Llopiz v. State
| Decision Date | 28 December 2020 |
| Docket Number | No. 43,43 |
| Parties | HECTOR R. LLOPIZ v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Cecil County
UNREPORTED
Graeff, Friedman, Eyler, James R. (Senior Judge, Specially Assigned), JJ.
Opinion by Graeff, J.
*This is an unreported opinion and therefore may not be cited either as precedent or as persuasive authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court. Md. Rule 1-104.
On January 11, 2019, a jury convicted Hector Llopiz, appellant, in the Circuit Court for Cecil County of possession of a regulated firearm after having been convicted of a crime of violence, possession of a regulated firearm after conviction of a disqualifying crime, driving under the influence, fleeing and eluding a police officer, and numerous other traffic offenses.1 The court sentenced appellant to a term of 15 years on the conviction for possession of a regulated firearm after conviction of a crime of violence, the first five years to be served without the possibility of parole, and it merged the second conviction for possession of a regulated firearm. It imposed a consecutive one-year sentence, plus a $500 fine, on the conviction of driving under the influence, a concurrent two-month sentence on the conviction for failure to stop at the scene of an accident, and a concurrent one-year sentence on the conviction for fleeing and eluding. The remaining counts were "suspended generally[.]"
On appeal, appellant raises three questions for this Court's review, which we have rephrased slightly, as follows:
For the reasons set forth below, we answer question one in the affirmative, and therefore, we shall reverse appellant's conviction for possession of a regulated firearm and remand for further proceedings.2
On September 19, 2018, appellant was involved in a police chase in Elkton. At trial on the ensuing charges, the State called two witnesses: Deputy First Class Jonathan Douglas, a member of the Cecil County Sheriff's Office, and Corporal Todd Finch, a member of the Elkton Police Department.
At 7:20 p.m., DFC Douglas observed appellant make numerous dangerous and erratic driving maneuvers. He attempted to effectuate a traffic stop on Route 40 and pursued appellant into a residential neighborhood. Appellant hit a vehicle stopped at a red light, continued to drive, and ultimately "spun out" while making a turn. Appellantthen exited his vehicle and ran away on foot. DFC Douglas pursued appellant on foot and apprehended him when appellant fell.
Upon returning to appellant's vehicle, DFC Douglas observed a "chrome-in-color firearm on the ground in the dirt" directly beside the driver's side door of the vehicle. Photographs of the weapon were admitted in evidence as State's Exhibit 1, and the actual weapon was admitted as State's Exhibit 3.
Corporal Finch arrived at the scene at 7:25 p.m. As he approached the vehicle, he observed "what appeared to be a semiautomatic firearm" on the ground next to the driver's side door. Appellant, who was handcuffed at the scene, called out to Corporal Finch and said he wanted to speak to him. Corporal Finch, who was wearing a body camera, advised appellant of his Miranda rights. After appellant stated that he understood his rights, Corporal Finch "asked about the firearm." Initially, appellant denied that it belonged to him and said that he "found it in the vehicle," which he told Corporal Finch belonged to his sister. Appellant then stated to the contrary and then "kept going back and forth" between saying that Exhibit 3 belonged to him and that it did not belong to him. An excerpt of Corporal Finch's bodycam footage was played for the jury.
The State introduced into evidence, as Exhibit 5A, a redacted, certified record from the Court of Common Pleas of Lancaster, Pennsylvania, showing that appellant pleaded guilty to two counts of aggravated assault in 2011. An unredacted copy of the criminal record was marked as Exhibit 5, but it was not admitted in evidence.
Further facts will be added as necessary in the discussion that follows.
Appellant's contentions of error pertain solely to his convictions for possession of a regulated firearm after having been convicted of a violent crime (Count 1) and possession of a regulated firearm after a prior conviction of a disqualifying crime (Count 2). Before discussing the specific contentions on appeal, we will set forth the elements of these crimes.
