Potts v. State

Opinion by Wright, J. Following a jury trial in the Circuit Court for Baltimore City, Ivan Potts, appellant, was convicted of wearing, carrying, and transporting a firearm; possession of a firearm after having been convicted of a crime of violence; and possession ⁴⁰⁵ of ammunition after having been prohibited from possessing a regulated firearm. He was sentenced to incarceration for a term of eight years, the first five without the possibility of parole, for the possession of a firearm offense, and concurrent terms of one year for each of the other crimes. This timely appeal followed. Questions Presented Potts presents the following questions for our consideration: I. Did the trial court err in admitting hearsay during the testimony of one of the police officers?

II

Must the commitment record and docket entries be corrected to reflect accurately the sentence announced in open court for wearing and carrying a firearm?

III

Did the circuit court err in imposing separate sentences for possession of a firearm after having been convicted of a crime of violence and possession of ammunition after having been prohibited from possessing a regulated firearm?

IV

Was the evidence sufficient to sustain the convictions? For the reasons set forth below, we shall remand this case to the circuit court for the purpose of correcting Potts’s commitment record and affirm in all other respects. Factual Background On September 2, 2015, Baltimore City Police Sergeant Wayne Jenkins, Detective Maurice Ward, and Detective Evo-dio Hendrix were conducting an investigation, unrelated to the instant case, in the West Forest Park area of Baltimore City. The officers were in an unmarked police vehicle equipped with lights and a siren, and were wearing plain clothes and black tactical vests with the word “police” written in white letters on the front and back.

As they drove in the wrong direction on Fairview Avenue approaching Chelsea Terrace, they saw Potts walking toward them. When Potts was about five to seven townhouses away, Sergeant Jenkins and Detective Ward observed his left arm swinging freely and his right hand “affixed ⁴⁰⁶ to his mid-section,” grabbing his dip area. Both officers testified that grabbing the dip area is an indication that a person is armed. Potts looked up and appeared to notice the officers.

He then took a black handgun from his waistband, turned his back to the officers, and fled. Detectives Ward and Hendrix exited the police vehicle and chased Potts while Sergeant Jenkins gave chase in the police vehicle. When Sergeant Jenkins next saw Potts, he was running with both hands “open.” Shortly thereafter, Potts was apprehended by the detectives. Detective Hendrix testified that none of the officers used a baton or any other weapon resembling a baton.

After Potts was apprehended, Sergeant Jenkins went back to the location where he had last observed Potts and recovered a loaded black and silver firearm with a magazine containing sixteen rounds. Potts was transported to Central Booking by Baltimore City Police Officer Richard Lyles. Central Booking refused to receive Potts, so Officer Lyles drove him to St. Agnes Hospital. Potts told Officer Lyles that “they fucked me up.” Officer Lyles observed an open wound on Potts’s thigh.

About two hours after Potts was arrested, Sergeant Jenkins and the detectives were notified that Potts was at St. Agnes Hospital because he had a laceration on his thigh. They went to the hospital where they observed Potts’s pants and saw that they were not cut and did not have blood on them. Sergeant Jenkins and Detective Ward testified that Potts had not made any complaint about an injury after he was arrested. Jennifer Ingbretson, an expert in firearms operability, testified that the weapon recovered by Sergeant Jenkins and the detectives met the definition of a handgun and a firearm and that it was operable.

She also was given for examination a total of sixteen cartridges, the maximum capacity for the handgun, one of which was loaded in the gun and fifteen others that were in the magazine. The parties stipulated that, as the result of a prior conviction, Potts was prohibited from possessing a regulated firearm ⁴⁰⁷ and ammunition. We shall include additional facts as necessary in our discussion of the questions presented. Discussion [[Image here]] Potts first contends that the circuit court committed reversible error in admitting hearsay evidence during Detective Hendrix’s testimony.

He directs our attention to the following portion of Detective Hendrix’s testimony: [PROSECUTOR]: So what, if anything, at that time did you do after—do did you—did you observe your fellow detectives begin to take official action? [DET. HENDRIX]: Yes. At that point while driving Sergeant Jenkins and Detective Ward alerted me that the defendant has his right arm cupped—cupped to his body. [DEFENSE COUNSEL]: Objection, Your Honor. THE COURT: You heard something from your fellow officers. [DET.

HENDRIX]: Yes. THE COURT: All right. We’ll stop right there and hear the next question. Potts argues that Detective Hendrix’s testimony was hearsay that bolstered the State’s theory that Potts possessed a gun that he discarded as he ran from police.

He maintains that although the circuit court’s statements might have prevented Detective Hendrix from repeating the hearsay, they did not “amount to a sustaining of the objection[.]” Even if the detective’s testimony was not hearsay, Potts argues that the danger of unfair prejudice outweighed any probative value that the testimony might have had and that the admission of the testimony was not harmless. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule 5-801(c). “Except as otherwise provided by [the Maryland ⁴⁰⁸ Rules] or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.” Md. Rule 5-802. At the outset, we agree with Potts that the testimony at issue constituted inadmissible hearsay. Detective Hendrix’s statement that Sergeant Jenkins and Detective Ward told him that Potts had his arm “cupped” to his body was made in furtherance of the truth of the matter asserted.

