ vehicle was parked for about 15 minutes in front of fuel pumps, but with no indication that the occupants were buying gasoline. The officers knew that the area was known for “a lot of drug activity.” It was late at night.

Officer Waters observed Jennings exit his car, engage in what he believed, based on his training and experience, to be a “hand to hand” drug transaction. There was no conversation between Jennings and the pedestrian and Jennings immediately returned to his vehicle. The totality of ¹²³ these circumstances support a reasonable suspicion of drug-related activity and the officers properly detained Jennings and appellant, who had been sitting in Jennings’ vehicle for at least 15 minutes, for the purpose of conducting a Terry investigation. See, e.g.

Williams v. State, 188 Md.App. 78, 95-96 , 981 A.2d 46, 56 (2009) (police officer’s observation, through video surveillance of a street corner associated with open air drug sales, of an apparent hand-to hand drug transaction involving defendant constituted sufficient probable cause to justify an arrest even though officer did not observe what changed hands). Appellant contends that, since the pat-down of Jennings did not yield evidence of criminal wrongdoing, any “reasonable suspicion to initiate an investigatory stop ... was dispelled.” The argument is not persuasive. The purpose of a pat-down or frisk is to determine whether an individual has a weapon on his or her person and is a “ ‘carefully limited search of the outer clothing’ ” of the individual. Dashiell v. State, 374 Md. 85 n. 3 , 821 A.2d 372 (2003) (quoting Terry, 392 U.S. at 30 , 88 S.Ct. 1868 ).

A pat down is intended solely to protect the investigating officer and any other persons in the vicinity. Terry, 392 U.S. at 23 , 88 S.Ct. 1868 . That Jennings did not have a weapon concealed on his person was not, in and of itself, a basis to conclude that the officers’ suspicions of criminal wrongdoing were groundless and certainly did not require them to curtail their Terry investigation. 6 ¹²⁴ Officer Gottlieb was entitled to pat appellant down before speaking to him if he had a “ ‘reasonable suspicion that [appellant] may be armed ... and dangerous.’ ” Arizona v. Johnson, 129 S.Ct. at 784 (quoting Knowles v. Iowa, 525 U.S. 113, 117-18 , 119 S.Ct. 484 , 142 L.Ed.2d 492 (1998)). For reasonable suspicion to exist “[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27 , 88 S.Ct. 1868 .

We have often recognized the inherent dangers of drug enforcement, and an investigatory stop based upon a reasonable suspicion that a suspect is engaged in drug dealing, can justify a frisk for weapons. Burns v. State, 149 Md.App. 526 , 817 A.2d 885 (2003) (“The intimate connection between guns and narcotics is notorious.”); Whiting v. State, 125 Md.App. 404, 417 , 725 A.2d 623 (1999) (“[W]e have acknowledged a nexus between drug possession and guns, observing that a person involved in drug distribution is more prone to possess firearms than one not so involved.”); Banks v. State, 84 Md.App. 582, 591 , 581 A.2d 439 (1990) (“Possession and, indeed, use, of weapons, ¹²⁵ most notably firearms, is commonly associated with the drug culture ...”). We conclude that Officer Gottlieb would have been justified in patting down the appellant before he spoke to him about the apparent drug transaction that Officer Waters had just witnessed. In fact, however, Officer Gottlieb’s attempt to frisk appellant was abortive.

Although appellant stepped out of the vehicle when ordered to do so, he was uncooperative and combative when directed to take a stance to allow the officer to frisk him. Officer Gottlieb testified that “at one point [appellant] threw his right elbow back at me, missed, ... and ran toward the back of the car ... and he was, basically, fighting us, elbowing us, trying to get away from us.” Appellant’s conduct changes the focus of our analysis. There is no privilege to resist either an unlawful Terry stop, Barnhard v. State, 86 Md.App. 518, 528 , 587 A.2d 561 (1991), aff'd, 325 Md. 602 , 602 A.2d 701 (1992), or an unlawful frisk. State v. Blackman, 94 Md.App. 284, 306 , 617 A.2d 619 (1992) (“Even if the frisk would have been unlawful ..., there was no right or privilege on the part of the [defendant] to resist it by using force against the officer.”) Appellant’s thrust of his elbow at Officer Gottlieb was an assault and appellant continued to elbow and fight the officers.

Officer Gottlieb arrested appellant for assault and, pursuant to that arrest, lawfully searched him and recovered the handgun from his right front pocket. The arrest and the resulting search were justified. Blackman, 94 Md.App. at 305 , 617 A.2d 619 (“[T]he [defendant] was not privileged to resist [the frisk] by shoving the officer. That shove, albeit arguably minimal, was a battery.

That was all that was required to justify the arrest of the [defendant] and the search incident thereto.”) II The “Inconsistent” Verdicts After a jury trial, appellant was convicted of possessing a firearm after a felony conviction, in violation of Md.Code Ann. ¹²⁶ Crim. Law 7 § 5-622 (2002, 2006 Supp.); 8 of possessing a regulated firearm after conviction of a disqualifying crime, in violation of Md.Code Ann. Pub. Safety 9 § 5-133(b)(1) (2003, 2006 Supp.); 10 and possession of a regulated firearm after conviction of a crime of violence, in violation of Pub. Safety § 5-133(c) 11 (collectively the “possession” convictions).

He was acquitted of carrying a handgun in violation of Crim. Law § 4-203(a)(l)(i) 12 , and of transporting a handgun in violation of Crim. Law § 4-203(a)(l)(ii). 13 Appellant contends that the jury rendered “wholly inconsistent” verdicts, as he could not “have possessed the gun without also necessarily carrying it on his person.” Appellant, therefore, claims that his convictions for possession of a firearm must be vacated. Although not conceding that he was required to object to any inconsistency in the jury’s verdict, ¹²⁷ appellant maintains that his failure to do so does not preclude our review under the plain error doctrine.

