Jefferson v. State

WOODWARD, J. Appellant, Kenneth Jefferson, was convicted on April 22, 2008, by a jury sitting in the Circuit Court for Baltimore City of wearing, carrying and transporting a handgun on or about his person and carrying a concealed and dangerous weapon on or about his person. On June 6, 2008, appellant was sentenced to two years incarceration for carrying a handgun, and a concurrent sentence of two years for carrying a concealed dangerous weapon. Appellant timely appealed and presents the following questions for our review: 1. Was it plain error material to the rights of the accused for the trial judge to conduct the voir dire by posing all the questions at once and then calling individual jurors to the bench to discuss their responses? 2.

Was it error to respond to a jury question about the elements of the crime of wearing, carrying or transporting a ¹⁹⁴ handgun on one’s person by sending to the jury a copy of the applicable statute? 3. Was the evidence insufficient to sustain the Appellant’s conviction for carrying a handgun on his person? For the following reasons, we shall affirm. BACKGROUND Officer David Simmons, of the Baltimore City Police Department, and accepted as an expert in the use of radar, testified that on June 23, 2007, at around 2:50 p.m., he was on patrol in a marked police vehicle near the 3200 block of Reisterstown Road.

Officer Simmons noticed a Ford Explorer traveling northbound at a speed of 50 miles per hour, which was in excess of the posted speed limit of 30 miles per hour. Officer Simmons watched the vehicle pass his location, and then turn right near the 2500 block of Druid Hill Park Drive. Officer Simmons then proceeded to follow the Explorer and testified that he “had to travel at a pretty high rate of speed to catch up with the vehicle.” After activating his emergency lights and siren, Officer Simmons then stopped the Explorer. Officer Simmons approached the Explorer and spoke to the vehicle’s driver, appellant in this case.

Sitting in the front passenger seat was appellant’s co-defendant at trial, Berry Green. After advising appellant of the reason for the stop, appellant informed Officer Simmons that his driver’s license was suspended. Officer Simmons confirmed this information over his police radio, and learned that appellant’s license had been suspended for a failure to appear in traffic court. Officer Simmons directed appellant to exit the vehicle and then brought him to the back of his patrol vehicle.

From that location, Officer Simmons also was able to see that Green, the passenger in the Explorer, was “bending over in the passenger side of the vehicle as if he was stuffing something underneath the seat.” Officer Simmons further testified that, based on his training and experience, which included looking for “certain signs that maybe there may be a weapon, there may be some drugs in the car, or maybe because you might be ¹⁹⁵ attempting to try to hide something,” it appeared to Officer Simmons that Green was attempting to conceal something. While Officer Simmons made these observations, he asked appellant if there were any drugs or weapons in the Explorer, and appellant replied that there were none. At this point, Officer Simmons radioed for backup. Once those units arrived, Officer Simmons advised appellant that he was being arrested for driving on a suspended license.

Officer Simmons again asked appellant if there were any drugs or guns in the Explorer, and appellant replied that there was a “fishing knife underneath the driver side seat.” Officer Simmons went to the driver’s side seat and found “what was, appeared to be a battle knife to me. The knife had what’s pretty much like a brass knuckle holding for you to hold on it, and it had spikes coming form [sic] the portion where the fist is wrapped around it, and it also had a long blade which was definitely not used for fishing.” The knife was admitted into evidence at trial. Officer Simmons then had Green step out of the vehicle and the police continued to search for more weapons. Officer Ronald Zimmora, who had responded to the scene, informed Officer Simmons that he found a loaded gun underneath the passenger side seat.

Officer Simmons asked Officer Zimmora to stay with appellant while he searched the vehicle. After searching the vehicle underneath the passenger side seat, Officer Simmons located a loaded .38 caliber revolver. The butt of that handgun was facing outward towards the passenger seat. The revolver was admitted into evidence at trial.

