Nicholson v. State

Panel: Berger, Nazarian, Arthur, JJ. Berger, J. ²³³ This appeal arises from a criminal proceeding before the Circuit Court for Baltimore County. Carlos Nicholson ("Nicholson"), appellant, was convicted of possession of marijuana with intent to distribute, conspiracy to distribute marijuana, and second-degree felony murder. On appeal, Nicholson presents three questions for our review, which we have rephrased as follows: 1.

Whether the circuit court erred in refusing to instruct the jury on self-defense. 2. Whether the evidence was sufficient to sustain a conviction for possession ⁴⁸³ of marijuana with intent to distribute. 3. Whether the indictment against Nicholson supported a charge of second-degree felony murder. For the reasons explained herein, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS I. Shooting and Arrest On January 7, 2016, at 10:45 p.m., Baltimore County Police received reports that shots had been fired on Lower Gate Court in Owings Mills. Upon arriving, police found Treshawn Johnson ("Johnson") lying unresponsive on the ground in front of 27 Lower Gate Court clenching a loaded .357-caliber revolver. Johnson had been shot in the chest and leg, and he died at the scene. Police discovered Mancino Carpentieri ("Carpentieri") limping nearby with gunshot wounds on his back and thigh.

On the ground near Carpentieri was a loaded semiautomatic .380-caliber pistol. Nicholson was arrested on January 10, 2016. Police searched Nicholson's home and recovered a bag containing .42 grams of marijuana, a bag containing 28.29 grams of marijuana, and two scales with marijuana residue on them. A box of ²³⁴ sandwich bags was seized from the top of the dresser in the master bedroom.

Nicholson's vehicle was seized the same day.

II

Nicholson's Statement While in custody, Nicholson waived his Miranda rights. Nicholson was interviewed by Detective Carroll Bollinger and Detective Klimko. Nicholson told the detectives that "[t]hose two people ... they not victims. They came there to rob me.

You can see in my phone that they, I sell weed." Nicholson continued, "They robbed me. They robbed me. They ... took my weed, they took everything from me." Nicholson told the police that he had received a text message from someone named "Man" who "wanted to buy a pound" of marijuana. Nicholson did not have that amount of marijuana, so he contacted Fallon Stewart ("Stewart"), who agreed to provide the product and give Nicholson "a cut." On the night in question, Nicholson met Stewart in a parking lot on Lower Gate Court.

Stewart entered the rear passenger side of Nicholson's vehicle. Later, Johnson and Carpentieri arrived. Nicholson told the police that he had never dealt with the men before. Johnson and Carpentieri entered Nicholson's vehicle.

Nicholson described the events that followed: [W]hen they got in the truck, they cocked a gun and put it straight in my head. One in the front, one in the back of me. The one in the backseat got out of the car and pulled me to the ground. And that was it.

And he, he fired one shot at me and I, I thought I was hit to be honest. I rolled under the car and I just, just laid there like until it was done. I heard a bunch of shots, once the shots stopped I jumped in the truck and I pulled out. Nicholson said that in the struggle with his assailant he "grabbed" the assailant's gun.

When the detective asked if Nicholson had "turn[ed] the gun on his assailant, Nicholson said, "Maybe I did. Maybe that's when the shot went off. To be honest with you like it's, it's blurry. It's ...

I was scared as shit." When one of the detectives told Nicholson that the man ²³⁵ who died had two bullets from his own gun "in him," Nicholson said, [M]aybe I did turn the gun on him while we was tussling. I, I couldn't, I couldn't tell you, I just remember the shots going off and I, I remember thinking I was hit.... I remember going down to the ground. And I remember when I went ⁴⁸⁴ down to the ground I remember hearing a bunch of shots.

