Stanley v. State

JAMES R. EYLER, Judge. Charles Stanley, appellant, was convicted by a jury in the Circuit Court for Baltimore City of possessing a firearm after having been previously convicted of a crime of violence and discharging a firearm within the City of Baltimore. The trial court sentenced appellant to a term of five years’ incarceration without the possibility of parole for the firearm possession and to a concurrent sentence of time served for the conviction of discharging a firearm. Appellant presents two questions on appeal: ³⁶⁶ I. Did the trial court err in admitting evidence that appellant was previously convicted of a crime of violence?

II

Did the trial court impose an illegal sentence? Perceiving no error, we affirm the judgments of the circuit court. FACTS AND LEGAL PROCEEDINGS At approximately 3:00 on the morning of October 30, 2001, Baltimore City Police Officer Joe DiCandaloro went to 4114 Haywood Avenue in Baltimore City in response to a call for discharging of a firearm. He approached appellant, who was at that address, and asked if he had a weapon inside the house.

Appellant told the officer that he had a handgun inside his house, but that he had dropped it into the heating duct. Appellant took the officer into the basement, where the officer ripped out a piece of the heating duct and recovered a loaded .32-caliber handgun. The gun had four rounds of ammunition and two empty shell cases in the cylinder. Appellant told the officer that he had fired the gun twice outside his bedroom window to see if the gun was operational.

A true-test copy of appellant’s prior conviction for second degree assault was admitted into evidence without objection. On cross-examination, Officer DiCandaloro testified that he initially charged appellant with unlawful firing of a firearm in the City of Baltimore and possession of a regulated firearm after having been convicted of a misdemeanor assault, in violation of an ex parte order. The officer acknowledged that he initially charged appellant with a misdemeanor for the gun possession, but that appellant’s current charge was a felony. Appellant sought jury nullification. 1 He testified that he was 57 years old, that he was retired from General Motors, ³⁶⁷ where he had worked for thirty years, and that he had three grown children.

Appellant said that he bought a handgun and, after drinking, he wanted to see if the gun worked. He said that he fired the gun out of his back window, then threw it in the corner. He recounted that the police officer came the next morning and he decided to give up the gun because “I didn’t want nobody to get hurt -with it and I didn’t want the gun anymore.” He related that, when the officer asked about the gun, he decided “here’s my chance to do the right thing, and [he] told him the truth.” He said that he told the officer he had fired the gun, but was sorry, and that he did not want to hurt anyone. Appellant discussed a previous conviction for second degree assault.

He related that his son “was trying to put [him] out of the house.” He said that his son was “a big guy,” and that he had not hit his son but “just had him by the legs.” Appellant explained, with regard to the ex parte order, that he was supposed to stay out of his house. He also told the jury, however, that he and his wife were back together and “everything [was] fine.” On cross-examination, the prosecutor elicited that the incident in which he was convicted of second-degree assault on his son was separate from the assault conviction based on violation of an ex parte order. ³⁶⁸ DISCUSSION I. Prior to trial, the following occurred: THE COURT: Do you have to offer the prior conviction? [PROSECUTOR]: Absolutely. THE COURT: That is what I thought you did, that is my understanding. [PROSECUTOR]: In this case, since we are trying this case alone. THE COURT: Now how much do you think people can get into what it really was? [PROSECUTOR]: I do not think they are supposed to get into what it was, it does not matter.

THE COURT: It is going to be—it is going to read off the record as what? [PROSECUTOR]: Assault, second-degree assault. THE COURT: Second-degree assault. THE COURT: Yes, which is a statutory crime of violence. THE COURT: All right, and which is a legal— [DEFENSE COUNSEL]: See, I do not understand— THE COURT:—dispute in terms of what it means in the statute, but that is the law. [PROSECUTOR]: That is why I kind of object to that question, because— THE COURT: What was the date of it. [PROSECUTOR]: I think it was 1996.

THE COURT: Is it that recent? I thought it was older, but maybe I— [DEFENSE COUNSEL]: I think that—oh, well, second degree assault was added in 1996 because that is when they broke assault into degrees. Before, it was just generally assault and battery common law. But that part, the thing that defines crime of violence, that has been around since, I think the 1970’s. ³⁶⁹ [PROSECUTOR]: Actually, it might be even later than that, 1999—1999.

THE COURT: What were the facts? Are you going to try to offer the facts of that assault? [DEFENSE COUNSEL]: It was domestic violence. I don’t know. [PROSECUTOR]: Because there are three really that are connected to it. I am only offering one because that is all I need in my statutory verdict.

