Nash v. State

GRAEFF, J. On August 12, 2008, Floyd Reynaldo Nash, appellant, was convicted in the Circuit Court for Charles County of possession of a regulated firearm by a person previously convicted of a crime of violence. The court sentenced appellant to five years without parole. ³⁹⁰ Appellant presents two questions on appeal, which we have rephrased: 1. Did the trial court err in bifurcating the elements of the offense, with the jury considering only whether appellant possessed a regulated firearm? 2. Was the evidence sufficient to support appellant’s conviction?

For the reasons set forth below, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On March 14, 2008, appellant was indicted in the Circuit Court for Charles County on three counts: (1) unlawful possession of a regulated firearm by a person previously convicted of a crime of violence; (2) possession of equipment to produce controlled dangerous substance; and (3) possession of marijuana. The State subsequently entered a nolle prosequi on the drug related charges, and it proceeded solely on the firearm charge. At trial, Corporal Robert Kunhow, a member of the Charles County Sheriffs Office, testified that he executed a search and seizure warrant at 21 Chinaberry Lane on November 10, 2007, at approximately 5:20 a.m.

This residence, located in a townhouse community in Charles County, was owned by appellant’s wife, LaDonna Nash. Ms. Nash was the only person present in the residence at the time of the search. During the search, Corporal Kunhow recovered a .45 caliber Hi-Point handgun from a nightstand drawer next to the bed in the master bedroom. The gun was loaded, with seven rounds in the magazine and one in the chamber.

Corporal Kunhow “immediately made the gun safe” by dropping the magazine out of the handgun and opening the chamber to release the bullet. He testified that the gun “performed just like an operating handgun would.” Corporal Kunhow, who had “been using handguns for about 13 years,” testified that the gun was operating “fine.” ³⁹¹ In the drawer where the gun was found, Corporal Kunhow observed appellant’s checkbook, as well as mail addressed to appellant. On top of a dresser in the same room, Corporal Kunhow found appellant’s passport. He also located mail addressed to appellant on the kitchen table.

On February 13, 2008, the police executed a second search warrant for the home. 1 Patrol officers stopped appellant for a traffic violation, and Corporal Kunhow escorted appellant back to the residence. 2 Appellant gave Corporal Kunhow a key to the residence to avoid damage to the property, and the police searched the residence. Corporal Kunhow advised appellant of his Miranda rights, 3 and he asked appellant questions about the gun that the police recovered in the residence on November 10, 2007. Corporal Kunhow asked appellant if he knew who owned the gun, explaining that they were having problems locating the registered owner of the handgun. Corporal Kunhow testified regarding the conversation that ensued as follows: [Corporal Kunhow]: His response was he thought the gun was new and he didn’t know that it had any registered owner. [Prosecutor]: Okay.

After he indicated that to you, what was the next thing you talked with him about with respect to the gun? ³⁹² [Corporal Kunhow]: I asked him if he knew that he was not supposed to be in possession of a handgun, at which— [Prosecutor]: And what did he say? [Corporal Kunhow]: At which time he replied that he knew that he wasn’t supposed to be, that he was trying to get the handgun registered under his wife’s name, that they just wanted the handgun in the house for protection. After Corporal Kunhow’s testimony, the State discussed a stipulation that the parties had entered into regarding appellant’s prior conviction of a crime of violence as an element of the charge of possession of a regulated firearm by a person convicted of a crime of violence. The substance of this stipulation is disputed by the parties and will be discussed in more detail, infra. Both parties agree, however, that pursuant to the stipulation, the only issue that would be submitted to the jury to decide was whether appellant was in possession of the gun.

The court then asked defense counsel if he had any motions. Counsel moved for judgment of acquittal “generally” and “on the grounds that [the] State has failed to show that this was a fireable weapon.” He argued that the State had to have the gun “tested to determine whether it is actually a fireable weapon,” and there was no evidence that the gun in this ease had been tested. In response, the State argued that Corporal Kunhow had 13 years experience with guns and provided uncontroverted testimony that this was an operable weapon. The court denied appellant’s motion.

Appellant called three witnesses on his behalf. Rhonda Graves, appellant’s mother, testified that appellant and Ms. Nash were married in July 2007, but they separated in early October 2007. During the separation, appellant moved in with Ms. Graves. Ms. Graves became concerned for the safety of her daughter-in-law because she was living by herself in the Chinaberry Lane residence, which Ms. Graves believed to be an unsafe neighborhood.

To protect Ms. Nash, Ms. Graves took her handgun to the Chinaberry Lane residence. She ³⁹³ testified that appellant and Ms. Nash reunited in December 2007. Judy Graves, 4 appellant’s neighbor, testified that she typically saw appellant four or five days during the week while walking her dog. There came a time when she did not see appellant as frequently.