Nicholson added that "once the shots stopped ... I jumped up and I looked and Fallon was like 'where's my friend?' " Nicholson drove out of the parking lot behind Stewart, who was in a Kia Sportage. When the detectives pressed Nicholson on his story, Nicholson insisted: [W]hat I do remember is just being in the car, the boy putting the gun on, putting it to my head telling me to kick everything out. And the dude from the backseat with the revolver, I remember him pushing her out of the car.

Or I don't know if she put, like you know push him out. I don't know what happened. I just know he opened my door and tried to pull me out and when he was pulling me out I just felt like he was gonna shoot me. So we, we were tussling.

And that's when the shots went off. And I fell down to the ground. And that was it. After that, when I fell to the ground, I hear the shots, a lot of shots.

Like a lot of shots. I don't know how many shots. Maybe like 17 or something. 18 or maybe, maybe a lot. I don't know, but I heard shots.

A whole bunch of shots. That's all I really remember. I came up after, after the shots were stopped. Nicholson insisted that neither he nor Stewart brought a gun to the rendezvous.

At the conclusion of the interview, a technician photographed a "small mark" on Nicholson's back that Nicholson said was caused by the bullet that grazed him. ²³⁶ III. The Trial Nicholson was charged with first-degree murder, attempted first-degree murder, use of a firearm in the commission of a crime of violence, possession of a firearm with a nexus to a drug trafficking crime, possession of marijuana with intent to distribute, and conspiracy to distribute marijuana. The State used the statutory short-form indictment of Maryland Code (2002, 2012 Repl. Vol., 2016 Supp.), § 2-208 of the Criminal Law Article ("Crim.

Law") to charge Nicholson with first-degree murder. A. Eyewitness Testimony Lewis Vega ("Vega") testified that he was at his home on Lower Gate Court with his mother and his friend, Anthony Piechowski ("Piechowski"), on the night in question. Vega testified that he heard gunshots at around 10:30 p.m. When Vega looked out the window, he saw a woman standing by the passenger side of a car and a man approaching the passenger side of a vehicle parked across the street.

Seconds later, Vega heard shots coming from inside the vehicle and saw someone run away. Vega testified that he "saw muzzle flashes from inside the car." Vega's mother pulled him and Piechowski away from the window. Vega returned to the window six seconds later and saw two vehicles leaving the parking lot. Piechowski testified that "we just saw people running out in the parking lot and what looked like flashes." Piechowski photographed the license plate of one of the vehicles.

Police later used the photograph to determine that the Kia Sportage was being leased to Danika Floyd, who told the police that Shawn Reeves ("Reeves"), the father of her children, had been driving the vehicle. Sylvester Wambui ("Wambui"), who lives at 4345 Lower Gate Court, testified that he was smoking a cigarette outside his home at around 10:30 p.m. on the night in question when he noticed two men standing near the parking lot. Shortly thereafter, Wambui saw two cars ("V1" and "V2") enter the parking lot. Wambui saw someone exit V2 and enter V1. ²³⁷ Wambui heard gunshots and saw someone exit the driver's ⁴⁸⁵ side door of V1.

Wambui heard two or three more gunshots and saw a dark shadow standing outside the driver's door, which was open, shooting down. The shadowy figure returned to V1, and both vehicles drove away. B. Additional Evidence The State's tool mark examiner testified that both of the guns recovered at the scene had been fired, but that neither gun had fired the bullets that shot Carpentieri and Johnson. He also testified that the bullets removed from Carpentieri and Johnson were fired from the same firearm.

The medical examiner, Dr. James Locke ("Dr. Locke"), testified that Treshawn Johnson had been shot in the chest, just below the nipple line and near the midline of the chest. The bullet entered the chest and struck the right lung and the right flank area. Dr. Locke testified that there was evidence of soot and stippling around the gunshot wound in Johnson's chest. Dr. Locke concluded that Johnson's chest wound was consistent with a gunshot at close range.

