Jefferson v. State Of Md..

• Citation: 194 Md.App. 190,4 A.3d 17
• Decision Date: 02 September 2010
• Docket Number: No. 1013, Sept. Term, 2008.,1013, Sept. Term, 2008.
• Parties: Kenneth JEFFERSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

194 Md.App. 190

4 A.3d 17

Kenneth JEFFERSON

v.STATE of Maryland.

No. 1013, Sept. Term, 2008.

Court of Special Appeals of Maryland.

Sept. 2, 2010.

Martha Weisheit (Elizabeth L. Julian, Acting Public Defender, on the brief) Baltimore, MD, for appellant.

James E. Williams (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: HOLLANDER, WOODWARD and ZARNOCH, JJ.

WOODWARD, J.

Appellant, Kenneth Jefferson, was convicted on April 22, 2008, by a jury sitting in the Circuit Court for Baltimore City of wearing, carrying and transporting a handgun on or about his person and carrying a concealed and dangerous weapon on or about his person. On June 6, 2008, appellant was sentenced to two years incarceration for carrying a handgun, and a concurrent sentence of two years for carrying a concealed dangerous weapon. Appellant timely appealed and presents the following questions for our review:

1. Was it plain error material to the rights of the accused for the trial judge to conduct the voir dire by posing all the questions at once and then calling individual jurors to the bench to discuss their responses?

2. Was it error to respond to a jury question about the elements of the crime of wearing, carrying or transporting a handgun on one's person by sending to the jury a copy of the applicable statute?

3. Was the evidence insufficient to sustain the Appellant's conviction for carrying a handgun on his person?

For the following reasons, we shall affirm.

BACKGROUND

Officer David Simmons, of the Baltimore City Police Department, and accepted as an expert in the use of radar, testified that on June 23, 2007, at around 2:50 p.m., he was on patrol in a marked police vehicle near the 3200 block of Reisterstown Road. Officer Simmons noticed a Ford Explorer traveling northbound at a speed of 50 miles per hour, which was in excess of the posted speed limit of 30 miles per hour. Officer Simmons watched the vehicle pass his location, and then turn right near the 2500 block of Druid Hill Park Drive. Officer Simmons then proceeded to follow the Explorer and testified that he “had to travel at a pretty high rate of speed to catch up with the vehicle.” After activating his emergency lights and siren, Officer Simmons then stopped the Explorer.

Officer Simmons approached the Explorer and spoke to the vehicle's driver, appellant in this case. Sitting in the front passenger seat was appellant's co-defendant at trial, Berry Green. After advising appellant of the reason for the stop, appellant informed Officer Simmons that his driver's license was suspended. Officer Simmons confirmed this information over his police radio, and learned that appellant's license had been suspended for a failure to appear in traffic court.

Officer Simmons directed appellant to exit the vehicle and then brought him to the back of his patrol vehicle. From that location, Officer Simmons also was able to see that Green, the passenger in the Explorer, was “bending over in the passenger side of the vehicle as if he was stuffing something underneath the seat.” Officer Simmons further testified that, based on his training and experience, which included looking for “certain signs that maybe there may be a weapon, there may be some drugs in the car, or maybe because you might be attempting to try to hide something,” it appeared to Officer Simmons that Green was attempting to conceal something. While Officer Simmons made these observations, he asked appellant if there were any drugs or weapons in the Explorer, and appellant replied that there were none.

At this point, Officer Simmons radioed for backup. Once those units arrived, Officer Simmons advised appellant that he was being arrested for driving on a suspended license. Officer Simmons again asked appellant if there were any drugs or guns in the Explorer, and appellant replied that there was a “fishing knife underneath the driver side seat.”

Officer Simmons went to the driver's side seat and found “what was, appeared to be a battle knife to me. The knife had what's pretty much like a brass knuckle holding for you to hold on it, and it had spikes coming form [sic] the portion where the fist is wrapped around it, and it also had a long blade which was definitely not used for fishing.” The knife was admitted into evidence at trial.

Officer Simmons then had Green step out of the vehicle and the police continued to search for more weapons. Officer Ronald Zimmora, who had responded to the scene, informed Officer Simmons that he found a loaded gun underneath the passenger side seat. Officer Simmons asked Officer Zimmora to stay with appellant while he searched the vehicle. After searching the vehicle underneath the passenger side seat, Officer Simmons located a loaded .38 caliber revolver. The butt of that handgun was facing outward towards the passenger seat. The revolver was admitted into evidence at trial.

