Alston v. State

• Citation: 858 A.2d 1100,159 Md.App. 253
• Decision Date: 05 October 2004
• Docket Number: No. 1350,1350
• Parties: Kevin C. ALSTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

858 A.2d 1100

159 Md.App. 253

Kevin C. ALSTON v. STATE of Maryland.

No. 1350, Sept. Term, 2003.

Court of Special Appeals of Maryland.

October 5, 2004.

Amy E. Brennan (Nancy S. Forster, Public Defender, on the brief), Baltimore, for Appellant.

Celia Anderson Davis (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: DAVIS, DEBORAH S. EYLER and SHARER, JJ.

DEBORAH S. EYLER, J.

A jury in the Circuit Court for Baltimore City convicted Kevin C. Alston, the appellant, of unlawful possession of a regulated firearm by a person previously convicted of a felony; unlawful possession of a regulated firearm by a person previously convicted of a misdemeanor carrying a statutory penalty of more than two years; and wearing and carrying a handgun. The court imposed a sentence of five years in prison without the possibility of parole for the felon-in-possession conviction; a consecutive two-year prison term for the misdemeanor-based possession conviction; and a concurrent two-year prison sentence for the wearing and carrying a handgun conviction.

On appeal, the appellant presents the following three questions, which we have reordered and rephrased:

I. Did the motion court err in denying the appellant's motion to suppress the handgun from evidence?

II. Must the appellant's sentence of five years in prison without the possibility of parole, under Article 27, section 449(e), be vacated because when he committed the offense and was sentenced Md.Code (2002), section 5-622 of the Criminal Law Article ("CL") proscribed the same conduct but carried only a maximum penalty of five years in prison with the possibility of parole?

III. Should the appellant's misdemeanor-based possession conviction and sentence be vacated in light of his felon-in-possession conviction and sentence?

For the following reasons, we answer "No" to Questions I and II and "Yes" to Question III. Accordingly, we shall vacate the appellant's conviction and sentence for unlawful possession of a regulated firearm by a person previously convicted of a misdemeanor carrying a statutory penalty of more than two years, and otherwise affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS

The events in this case took place on October 10, 2002. Prior to that date, the appellant had been convicted of distribution of a controlled dangerous substance ("CDS"), in violation of Md.Code (1957, 1996 Repl. Vol.) Article 27, section 286, which is a felony.¹ He also previously had been convicted of a misdemeanor carrying a statutory penalty of more than two years.

At about 11:15 p.m. on October 10, 2002, Baltimore City Police Sergeant Stanley Noland and three other "plainclothes" officers were on duty in an unmarked police car in the unit block of West Talbot Street in Baltimore City. Sergeant Noland was driving. The officers were familiar with the area and knew it as one in which illegal drugs are sold on the street.

The officers saw several people standing and walking around on the sidewalk in front of 54 West Talbot Street. Two of the people waved for the officers' vehicle to pull over to the curb. Based on prior experience, Sergeant Noland believed that the people were going to offer to sell drugs to the officers.

Sergeant Noland stopped the vehicle at the curb and he and the other officers got out of the car. When they donned police identification badges, the two people who had signaled to them fled. A third person, later identified as the appellant, remained standing on the sidewalk in front of 54 West Talbot Street. As the officers watched, the appellant reached into his waistband and pulled out a semi-automatic handgun. Still holding the handgun, he turned and ran inside 54 West Talbot Street, through the open front door.

Sergeant Noland and Officers James Jones and Chris Kazmarek ran into the building after the appellant. (Officer Wayne Weaver ran around the side of the building to the backyard.) Officer Jones went upstairs to the second floor apartment and Officer Kazmarek entered the first floor apartment. Sergeant Noland, still in the first floor entryway, heard someone running down another flight of stairs, in a common area of the house, from the second floor to the basement. After the footsteps reached the basement, it was quiet for 35 to 40 seconds. The footsteps resumed, and were heard again, running up the stairs. Sergeant Noland opened a door to the common area stairway and intercepted the appellant, who no longer was holding the handgun.

The appellant was placed under arrest and searched. The handgun was not on his person. Sergeant Noland and Officer Kazmarek went downstairs into the basement of the house and performed a "cursory search" for the handgun, using flashlights. After a few minutes, they found, stashed on an open ceiling rafter, a handgun identical to the one they had seen the appellant holding. The officers seized the handgun and determined that it was fully loaded. The officers also discovered a woman, later identified as Christy Dean, asleep on a makeshift bed.