THE COURT: I mean, there are cases that clearly say, as I recall from reading them, that you are allowed to do that and there is not reversible error. [PROSECUTOR]: That is the only way to prove the case in this situation. A short while later, the issue was revisited. [PROSECUTOR]: It is an essential element of the State’s proving and it is case law. THE COURT: Right, and I think that is the case law. [PROSECUTOR]: Right. [DEFENSE COUNSEL]: I know, but I do not see how anybody can get a fair trial if that is what the law is. THE COURT: Look, I am happy to tell you— [DEFENSE COUNSEL]: I know, I know.

THE COURT: You have reserved (sic) the objection. Appellant contends that this Court should recognize plain error and reverse appellant’s convictions because at the time of his trial, this Court had decided Carter v. State, 145 Md.App. 195 , 802 A.2d 460 (2002), but that case was reversed by the Court of Appeals after appellant’s trial. 2 He asserts that, in Carter , “this Court held that the State had a right to disclose to the jury both the fact that the prior conviction was for a crime of violence and the name of the offense of which the defendant had [been] previously convicted.” He argues that, “[w]ith this Court’s Carter acting as the last word on this ³⁷⁰ issue, it is unlikely that the trial judge would have been willing to give relief.” Plain Error Plain error is error which “vitally affects a defendant’s right to a fair and impartial trial.” Clermont v. State, 348 Md. 419, 433, 704 A.2d 880 (citations omitted), cert. denied, 523 U.S. 1141 , 118 S.Ct. 1849 , 140 L.Ed.2d 1098 (1998); Richmond v. State, 330 Md. 223, 236 , 623 A.2d 630 (1993) (citation omitted). An appellate court should take cognizance of unpreserved error only in those instances which are “compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.” Richmond, 330 Md. at 236 , 623 A.2d 630 (citation omitted). There is no “fixed formula for determining when we should exercise our discretion.” Rubin v. State, 325 Md. 552, 588 , 602 A.2d 677 (1992) (citation omitted).

The Court of Appeals has stated, “we do expect that the appellate court would review the materiality of the error in the context in which it arose, giving due regard to whether the error was purely technical, the product of conscious design or trial tactics or the result of bald inattention,” and has observed that such factors “are ordinarily inconsistent with circumstances justifying an appellate court’s intervention’ under plain error.” Rubin, 325 Md. at 588, 602 A.2d 677 (internal quotations omitted). Carter v. State In Carter , Antwon Leroy Carter was charged with possession of a regulated firearm by one previously convicted of a crime of violence, possession of a regulated firearm by a person under the age of twenty-one, and unlawful discharge of a firearm within the City of Baltimore. Carter, 145 Md.App. at 200 , 802 A.2d 460 . Carter requested that the trial court not inform the jury that he had been previously convicted of a crime of violence.

Id. at 200-02 , 802 A.2d 460 . When the trial court rejected that request, Carter offered to stipulate that he had been convicted of a crime of violence to prevent the State from offering evidence that his prior conviction was for rob ³⁷¹ bery with a deadly weapon. Id. at 202 , 802 A.2d 460 . That offer, too, was rejected.

Id. On appeal, Carter contended that the trial court erred in permitting the State to disclose to the jury evidence of his prior conviction for robbery with a deadly weapon, asserting that “[o]nce the defense indicated that it was willing to stipulate to the existence of that conviction, the State had no legitimate need for the evidence.” Id. at 203 , 802 A.2d 460 . Carter also argued that the trial court’s refusal to exclude evidence of the prior conviction constituted an abuse of that discretion because, “[gjiven the defense counsel’s willingness to concede the existence of the prior conviction, it was simply unnecessary to apprise the jury of this prejudicial element.” Id. at 203-04 , 802 A.2d 460 . After reviewing case law from other jurisdictions, we concluded that it was not error for the trial court to allow the State to inform the jury that a defendant had previously been convicted of a crime that disqualified him from possessing a gun.

Id. at 220 , 802 A.2d 460 . We then considered whether the trial court erred in permitting the State to disclose the nature of the prior conviction to the jury, in addition to the fact of the prior conviction. Id. at 224 , 802 A.2d 460 . We discussed the United States Supreme Court’s opinion in Old Chief v. United States, 519 U.S. 172 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997), involving an appeal of a conviction for possession of a firearm by a person previously convicted of a felony.

Prior to trial, Old Chief moved to preclude the government from mentioning any prior convictions at his trial, except to state that he “had been convicted of a crime punishable by imprisonment exceeding one (1) year.” Id. at 175 , 117 S.Ct. 644 . Old Chief also agreed to stipulate to the fact of that conviction. Id. The trial court refused to require the government to join in the stipulation.

Id. at 177 , 117 S.Ct. 644 . Old Chief was convicted, and his appeal ultimately reached the United States Supreme Court. That Court concluded that the trial court erred in not requiring the ³⁷² government to accept Old Chiefs stipulation. The Court noted: [T]here can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant.