Officer Simmons demonstrated for the jury where the two weapons were found inside the vehicle. He testified that the “[k]nife was under the driver's side seat, and actually the gun was underneath the passenger side seat.” Further, Officer Simmons agreed with the prosecutor's question that a person located either in the driver's seat or the passenger's seat could “reach either of the weapons as they were recovered on June 23rd, 2007.” Both appellant and Green denied knowledge of the gun. The parties stipulated that the revolver was operable and met the definition of a handgun.

Appellant testified on his own behalf and admitted that he was speeding when Officer Simmons performed the traffic stop. Appellant indicated that he did not know his co-defendant, Green, and was just giving Green a ride in exchange for money. Appellant admitted that his license was suspended, but claimed it was for a fine that he had not yet paid. He also informed Officer Simmons that he had a knife near his seat in the vehicle, which he maintained was a fishing knife he used to catch catfish. Appellant also indicated that he had this knife in the vehicle because he had been carjacked at gunpoint on some prior occasion.

Appellant testified that he did not know that the revolver was inside his vehicle. He claimed that Green put the gun there. Appellant also testified that he spoke to Green about the gun, and at some point, apparently while they were in the vehicle, Green told him, “I'm dirty. Let me get out.” Appellant further testified that “[h]e had enough time to throw the gun out.” Appellant maintained that he was not trying to evade Officer Simmons, and also testified, over objection, that he told Green that Green should have told him he had a gun.

On cross-examination by the State, appellant admitted that he had a prior theft conviction. On cross-examination by his co-defendant, Green, appellant admitted that the knife was both for fishing and for his protection. Appellant also testified that the knife was located on the side of his seat, and not underneath the seat. In rebuttal, Officer Simmons testified that he did not see a knife in plain view, and that he recovered the knife from underneath appellant's seat.

We shall include additional facts in our discussion as necessary.

DISCUSSION

I.

Appellant first contends that the trial court erred in the manner it conducted voir dire of the prospective jurors under Wright v. State, 411 Md. 503, 983 A.2d 519 (2009), ¹ and asks this Court to recognize plain error on this issue. The State responds by conceding that the voir dire in this case was error under Wright, but that, absent an objection by appellant's counsel, that error does not amount to plain error requiring reversal. For the following reasons, we agree with the State and decline to exercise plain error review of appellant's first question.

Prior to jury selection, the parties discussed the proposed voir dire, and appellant's counsel indicated he did not object to the State's voir dire. The trial court then informed the parties the manner it intended to conduct voir dire as follows:

All right. Since nobody has any objection of each others [sic] questions, what I will do is, I will merge them all into a single paragraph and ask all the questions at one time. At the end of the voir dire we'll bring each juror up to the bench and we'll ask them if they have any response to the questions. We'll take their responses and then each of you can take limited follow-up questions.

And then we'll finish and we'll move to the next juror. At the end of the 50th juror, we'll then do challenge for cause. [Prosecutor], you'll go first. Indicate the summons number of the person you wish to challenge and pause. Each of you indicate if you agree or disagree. If anybody disagrees, I'll give you argument to the moving party and the disagreed party, then I'll rule.

If everybody agrees, I'll grant the challenge without hearing any argument. Once we're done, [Prosecutor], we'll do [Defense Counsel for Green] the same way. Summons number, pause, agree or disagree, if disagree, moving party, opposing party, and then we'll do [Defense Counsel for Appellant] the same way. Once we've eliminated those people who were challenged for cause, we'll select a jury by alternative challenge.

Appellant did not object to the trial court's manner of conducting voir dire examination. Thereafter, the prospective jurors entered the courtroom, and the judge informed them as follows:

I'm going to ask you a series of questions now designed to determine whether you would be unfair to any of the three parties involved in the case, or otherwise unable to reach a unanimous verdict. I'm going to ask all the questions in one paragraph. And then we'll have all 50 of you come to the bench and respond.

Counsel can ask follow-up questions and then from those questions and answers certain challenges will be made to get the panel down from 50 to 12. If you're not sure that information you possess is an answer, please volunteer that information. It's...