*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Appellant, Antonio Edwards, was indicted in the Circuit Court for Baltimore City, Maryland, and charged with various offenses, including inter alia, illegal possession of a regulated firearm and transporting a handgun in a vehicle. A jury acquitted him of the transporting a handgun charge but convicted him of the illegal possession charge, as well as driving without a license. After appellant was sentenced to fifteen years, the first five without possibility of parole, for the illegal possession conviction, and time served on the driving offense, he timely appealed, presenting the following question for our review:
Did the trial court err in refusing to clarify its instructions to the jury?
For the following reasons, we shall affirm.
On April 10, 2014, a green Chevrolet Cruze being driven and solely occupied by appellant, passed in the shoulder parking lane an unmarked police vehicle driven by three Baltimore City police officers. The officers activated their lights and sirens and attempted to make a traffic stop. Appellant refused to stop and took off at a high rate of speed. After a short pursuit, the appellant eventually lost control of the Chevrolet and crashed on the sidewalk. He then exited his vehicle and started to flee. The officers pursued and apprehended him.
Pertinent to the sole issue raised on appeal, the officers recovered a fully-loaded, operable revolver from the glove compartment. The parties stipulated that appellant had been previously convicted of a disqualifying offense that prohibited him from possessing a regulated firearm such as the one recovered in this case.
Detective Timothy Stach, one of the arresting officers, testified on cross-examination about the glove compartment as follows:
Q. And the purposes that we're here for, the handgun or firearm purposes, the firearm when you looked in the vehicle, you couldn't see it unless and until you opened the glove box; is that correct?
A. Yes, that's within his arm's reach.
Q. It wasn't here, the glove box (indicating), it was -
A. I think that's within his reach, grasp and everything of a vehicle, so yeah.
Q. Sure. But you couldn't see through it; correct?
A. No, I couldn't see through it.
Q. It wasn't a clear plexiglass glove box?
A. No, sir.
Q. Thank you. You didn't know, from all of your 19 years of experience, you didn't know that there was a firearm in the glove box until you opened it?
A. That's correct.
After the State's case-in-chief, the court gave the parties its proposed instructions and then went over them in court. The court then instructed the jury. With respect to the charge of transporting a handgun in a vehicle, the court instructed as follows:
All right. Now, here are the elements of the crimes as charged: The defendant is charged with the crime of transporting a handgun in a vehicle while on public roads or highways. In order to convict the defendant, the State must prove that the defendant knowingly transported a handgun in avehicle, and that the defendant did so while traveling on the public roads or highways. A handgun is a pistol, revolver or other firearm capable of being concealed on or about the person, and which is designed to fire a bullet by the explosion of gunpowder.1
The court then instructed on the illegal possession charge:
The defendant is charged with the offense of possession of a regulated firearm by a disqualified person. In order to convict the defendant, the State must prove beyond a reasonable doubt that the defendant did possess a regulated firearm and that the defendant has been previously convicted of a crime that would prohibit his possession of a regulated firearm under Maryland law. The parties in this case have stipulated that the defendant has been convicted of an offense that renders possession of a regulated firearm unlawful under Maryland law. Regulated firearm includes a handgun, which is any firearm that has a barrel less than 16 inches or less including a signal and starter guns and blank pistols. The State is not required to prove that the firearm introduced into evidence in this case is operable.
Possession means having control over a thing, whether actual or indirect. A person not in actual possession who knowingly has both the power and the intention to exercise control over a thing, either personally or through another person, has indirect possession. In determining whether the defendant had indirect possession of the firearm, consider all of the surrounding circumstances. These circumstances include the distance between the defendant and the firearm, whether the defendant has an ownership or possessory interest in the automobile where the substance [sic] was found and any indication that the defendant was participating with others in the mutual use and enjoyment of the firearm.2
There was no objection after the court gave these instructions to the jury. In its closing arguments, the State summarized the central issues as "whether the defendant was the individual driving the car and whether he knew the items were in the car." After hearing closing arguments, the jury began its deliberations.