Dr. Locke testified that when the end of a gun barrel is placed up against the body, the bullet exiting the firearm will cause the release of a tremendous amount of energy and produce a blowout of the area. Dr. Locke testified that this was probably what caused the large hole in Johnson's shirt. Johnson had also been shot in the left leg. Sgt.

Thomas Stetson ("Sgt. Stetson") testified that he had previously worked undercover in narcotics. Sgt. Stetson testified that he was nearly robbed on one occasion when he was engaged in an undercover purchase of marijuana.

Sgt. Stetson testified that the distribution of marijuana is dangerous. The State also introduced text messages between Stewart and Reeves. In one message, Stewart wrote, "This off like 5G." Reeves responded, "I don't know how it's off.

It was 225, that's a G," and then added, "I did it myself. I still have the other half." The parties stipulated that "448 grams equals one pound of marijuana." ²³⁸ IV. Motion for Judgment of Acquittal At the close of evidence, Nicholson filed a motion for judgment of acquittal. Nicholson argued that "the only evidence is that it was self-defense," leading to the following exchange with the trial judge: THE COURT: Well Mr. Carpentieri was shot in the back. [DEFENSE COUNSEL]: I understand.

I understand. THE COURT: All right. Well, so self-defense is harder to see when someone's shot in the back. [DEFENSE COUNSEL]: Well one time is in the thigh and very conceive -- THE COURT: Two times in the back. [DEFENSE COUNSEL]: Yes, I understand. And, but as he's running away after putting a gun to the head of my client according to the statement in the, my client gives which is the only evidence we have, he put a gun to his head.

I do not -- THE COURT: As long as he's running away and you shoot him that's, starts to sound more like murder. Nicholson also argued that selling marijuana is not an inherently dangerous felony that would support a second-degree felony murder charge. The trial judge denied Nicholson's motion and proceeded to instruct the jury. When Nicholson requested an instruction on self-defense, the trial judge responded, "I don't think that self-defense was generated in this case." ⁴⁸⁶ V. Conviction and Sentencing The jury found Nicholson guilty of possession of marijuana with intent to distribute, conspiracy to distribute marijuana, and second-degree felony murder.

The circuit court sentenced Nicholson to twenty-five years in prison, five years suspended, for second-degree felony murder, and to a concurrent sentence of five years for conspiracy. The court also placed Nicholson on five years of supervised probation. Nicholson timely appealed. ²³⁹ DISCUSSION I. The Circuit Court's Refusal to Instruct the Jury on Self-Defense Was Harmless Error. A. The Circuit Court Erred In Refusing to Instruct the Jury on Self-Defense.

Nicholson argues that he "clearly met his burden to produce at least 'some evidence' ... which would permit a jury to find that he acted in perfect self-defense." The State contends that Nicholson's claim of self-defense was inconsistent with both the forensic evidence and Nicholson's own statement to the police. We hold that Nicholson presented sufficient evidence to generate the issue of self-defense, and that the circuit court erred in refusing to propound the requested instruction. We review a trial court's decision to give or refuse a jury instruction under the abuse of discretion standard. Stabb v. State , 423 Md. 454 , 465, 31 A.3d 922 (2011) (quoting Gunning v. State , 347 Md. 332 , 351, 701 A.2d 374 (1997) ).

Upon the request of any party, a trial court is required to "instruct the jury as to the applicable law and extent to which the instructions are binding." Md. Rule 4-325(c). "[I]n evaluating the propriety of a trial court's refusal to give a requested instruction, we must determine whether the requested instruction was a correct statement of the law; whether it was applicable under the facts of the case; and whether it was fairly covered in the instructions actually given." Gunning v. State , 347 Md. 332 , 348, 701 A.2d 374 (1997). In the present case, the only dispute between the parties is whether an instruction on self-defense was applicable under the facts of the case. "For an instruction to be factually generated, the defendant must produce 'some evidence' sufficient to raise the jury issue." Arthur v. State , 420 Md. 512 , 525, 24 A.3d 667 (2011).