Officer Simmons demonstrated for the jury where the two weapons were found inside the vehicle. He testified that the “[k]nife was under the driver’s side seat, and actually the gun was underneath the passenger side seat.” Further, Officer Simmons agreed with the prosecutor’s question that a person located either in the driver’s seat or the passenger’s seat could “reach either of the weapons as they were recovered on June 23rd, 2007.” Both appellant and Green denied knowledge of ¹⁹⁶ the gun. The parties stipulated that the revolver was operable and met the definition of a handgun. Appellant testified on his own behalf and admitted that he was speeding when Officer Simmons performed the traffic stop.

Appellant indicated that he did not know his co-defendant, Green, and was just giving Green a ride in exchange for money. Appellant admitted that his license was suspended, but claimed it was for a fine that he had not yet paid. He also informed Officer Simmons that he had a knife near his seat in the vehicle, which he maintained was a fishing knife he used to catch catfish. Appellant also indicated that he had this knife in the vehicle because he had been carjacked at gunpoint on some prior occasion.

Appellant testified that he did not know that the revolver was inside his vehicle. He claimed that Green put the gun there. Appellant also testified that he spoke to Green about the gun, and at some point, apparently while they were in the vehicle, Green told him, “I’m dirty. Let me get out.” Appellant further testified that “[h]e had enough time to throw the gun out.” Appellant maintained that he was not trying to evade Officer Simmons, and also testified, over objection, that he told Green that Green should have told him he had a gun.

On cross-examination by the State, appellant admitted that he had a prior theft conviction. On cross-examination by his co-defendant, Green, appellant admitted that the knife was both for fishing and for his protection. Appellant also testified that the knife was located on the side of his seat, and not underneath the seat. In rebuttal, Officer Simmons testified that he did not see a knife in plain view, and that he recovered the knife from underneath appellant’s seat.

We shall include additional facts in our discussion as necessary. DISCUSSION I. Appellant first contends that the trial court erred in the manner it conducted voir dire of the prospective jurors ¹⁹⁷ under Wright v. State, 411 Md. 503 , 983 A.2d 519 (2009), 1 and asks this Court to recognize plain error on this issue. The State responds by conceding that the voir dire in this case was error under Wright , but that, absent an objection by appellant’s counsel, that error does not amount to plain error requiring reversal. For the following reasons, we agree with the State and decline to exercise plain error review of appellant’s first question.

Prior to jury selection, the parties discussed the proposed voir dire, and appellant’s counsel indicated he did not object to the State’s voir dire. The trial court then informed the parties the manner it intended to conduct voir dire as follows: All right. Since nobody has any objection of each others [sic] questions, what I will do is, I will merge them all into a single paragraph and ask all the questions at one time. At the end of the voir dire we’ll bring each juror up to the bench and we’ll ask them if they have any response to the questions.

We’ll take their responses and then each of you can take limited follow-up questions. And then we’ll finish and we’ll move to the next juror. At the end of the 50th juror, we’ll then do challenge for cause. [Prosecutor], you’ll go first. Indicate the summons number of the person you wish to challenge and pause.

Each of you indicate if you agree or disagree. If anybody disagrees, I’ll give you argument to the moving party and the disagreed party, then I’ll rule. If everybody agrees, I’ll grant the challenge "without hearing any argument. Once we’re done, [Prosecutor], we’ll do [Defense Counsel for Green] the same way.

Summons number, pause, agree or disagree, if disagree, moving party, opposing party, and then we’ll do [Defense Counsel for Appellant] the same way. Once we’ve eliminated those people who were challenged for cause, we’ll select a jury by alternative challenge. ¹⁹⁸ Appellant did not object to the trial court’s manner of conducting voir dire examination. Thereafter, the prospective jurors entered the courtroom, and the judge informed them as follows: I’m going to ask you a series of questions now designed to determine whether you would be unfair to any of the three parties involved in the case, or otherwise unable to reach a unanimous verdict. I’m going to ask all the questions in one paragraph.

And then we’ll have all 50 of you come to the bench and respond. Counsel can ask follow-up questions and then from those questions and answers certain challenges will be made to get the panel down from 50 to 12. If you’re not sure that information you possess is an answer, please volunteer that information. It’s better for us to know too much than to know too little.