The State counters that, as the defense did not timely object to the verdicts, the issue is not preserved for appeal and the plain error review advocated by appellant is not warranted in this case. In any event, the State contends that, at best, the verdicts may be “factually inconsistent,” but they are not “legally inconsistent” and, therefore, the convictions should be affirmed. 14 ¹²⁸ Prior to the landmark case of Price v. State, 405 Md. 10 , 949 A.2d 619 (2008), Maryland appellate courts generally tolerated inconsistent verdicts in criminal jury trials. Id at 18, 949 A.2d 619 . See, e.g., State v. Williams, 397 Md. 172, 189 , 916 A.2d 294 (2007) (“It has been the position of this Court that inconsistent verdicts in jury trials are permissible in criminal cases.”) In Price, the Court of Appeals held that inconsistent jury verdicts in criminal trials are no longer permissible.

Id. at 18-29, 949 A.2d 619 . As we noted in Brown v. State, 182 Md.App. 138 , 155 n. 10, 957 A.2d 654 (2008), the “Price Court limited the effect of its holding, however, to ‘similarly situated cases on direct appeal where the issue was preserved, and verdicts in criminal jury trials rendered after the date of our opinion____’” (quoting Price, 405 Md. at 29 , 949 A.2d 619 ; emphasis added in Brown). The Price opinion was filed on June 9, 2008. The verdict in the case before us was rendered on October 30, 2007.

Therefore, assuming arguendo that the verdicts were inconsistent, Price is controlling here only if the issue was preserved. The concurring opinion in Price , authored by Judge Harrell (joined by Judge Battaglia and in part by Judge Wilner), elaborated on the need to preserve the issue for appeal noting that, “[bjecause of the ‘sea change’ announced by the Majority’s opinion, some prospective direction is necessary and desirable to highlight the procedure required in order for a defendant to preserve for appellate review a challenge to a legally inconsistent verdict.” Price, 405 Md. at 40 , 949 A.2d 619 . Judge Harrell explained: The jury may render a legally inconsistent verdict to show lenity to the defendant. The defendant should not be foreclosed from accepting the jury’s lenity as a result of the holding of the Majority’s opinion.

Nevertheless, we should not permit the defendant to accept the jury’s lenity in the ¹²⁹ trial court, only to seek a windfall reversal on appeal by arguing that the jury’s verdicts are inconsistent. Accordingly, a defendant must note his or her objection to allegedly inconsistent verdicts prior to the verdicts becoming final and the discharge of the jury. Otherwise, the claim is waived.[ ] $ $ $ K: $ $ Upon timely objection by the defendant0 to legally inconsistent verdicts, the trial court should instruct or re-instruct the jury on the need for consistency and the range of permissible verdicts. The jurors then should be permitted to resume deliberation.

The jury is free to resolve the inconsistency either by returning verdict in the defendant’s favor, convicting on the implicated counts, or deadlocking on a charge so that no inconsistent findings result---- In sum, a defendant must note his objection to the inconsistent verdict while the trial court has an opportunity to remedy the error, i.e., before the verdict is final and the jury is discharged. Failure to do so constitutes waiver. Id. at 40-42 , 949 A.2d 619 (footnotes, citations and internal quotation marks omitted). We heeded Judge Harrell’s admonition in Tate v. State, 182 Md.App. 114, 136-37 , 957 A.2d 640 (2008), although our holding rested on other grounds.

In Tate , before us on remand from the Court of Appeals for reconsideration of our opinion in light of Price , we noted that “the appellant clearly did nothing by way of objecting to the reception of the verdicts or by way of asking that the jury be sent back to resolve any alleged inconsistency in its verdicts.” Id. at 136-37 , 957 A.2d 640 . The same is true here. We hold that the issue of possible inconsistencies among the verdicts was not preserved for appeal as the defense did not object to the allegedly inconsistent verdicts at trial. Moreover, we decline appellant’s invitation to exercise our discretion to review the issue under the plain error doctrine.

We undertake “plain error” review only when the error is “ ‘compelling, extraordinary, exceptional or fundamental to assure ¹³⁰ the defendant a fair trial.’ ” Conyers v. State, 345 Md. 525, 563 , 693 A.2d 781 (1997) (quoting State v. Hutchinson, 287 Md. 198, 203 , 411 A.2d 1035 (1980)). “Consequently, appellate review under the plain error doctrine ‘1) always has been, 2) still is, and 3) will continue to be a rare, rare phenomenon.’ ” Hammersla v. State, 184 Md.App. 295, 306 , 965 A.2d 912 (2009) (quoting Morris v. State, 153 Md.App. 480, 507 , 837 A.2d 248 (2003), cert. denied, 380 Md. 618 , 846 A.2d 402 (2004)). Ill The Motion To Reconsider At trial, Officer Gottlieb testified that he recovered a handgun from appellant’s right front pants pocket. He further testified that there “was a round in the chamber and two in the magazine. The gun was ready to be fired.” Officer Gottlieb took the handgun to the Firearms Examination Unit, “at which point one of the examiners, they did work on it a little bit and then they did a test fire and it fired.” When asked specifically what he observed the examiner do, Officer Gottlieb replied: “He used some tools.

He—I’m not an expert like that, but he adjusted something in there and then we went down to test fire it and it fired.” He further testified that the gun was certified as operable. 15 There were no witnesses from the Firearms Examination Unit. Only Officer Gottlieb