In Maryland, the defendant has the "burden of initially producing 'some evidence' on the issue of mitigation or self-defense." Porter v. State , 455 Md. 220 , 240, 166 A.3d 1044 (2017) (quoting ²⁴⁰ Wilson v. State , 422 Md. 533 , 541, 30 A.3d 955 (2011) ). This standard is "a fairly low hurdle for a defendant," which the Court of Appeals has articulated as follows: Some evidence is not strictured by the test of a specific standard. It calls for no more than what it says -- "some," as that word is understood in common, everyday usage. It need not rise to the level of "beyond reasonable doubt" or "clear and convincing" or preponderance.

The source of the evidence is immaterial; it may emanate solely from the defendant. It is of no matter that the self-defense claim is overwhelmed by evidence to the contrary. If there is any evidence relied on by the defendant which, if believed, would support [defense], the defendant has met his burden. Arthur , supra , 420 Md. at 526 , 24 A.3d 667 (quoting State v. Martin , 329 Md. 351 , 359, 619 A.2d 992 (1993) ).

"Whether the evidence is sufficient to generate the requested instruction in the first instance is a question of law for the judge." ⁴⁸⁷ General v. State , 367 Md. 475 , 487, 789 A.2d 102 (2002). "In evaluating whether competent evidence exists to generate the requested instruction, we view the evidence in the light most favorable to the accused." Id. Turning to the present case, the State argues that an instruction on self-defense was not generated by the evidence. We disagree.

The record shows that Nicholson presented "some evidence" to support each element of perfect self-defense. The elements of perfect self-defense in Maryland are well established: (1) The accused must have had reasonable grounds to believe himself in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant; (2) The accused must have in fact believed himself in this danger; (3) The accused claiming the right of self-defense must not have been the aggressor or provoked the conflict; and (4) The force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded. ²⁴¹ Holt v. State , 236 Md. App. 604 , 622, 182 A.3d 322 (2018) (quoting State v. Faulkner , 301 Md. 482 , 485-86, 483 A.2d 759 (1984) ). Imperfect self-defense, on the other hand, "requires no more than a subjective honest belief on the part of the killer that his actions were necessary for his safety, even though, on an objective appraisal by a reasonable man, they would not be found to be so." Id. (quoting Faulkner v. State , 54 Md. App. 113 , 115, 458 A.2d 81 (1983) ).

The jury was presented with evidence that Nicholson was reasonably afraid for his life when he killed Johnson. Nicholson told the police that two men attempted to rob him at gunpoint, and that one of the men threw him to the ground and shot at him. Nicholson stated that he struggled with the assailant and grabbed his gun. Nicholson admitted that he may have "turn[ed] the gun" on his assailant during the struggle, but he said that his memory was "blurry" because he "was scared as shit." Nicholson's assertion that he was robbed at gunpoint and shot at is consistent with what police found at the crime scene, namely, a loaded firearm in Johnson's hand and a loaded firearm found near the wounded Carpentieri.

The State's tool mark examiner later testified that both of these weapons had been fired. Nicholson's assertion that he may have shot one of his assailants during a physical struggle was consistent with the medical examiner's testimony that Johnson had been shot in the chest at very close range. Nicholson also presented evidence that Johnson and Carpentieri were the aggressors and that Nicholson used reasonable force to defend himself against violent assailants with loaded firearms. According to Nicholson's statement, he was simply trying to conduct a drug sale when Johnson and Carpentieri drew their weapons on him unprovoked and attempted to rob him.

Nicholson maintained that neither he nor Stewart were armed. Nicholson told the police that he may have shot one of the men during a struggle, at which point Nicholson rolled under a vehicle and waited for the shooting to stop. Although these claims are supported by no evidence beyond Nicholson's own statement to the police, "[t]he source of the evidence is immaterial; it may emanate solely from the ²⁴² defendant." Arthur , supra , 420 Md. at 526 , 24 A.3d 667 . Accordingly, we conclude that Nicholson presented "some evidence" to support all four elements of his self-defense claim To be sure, Nicholson's statement is contradicted on many points by other evidence in the record.