The appellant was charged criminally, in the Circuit Court for Baltimore City. He filed a motion to suppress the handgun from evidence, arguing that it had been seized in violation of his Fourth Amendment rights. The court denied the motion. The case proceeded to trial the next day. At the outset, the parties stipulated that the appellant "ha[d] been previously convicted of crimes that would prohibit his possession of a regulated firearm."

Sergeant Noland testified for the State about the events of October 10, 2002, as we have recited them. The State also called Officers Jones and Kazmarek, who corroborated Sergeant Noland's testimony. The defense rested without presenting any evidence.

In light of the parties' stipulation about the appellant's prior convictions, with respect to the two counts of possession, the jurors merely were asked to decide whether the appellant did or did not possess the firearm on the date in question. They found that he did. The jurors also found the appellant guilty of wearing and carrying a handgun. We shall discuss sentencing in depth in addressing Question II.

DISCUSSION

I.

As noted, the appellant moved to suppress the handgun from evidence on Fourth Amendment grounds. At the suppression hearing, the State asserted that the appellant lacked standing to contest the police entry into 54 West Talbot Street and their search of the basement of the premises and seizure of the handgun.

The appellant testified on his own behalf on the standing issue. According to the appellant, on the day in question, a man named "Jerry," whose last name he did not know, was living in the second floor apartment of 54 West Talbot Street, and "a guy" whose name he did not know at all was living in the first floor apartment. Christy Dean was renting the basement of the dwelling from "Jerry." The appellant had known Dean "for a pretty long time." They had an "intimate" relationship. The appellant did not know how long Dean had been renting the basement of 54 West Talbot Street, but he had been going there to see her for a "couple of months." The appellant "spent the night" at Dean's apartment "from time to time." He "sometimes" stayed there for the whole night. He did not keep any of his belongings there. He did not have a key. Dean would lend him her key sometimes "[i]f [he] went to the store or something." He did not receive mail or have a telephone at 54 West Talbot Street. His "permanent address" was on Furnace Branch Road in Glen Burnie, where he had lived for about 16 years.

The State called Sergeant Noland. His suppression hearing testimony was as we have summarized his trial testimony above.

At the close of the hearing, the court denied the appellant's suppression motion on two grounds. First, it concluded that the appellant did not have standing to raise a Fourth Amendment violation. The court found that the appellant was merely an occasional overnight visitor of Dean and that he did not have a legitimate expectation of privacy in the premises. Second, the court concluded that, even if the appellant had standing, there was no Fourth Amendment violation because the warrantless entry into 54 West Talbot Street and search of the basement and seizure of the handgun were justified by exigent circumstances.

On appeal, the appellant contends the motion court's rulings were in error. He also contends that the search of the basement could not be justified as a search incident to valid arrest — an argument the State raised below but was not addressed by the motion court. The State responds that the motion court correctly concluded that the appellant did not have Fourth Amendment standing and, alternatively, that exigent circumstances justified the entry, search, and seizure; and that the search of the basement also properly could be upheld as incident to a valid arrest.

For the reasons we shall explain, we conclude that the suppression motion properly was denied on the ground of lack of standing. Therefore, we need not address the appellant's Fourth Amendment violation contention.

Our review of the trial court's decision on a motion to suppress evidence under the Fourth Amendment is based solely on the record of the suppression hearing. State v. Green, 375 Md. 595, 607, 826 A.2d 486 (2003); Cartnail v. State, 359 Md. 272, 282, 753 A.2d 519 (2000). We view the evidence in the light most favorable to the party who prevailed on the suppression motion. State v. Rucker, 374 Md. 199, 207, 821 A.2d 439 (2003); Williams v. State, 372 Md. 386, 401, 813 A.2d 231 (2002). In considering the evidence on which a suppression motion is based, we extend great deference to the judge's fact-finding, determinations about witness credibility, and weighing of the evidence. In re Tariq A-R-Y, 347 Md. 484, 488, 701 A.2d 691 (1997); Farewell v. State, 150 Md.App. 540, 562 n. 5, 822 A.2d 513 (2003). When facts are in dispute, we accept the factual...