The circuit court erred in not explicitly sustaining the objection. 1 Nonetheless, we decline to reverse Potts’s convictions because any error in the admission of Detective Hendrix’s statement was harmless. Error is harmless when “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.” See State v. Simms, 420 Md. 705, 738 , 25 A.3d 144 (2011) (citation omitted). “In considering whether an error was harmless, we also consider whether the evidence presented in error was cumulative evidence.” Dove v. State, 415 Md. 727, 743 , 4 A.3d 976 (2010). Specifically: Evidence is cumulative when, beyond a reasonable doubt, we are convinced that there was sufficient evidence, independent of the [evidence] complained of, to support the appellant’s] conviction [ ]. In other words, cumulative evidence tends to prove the same point as other evidence presented during the trial or sentencing hearing.

For exam- ⁴⁰⁹ pie, witness testimony is cumulative when it repeats the testimony of other witnesses introduced during the State’s case-in-chief. The essence of this test is the determination whether the cumulative effect of the properly admitted evidence so outweighs the prejudicial nature of the evidence erroneously admitted that there is no reasonable possibility that the decision of the finder of fact would have been different had the tainted evidence been excluded. Id. at 743-44 , 4 A.3d 976 (internal citations omitted). In this case, the statement concerning Potts’s right hand cupping or holding his body was cumulative.

Both Sergeant Jenkins and Detective Ward testified that they saw Potts with his right hand holding his dip area and, shortly thereafter, saw him pull a gun from his waistband. Detective Hendrix testified only that he heard his fellow officers say something, not that he saw Potts with a weapon. Potts relies on Graves v. State, 334 Md. 30 , 637 A.2d 1197 (1994), to argue that Detective Hendrix’s testimony was so prejudicial that the decision of the finder of fact would have been different had the tainted evidence been excluded. His reliance on that case, however, is misplaced.

There, Graves was charged with assault and attempted robbery. Graves, 334 Md. at 32 , 637 A.2d 1197 . One of the victims, Derek Jones, testified that as he was waiting for a bus, two men approached him, one of whom pulled out a gun and said, “[djon’t move.” Id. at 34 , 637 A.2d 1197 . When Jones’s father approached to ask what the problem was, Jones pushed the gun away and ran down the street and the two men fled.

Id. After speaking with Jones, police arrested Kenneth Trusty, who told police that Graves had been his accomplice. Id. Jones identified Trusty as one of his assailants and, after viewing a photographic array, identified Graves as the gunman.

Id. At trial, the State did not call Trusty to testify against Graves. Id. at 35 , 637 A.2d 1197 . Instead, the State relied upon the testimony of a police officer with whom Trusty spoke after he was arrested.

Id. Over objection, the police officer testified that ■Trusty told him Graves had been his accomplice. Id. The court ⁴¹⁰ admitted a notebook kept by the police officer in which he wrote down what Trusty told him.

Id, In considering the admission of the police officer’s testimony, the Court of Appeals held that the probative value of the testimony about what Trusty said was outweighed by the risk of unfair prejudice: [I]f the statement was offered for the purpose of proving the truth of the matter asserted by Trusty, it was clearly inadmissible hearsay. On the other hand, if it was offered for its limited probative value to show that the officer acted upon it in arranging the photographic array, that probative value was greatly outweighed by its unfair prejudice to Graves because of the danger of misuse of the information by the jury. Id. at 43 , 637 A.2d 1197 . Potts argues that the testimony of Detective Hendrix was unfairly prejudicial because “the jury would have been unable to treat testimony about how Mr. Potts ‘cupped’ his arm as anything other than substantive evidence.” That is not the case.

In Graves , the Court held that the testimony was critical and prejudicial because Trusty’s statement “provided a bridge that synthesized and buttressed the identifications of Graves by [the two victims].” Id. The statements of the eyewitnesses added “substantial, perhaps even critical, weight to the State’s case against Graves.” Id. at 43 , 637 A.2d 1197 . In the case at hand, Detective Hendrix’s statement was not critical to the case. It did not bridge a gap, as in Graves , but merely explained why he exited the police vehicle and pursued Potts.

As we previously noted, it was cumulative and only reiterated the testimony of Sergeant Jenkins and Detective Ward, and was harmless error at best. For these reasons, we hold that any error in the admission of the testimony was harmless.

II

Potts next contends that his commitment record and the docket entries for this case should be corrected to reflect the ⁴¹¹ sentence announced in open court. The State agrees and so do we. For the crime of possession of a firearm after having been convicted of a crime of violence, Potts was sentenced to a term of incarceration of eight years, the first five of which were to be served without the possibility of parole. For each of the remaining crimes, he was sentenced to concurrent terms of one year.

Potts’s commitment record erroneously indicates that he was sentenced to three years for wearing, carrying, and transporting a firearm. “ ‘When there is a conflict between the transcript and the commitment record, unless it is shown that the transcript is in error, the transcript prevails.’ ” Lawson v. State, 187 Md.App. 101, 108 , 975 A.2d 357 (2009) (quoting Douglas v. State, 130 Md.App. 666, 673 , 747 A.2d 752 (2000)). Accordingly, we shall remand this case to the circuit court for correction of the commitment record and docket