Mulley v. State

³⁶⁷ MEREDITH, J. At the conclusion of a three-day trial before a jury in the Circuit Court for Baltimore City, Jahtoolie Mulley, appellant, was convicted of five charges relating to being in possession of a firearm, namely: (1) wearing, carrying, or transporting a handgun, in violation of Maryland Code (2002, 2012 RepLVol.), Criminal Law Article (“CL”), § 4-203; (2) conspiring with his co-defendant (Tanysha Richardson) to wear, carry, or transport a handgun; (3) possession of a regulated firearm after being convicted of a disqualifying crime, in violation of Maryland Code (2003, 2011 RepLVol.), Public Safety Article (“PS”), § 5 — 133(c); (4) possession of a regulated firearm while being under the age of 21, in violation of PS § 5 — 133(d); and (5) possession of ammunition by a person prohibited from possessing a regulated firearm, in violation of Maryland Code (2003, 2011 RepLVol., 2015 Supp.), Public Safety Article, § 5-133.1. 1 After sentencing, Mr. Mulley noted this appeal. QUESTIONS PRESENTED Mr. Mulley presents the following questions for our review: 1. Did the trial judge abuse his discretion when he failed to sufficiently respond to a jury question regarding the State’s burden to prove each element of the offense wear, carry, or transport? 2. Did the trial judge err in finding that the State had not violated Md. Rule 4-263 by failing to disclose Mr. Mulley’s statement regarding his birth date? 3.

Did the trial judge err in failing to exclude two cell phones which were irrelevant and highly prejudicial? 4. Was there insufficient evidence to convict Mr. Mulley [of] possession of ammunition? We answer Question 2 in the affirmative, and conclude that the court’s ruling on the discovery violation was not a harm ³⁶⁸ less error. Consequently, we will vacate the judgment of conviction as to the charge of possessing a regulated firearm while being under the age of 21 (in violation of PS § 5 — 133(d)), and we will remand the case for further proceedings as to that count only.

We answer Questions 1 and 3 in the negative, and conclude that Question 4 was not preserved for our review. We affirm all other judgments of the Circuit Court for Baltimore City. FACTS AND PROCEDURAL BACKGROUND The evidence at trial revealed the following. In the early-morning hours of September 4, 2014, four Baltimore City police detectives assigned to the Eastern District were detailed to the Northwest District, in the area of the 4900 block of Park Heights Avenue, “in response to two homicides that had just taken place within a short [period of time] between each other.” The four detectives were in an unmarked vehicle, and dressed in plain clothes, although each was wearing a tactical vest on which the word “Police” appeared.

As the detectives were driving northbound on Park Heights Avenue toward the scene of the homicides, they passed Mr. Mulley and his co-defendant, Ms. Richardson, who were walking northbound. Det. Sgt. John Burns, who was sitting in the back seat of the police car behind the driver, testified that, as the police car passed Mr. Mulley and Ms. Richardson, he observed “a slight hesitation in their walk,” and he saw Mr. Mulley place a dark object inside Ms. Richardson’s purse, which object Mr. Mulley appeared to push down inside the purse.

The detectives continued to travel on Park Heights Avenue a short distance, and then stopped for “[t]wo minutes, maybe” to provide backup for other officers at that location. While Det. Sgt. Burns and the other three officers were at the location where they were providing backup support, Mr. Mulley and Ms. Richardson walked past the group of detectives, and the couple’s demeanor caught the attention of the detectives again.

Det. Sgt. Burns testified at trial: ³⁶⁹ [BY DET. SGT.

BURNS]: Mr. Mulley and Ms. Richardson, they were walking northbound, actually they were walking right past us, he had his arm around her and they were walking like almost in a robotic fashion. They weren’t making eye contact with the police, they didn’t look at us, they were just strictly like [sic ] and Mr. Mulley appeared very nervous. It was just they were very rigid and walking, arm around her and he was like focused straight ahead and they actually walked right past us. Because the operation for which the four detectives had been sent to assist was wrapping up, the detectives got back in their unmarked vehicle and caught up with Mr. Mulley and Ms. Richardson near the intersection of Park Heights Avenue and Spaulding Avenue.