Because if we try the case and you go into the Jury Room for you to deliberate, and you say “I can’t do this” because of this or that, or any other reason, then we’ve wasted the entire afternoon. If you say it to the lawyers at the bench now, it might generate a challenge and in that way we might be able to get a jury that’s capable of reaching a unanimous verdict one way or the other. So with that in mind, let me start the questions. The trial court then proceeded to ask all of the parties’ agreed-upon voir dire questions collectively.

After the court asked these questions as a group, counsel approached the bench and both defense counsel for appellant and for Green agreed that the court did not “miss any important questions.” Following this, the trial court called each prospective juror to the bench and asked whether that person had a response to the questions, whether that person had ever been in a courtroom before, and whether there was any other reason the person would be unfair to anyone involved in the case. In addition, appellant’s counsel was permitted to ask questions of the prospective jurors at this time. The court then heard challenges and struck ten prospective jurors for cause. ¹⁹⁹ After jury selection, appellant’s counsel indicated that the panel and the alternate were acceptable. After the luncheon recess, and prior to opening statements, the court also excused one of the jurors and substituted the alternate in that juror’s place.

Appellant’s counsel offered no objection to the substitution. Subsequent to the trial in this case, the Court of Appeals disapproved of a voir dire procedure that asked the venire questions collectively. In Wright , as in this case, the venire was asked, “as a group, a roster of seventeen questions.” 411 Md. at 506 , 983 A.2d 519 . After the collective questioning, each venireperson was called to the bench and asked “if he or she had any information in response to the voir dire questions” and “if he or she could be fair and impartial.” Id.

Defense counsel objected, arguing that lumping all seventeen voir dire questions together frustrated the ability of the jurors to remember all of the questions. Id. at 507 , 983 A.2d 519 . The Court of Appeals agreed, explaining: “The presentation of a lengthy roster of questions to the venire, without providing the opportunity to answer each question as it was posed, required each venireperson to comprehend and retain far too much information to guarantee that the questions were answered properly.” Id. at 509 , 983 A.2d 519 . The Court noted that voir dire was “five and a half minutes of continuous questioning, without pause,” which “resulted in substantial delay between presentation of the questions and the answers.” Id. at 512 , 983 A.2d 519 .

Accordingly, the Court held that “the selected voir dire method may have obscured relevant information from the trial court’s view by failing to ensure that the jurors on the venire made reasonably full disclosures. The trial court was therefore working with an incomplete understanding of the jury pool.” Id. at 513 , 983 A.2d 519 ; see also Height v. State, 190 Md.App. 322, 326, 330-31 , 988 A.2d 1054 (2010) (concluding that, in a case where defendant objected to the method of conducting voir dire at the start of the process, jury selection procedure was “virtually identical” to that used in Wright and was unconstitutional). 2 ²⁰⁰ Unlike in this case, in both Wright and Height , defense counsel objected to the manner in which the trial court conducted voir dire. See Wright, 411 Md. at 506-07 , 983 A.2d 519 ; Height, 190 Md.App. at 326 , 988 A.2d 1054 . Here, appellant’s counsel did not object to the manner of conducting voir dire, either before or after the voir dire was completed.

Further, after jury selection, appellant’s counsel agreed that the jury and alternate were acceptable. Accordingly, the issue is unpreserved for appellate review. See Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court----”); accord Robinson v. State, 404 Md. 208, 216 , 946 A.2d 456 (2008). Apparently recognizing the procedural default, appellant asks this Court to consider the issue as plain error.

After the briefs were filed in this case, this Court decided James v. State, 191 Md.App. 233 , 991 A.2d 122 (2010). One of the issues presented in that appeal concerned whether a voir dire procedure that violated the Court of Appeals’s opinion in Wright constituted plain error. James, 191 Md.App. at 245-46 , 991 A.2d 122 . We concluded that it did not.

