Brice v. State, 1620, Sept. Term, 2014.

CourtCourt of Special Appeals of Maryland
Writing for the CourtWOODWARD, J.
Citation225 Md.App. 666,126 A.3d 246
Parties Jovan Maurice BRICE v. STATE of Maryland.
Docket NumberNo. 1620, Sept. Term, 2014.,1620, Sept. Term, 2014.
Decision Date25 November 2015

225 Md.App. 666
126 A.3d 246

Jovan Maurice BRICE
v.
STATE of Maryland.

No. 1620, Sept. Term, 2014.

Court of Special Appeals of Maryland.

Nov. 25, 2015.


126 A.3d 250

Julia C. Schiller (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for appellant.

Gary E. O'Connor (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for appellee.

Panel: WOODWARD, HOTTEN, FREDERICK J. SHARER (Retired, Specially Assigned), JJ.

WOODWARD, J.

225 Md.App. 673

Jovan Maurice Brice, appellant, was arrested on August 2, 2011, and charged with illegal possession of a regulated firearm. On July 18, 2014, appellant was convicted of that charge after a jury trial in the Circuit Court for Harford County. Thereafter, appellant was sentenced to five years in prison, with all but three years suspended and five years of supervised probation.

On appeal, appellant presents four questions for our review, which we have slightly rephrased:

1. Did the trial court err in refusing to ask, during voir dire, the police witness questions?

2. Did the trial court err in permitting the admission of testimony about an alleged prior bad act?

3. Was the evidence sufficient to sustain the conviction?

4. Was there probable cause for a traffic stop for a violation of Section 21–604 of the Transportation Article ?1

We conclude that the trial court erred in refusing to ask the police witness questions and, accordingly, reverse the judgment of the circuit court. Because we answer question three in the affirmative, we will remand the case for a new trial. For the guidance of the trial court on

126 A.3d 251

retrial, we shall address the remaining questions.

225 Md.App. 674

BACKGROUND

On August 2, 2011, appellant was charged with illegal possession of a regulated firearm. Prior to trial, on June 6, 2012, appellant filed a motion to suppress the evidence obtained as a result of a traffic stop. The circuit court held a hearing on appellant's motion that same day. At the hearing, Deputy Keith Jackson of the Harford County Sheriff's Office testified on behalf of the State. Deputy Jackson testified that, on the evening of July 21, 2011, he was conducting surveillance of a gas station. The surveillance was in response to a series of recent robberies that had occurred at local gas stations. Deputy Jackson observed appellant, who fit the description of the robbery suspect, pull up to the gas station in a Cadillac. When appellant exited the convenience store at the gas station, he paused by the door and looked around for a few seconds. This behavior seemed odd to Deputy Jackson, so he followed appellant as he drove away from the station.

Deputy Jackson followed appellant's car for approximately five to six minutes, at which point appellant made a right hand turn from Main Street to Courtland Street without using a turn signal. At the time appellant made the turn, Deputy Jackson was directly behind him at a distance of about one car length. Appellant's turn "kind of took [Deputy Jackson] off balance." Deputy Jackson then activated his emergency equipment and conducted a traffic stop.

Deputy Jackson approached the vehicle and saw that appellant was the only occupant. He asked appellant for his license and registration, which appellant produced. At that time, Deputy Greg Jordan and Colonel Javier Moro arrived on the scene as backup. Deputy Jackson returned to his vehicle to run appellant's information while the other officers remained with appellant. While running appellant's information, Deputy Jackson noticed the other officers begin to close in on appellant. Deputy Jackson stopped his investigation and went to assist them. Appellant was taken out of the car, placed in handcuffs, and seated on the shoulder of the road. The officers

225 Md.App. 675

conducted a search of the vehicle and then released appellant with a traffic warning.

A jury trial was held from July 16, 2014 through July 18, 2014. Deputy Jackson took the stand and testified to the same general information that was presented at the suppression hearing with a few additional details. He testified that, when the search of appellant's vehicle was conducted, Deputy Jordan found a clear sandwich baggie under the driver's seat that contained a metallic handgun magazine. Colonel Moro testified that he was one of the two officers who came to assist Deputy Jackson during the traffic stop of appellant. Colonel Moro stated that he had removed appellant from the car because Deputy Jordan saw appellant "making some movements."

Deputy Gregory Young then testified that Deputy Jackson told him about appellant's traffic stop during a lunch conversation. As a result of this information, Deputy Young initiated a firearms investigation into appellant. An online case search indicated that appellant had two convictions from 2002 and 2006 for possession of a controlled dangerous substance (not marijuana). Deputy Young decided that a search and seizure warrant should be obtained for appellant's residence based on that information.

On the morning of August 2, 2011, the Special Weapons and Tactics team entered

126 A.3d 252

and searched appellant's apartment pursuant to a search warrant. Appellant was the only person present inside the apartment. During the search, a Lorcin .380–caliber handgun was found inside the pocket of a jacket hanging in appellant's closet. Officers also found a box of 9mm Browning cartridges and a pistol magazine with eight live cartridges. Deputy Young testified that the firearm recovered was classified as a regulated firearm. He further testified that anyone convicted of a charge that carries a statutory penalty of more than two years is prohibited from possessing a regulated firearm. The statutory penalty for each of appellant's two previous convictions of possession of a

225 Md.App. 676

controlled dangerous substance (not marijuana) was four years.2

Appellant was advised of his Miranda rights and indicated that he understood his rights and would speak to the investigators. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Special Agent Alan Boroshok testified that he and Agent Anthony Tolomeo conducted an interview with appellant during the search of his apartment. Appellant told the agents that he received the pistol magazine from his cousin in 2004 and bought the ammunition at Walmart. According to Agent Boroshok, appellant said "that he acquired the handgun from what he termed a junkie in the White Marsh area. [Appellant] made a trade for an eight ball of crack cocaine for it." Appellant told Agent Boroshok that he had the gun for seven years, but had never actually shot it. Appellant admitted that he had wiped down the gun.

On July 18, 2014, appellant was convicted of illegal possession of a regulated firearm. On September 23, 2014, appellant was sentenced to five years of incarceration, with all but three years suspended and five years of supervised probation.

DISCUSSION

I. Voir Dire Questions

Voir dire is " ‘the process by which prospective jurors are examined to determine whether cause for disqualification exists.’ " Moore v. State, 412 Md. 635, 644, 989 A.2d 1150 (2010) (quoting Dingle v. State, 361 Md. 1, 9, 759 A.2d 819 (2000) ). "Voir dire is critical to assure that the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantees to a fair and impartial jury will be honored."

225 Md.App. 677

Stewart v. State, 399 Md. 146, 158, 923 A.2d 44 (2007) (italics added). In general, "[a]n appellate court reviews for abuse of discretion a trial court's decision as to whether to ask a voir dire question." Pearson v. State, 437 Md. 350, 356, 86 A.3d 1232 (2014).

A. Waiver

Before trial, appellant submitted voir dire questions for the Court to ask the prospective jurors. Included within his proposed voir dire were two questions concerning police officer testimony, which read as follows:

14. Would any of you be more or less likely to believe a police officer or deputy solely because he is a police officer or deputy?
126 A.3d 253
15. Would any of you be more likely to believe the testimony of a police officer or deputy as opposed to that of the accused?

During voir dire, the trial court posed seventeen questions to the prospective jurors and then individually questioned the jurors who had responded affirmatively to any of the court's questions. The court's questions did not include appellant's Questions 14 and 15 ("police witness questions"). At the conclusion of the questions for the entire jury pool, but...

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