The State's tool mark examiner testified that Johnson and Carpentieri were shot by a third firearm that was never found, suggesting that Nicholson ⁴⁸⁸ was, in fact, carrying his own gun and used it to kill Johnson. The State's forensic expert also testified that Johnson and Carpentieri were shot by the same gun, suggesting that Nicholson was also responsible for shooting Carpentieri. This testimony was especially damaging to Nicholson's self-defense claim because Carpentieri had gunshot wounds on his back and thigh, suggesting that Nicholson fired multiple times on Carpentieri while Carpentieri was fleeing. Nevertheless, "what evidence to believe, what weight to be given it, and what facts flow from that evidence are for the jury, not the judge, to determine." Dykes , supra , 319 Md. at 224 , 571 A.2d 1251 .

Viewing the evidence in the light most favorable to the accused, we conclude that Nicholson presented sufficient evidence to generate the issue of self-defense. The State argues that Nicholson's statement cannot generate the issue of self-defense because Nicholson never admitted to shooting anyone. To be sure, Nicholson's remarks on this question were equivocal. At one point in his statement, Nicholson flatly denied shooting Johnson while admitting, in the same breath, that it was possible: But I wasn't the shooter.

I didn't shoot him. I didn't shoot not one person and if I did shoot the dead guy it was during the tussle and it was with his gun. Nevertheless, Nicholson admitted to being at the scene of the shooting, to "tussling" with one of the victims, and to grabbing the victim's gun. Nicholson admitted that he may have shot one of the men.

Furthermore, the State introduced other evidence at trial supporting a finding that Nicholson was the shooter, including Wambui's testimony about the shadowy figure shooting down from the driver's side of V1. This ²⁴³ evidence, combined with the evidence that Nicholson was a victim of armed robbery, was sufficient to generate the issue of self-defense. The State contends that "in order for the jury to believe that Nicholson acted in self-defense and shot Johnson and Carpentieri, the jury would have had to reject either the forensic evidence or Nicholson's claim that he did not have a gun." In essence, the State argues that Nicholson may not rely on a combination of contradictory evidentiary sources to generate a factual issue for a jury instruction. We disagree.

"In its assessment of the credibility of witnesses, [a fact-finder is] entitled to accept -- or reject -- all, part, or none of the testimony of any witness, whether that testimony was or was not contradicted or corroborated by any other evidence." Omayaka v. Omayaka , 417 Md. 643 , 659, 12 A.3d 96 (2011) (emphasis in original). Consequently, the jury in the present case could have believed that Nicholson was the victim of an unprovoked attack by two armed men while doubting Nicholson's claim that he was unarmed and did not shoot anyone. The State argues that a jury instruction on self-defense would have been inconsistent with Nicholson's attempt to prove at trial that he was not the shooter. The Court of Appeals has made it clear, however, that "a defendant is entitled to have the jury instructed on any theory of defense that is fairly supported by the evidence, even if several theories offered are inconsistent." Sims v. State , 319 Md. 540 , 550, 573 A.2d 1317 (1990) ; see also McKay v. State , 90 Md. App. 204 , 219, 600 A.2d 904 (1992) (holding that even though the defendant testified "that he acted out of fear when inflicting the injury on his accuser, the presiding judge must, when requested, give an instruction on heat of passion where other evidence supports such a theory").

The Court emphasized in Sims that its holding was "consistent with ⁴⁸⁹ the general proposition that a defendant is entitled to an instruction on every essential question or point of law supported by evidence." Id. As we have explained, Nicholson presented "some evidence" to support all four elements of perfect self-defense. Accordingly, ²⁴⁴ it does not matter that Nicholson's claim of self-defense was inconsistent with his overall defense strategy at trial. We, therefore, hold that the circuit court erred in refusing Nicholson's request for a jury instruction on self-defense.