Detective Moore, the driver, pulled the car over and asked Mr. Mulley and Ms. Richardson if they could speak with them for a moment. Det. Sgt. Burns began speaking with Mr. Mulley, and Detective Peter Iacovo approached Ms. Richardson.

Det. Iacovo testified that, when the group of detectives stopped Mr. Mulley and Ms. Richardson, he asked Ms. Richardson if she had any identification. As Ms. Richardson opened her purse, Det. Iacovo spotted what he “believed to be the cylinder of a revolver,” and he then grabbed the purse.

The purse contained a handgun that was loaded with six rounds of ammunition, and a plastic bag containing eleven more bullets capable of being fired from that gun. Det. Iacovo testified regarding a statement blurted out by Mr. Mulley, who claimed “it’s mine”: [BY DET. IACOVO]: ... [A]s soon as I saw the cylinder, I knew based on just my experience through law enforcement as well as the military, I knew that to be a cylinder for a revolver handgun. [BY THE STATE]: And after you made that observation again, what did you do?

A. I immediately grabbed the purse from Ms. Richardson and I opened [it] up to confirm what I initially observed, and then at which point I handed it off to ³⁷⁰ Detective Moore who was standing right next to me and I advised Ms. Richardson to turn around so I could place her in handcuffs and I said 30,1 blurted 30 to the other officers involved to inform them that Ms. Richardson was being placed under arrest. Q. And when you said that, what if anything happened? A. Well, as soon as I was placing the cuffs on Ms. Richardson, and I said, well, I said 30, and I alerted to them, Mr. Mulley made a statement. Q. And what did he say?

A. He said, do you want me to say it verbatim, do you want me to read it verbatim? Q. Yes. A. All right. Mr. Mulley stated, “Yo, it’s mine, yo, she just my little sister, for real.” Q. And when Mr. Mulley made that statement, what did you understand him to be speaking of?

A. I took it as he was taking ownership of the weapon that was within the bag. Neither Mr. Mulley nor Ms. Richardson testified at trial. Both were convicted of all charges that remained pending against them at the close of trial. 2 DISCUSSION I. Responses to a question from the jury The first issue Mr. Mulley presents on appeal arose during jury deliberations. With respect to the instructions that are the subject of Mr. Mulley’s appellate challenge, the court initially instructed the jury as follows: ³⁷¹ [BY THE COURT]: ...

Each of the Defendants is charged with wear, carrying, or transport of a handgun. It is question number one on each of the verdict sheets. In order to convict the Defendant, the State must prove the following: One, that the Defendant wore, carried or transported a handgun, that it was within his or her reach and available for his or her immediate use, secondly — let me give you the definition of a handgun. But first, before I give you the definition of a handgun, let me tell you what possession means.

Possession means having control over a thing, whether actual or indirect. The Defendant does not have to be the only person in possession of the item. More than one person may have possession of the same item at the same time. A person not in actual possession who knowingly had both the power and the intention to exercise control over a thing, either personally or through another person, has indirect possession.

In determining whether the Defendant had indirect possession of the item, consider all of the surrounding circumstances and these circumstances include the distance between the Defendant and the item, whether the Defendant had some ownership or possessory interest in the place where the item was found, and any indication that the Defendant was participating with others in the mutual use and enjoyment of the item. That’s what possession means. Now let me tell you what a handgun is. A handgun is a pistol, a revolver or other firearm capable of being concealed on or about the person and which is designed to fire a bullet by the explosion of gunpowder.

Using that definition of possession and that definition of a handgun, you will answer question number one as to each Defendant by entering your verdict in the appropriate space. Then go on to question number two. Within an hour of being released to deliberate, the jury sent out a note, asking: “Can you explain number one, did wear, carry or transport a handgun, a little clearer please.” As required by Maryland Rule 4 — 326(d)(2)(C), the court discussed ³⁷² the note with counsel. 3 Mr. Mulley’s counsel suggested that the court re-read the relevant portions of the instruction it had previously read to the jury — i.e., Maryland Pattern Jury Instructions-Criminal (“MPJI-Cr”) 4:35.2 — and the State and Ms. Richardson’s counsel agreed. The court brought the jury into the courtroom, and re-read them the instruction.