After lunch, the court received a note from the jury, asking "Does charge of 'transporting' have to be knowingly?" The following then ensued:
THE COURT: . . . Gentlemen, as I told you before, I wrote up the elements for each crime charged. I can either send it all back or send the two back. What would your prefer?
I'll start with the Defense.
[DEFENSE COUNSEL]: I think it's right in there.
THE COURT: Oh, it is. It's all in there. So any objection to sending what I gave them before, which has the definitions, the elements for all four? Just because, it is what was given to them. Any objection from the Defense?
[DEFENSE COUNSEL]: None, Your Honor.
THE COURT: Any objection from the State?
[PROSECUTOR]: My memory is that the possession explanation is under the regulated firearm, correct?
THE COURT: Yes. It's - basically, I'm going to give them the elements of all four crimes that were charged. So there's no discrepancy - me pulling something out.
So the Defense has no objection? The State has no objection?
[PROSECUTOR]: No objection, Your Honor.
[DEFENSE COUNSEL]: The Court wants to say the definition of possession is the same for both counts?
THE COURT: I don't want to say anything at all besides what I already told them.
[DEFENSE COUNSEL]: Okay.
THE COURT: Based on the question.
Madam Clerk or Mr. Sheriff, whoever, hand them that as the response.
And what they're getting is exactly what I gave you earlier today.
Approximately 14 minutes later, the court received another note from the jury, asking "Could he be charged of possession of a firearm without knowing the firearm is in there?" After parsing the difference between "charged" and "convicted," the defense suggested the court answer the note by instructing the jury that "a person can be charged with anything, but a person can only be convicted of transporting a handgun or possession of a regulated firearm knowingly." The State replied that the court should give a narrow response and simply tell the jury to rely on the instructions previously given. The following then ensued:
[DEFENSE COUNSEL]: But also without misleading them - I mean, these are not people who are versatile with the - "charged" versus "convicted" and the distinctions and what we answer, with our jargon, back. I think they'reclearly not back there deciding whether it's - possible theoretical world to charge somebody with this or that. They're sitting back there trying to figure out whether to convict this gentleman or not. And the question is whether it has to be "knowing." I think they're clearly trying to say "convicted of." If they had said "convicted," we wouldn't be having this debate. The answer would simply be, "No. Follow the elements, must be no."
So, to say "Yes," I think leads them down the wrong road because we're playing games with "charged" versus "convicted."
I'll vigorously urge the Court -
THE COURT: All right. The response the Court will send back is, "Yes, but it is for the jury to decide if the defendant is guilty or not guilty based on the law provided to you."
What say you, [Defense Counsel]?
[DEFENSE COUNSEL]: I'm honestly - I'm not happy with the - without putting some focus on "knowing," of the knowing instruction, to help answer that question.
THE COURT: Well, again, it's based on the law provided to them. I gave them - I read them the law, I - the record will show that I've already given them a copy of the law. I can't go beyond that. I can't go in there and say to them, "Focus on this, focus on that." They have the law, it's for the jury to make a decision.
All right. Whatever instructions you have - I'll give you the note before - and again, "Yes, but it is for the jury to decide if the defendant is guilty or not guilty based on the law provided to you."
[DEFENSE COUNSEL]: I would say, "Yes, a person can be charged, but a person can only be convicted" -
THE COURT: All right. Over your objection, I'll do it the way I have it. "Yes, but it is for the jury to decide if the defendant is guilty or not guilty based on the law provided to you."
Well, I'll say, "based on the evidence and the law provided to you." Any objection to that?
[DEFENSE COUNSEL]: I don't have any problem with the last part, Your Honor. My only problem still, at this point, is to just to say, "Yes, a person can be charged, but a person can only be convicted," as you then said in accordance with the law and definitions. Because I think
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