B. The Circuit Court's Refusal to Instruct the Jury on Self-Defense Was Harmless Error. The State argues that "any error by the trial court in refusing to give the [self-defense] instruction was harmless." We agree. The Court of Appeals has explained the harmless error test in the following terms: [W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed 'harmless' and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of -- whether erroneously admitted or excluded -- may have contributed to the rendition of the guilty verdict.

Dionas v. State , 436 Md. 97 , 108, 80 A.3d 1058 (2013) (quoting Dorsey v. State , 276 Md. 638 , 659, 350 A.2d 665 (1976) ). "What's more, once error is established, the burden falls upon the State, the beneficiary of the error, to exclude this possibility beyond a reasonable doubt." Id. (quoting Hunter v. State , 397 Md. 580 , 596, 919 A.2d 63 (2007) ). Thus, "[h]armless error review is the standard of review most favorable to the defendant short of an automatic reversal." Simms v. State , 194 Md. App. 285 , 323, 4 A.3d 72 (2010) (quoting Bellamy v. State , 403 Md. 308 , 333, 941 A.2d 1107 (2008) ), aff'd , 420 Md. 705 , 25 A.3d 144 (2011).

In the case sub judice , Nicholson was acquitted of first and second-degree murder. Consequently, the circuit court's error was harmless with respect to these two charges. 1 The only ²⁴⁵ conviction returned by the jury that might have been affected by the presence or absence of a self-defense instruction was second-degree felony murder. "It has been established," however, "that self-defense is not a defense to felony murder." Sutton v. State , 139 Md. App. 412 , 454, 776 A.2d 47 (2001) ); see also State v. Richardson , 341 N.C. 658 , 668, 462 S.E.2d 492 (1995) ("Self-defense, perfect or imperfect, is not a defense to first-degree murder under the felony murder theory, and only perfect self-defense is applicable to the underlying felonies."); State v. Oates , 540 S.W.3d 858 , 861-62 (Mo. 2018) (holding that self-defense is not a defense to felony murder where the underlying felony does not involve the use of force), reh'g denied (Apr. 3, 2018); 2 ⁴⁹⁰ Woodard v. State , 296 Ga. 803 , 808, 771 S.E.2d 362 (2015) (holding that "a person is not justified in using force if that person ... is attempting to commit, is committing, or is fleeing after the commission or attempted commission of a felony"). Because the jury was not permitted to acquit Nicholson of second-degree felony murder on the basis of self-defense, the circuit court's refusal to give an instruction on that issue could have no prejudicial effect.

Nicholson argues that our holding in Sutton only applies to cases of felony murder where the underlying felony involves force or the threat of force. According to Nicholson, the principle that "self-defense is not a defense to felony murder" is merely a general rule arising from "the fundamental concept that the accused claiming the right of self-defense must not have been the aggressor or provoked the conflict." Sutton , supra , 139 Md. App. at 454 -55 , 776 A.2d 47 . In those cases where the defendant was not in any sense the aggressor, ²⁴⁶ Nicholson reasons that the general rule would not apply, and self-defense would be a permissible defense to the felony murder charge. Nicholson reads Sutton too narrowly.

In Sutton , the defendant was charged with first-degree assault, felony murder, and robbery with a deadly weapon. Id. at 420 , 776 A.2d 47 . The robbery charge served as the underlying felony for the murder charge. Id.

The trial court instructed the jury that self-defense applied only to first-degree assault and not to felony murder. Id. at 453 , 776 A.2d 47 . In holding that the trial court had not erred in propounding the instruction, we affirmed categorically that "self-defense is not a defense to felony murder." Id. at 454 , 776 A.2d 47 . Had we intended to limit this rule to cases where the underlying felony involves force or the threat of force, we could easily have included