Id. at 246 , 991 A.2d 122 . As is well-established, our discretion to recognize plain error is plenary. See McMillan v. State, 181 Md.App. 298, 359 , 956 A.2d 716 (“[W]hen a defendant fails to object, an appellate court possesses ‘plenary discretion to notice plain error material to the rights of a defendant, even if the matter was not raised in the trial court.’ ”) (Citation omitted), cert. granted, 406 Md. 744 , 962 A.2d 370 (2008). Further, an appellate court “will review the unpreserved claim only where the unobjected to error can be characterized as ‘compelling, ²⁰¹ extraordinary, exceptional, or fundamental to assure the defendant a fair trial’ by applying the plain error standard.” Abeokuto v. State, 391 Md. 289, 327 , 893 A.2d 1018 (2006) (citation omitted).

In James , we declined to apply plain error to a voir dire procedure that was error under Wright . There, we stated: We decline to exercise our discretion in this case to notice plain error in the trial court’s voir dire. Although an appellate court may address an unpreserved issue to “communicate a desired message to the bench and bar that might otherwise go unsent,” McMillan, 181 Md.App. at 360 [ 956 A.2d 716 ], the Court of Appeals has already spoken clearly in Wright , obviating the need for further appellate exploration of this issue. Furthermore, the “error” of which appellant complains was not “plain” at the time of trial in this case.

Cf. Height, 185 Md.App. at 332-33 [ 970 A.2d 921 ] (“it has been held consistently that there is nothing improper about a trial judge’s questioning prospective jurors as a group.”). An error would not be “plain” unless it is wrong under current law. See United States v. Olano, 507 U.S. 725, 734 [ 113 S.Ct. 1770 , 123 L.Ed.2d 508 ] (1993).

At the time of the trial in the case before us, Maryland’s appellate courts had yet to address whether the manner in which the voir dire was conducted was error. No extraordinary circumstances are present in the case before us to invoke our discretion to address an unpreserved claim of error that has since been addressed by the Court of Appeals. James , 191 Md App. at 247, 991 A.2d 122 . Similarly, we conclude that appellant’s claim is not so compelling or extraordinary that it requires review absent an objection at trial.

Accordingly, we decline to exercise our discretion to recognize plain error on this issue.

II

Appellant next asserts that the trial court erred in responding to a jury note asking for a copy of the statute applicable to Count One, wearing, carrying or transporting a handgun on ²⁰² one’s person, by supplying the jury with a copy of said statute. The State responds that the trial court properly exercised discretion in providing a copy of the statute to the jury. We conclude that the trial court properly exercised its discretion in this case, and, alternatively, any error was harmless beyond a reasonable doubt. Here, the record indicates that the jury sent the court a number of notes after deliberations began.

We observe that, among the first questions the jury asked, was a “request to review transcript.” The trial court informed the jury that there was no transcript, but they could hear a tape recording of any testimony they wished to hear. The next day, the jury then returned the note at issue here. That note provided as follows: 1. Wear, carry, and transport a handgun. “3 items.” Not wear, carry, or transport Clarify please, we are having difficulty with the terminology.

Does it have to be all 3? Can a passenger transport? 2. Officer Simmons’ initial testimony. 3. Possess — Define please. 4.

Send in statues [sic] (written) that you read for: Count 1 Jefferson “ 1 Green “ 2 Green There is an error on Kenneth Jeffersons “# 5 is # 4” document. The trial court asked for suggestions from the parties, and appellant’s counsel first replied that “it is my understanding that it does not need to be all three” and that “a passenger can transport a handgun.” After Green’s counsel disagreed and suggested the jury had to find all three, i.e., wear, carry, and transport, under the indictment, Green’s counsel and the court mentioned the request for copies of the statutes as follows: [DEFENSE COUNSEL FOR GREEN]: What’s interesting to me is this Question Number 4, asking for the ²⁰³ statute. In this particular case, the jury is not a jury on the law, and has to receive your instructions and follow them. THE COURT: I think they’re curious as to the interrelationship between the “or” and the “and.” And that’s why they want to see the statute.[ 3 ] After hearing from the State as to the other questions in the note, the trial court returned to the issue of providing copies of the statute: THE COURT: I’m going to tell them that the Statute says “or”, however, the State has held itself to the burden of proving “and” because of the way they worded the indictment.