The court closed by asking the jury: “[I]s that clear?” There were no apparent responses, and the jury was discharged to continue its deliberations. However, the jury was eventually released for the day without reaching a verdict. The next day’s transcript begins in the middle of a discussion about another note that had been sent out by the jury. This note contained the following questions: 1. [Question scratched out by jury] 2. define intention to exercise control under indirect possession? 3. define on or about the person 4. does access to the bag equate to possession of bag’s content? 5. does State have to prove each element of “wear, carry or transport?” ³⁷³ 6. define available for immediate use?

The jury’s question 5 — “does State have to prove each element of ‘wear, carry, or transport?’ ” — is the basis of Mr. Mulley’s first issue on appeal. The discussion among court and counsel reflects that the State and the trial judge were of the opinion that the jury was asking whether the State had to prove that the defendants wore and carried and transported a handgun. Mr. Mulley’s counsel, on the other hand, urged the court to construe the question as asking whether the State had to prove each element of the wear, carry or transport offense, and, because Mr. Mulley’s counsel contended that was the correct understanding of the question, he urged the court to answer the question “yes.” The court concluded that the best solution would be to provide the jury with a copy of the instructions the court had previously provided orally. The court stated: “[W]hat I think I’m going to do is to ... copy that portion of the instruction that I read and give it to them.” The following colloquy between Mr. Mulley’s counsel and the court ensued: [BY APPELLANT’S COUNSEL] Your Honor, I just wanna make, have the record clear that Mr. Mulley doesn’t have an objection to [a printed copy of the pattern instructions defining the offense and possession] going back ... but with respect to question number five, does the State have to prove each element of wear, carry or transport, Mr. Mulley is charged with that exact, that very offense, wear, carry or transport a handgun.... [T]he question in my opinion is, is very clear that they’re asking does the State have to prove each of the elements of the offense that Mr. — one of the offenses that Mr. Mulley is charged and I think the correct response is yes, that the State does have to prove— [BY THE COURT] Yeah, and that’s why, what the instruction will tell them.

The instruction is clear that it is carry, wore, carried, or transported. ³⁷⁴ [APPELLANT’S COUNSEL] But the question asked, does the State have to prove each of the elements. I don’t think — the question as to one— [COURT] What does wore, carry or transported mean to them? [APPELLANT’S COUNSEL] But it’s, but what the, the information that they’re being supplied with is a definition of the elements. What they’re asking is does the State have — they’re not asking what the elements are. They’re asking does the State have the— [COURT] Prove all of them. [APPELLANT’S COUNSEL] — burden of proving all of the elements and I— [COURT] Yes. [APPELLANT’S COUNSEL] — think that the Court should inform them that, yes, the State does have to prove— [COURT] No, they don’t. [APPELLANT’S COUNSEL] — all of the elements. [COURT] That’s the problem.

No. You can prove wear, you can prove carry or you can prove transport. You do not have to prove wear, carry and transport. So that’s the reason— [APPELLANT’S COUNSEL] But they’re not asking do we have to prove, prove wear, carry and transport. They’re asking do we have to prove wear, carry or transport.

So, I mean, we’re, we’re presuming— [COURT] No, no, no, no— [APPELLANT’S COUNSEL] — that they don’t understand the language of the statute. [COURT] Give me that, those, that question back again. The question reads, does the State have to prove each element of, not each element of the offense, each element of wear, carry or transport. That’s what they’re asking. ³⁷⁵ [APPELLANT’S COUNSEL] Well, the offense is wear, carry or transport. I mean, that — they’ve used the exact language— [COURT] All right. [APPELLANT’S COUNSEL] — of the charge. [COURT] I disagree -with you, although I have no problem telling them no.

However, this is a two-Defendant case, and unless both Defendants agree that I should tell them no, I will not do it. [APPELLANT’S COUNSEL] I’m asking the Court to tell them yes. [COURT] I mean or tell them yes. And since — they don’t. No, wait a minute. Why should I?