She testified that she saw appellant at the residence on Thanksgiving in 2007. Darren Wallace, appellant’s cousin, testified that he helped appellant move his personal items from the Chinaberry Lane residence to appellant’s mother’s house. Mr. Wallace then helped move appellant back to Chinaberry Lane in December 2007. After appellant rested his case, the State called Corporal Kunhow in rebuttal.

He testified that, when they executed the search warrants, there was a dog, a pit bull, at the residence. At the conclusion of the case, appellant renewed his motion for judgment of acquittal on the ground that there was no evidence presented that the weapon was test-fired. The court denied the motion. The court then instructed the jury.

Of particular relevance to this appeal, the court stated as follows: Now, if you look at your verdict sheet, there’s one question that you’re asked. And the charge here is possession of a firearm under certain circumstances. As a matter of law, I am the one that determines what the “certain circumstances” are. The only issue that you’re faced with is whether or not the defendant possessed a firearm.

And that must be proven to you by the State beyond a reasonable doubt. A handgun is a regulated firearm. There was no objection to this instruction. The verdict sheet submitted to the jury provided: 1.

Possession of a firearm under certain circumstances ³⁹⁴ _ Not Guilty _ Guilty The jury found appellant guilty. After the jury returned its verdict, the court referred to the stipulation, stating “we’ll stipulate he was a convicted felon, right?” The State responded in the affirmative and introduced into evidence docket entries showing two prior convictions for robbery. This timely appeal followed. DISCUSSION I. Appellant was charged with unlawful possession of a firearm pursuant to Md.Code (2003), § 5-133(c) of the Public Safety Article (“P.S.”).

Section 5-133(c) provides, in pertinent part, as follows: (1) A person may not possess a regulated firearm if the person was previously convicted of: (i) a crime of violence____ Pursuant to this statute, the State must prove three things: (1) possession; (2) of a regulated firearm; and (3) a prior conviction of a crime of violence. Appellant’s first contention addresses the third element. Specifically, appellant takes issue with the propriety of a stipulation entered into by the parties regarding the requirement that the State prove a prior crime of violence. Appellant contends that “[t]he State and defense, apparently, entered into a stipulation in chambers that the court would be [the] designated fact-finder on the issue of [a prior] felony conviction and that the jury would be limited to the issue of possession.” Appellant argues that a judge should not assume the role of fact finder in a jury trial, and, in any event, “no credible evidence was produced by the State” during the trial to support the court’s fact finding.

The State has several responses to appellant’s argument. Initially, it disputes appellant’s characterization of the stipula ³⁹⁵ tion, arguing that the stipulation was not that the court would be the fact finder on the prior conviction element, but rather, that appellant had the requisite prior conviction of a crime of violence. Moreover, it argues that, because appellant agreed to the procedure below, he cannot assert error on appeal. On the merits, the State contends that there was no error, much less prejudicial error.

The State argues that appellant “enjoyed an unnecessary windfall from the trial court’s agreement to not mention even the existence of his prior conviction to the jury.” We will address first the dispute regarding the substance of the stipulation of the parties. The record is clear that the parties entered into some agreement regarding the third element of the offense that would prevent disclosure of the details of the previous conviction to the jury. Prior to voir dire, defense counsel stated: “Your Honor, with voir dire, my voir dire needs to ... be changed by striking out the information about the type of the crime that was previously involved.” The court complied, advising the prospective jurors: “The sole charge in this case is possession of a firearm under certain circumstances allegedly occurring November 10, 2007 in Waldorf, Maryland.” At the close of the State’s case, the stipulation was discussed as follows: [PROSECUTOR]: Well, before we get to [motions], I don’t know if we had placed this part on the record, so I just wanted to make sure it was placed on the record. THE COURT: Okay. [PROSECUTOR]: That it’s the State’s understanding that the defense is gonna permit Your Honor to make the ruling on whether or not he is actually a felon, that would be not permitted to have the handgun and that the jury was only going to be deciding the issue of possession.

In light of that, the State has presented a case before the jury that did not include any evidence with respect to his prior convictions that would support a felon [in] possession, illegal possession of a handgun. ³⁹⁶ THE COURT: Well, I think that was a stipulation the parties mentioned to me in chambers. [DEFENSE COUNSEL]: That’s correct Your Honor. [PROSECUTOR]: I just wanted, I don’t think it was on the record. THE COURT: The only issue for them is possession. [PROSECUTOR]: Correct. THE COURT: And I give them an instruction saying, its up [to] the court to determine certain circumstances, you determine the possession. [PROSECUTOR]: Correct. THE COURT: Okay.

With that, you rest, right? [PROSECUTOR]: Yes. As long as everything is in. Yeah, I rest. I think I have everything in.

