McCracken v. State

Decision Date31 March 2003
Docket NumberNo. 138,138
PartiesTed Aaron McCRACKEN v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Carrie S. Leonetti, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Diane E. Keller, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and John L. Scarborough, State's Attorney for Cecil County of Elkton, on the brief), for appellee.

Argued before HOLLANDER, SALMON, and JAMES R. EYLER, JJ JAMES R. EYLER, Judge.

On January 17, 2002, a jury in the Circuit Court for Cecil County convicted Ted Aaron McCracken, appellant, of carrying a concealed deadly weapon. The court sentenced appellant to a term of imprisonment of three years, with all but fifteen months suspended, and three years of probation upon release. On appeal, appellant contends that the trial court (1) failed to comply with the waiver of counsel provisions of Maryland Rule 4-215, (2) erred in permitting the State to offer rebuttal testimony regarding appellant's statements to police while in their custody, (3) committed plain error by permitting the State's inflammatory and mischaracterizing closing argument, (4) erred by failing to exercise its discretion pursuant to Maryland Rule 4-265 to waive the time requirements for appellant to request the issuance of subpoenas, and (5) erred in denying appellant's motion for judgment of acquittal. We shall reverse based on issue (2) and shall comment on the other issues for the benefit of the court on remand.

Facts

On May 10, 2000, appellant entered the First National Bank of North East in Elkton, Maryland. One of the bank tellers, believing that she observed a suspicious bulge in appellant's jacket, contacted the Elkton Police Department.

At a pretrial suppression hearing on the morning of the trial, Officer Ronald Odom of the Elkton Police Department testified that he entered the bank and spoke with Sylvia Jones, a bank clerk, who informed him that there was a man inside the bank attempting to open a new account and that the teller assisting him had noticed a bulge under his jacket and a strap across his chest. Officer Odom testified that he walked over to where appellant was seated, grabbed hold of appellant's arm, advised him that he was going to come outside with him and to keep his hands where he could see them, maintained control of appellant, and escorted him outside. Officer Odom further testified that he observed a holster strap across appellant's chest, but that he could not see a gun at that time because of the jacket that appellant was wearing. Officer Odom testified that, once outside, he and Patrolman James Anderson patted appellant down, felt a bulge, and removed a weapon.

Officer Odom described the gun as "an old-time civil war type revolver" and testified that he had "very little knowledge of those types of firearms." He also testified that appellant explained, at the time, that the firearm "wasn't real," but when asked if, when the trigger was pulled, the firearm shot a projectile out of the muzzle, appellant responded that it would. Finally, Officer Odom asked appellant if, when fired, the gun was capable of killing somebody, and appellant responded that it was. Also at the pretrial suppression hearing, Patrolman Anderson testified that, when he arrived at the scene, Officer Odom was escorting appellant out of the bank to talk to him. Patrolman Anderson testified that, after explaining to appellant that they were going to pat him down, and when they began to do so, appellant stated that he had a revolver in a shoulder holster. The officers asked appellant to keep his hands up and away from the weapon, and Patrolman Anderson removed the firearm from appellant's holster and secured it in his vehicle. Patrolman Anderson also testified that the firearm appeared to be an "old-style revolver," admitted that he was not a pistol expert, but explained that there appeared to be two "wadded or loaded cylinders" on the discharge side of the weapon. He testified that he believed that the gun required a primer cap, black powder, and a lead ball in order to be loaded. On cross-examination, Patrolman Anderson testified that he did not remove the cylinder from the weapon at the scene because he was not familiar enough with it in order to disassemble it safely.