It is not wear, carry and transport. It’s wear, carry or transport. You don’t have to prove wear, carry and transport. [APPELLANT’S COUNSEL] And that’s not what they’re asking, Your Honor. They’re asking— [COURT] Okay.

I disagree with you. [APPELLANT’S COUNSEL] Thank you. [COURT] All right. I will not tell them yes, because then I will be answering — well, first of all, both Defendants have indicated they want me to tell them yes. I don’t have any problem — but yes is the wrong answer anyway. I will tell them no. [APPELLANT’S COUNSEL] Thank you, Your Honor. [COURT] Do you want me to tell them yes?

It doesn’t matter. I’m not going to do it.... The answer is no, and if — and I don’t want to tell them no. I’ll give them the [written] instruction.

They come back with another question about do they still have to prove wear, carry and transport, I will tell them no. But under no circumstances will I tell them yes. (Emphasis added.) The court provided the jury with written excerpts of jury instructions that it had initially read. The jury did not send ³⁷⁶ the court any further questions, and reached a verdict approximately 90 minutes later.

On appeal, Mr. Mulley contends that the trial court abused its discretion by “providing] an unhelpful response” to the jury’s second note. Mr. Mulley asserts that the court “failed to clearly answer the ambiguous jury question about the State’s burden of proof for the wear, carry, or transport charge,” and “[a]t a minimum ... had to make explicitly clear the fundamental principle that the State must prove beyond a reasonable doubt every single element.” (Emphasis added.) We disagree that the court’s decision to respond to the note by providing written excerpts of the pattern jury instructions constituted an abuse of discretion. In Brogden v. State, 384 Md. 631 , 866 A.2d 129 (2005), the Court of Appeals observed that “a question of ‘[wjhether to give a jury supplemental instructions in a criminal cause is within the discretion of the trial judge.’ ” Id. at 640 , 866 A.2d 129 (quoting Lovell v. State, 347 Md. 623, 657 , 702 A.2d 261 (1997)). See also Carroll v. State, 428 Md. 679, 689 , 53 A.3d 1159 (2012) (“We apply an abuse of discretion standard to the court’s decision not to give a requested instruction, yet we will not hesitate to reverse a conviction if we conclude that ‘the defendant’s rights were not adequately protected.’ ” (quoting Cost v. State, 417 Md. 360, 369 , 10 A.3d 184 (2010))).

The Court of Appeals commented in Appraicio v. State, 431 Md. 42, 44 , 63 A.3d 599 (2013): “Trial judges walk a fine line when answering questions posed by jurors during the course of their deliberations. Any answer given must accurately state the law and be responsive to jurors’ questions without invading the province of the jury to decide the case.” In Cruz v. State, 407 Md. 202, 210 , 963 A.2d 1184 (2009), the Court of Appeals discussed the discretion that trial judges have with respect to providing juries supplemental jury instructions, stating: Trial courts have discretion in deciding whether to give a jury supplemental instructions in a criminal cause. Lovell v. State, 347 Md. 623, 657 , 702 A.2d 261, 278 (1997). This ³⁷⁷ discretion, of course, is not boundless.

We have held that trial courts “must respond to a question from a deliberating jury in a way that clarifies the confusion evidenced by the query when the question involves an issue central to the case.” State v. Baby, 404 Md. 220, 268 , 946 A.2d 463, 488 (2008)(discussing Lovell, 347 Md. at 623, 658-60 , 702 A.2d at 261, 278-79 ). We have similarly observed that, “when a jury asks a question that reflects confusion on an issue, the trial judge ‘must respond’ to the question ‘in a way that clarifies the confusion’ if ‘the question involves an issue central to the case.’” Lee v. State, 186 Md.App. 631, 665 , 975 A.2d 240 (2009), rev’d on other grounds, 418 Md. 136 , 12 A.3d 1238 (2011) (quoting State v. Baby, 404 Md. 220, 263 , 946 A.2d 463 (2008), and citing Lovell, 347 Md. at 658-59 , 702 A.2d 261 ). In addition, we have also explained that, although the trial court’s response must not be “ambiguous, misleading, or confusing to the jurors,” see Oliver v. State, 53 Md.App. 490, 505 , 454 A.2d 856 (1983) (citing Battle v. State, 287 Md. 675, 685 , 414 A.2d 1266 (1980)), the appropriate response to a jury question is dependent upon many factors: Clearly, the person in the best position to weigh these “facts and circumstances” is the trial judge. From his vantage point he has the opportunity to surmise which of the phrases in his instructions have been absorbed and which should be embellished or repeated.