During jury instructions, the court instructed the jury that the charge was “possession of a firearm under certain circumstances.” The court indicated that the jury would be deciding only the issue of possession of the firearm, and the court would determine “what the ‘certain circumstances’ are.” Appellant made no objection to this instruction, and defense counsel agreed that he was “satisfied” with the court’s instructions. Based on the above, the appellant’s contention that the parties stipulated that the court would be the fact finder on this element of the offense appears to be correct. The prosecutor characterized the stipulation as “the defense is gonna permit Your Honor to make the ruling on whether or not he is actually a felon, [who] would [not be] permitted to have the handgun,” and the court instructed the jury that it would determine the issue of “certain circumstances.” The State, however, points to the following colloquy after the jury found appellant guilty of “possession of a firearm under certain circumstances”: [PROSECUTOR]: And Your Honor, for purposes of the record, I didn’t know if, does the Court have to make your finding based on the stipulation for purposes of the record? ³⁹⁷ THE COURT: Well, based on the stipulation, as I said, the disqualifying event, we’ll stipulate he was a convicted felon, right? [PROSECUTOR]: Correct. Did the Court want me to put on the record what those were, for purposes of the record.

THE COURT: Why don’t you just put them in the record. Call them Court Exhibit if you want to. [PROSECUTOR]: Okay. Your Honor, that would be CT990138A and I guess, I’ll give CT990137A to Madam Clerk and, for exhibits, I guess 1 and 2. For purposes of supporting the prior convictions.

(Emphasis added). 5 This colloquy supports the State’s argument that the parties stipulated to the fact of a qualifying conviction, rather than stipulating that the court would determine that element of the charge. Thus, there is support for each party’s position regarding the substance of the stipulation. This case illustrates why it is important for the parties, when they enter into a stipulation, to put the stipulation on the record, stating the terms clearly and succinctly. In this case, however, we need not resolve the dispute regarding the substance of the stipulation.

Under either scenario, the procedure was improper. In Carter v. State, 374 Md. 693 , 824 A.2d 123 (2003), the Court of Appeals set forth the proper procedure to follow when a defendant is charged with the crime of possession of a regulated firearm by a person with a prior conviction of a crime of violence. The Court explained how to balance the need for evidence of the prior conviction with the potential ³⁹⁸ prejudicial effect of this evidence coming in front of the jury. Id. at 716-18 , 824 A.2d 123 .

In Carter , the defendant requested that the trial court bifurcate the elements of the criminal in possession charge, with the jury making a finding only as to whether the defendant had possessed a firearm. Id. at 701, 706 , 824 A.2d 123 . The trial court denied that request, and the Court of Appeals upheld that ruling. Id. at 701, 704 , 824 A.2d 123 .

The Court held that “the proper course is to require a trial judge, when the defendant elects a jury trial, to allow the State to present evidence of all elements of a criminal-in-possession charge.” Id. at 715 , 824 A.2d 123 . The State argues that this language, providing that the court should allow the State to present evidence of the prior conviction element, does not require the State to submit this evidence to a jury. We disagree. In Carter , the Court of Appeals noted that, although a few courts “have held that a trial court, at its discretion, may allow bifurcation of the proof of the elements of a criminal in possession charge,” id. at 712-13 , 824 A.2d 123 , “[m]any courts have concluded that a trial judge does not possess authority to bifurcate a defendant’s charge to prevent the jury from considering an element of that charge.” Id. at 710 , 824 A.2d 123 (emphasis added).

The Court cited with approval the decision in United States v. Gilliam, 994 F.2d 97 (2d Cir.), cert. denied, 510 U.S. 927 , 114 S.Ct. 335 , 126 L.Ed.2d 280 (1993), which set forth the Second Circuit’s rationale for rejecting that procedure: [It] violates the very foundation of the jury system. It removes from the jury’s consideration an element of the crime, leaving the jury in a position only to make findings of fact on a particular element without knowing the true import of those findings. Again, Gilliam is not charged with mere possession of a weapon, but with possession by a convicted felon. The jury speaks for the community in ³⁹⁹ condemning such behavior, and it cannot condemn such behavior if it is unaware of the nature of the crime charged.

Id. (quoting Gilliam, 994 F.2d at 100-101 ). After discussing cases from other jurisdictions, the Court of Appeals stated: [T]he proper approach is that which encourages the entirety of the charge to be heard by the jury. We are most persuaded by the predominant reasoning of the courts in [United States v. Collamore, 868 F.2d 24 (1st Cir.1989) overruled on other grounds, 21 F.3d 1 (1st Cir.1994) ] and Gilliam .

The jury’s role in deciding guilt or innocence involves more than merely finding innocuous facts; rather, it requires a judgment about an individual’s behavior based on an established code. This determination cannot be reached reliably without a full appreciation of the criminality of one’s behavior. The jurors must know, therefore, why they are being asked to subject an individual to criminal punishment for possessing a firearm when, generally, such an act is not illegal. When the jury does not understand that the defendant may not possess a firearm because of a previous criminal conviction, its ability to carry out its role is impeded.

Carter, 374 Md. at 713-14 ,