Appellant also testified at the suppression hearing, explaining that once the officers had taken the gun, they began asking him questions about where he had been. Appellant testified that the officers placed him in handcuffs and took the gun from him before posing any questions to him. Appellant testified that he had just come from the shooting range that morning and did not have time to take the weapon home and put it away. He testified that he had gone into the bank to open an account and to deposit a $1500 check that he had just received. When appellant was taken into custody, he had the check, his passport, and his driver's license on the desk in front of him. Appellant explained that, at the time that the officers arrested him, the gun was not loaded in a way that it could be fired because it required four components in order to fire—a ball projectile, wadding, black powder, and a percussion firing cap—and none of the chambers in the gun contained all four of those components.

The trial court denied appellant's motion to suppress the gun, reasoning that the officers had probable cause for the stop and search and to pat appellant down for weapons. The court granted appellant's motion to suppress the statements appellant made to police during the arrest, however, finding that appellant was in custody from the moment that the officer entered the bank and escorted appellant outside, such that if the officers wanted to question appellant, they were obligated to advise him of his Miranda rights. Their failure to do so mandated suppression of appellant's statements.

On the day of trial, appellant, proceeding pro se, asked the court to allow him to issue subpoenas. The court explained that subpoenas are intended to be issued ahead of time, in preparation for trial, and denied appellant's request.1

On the morning of trial, appellant also asked the court to reconsider his earlier request for assignment of counsel. After reviewing appellant's previous discharges of attorneys and failure to secure alternative counsel through the Public Defender's Office, the court found that appellant effectively waived his right to counsel. Accordingly, the court explained that the case would go to trial that day with appellant representing himself.2

At trial, Yvonne Titter, a bank teller, testified that appellant told her that he wanted to open an account, that she asked him to have a seat in the lobby, and that when he sat down, the front of his jacket came open and she saw the "end" of a gun.

Sylvia Jones, another bank employee, testified at trial that she assisted appellant in opening a new account while waiting for police to arrive. Ms. Jones stated that, when appellant reached into his jacket to produce identification to open the account, she observed the butt of a gun.

Officer Odom and Patrolman Anderson were also called by the State at trial. They testified to the same information that they had provided during the suppression hearing, except for that which had been suppressed by the court pertaining to appellant's statements at the time of arrest.

In addition, Officer Odom testified at trial that he was not familiar enough with the firing mechanism of black powder weapons to testify about them, but stated that four of the six chambers of the gun were empty and that the other two contained cotton swabbing. He also testified that there were caps placed on two of the cylinders and that he assumed there were projectiles in those two chambers. Finally, Officer Odom testified that he did not disassemble the pistol when he seized it.

Patrolman Anderson testified at trial that the gun had four empty cylinders, two full ones, and there were firing caps on the two full ones. He also testified that the gun was transported to the Elkton Police Department assembled within its holster, and the gun was never fired while in police possession.

Patrolman Dennis Wood testified at trial that he was familiar with black powder weapons as a firearms instructor. He testified that, in order to fire, the seized weapon would need black powder, a lead projectile ball, a percussion cap attached to the rear of the cylinder, and a patch attached to the front of the round. Patrolman Wood testified that the gun would not be operational without the percussion caps and there were no percussion caps on the gun when he examined it. He testified that four empty chambers on the gun appeared to have been loaded, primed, and discharged.

At the end of the State's case, appellant moved for judgment of acquittal, arguing that the State had failed to prove concealment of a dangerous or deadly weapon. The court denied the motion.

Appellant chose to testify in his own defense at trial and explained that, when he was arrested, he was returning from the Elk Neck State Park shooting range, where he had fired the weapon in order to clean it out and get the bullets out of it. Appellant also testified that he never had any intent to conceal the weapon, as was evidenced by the fact that it was clearly observable by people in the bank. Finally, appellant testified at trial about some car accidents and an incident with a neighbor that led him to believe that he needed to carry a weapon for protection.

On cross-examination, appellant testified that the gun was not loaded when he carried it into the bank because he had emptied it at the firing range. Appellant explained that the gun did not have all of the components necessary for the weapon to fire, in alignment, at the time that he was arrested.

The State called Patrolman Anderson as a rebuttal witness...

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