Howling v. State

• Decision Date: 28 April 2022
• Docket Number: 36, Sept. Term, 2021
• Citation: 478 Md. 472,274 A.3d 1124
• Parties: Mashour HOWLING v. STATE of Maryland Funiba Abongnelah v. State of Maryland
• Court: Court of Special Appeals of Maryland

478 Md. 472

274 A.3d 1124

Mashour HOWLING

v.STATE of Maryland

Funiba Abongnelah

v.State of Maryland

No. 36, Sept. Term, 2021

Court of Appeals of Maryland.

April 28, 2022

Motion for Reconsideration in No. 35 Denied June 15, 2022

Argued by Michael Wein (Law Offices of Michael A. Wein, LLC, Greenbelt, MD), on brief, for Petitioner in No. 35, Sept. Term, 2021.

Argued by Violet N. D. Edelman, Assigned Pub. Defender (Anne K. Olesen, Assigned Pub. Defender, The George Washington University Jacob Burns Community Legal Clinics, Washington, DC), on brief, for Petitioner in No. 36, Sept. Term, 2021.

Argued by Carrie J. Williams, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before:^* Getty, C.J., *McDonald, Watts, Hotten, Booth, Biran, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.

Hotten, J. "There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge ... from its definition." Lambert v. California , 355 U.S. 225, 228, 78 S. Ct. 240, 242, 2 L.Ed.2d 228 (1957). We consider whether the General Assembly intended to exclude the element of knowledge of a person's status as a person prohibited from possessing a regulated firearm and ammunition pursuant to Md. Code Ann., Public Safety (2018 Repl. Vol.) ("Pub. Safety") § 5-133 and § 5-133.1. This opinion consolidates two separate cases that collectively concern the possession of a prohibited firearm and ammunition by disqualified persons.

The defendants in each case, Mr. Mashour E. Howling ("Petitioner Howling") and Mr. Funiba T. Abongnelah ("Petitioner Abongnelah"), possessed a firearm at the time of arrest, while disqualified from doing so. Both cases proceeded separately to jury trials before the Circuit Court for Montgomery County. At varying points in the proceedings, each Petitioner requested that the respective circuit court adopt the reasoning of Rehaif v. United States , 588 U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), where the United States Supreme Court held that the federal statute 18 U.S.C. § 922(g) required proof of knowledge of possession of a firearm and proof of knowledge of the defendant's status as a person prohibited from possessing a firearm.¹ Id. at ––––, 139 S. Ct. at 2200. Petitioners requested that the circuit court give a jury instruction incorporating the reasoning of Rehaif .²

The circuit court declined to give the requested jury instruction in each case. Both Petitioners moved for judgment of acquittal at the close of the State's case and renewed the motion at the close of all evidence. Pertinent to this appeal, Petitioner Abongnelah argued that the State provided insufficient evidence to establish that he knew he was prohibited from possessing a firearm. The circuit court denied both motions in each case.

Two separate juries found Petitioners each guilty of possessing a firearm in violation of Pub. Safety § 5-133. Petitioner Howling was also found guilty of possessing ammunition in violation of Pub. Safety § 5-133.1. Petitioners separately appealed to the Court of Special Appeals, which affirmed in separate unpublished opinions. Abongnelah v. State , No. 2561, Sept. Term, 2019, 2021 WL 1943262 (Md. Ct. Spec. App. May 11, 2021) ; Howling v. State , No. 2087, Sept. Term, 2019, 2021 WL 402519 (Md. Ct. Spec. App. Feb. 4, 2021). The Court of Special Appeals declined to adopt the reasoning of Rehaif in either case, and concluded that the State must prove, with respect to the mens rea element, only knowledge of possession of a regulated firearm pursuant to Pub. Safety § 5-133 (in both cases) and knowledge of possession of ammunition pursuant to Pub. Safety § 5-133.1 (in Petitioner Howling's case). Accordingly, the intermediate appellate court held that the circuit court did not abuse its discretion in declining to give Petitioners’ requested jury instructions. The court also held in Petitioner Abongnelah's case that there was sufficient evidence to establish knowledge of possession of a regulated firearm.

Petitioners asked this Court to interpret Pub. Safety § 5-133 and § 5-133.1 to require knowledge of possession of a firearm and knowledge of status as a prohibited person. We granted certiorari on September 29, 2021 in each case, 476 Md. 258, 259 A.3d 797 (2021), to address the following questions presented:

1. In a question of first impression, did the [circuit] court err by giving a jury instruction that omitted a scienter requirement for the offenses charged, contrary to the holding of Rehaif v. United States , [588 U.S. ––––,] 139 S. Ct. 2191 (2019), on the presumptions in law in the equivalent Federal Statute, the Rule of Lenity, and this Court's decisions in Dawkins v. State , 313 Md. 638 (1988) and Chow v. State , 393 Md. 431 (2006) ?