Oliver, 53 Md.App. at 505 , 454 A.2d 856 (quoting Kelly v. State, 270 Md. 139, 143 , 310 A.2d 538 (1973)). Mr. Mulley contends that the jury’s questions in this case reflected confusion regarding “the State’s burden of proof’ with respect to each of the elements of the offense of wearing, carrying or transporting a handgun, and the trial court’s repetition of previously given instructions did nothing to clarify the confusion as required by State v. Baby, 404 Md. 220 , 946 A.2d 463 (2008). Mr. Mulley urges us to hold, as the Court of Appeals did in Baby , that the trial court committed reversible error in “failing to more specifically instruct the ³⁷⁸ jury” in response to the jury’s questions. We do not agree that Baby required the trial judge in the present case to provide a different response to the jury’s note.

Baby was a rape case, and the trial court “instructed the jury on the elements of first degree rape, using language substantively similar to that in the pattern jury instructions.” 404 Md. at 233 , 946 A.2d 463 (footnote omitted). The jury later sent out a note, asking whether a female who has initially consented to engage in sex may effectively withdraw her consent after the sex act has begun, or whether consent to sex, once given, compels a finding that continuation of the act after consent has been withdrawn does not constitute rape. The trial court discussed the note with counsel, and eventually replied to the jury that it should re-read the instructions that had previously been given, which included the definition of consent. The next morning, the jury sent out another note, asking: “If at any time the woman says stop[,] is that rape?” After discussing the note with counsel, the court instructed the jury: “This is a question that you as a jury must decide.

I have given the legal definition of rape which includes the definition of consent.” 404 Md. at 235 , 946 A.2d 463 . This Court ruled that the trial judge erred by failing to answer the jury’s question with a clear “no,” 172 Md.App. 588, 621 , 916 A.2d 410 , and, although the Court of Appeals disagreed with that answer, the Court of Appeals agreed that the jury’s questions warranted supplemental instructions and the trial court committed reversible error in failing to provide a helpful response. The Court of Appeals stated in Baby that the threshold issue for determining when a supplemental clarifying response is required is this: “The question before us, then, is whether the jury’s questions made explicit its difficulty with an issue central to the case such that the trial court was required to respond to the questions in a manner that directly addressed the difficulty.” 404 Md. at 263 , 946 A.2d 463 (emphasis added). In Baby , the jury’s multiple notes explicitly apprised the court and counsel that the jury was asking for ³⁷⁹ clarification about the legal impact of a withdrawal of consent during an act of sexual intercourse, and that was a critical point of law not covered by any of the court’s instructions.

The Baby Court noted that, in Lovell, supra, 347 Md. at 623 , 702 A.2d 261 , it had held “that a trial court must respond to a question from a deliberating jury in a way that clarifies the confusion evidenced by the query when the question involves an issue central to the case.” Baby, 404 Md. at 263 , 946 A.2d 463 . The jury’s questions about the legal implication of a withdrawal of consent after the sex act was in progress were never addressed, let alone satisfactorily answered, by any of the instructions provided by the court. Under those circumstances, the Court of Appeals held in Baby that the trial court’s response to the jury’s notes was inadequate: simply “[r]eferring the jury to the legal definition of rape that the court had previously provided was not sufficient to address either of the jury’s questions as the definition makes no reference to the issue of post-penetration withdrawal of consent which was central to the jury’s questions.” 404 Md. at 263-64 , 946 A.2d 463 . In Mr. Mulley’s case, the jury’s questions regarding the charge of wearing, carrying, or transporting a handgun generated disagreement among the trial judge