Carpenter v. State

• Decision Date: 01 December 2010
• Docket Number: No. 2927, Sept. Term, 2008.,2927, Sept. Term, 2008.
• Citation: Carpenter v. State, 196 Md. App. 212, 9 A.3d 99 (Md. App. 2010)
• Parties: Everette Alexander CARPENTER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

9 A.3d 99

196 Md.App. 212

Everette Alexander CARPENTER

v.STATE of Maryland.

No. 2927, Sept. Term, 2008.

Court of Special Appeals of Maryland.

Dec. 1, 2010.

Amy E. Brennan(Paul B. DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.

Edward J. Kelley(Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: KRAUSER, C.J., WOODWARD, RAYMOND G. THIEME, JR.(Retired, Specially Assigned), JJ.

RAYMOND G. THIEME, JR., J.(Retired, Specially Assigned).

Convicted, after a jury trial in the Circuit Court for Talbot County, of attempted first degree murder, first degree assault, robbery, and handgun offenses, appellant, Everette AlexanderCarpenter, presents four questions for our review, which we rephrase for clarity:¹

I.Did the court err or abuse its discretion in admitting testimony regarding information stored in a cell phone?

II.Did the court err in failing to merge Carpenter's conviction for first degree assault into his conviction for attempted first degree murder?

III.Did the court err in failing to merge Carpenter's conviction for wearing, carrying, and transporting a handgun into his conviction for use of a handgun in the commission of a crime of violence or felony?

IV.Did the court err in ordering that Carpenter serve his sentence for use of a handgun in the commission of a crime of violence or felony consecutive to his sentence for attempted first degree murder?

For the reasons that follow, we shall vacate Carpenter's sentence for wearing, carrying, and transporting a handgun, and otherwise affirm the judgments of the circuit court.

Facts

On the morning of December 3, 2007, Fenton Forestal was walking down Blake Street in Easton, when he was approached by Carpenter, Tyrell Skinner, and Tynesha Cornish.Forestal spoke with Skinner, who was a football teammate of Forestal's brother.During the conversation, Forestal decided to show the group a picture of his grandmother that he kept inhis wallet with his money and "green card."²When Forestal produced his wallet, however, Carpenter grabbed the wallet and walked away.Forestal noticed that Carpenter had dropped a cell phone and picked the cell phone up.

Thinking that Carpenter was "playing around," Forestal followed Carpenter and asked Skinner to tell Carpenter to return the wallet.Carpenter and Skinner then "jumped at" Forestal, repeatedly punching him in his eyes.Pushing the men away, Forestal ran.

About twenty minutes later, Forestal noticed that someone was calling the cell phone that Carpenter had dropped.Afraid to answer the cell phone, Forestal received numerous additional calls.When Forestal finally answered a call, the caller offered to exchange Forestal's wallet for the cell phone.When Forestal refused, the caller threatened to kill Forestal's family.Afraid for his family's safety, Forestal agreed to meet the caller at a gas station at the intersection of Locust Lane and Dover Street.

At the gas station, Forestal saw Carpenter and returned the cell phone to him.Waiting to receive his wallet, Forestal saw Carpenter draw a gun from his waist.As Forestal turned and ran, he was shot in his back and left arm.Forestal then ran to a friend's house.

Hearing gunshots "from the direction of Dover Street" and "someone running and yelling for help,"Christopher Rainer, who lived on Locust Lane near its intersection with Dover Street, called 911.Approximately three minutes later, Patrolmen George Larrimore, Jr. and Rob Schuerholz of the Easton Police Department responded to Rainer's call and saw Carpenter walking "[l]ess than a block" from Dover Street.Patrolman Larrimore stopped Carpenter and asked him "how long he had been in the area outside[.]"Carpenter replied: "[A]pproximately ten minutes."After conducting a "pat down" of Carpenter, the patrolman allowed him to leave.

Several minutes later, police received a "911 call indicating that there was a male in some sort of distress in front of ... 318 Goldsborough Street," approximately two blocks from Rainer's home and three blocks from where Patrolman Larrimore stopped Carpenter.Responding to the address, Patrolman Schuerholz discovered Forestal "lying on the ground and ... yelling that he had been shot."After the patrolman contacted paramedics, Forestal was transported to Easton Memorial Hospital, where he was diagnosed with gunshot wounds to his left upper arm and lower back and a fractured left eye socket.During a subsequent meeting at the hospital with Detective Milton Orellano of the Easton Police Department, Forestal identified Carpenter in a photo array as the person who shot him.