That risk will vary from case to case, for the reasons already given, but will be substantial whenever the official record offered by the Government would be arresting enough to lure a juror into a sequence of bad character reasoning. Old Chief, 519 U.S. at 185 , 117 S.Ct. 644 . The Court went on to say, “The most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possessing a gun, and this point may be made readily in a defendant’s admission.” Id. at 190-91 , 117 S.Ct. 644 . In Carter , we recognized the danger with which the Supreme Court was concerned. “It is well established in Maryland that evidence of a defendant’s prior crime can tempt the jury into convicting the defendant because he has committed bad acts in the past rather than because the evidence establishes guilt beyond a reasonable doubt.” Carter, 145 Md.App. at 229-30 , 802 A.2d 460 .

After reviewing the Supreme Court’s decision in Old Chief , we concluded: We, too, agree with the majority in Old Chief that when a defendant’s legal status is an element of the crime, and the defendant offers to stipulate and disclose to the jury that legal status, the trial court should perform a Md. Rule 5-403 balancing test before admitting evidence of the name or nature of the previous conviction. Id. at 229 , 802 A.2d 460 . Analyzing the specifics of Carter’s case, we concluded that the trial court’s decision to permit the state to inform the jury that Carter was previously convicted of robbery with a deadly weapon did not constitute an abuse of discretion. Id. at 234-35 , 802 A.2d 460 .

The Maryland Court of Appeals granted certiorari. See Carter v. State, 371 Md. 261 , 808 A.2d 806 (2002). It agreed ³⁷³ with this Court that the jury should be told of the prior conviction. Carter v. State, 374 Md. 693, 714 , 824 A.2d 123 (2003).

It disagreed, however, that admission of the name or nature of the prior conviction should fall within the trial court’s discretion. After discussing decisions in other jurisdictions, the Court concluded: We see no meaningful difference between Old Chief; Brown 3 ; Lee, 4 and the case before us. In all of those cases, the prosecution needed to prove only that the defendants were felons to satisfy the prior conviction element. Maryland courts, like their Federal, Florida, and Kansas counterparts, permit the exclusion of evidence if “its probative value is substantially outweighed by the danger of unfair prejudice.” Maryland Rule 5-403.

We agree with Old Chief that the name and nature of a previous conviction, although “technically relevant,” “addresse[s] no detail in the definition of the prior-conviction element that would not [be] covered by the stipulation or admission [of that element].” Therefore, we, too, are of the opinion that, when requested by the defendant in a criminal-in-possession case under Maryland Code, Article 27, Section 445, the trial court must accept a stipulation or admission that the defendant was convicted of a crime that qualifies under the criminal-in-possession statute. We hold also that, in such situations, the name or nature of the previous conviction should not be disclosed to the jury. Carter, 374 Md. at 720-21 , 824 A.2d 123 (internal and end footnotes omitted). The Court held that, when the defendant admits or the parties stipulate to the previous-conviction element of a charge under Section 445(d), the trial judge should inform the jury that the defendant admits that he or she has been convicted of a crime for which he or she is prohibited from possessing a regulated firearm under the law.

The judge should not ³⁷⁴ describe the previous conviction with any more particularity or by using the categories of crimes under Section 445. Id. at 722 , 824 A.2d 123 . This Case Although this Court’s decision in Carter did not require the trial court to accept a stipulation, it did require that the trial court perform a balancing test before admitting evidence of the name and nature of the prior conviction. Appellant did not offer a stipulation, nor did he request that the trial court perform a balancing test and tell the jury only that he had been convicted of a prior disqualifying crime.

Appellant asserts that “[bjefore the trial began, the parties discussed the issue and the defense attorney objected to the jury learning this information.” A look at the transcript reveals, however, that the parties were discussing the fact of a prior conviction, not whether its name or nature should be disclosed. There is nothing that suggests that the trial court would have been unsympathetic to appellant’s request. 5 Although appellant complains that “it was disclosed to the jury that appellant had previously been convicted of second degree assault on more than one occasion,” it was defense counsel who elicited information about the second conviction. And, ³⁷⁵ although appellant is aggrieved that the trial court instructed the jury that second degree assault was a crime of violence, the trial court asked defense counsel whether she “object[ed] to the portion of this instruction that identifies assault as a crime of violence,” and she said she did not. We disagree with appellant’s assertion that this case is like Squire v. State, 280 Md. 132 , 368 A.2d 1019 (1977).