Pursuant to Md. Code Ann., Pub. Safety ("PS") § 5-133(b)(1) (2017 Supp.), "[a] person may not possess a regulated firearm if the person . . . has been convicted of a disqualifying crime." PS § 5-133(c)(1) prohibits possession of a "regulated firearm" by a person who was "previously convicted of . . . (i) a crime of violence . . . or (iii) an offense under the laws of another state or the United States that would constitute [a crime of violence] if committed in this State." To secure a conviction under either PS § 5-133(b)(1) or PS § 5-133(c)(1), "the State must establish that the handgun involved was a regulated firearm, that the defendant possessed this firearm, and that he was precluded from doing so because of a disqualifying status." Smith v. State, 225 Md. App. 516, 520 (2015), cert. denied, 447 Md. 300 (2016).
A "regulated firearm" is defined by reference to three subsections of PS § 5-101. First, PS § 5-101(r) defines "Regulated firearm" as: "(1) a handgun; or (2) [certain specified assault weapons]." Here, there was no contention that Exhibit 3 was an assault weapon, and therefore, the pertinent provision at trial was whether it was a "handgun." A"'[h]andgun' means a firearm with a barrel less than 16 inches in length." PS § 5-101(n). PS § 5-101(h) defines "firearm" as follows:
As indicated, the convictions here required a showing that appellant possessed a regulated firearm after conviction of a disqualifying crime. A "disqualifying crime" includes "a violation classified as a felony in the State," PS § 5-101(g)(2), including a conviction for a crime in another state that would be classified as a felony if it had been committed in Maryland. Jones v. State, 420 Md. 437, 456-57 (2011).
A "crime of violence" includes multiple listed crimes, including "assault in the first or second degree." PS § 5-101(c)(3). A person commits the felony of assault in the first degree if he or she intentionally causes or attempts to cause "serious physical injury to another" or commits an assault with a firearm. Md. Code Ann., Criminal Law ("CR") § 3-202 . Assault in the second-degree includes simple assault, which is a misdemeanor, and an assault on certain classes of people, including law enforcement officers and correctional officers, which is a felony. CR § 3-203. Additionally, as indicated, it includes crimes committed in other states that would constitute a crime of violence in Maryland. PS § 5-133(c)(1)(iii). With that background in mind, we address appellant's contentions of error.
Appellant contends that the trial court erred in granting the State's motion in limine and restricting defense counsel from eliciting testimony regarding, or arguing that, the weapon found did not satisfy the definition of a "firearm" under PS § 5-101(h)(1). He notes that it was the State's burden to show that the weapon was a regulated firearm, i.e., a weapon (or the frame or receiver of such a weapon) that is designed to expel or may readily be "converted to a weapon that can expel a projectile by the action of an explosive." He asserts that, by limiting his cross-examination of DFC Douglas, the court erroneously "took a critical issue of fact away from the jury." He further contends that the trial court erred by giving a supplemental jury instruction taking "judicial notice" that Exhibit 3 was a regulated firearm.
The State acknowledges that the trial court "arguably improperly limited" the defense by ruling that defense counsel could not "attack the character of the gun as a firearm." It further acknowledges that "whether a weapon is a regulated firearm is not a question that falls within the classic definition of 'judicial notice.'"
The State argues, however, that reversal of appellant's firearm convictions is not warranted for several reasons. First, it asserts that appellant failed to preserve his contention of error with respect to the motion in limine because he did not object to the numerous instances when DFC Douglas and Corporal Finch referred to Exhibit 3 as a "firearm" or a "weapon." Second, the State contends that any error by the court in its pretrial ruling and its supplemental instruction taking judicial notice that Exhibit 3 was aregulated firearm was harmless, asserting that the "evidence made it patently clear that the gun fell within the definition of a regulated firearm."
On the first day of trial, after the jury was empaneled, the State moved in limine to preclude "the defense . . . from discussing anything about operability" of Exhibit 3 because it was not an element of the charges...
To continue reading
Request your trial