Two days later, police located a handgun outside the home of Kevron Chase, who lived approximately 125 yards from the gas station at Locust Lane and Dover Street.During a subsequent interview with Detective Orellano, Chase stated that the gun belonged to Carpenter.Chase further stated:

[At] approximately one or two in the morning [Carpenter] came knocking to [Chase's] window and asked to use his phone to call Mr. Forestal.[Carpenter] asked Mr. Forestal if he could get his phone and Mr. Forestal told [Carpenter] no.Mr. Forestal asked [Carpenter] for his wallet and [Carpenter] tells him that not until he gets his phone back.[Carpenter] then tells him that he has his green card and he will burn it if he doesn't get his phone.Mr. Forestal then asks where could he meet him and he said at Super Soda.[Carpenter] then leaves to Super Soda about ten minutes later.[Carpenter] came running to his house and knocked on the window.[Carpenter] then told him that he unloaded the whole gun on Mr. Forestal and he wasn't sure if he hit him.Mr. Chase then told him to leave.Later [Carpenter] called him and told him that the police had stopped him.[W]hen the police ... raided the residence [Carpenter] had called him and told him to look for the gun which was near a tree to the right as you walk out the back door.

Later, Detective Orellano interviewed Skinner, who stated that " Carpenter snatched the wallet and ... dropped his cell phone."After Carpenter called Forestal, Skinner stated, Forestal "came back and [Carpenter] beat him up again."

At trial, Forestal, testifying for the State, identified Carpenter as the person who took his wallet and assaulted and shot him.

We shall include additional facts in our discussion of the issues.

Discussion

I.

Also at trial, the State called Caroline George, who testified that she had known Carpenter for "approximately a year and a half," and that during that time, she"obtain[ed]phone numbers from [Carpenter] for business purposes[.]"Prior to December 3, 2007, George stated, Carpenter told George that his cell phone number was 443-205-3233, and his home phone number was 410-770-3929.

Later, the State called Detective Orellano, who testified that he seized a cell phone from Carpenter during Carpenter's arrest.After "obtain[ing] a search warrant for the contents of the [cell] phone," the detective testified, he"checked the [cell phone's] pictures content, text message content, calls, into and include [sic] received, missed, [and] dialed[.]"If a "number was in the [cell phone's] data base," Detective Orellano stated, "it show[ed] up as a name rather than a telephone number[.]"

When the prosecutor asked Detective Orellano to list the calls received by the cell phone, including "what the telephone numbers were and what time they were," defense counsel objected.After a discussion at the bench, the court overruled defense counsel's objection, and the following colloquy occurred:

[PROSECUTOR: F]rom the first call after 1 a.m. could you give us the on [sic]December 3rd, 2007 the time and either the number or the name that appeared with the received call to this cell phone.

[DETECTIVE ORELLANO:] Okay, at 1:08 a.m. a called [sic] received was from Skinner. 1:52 a.m. a call was 410-770-3929. 2:21 a.m. was from 410-725-0444.At 2:27 a.m. was ...

* * *

... 410-725-0444.At 2:30 a.m. was from Skinner.At 2:36 a.m. was from 410-770-3929.

[PROSECUTOR:] Now with regard to the 410-725-0444 number do you know whose telephone number that is?

* * *

[DETECTIVE ORELLANO:] Kevron Chase.

[PROSECUTOR:] And ... what was the actual number of the cell phone, did you get that?

* * *

[DETECTIVE ORELLANO:] 443-205-3233.

[PROSECUTOR:] Now were there also missed calls between 1 a.m. and ... 2:40 a.m.[?]

[DETECTIVE ORELLANO:] Okay, missed calls December 3rd, 2007, at 1:01 a.m. phone number was 443-497-4452.At 1:03 a.m. same number.At 1:05 a.m. Skinner.Same thing at 1:05 a.m. Skinner. 1:06 a.m. 410-820-7559. 1:07 a.m. with Skinner. 1:09 a.m. Skinner. 1:09 a.m. was 410-820-7559. 1:15 a.m. it said restricted. 1:17 was 443-497-4452. 1:23 a.m. restricted. 1:24 a.m. Skinner. 1:34 a.m. Skinner.And that was it.

Later, in closing argument, the prosecutor stated:

Detective Orellano goes through the calls and you see from the calls the timing of when the calls are being ignored, when the calls are being received and that the calls are either coming from Skinner's cell phone or Kevron Chase's phone or Mr. Carpenter's home phone according to Ms. George's recollection of the numbers.There's a couple of other calls in there from an unknown number.

But most of these calls are coming in from places that Mr. Carpenter could get to, his house, Mr. Chase, and ... that's the two main ones.His house and Mr. Chase and Mr.Skinner's phone. ....[W]ho else's cell phone was it goingto be?And how is if it's Mr. Skinner's cell phone that needs to be recovered, then how is Mr. Skinner calling it?

In rebuttal, the prosecutor stated:

Why and how Mr. Forestal's receiving the phone calls why are they coming from Mr. Chase's phone to Mr. Forestal?Because as Mr. Chase told the police [Carpenter] came and asked to use my phone and I let him and he called Mr. Forestal and this is the conversation I overheard.Now if it was Mr. Chase's cell phone that needed to be recovered and Mr. Forestal would have had it and they

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