Smith v. State

KEHOE, J. Nathaniel Smith, Sr. shot an erstwhile friend in the head during an argument. A jury of the Circuit Court for Prince ⁵¹⁸ George’s County convicted him of first degree assault and related crimes, including, and of interest to us for the purposes of this appeal, illegally possessing a firearm after a disqualifying conviction. Mr. Smith raises two issues. First, he argues that there was insufficient evidence to sustain the convictions for illegal possession of a firearm because the prosecutor failed to present evidence of the disqualifying conviction to the jury during the State’s case-in-chief.

We do not agree. Second, he asks us to undertake plain error review to decide whether his complaint of prosecutorial misconduct during closing argument warrants reversal. This is not an appropriate case for plain error review. We will affirm the convictions.

Background This appeal arises out of a dispute between Smith and a friend, Herbert Mungo, over a credit card reader. Their disagreement degenerated into an altercation during which Smith shot Mr. Mungo. Smith was charged with attempted second degree murder, first degree assault, use of a handgun in the commission of a crime of violence, and possession of cocaine. Additionally, he was charged with violating Public Safety Article (“PS”) § 5-133(b) 1 —illegal possession of a regulated firearm after having been convicted of a disqualifying crime (Count 5); PS § 5-133(c) 2 —illegal possession of a regu ⁵¹⁹ lated firearm after a felony conviction for violating Criminal Law Article (CL) § 5-602 3 (Count 6); and PS § 5-144 4 — possession of a firearm in violation of Subtitle 5 of the Public Safety Article (Count 7).

The jury acquitted Smith of the attempted murder charge, but found him guilty on the remaining counts. At sentencing, the trial court merged the convictions for violating PS § 5-133(b) and PS § 5-144 with the conviction for violating PS § 5-133(c) and imposed a sentence of five years’ incarceration, to run concurrently with a sentence of twenty-five years’ incarceration for the first-degree assault conviction. 5 This appeal followed. Analysis 1. The Sufficiency of the Evidence 1.1.

Standards of Review Normally, when reviewing a challenge to the sufficiency of the evidence to sustain a conviction, we decide “whether, after viewing the evidence in the light most favorable to the prose ⁵²⁰ cution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Derr v. State, 434 Md. 88, 129 , 73 A.3d 254 (2013), cert. denied, — U.S. -, 134 S.Ct. 2723 , 189 L.Ed.2d 762 (2014) (quoting Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979) (emphasis in Jackson)). Smith’s sufficiency challenge, however, calls other principles into play. His attack upon the legal adequacy of the evidence supporting the firearms possession convictions is limited to his assertion that the State failed to present evidence of a disqualifying conviction in the State’s case-in-chief. In response, the State contends that the parties stipulated to the disqualifying conviction and that there was no requirement that the. stipulation be presented to the jury prior to the close of the State’s case.

Smith disagrees with both of these contentions. Certainly, if an element of the offense has not been established, then the conviction fails as a matter of law. As we will relate, the trial court concluded that the parties had in fact agreed to stipulate that Smith had been convicted of a disqualifying crime. We will review this finding for clear error.

Whether the State was required to present the stipulation to the jury prior to the close of its case is a question of law, which we review de novo. 1.2. The Use of Stipulations in Prosecutions for Illegal Possession of Firearms In pertinent part, § 5-133 of the Public Safety Article makes it illegal for persons convicted of certain crimes to possess a firearm. Hicks v. State, 189 Md.App. 112, 134 , 984 A.2d 246 (2009). In order to secure a conviction for violating PS §§ 5—133(b)(1), (c)(i), or (c)(ii), the State must establish that the handgun involved was a regulated firearm, that the defendant possessed this firearm, and that he was precluded from doing so because of a disqualifying status, in this case certain prior convictions.

See Nash v. State, 191 Md.App. 386, 394 , 991 A.2d 831 , cert. denied, 415 Md. 42 , 997 A.2d 792 (2010). ⁵²¹ Where, as in the case before us, an element of the illegal possession charge is a predicate prior conviction, a prosecutor has the opportunity “to introduce evidence of the sort generally explicitly forbidden by the propensity rule, and to do it in circumstances where the element of predicate felon status is uncontestable and uncontested by the defendant.” D. Michael Risinger, John Henry Wigmore, Johnny Lynn Old Chief, and “Legitimate Moral Force,” 49 Hast. L.J. 403, 420 (1998). The prejudicial effect of such evidence can be very serious. One way of avoiding, or at least minimizing, these effects is for the parties to stipulate that the defendant has been convicted of a disqualifying offense.