In Squire , the Court of Appeals recognized plain error when the trial court propounded an instruction four days after the United States Supreme Court’s decision in Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975), which was contrary to that decision. The Squire Court was “well satisfied that the failure to object did not result from trial tactics or inadvertence, but from a [not unfounded] belief of counsel [ ] that the instruction was in accord with Maryland and federal law.” Squire, 280 Md. at 136 , 368 A.2d 1019 . Here, Maryland case law at the time of appellant’s trial required that the trial court perform a balancing test before disclosing the name and nature of a defendant’s prior conviction to the jury. Appellant offered no stipulation, nor did he request a balancing test.

Considering the lack of a request for a stipulation, defense counsel’s eliciting the underlying facts of appellant’s prior convictions and defense counsel’s jury nullification argument, we cannot say that appellant’s failure to stipulate or ask for a balancing test was not the result of a strategic trial decision. We decline to consider whether the trial court committed plain error in admitting evidence of appellant’s prior convictions.

II

Appellant’s second contention is that the trial court erred in sentencing him to a term of 5 years without parole for the illegal possession of a firearm. He asserts that the plain meaning of Md.Code (1957, 1996 RepLVol., 2001 Cum.Supp.), Article 27, § 449(e) requires that he be convicted of both a ³⁷⁶ crime of violence and a felony before he can be sentenced to a term of years without parole. Section 449(e) provides: (e) Illegal possession of firearm with certain previous convictions.—A person who was previously convicted of a crime of violence as defined in § 441(e) of this article or convicted of a violation of § 286 or § 286A of this article, and who is in possession of a firearm as defined in § 445(d)(1)(f) and (ii) of this article, is guilty of a felony and upon conviction shall be imprisoned for not less than 5 years, no part of which may be suspended and the person may not be eligible for parole. Each violation shall be considered a separate offense.

Section 445(d)(1) 6 provides: (d) A person may not possess a regulated firearm if the person: (1) Has been convicted of: (i) A crime of violence; (ii) Any violation classified as a felony in this State; (iii) Any violation classified as a misdemeanor in this State that carries a statutory penalty of more than 2 years; or (iv) Any violation classified as a common law offense where the person received a term of imprisonment of more than 2 years. In Price v. State, 378 Md. 378 , 835 A.2d 1221 (2003), the Court of Appeals considered whether Price’s conviction of statutory daytime housebreaking was a “crime of violence” within the meaning of § 449(e). Although it concluded that it was not, and that § 449(e) therefore did not apply to Price, it noted: Petitioner does not raise, and we do not decide, any question with respect to the second requirement of § 449(e). Therefore, we do not consider whether § 449(e)’s mandatory ³⁷⁷ sentencing imperative requires a conviction under both § 445(d)(1)® and (ii), as the plain language indicates.

Although Price was convicted pursuant to only § 445(d)(1)(h), we assume for purposes of this case alone that this was sufficient to satisfy the second requirement of § 449(e), and that the only issue before us is whether the first requirement, that his prior crime fall within § 441(e), was satisfied. Price, 378 Md. at 384, n. 4 , 835 A.2d 1221 . The Court again noted this issue in Melton v. State, 379 Md. 471 , 842 A.2d 743 (2004). There, the defendant had been convicted of both a felony and a crime of violence, so, again, the construction of § 449(e) did not matter.

Again, however, the Court of Appeals noted the “possible problem in the language of § 449(e).” Id. at 487, 842 A.2d 743 . Appellant’s prior conviction was for second-degree assault, which is a crime of violence as defined in Article 27, § 441(e), but is not a felony. Md.Code, (1957, 1996 RepLVol.), Article 27, § 12A(b). Therefore, if § 449(e) is applicable only to persons previously convicted of both a felony and a crime of violence, appellant is not subject to the penalties provided.

Melton sets out the rules of statutory construction: In interpreting statutes, this Court has said that “the cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” A court should first examine the plain language of the statute when attempting to ascertain the legislative intent. If the statutory language is unambiguous when construed according to its ordinary and everyday meaning, then this Court “will give effect to the statute as it is written,” and we will not add or delete words from the statute. Only if the statutory language is ambiguous will this Court look “beyond the statute’s plain language in discerning the legislative intent.” Melton, 379 Md. at 476 , 842 A.2d 743 (internal and end citations omitted). Ambiguity exists within a statute when ³⁷⁸ there are “two or more reasonable alternative interpretations of the statute.” Price, 378 Md. at 387 , 835 A.2d 1221 .

In addition, § 449(e) is an enhanced penalty statute. [A]n enhanced penalty statute, is highly penal and must be strictly construed so that the defendant is only subject to punishment contemplated by the statute. When doubt exists regarding the punishment imposed by a statute, the rule of lenity instructs that a court “not interpret a ... criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what [the legislature] intended.” Melton, 379 Md. at 489 , 842 A.2d 743