And then I’ll define each of the three words under the normal English meaning. And there’s no case law defining “wear, carry, and transport,” with one exception. There’s one annotation that I’ll read as soon as I find it. [DEFENSE COUNSEL FOR GREEN]: And, Your Honor, as far as a passenger transporting, I agree with the State on that proposition, too, if you had the word “knowingly” transport. THE COURT: Yeah, but they’re not looking for the definition of “knowingly transport”.

That’s Count 3. They didn’t ask for Count 3. They only asked for the statute for Count 1 and, 1, 2. Count 1 for one man is Count 2 for the other man.

The court then indicated it would provide copies of Section 5-133(b) of the Public Safety Article, with respect to the jury’s request concerning a count charged solely against appellant’s co-defendant Green, and Section 4-203 of the Criminal Law Article, which concerned both appellant and Green. See Md. Code (2002, 2009 Supp.), § 4-203 of the Criminal Law Article (“C.L.”); Md.Code (2003), § 5-133(b) of the Public Safety ²⁰⁴ Article. (“P.S.”). Green’s counsel again objected on the grounds that the statute used the word or, in describing the crime of wear, carry, or transport, and the indictment charged him with wear, carry and transport, and the court responded: THE COURT: Well, they asked for copies of the statutes.

I’m going to tell them verbally what I’m going to tell them. But I’m also going to tell them that by wording the indictment the way that they have on their verdict sheet, the State has held themself to— [DEFENSE COUNSEL FOR GREEN]: I understand. THE COURT: — to a verb. [DEFENSE COUNSEL FOR GREEN]: Well, I remove my objection. That makes sense.

After the court further informed the parties about its intent to instruct the jury with a portion of C.L. § 4-203, as well as a portion of an opinion from the Attorney General, counsel for Green clarified and renewed his earlier objection: [DEFENSE COUNSEL FOR GREEN]: If you decide to send statutes back, I certainly agree you picked the correct statutes. They’re correct, portions of the statutes. THE COURT: Right. [DEFENSE COUNSEL FOR GREEN]: But I would object to statutes being sent back, not because you haven’t picked the right ones and the right portions, just on the concept that they should not be given the statutes. They should be given the law from you.

Then, after the court read Maryland Rule 4-326 into the record, and after recognizing that this Court held in Hebb v. State, 44 Md.App. 678 , 410 A.2d 622 (1980), that it was error for the trial court in that case to send the Maryland Criminal Jury Instructions and Commentary into the jury room, the trial court ruled: THE COURT: ... I think, however, if you give them the applicable, a copy of the applicable portion of the statute, all you’re doing is reducing instruction to writing, or a portion of instruction to writing. And I don’t see any prejudice. So ²⁰⁵ I’m going to honor their question, so that they digest what I tell them verbally in a way that’s most user friendly to them. [DEFENSE COUNSEL FOR GREEN]: I understand, Your Honor.

And I understand the basis of your decision. I would just like to note my objection. THE COURT: Okay. It’s noted. [DEFENSE COUNSEL FOR APPELLANT]: For the record, Your Honor, I would also object— THE COURT: Okay. [DEFENSE COUNSEL FOR APPELLANT]: — as well.

After, the jury returned to the courtroom, the court distributed a copy of the pertinent statutes, stating: “We haven’t given you the entire Statute, but we’ve given you the applicable part of the Statute minus extraneous matter that is not relevant to this particular case.” 4 The court then responded to the jury’s note, in pertinent part, as follows: First of all, the instruction is Defendant is charged with a crime of carrying a handgun. In order to convict the Defendant, the State must prove the Defendant wore, carried, or transported a handgun on or about his person. And ²⁰⁶ then it defines handgun, which I won’t go through again. Handgun on or about a person, if it’s within his reach and available for that person’s immediate use.

Now, in this particular indictment, the State has assumed a greater burden than the Statute