In Old Chief v. United States, 519 U.S. 172, 185 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997), the Supreme Court held that a trial court abused its discretion by refusing to accept a defendant’s stipulation to the existence of a prior disqualifying conviction in a felon-in-possession case. The Court of Appeals adopted the approach sanctioned by Old Chief in Carter v. State, 374 Md. 693, 722 , 824 A.2d 123 (2003), explaining that “when a defendant admits or the parties stipulate to the previous-conviction element of a charge under [the predecessor to PS § 5-133], the trial judge should inform the jury that the defendant admits that he or she has been convicted of a [disqualifying] erime[.]” The Carter Court went slightly further, deciding that fewer details should be disclosed, and stated that “the name or nature of a previous conviction must always be withheld from the jury in a felon-in-possession case in which the defendant offered to stipulate or admit to that previous conviction.” Carter, 374 Md. at 720 n. 8, 824 A.2d 123 . 1.3. What happened at trial Prior to jury selection, the parties and the trial court discussed the manner by which Smith’s disqualifying convictions should be addressed (emphasis added): [DEFENSE COUNSEL]: The appropriate method is for the State to provide certified conviction that, in fact, he is a felon, which I would stipulate. ⁵²² THE COURT: Okay. And if that’s the case, then I have not received any sort of certification from the State. [PROSECUTOR]: We normally don’t give certifications.

We show them in court, but I don’t have— [DEFENSE COUNSEL]: Typically I have received it in discovery from other prosecutors and in other counties, including this county, but I’ve not received it from [the prosecutor]. And so the appropriate method pursuant to the Court of Special Appeals is that ... bifurcation is not the appropriate method.[ 6 ] THE COURT: [B]ifurcation [is] not appropriate, okay. We’ll deal with that when [we] come to it. [DEFENSE COUNSEL]: Thank you, Your Honor. Whatever [the prosecutor] prefers.

The prosecutor did not address the issue of Smith’s disqualifying conviction during the State’s case. After the State closed, Smith moved for judgments of acquittal. As to counts 5, 6, and 7, that is, the counts that charged Smith with knowingly possessing a firearm after conviction of a disqualifying crime, defense counsel asserted that “there is no evidence that my client did knowingly participate in the illegal ⁵²³ possession of a regulated firearm, no evidence has been generated as to Count 5, 6 and 7.” Following argument, the trial court remarked (emphasis added): THE COURT: As to Count 6, a firearm, possession after a felony conviction we talked about this yesterday. We decided it was not going to be a bifurcated thing, but a stipulation with regard to the felony convictions.

Is that your recollection, [defense counselJ? [DEFENSE COUNSEL]: Yes, sir. THE COURT: With that stipulation let me move on.... The discussion turned to the question of proving Smith’s status, namely, that he was disqualified from possessing a firearm: [DEFENSE COUNSEL]: Your Honor, I would just like to put on the record that certainly as it relates to yesterday, when the comment came up as to bifurcation on Counts 5, 6 and 7, I did say certainly those are things that we would stipulate to. However, the stipulation has to be introduced into evidence before the State closes their case.

The State did not use that stipulation at the close of the State’s. If that had been done, it would have been without any objection from the defense because that’s what I agreed to.... [T]hough we may agree of, yes, we will stipulate, the stipulation still has to be put on the record and presented in the body of the State’s case and is that the only reason why I’m making that motion at this time as it relates to Counts 5, 6, and 7. Thank you, Your Honor. In response, the prosecutor asked permission to reopen its case-in-chief so that “we could put the stipulation on the record.” 7 Defense counsel objected to this as well. ⁵²⁴ After a brief recess, and outside of the jury’s presence, the trial court stated: During the break I wanted to research just a little about whether or not the State could reopen its case at this juncture, and then I took a look at my notes and I have in my notes that on the record in the discussion yesterday about whether we bifurcate[,] the defendant stipulated to [the] prior conviction....

But again, my notes show yesterday that that stipulation was made on the record. The State then inquired as to how the stipulation would be entered into the record. Defense counsel responded that “I would not object to the stipulation being that Mr. Nathaniel Smith, Senior, by law, is not permitted to possess a firearm.” After the jurors returned, the trial court did not expressly indicate whether it granted or denied the State’s motion to reopen its case. Instead, the court informed the jury that: During the break we have a stipulation for you.

And that stipulation is that the parties agree the State and the defense agree that by law Mr. Nathaniel Smith is prohibited from possessing a firearm. ⁵²⁵ The defense did not object and then rested its case. The trial court and parties then discussed jury instructions. The trial court indicated that it intended to “mention the stipulations” during its instructions. Neither party objected and, in the course of its instructions, the court referred to the stipulation and told the jury that “it should be considered proven ... [that] the defendant, Mr. Smith, is prohibited by law from possessing a regulated firearm.” Defense counsel objected to this instruction. 1.4.

Appellant’s Contentions Smith first asserts that he never agreed to stipulate to his prior conviction. He states: Certainly, when a defendant stipulates to the prior conviction element of the offense, the judge should inform the jury that the defendant admits that he has been convicted of a [disqualifying] crime.... The problem here is that there did not appear to be a final agreement to stipulate nor a recitation of a stipulation read into the record in the State’s case in chief. When the trial court was alerted to this fact, it concluded, in error, that the defense had stipulated to the prior conviction on the previous day.

Review of the transcriptions of the trial reveals that the court was mistaken. We read the record differently. Without belaboring the point, we believe that the transcript is clear that defense counsel expressly agreed to stipulate to the existence of Smith’s prior disqualifying conviction; indeed, defense counsel’s offer to stipulate triggered the