2. Under the facts of [Petitioner Howling's] case, in which no evidence was adduced that [Petitioner Howling] was previously notified by government authorities that he was prohibited from possessing a regulated firearm in Maryland, did the [circuit] court err in giving the pre- Rehaif pattern jury instructions lacking scienter requirements?

[3.] In a matter of first impression, did [the Court of Special Appeals] err by holding that the evidence was sufficient to convict Petitioner [Abongnelah] of illegally possessing a regulated firearm where the State failed to prove he had knowledge of his prohibited status - i.e. , that he was a convicted felon - because that result was inconsistent with the [United States] Supreme Court's interpretation of the analogous Federal statute in Rehaif v. United States , [588 U.S. ––––,] 139 S. Ct. 2191 (2019), and was at odds with this Court's precedent?

[4.] Did [the Court of Special Appeals] err by upholding the [circuit] court's refusal to instruct the jury that the State was required to prove that Petitioner [Abongnelah] had knowledge of his prohibited status?

[5.] Was the knowledge issue raised [by Petitioner Abongnelah] adequately preserved where both trial and appellate counsel argued that Rehaif required knowledge of prohibited status and appellate counsel clarified in [Petitioner Abongnelah]’s Reply Brief [before the Court of Special Appeals] that prohibited status meant Petitioner [Abongnelah]’s status as a felon?

We answer the questions presented in the negative, and shall affirm the judgments of the Court of Special Appeals.

FACTS AND PROCEDURAL BACKGROUND

Underlying Incidents

A. Petitioner Howling

On March 20, 2019, Corporal Brian Rumsey of the Maryland National Capital Park and Planning Police Department was on a lunch break at a shopping center near Layhill Road in Silver Spring, Maryland. Corporal Rumsey observed two men in the shopping center parking lot "checking their surroundings, constantly looking around." Corporal Rumsey entered a nearby liquor store on the suspicion of a potential robbery. He noticed one of the two men at the counter and detected the smell of marijuana.

Corporal Rumsey followed the two men, who crossed Layhill Road and entered the passenger side of a parked truck in a nearby parking lot. Corporal Rumsey "flagged down" Officer Sean McKinney of the Montgomery County Police Department ("MCPD") in a marked cruiser and notified Officer McKinney of potential criminal activity. Officer McKinney approached the parked truck and detected a "strong odor of marijuana" emanating from the vehicle and/or its passengers. One of the men told Officer McKinney that they were waiting for their friend, later identified as Petitioner Howling, who was getting a haircut at the nearby barbershop.

Law enforcement searched the truck³ and found a rental agreement in Petitioner Howling's name, a loaded Glock semiautomatic handgun, two magazines of ammunition for the handgun, and approximately $4,100 in cash. Two officers located Petitioner Howling in the barbershop and arrested him.

During a police interview with Detective Tomasz Machon of the MCPD, Special Investigation Division, Petitioner Howling explained that he lived in Pennsylvania but had traveled to Montgomery County, where his mother resides, for a doctor's appointment. His two friends, who initially drew the attention of Corporal Rumsey, wanted to accompany him on the trip. Petitioner Howling told Detective Machon that the handgun was registered to him in Pennsylvania, and he did not realize the handgun was in the car "until on the way down[.]" Petitioner Howling also informed Detective Machon that he was convicted of simple assault in Pennsylvania.⁴ When the interviewing officer advised that Maryland law prohibited possession of a firearm following conviction of simple assault in Pennsylvania, Petitioner Howling claimed that he did not intentionally bring the handgun into Maryland. The State charged Petitioner Howling with possession of a firearm by a prohibited person pursuant to Pub. Safety § 5-133(c), transportation of a loaded handgun in a vehicle pursuant to Md. Code Ann., Criminal Law ("Crim. Law") § 4-203(a)(1)(v), and possession of ammunition by a prohibited person pursuant to Pub. Safety § 5-133.1.

B. Petitioner Abongnelah

In April 2019, Detective Machon began monitoring an Instagram account with the handle "gg_mikey", believed to be used by Petitioner Abongnelah. Prince George's County law enforcement had been monitoring the account since Petitioner Abongnelah's release from prison in 2018, and tipped off Detective Machon that Petitioner Abongnelah may be involved in prohibited firearms activity within Montgomery County.

On June 5, 2019, at 1:53 a.m., a video was posted to the Instagram account that depicted a person shooting a Kel-Tec handgun at a distant car with flashing red and blue lights. A voice in the video stated, "I'ma shoot the police." Based on the video, other photos and videos posted to the Instagram account, and Petitioner Abongnelah's MVA photo, Detective Machon concluded that Petitioner Abongnelah was the person firing the weapon in the video. Detective Machon also identified the...