Moore v. State

Decision Date24 November 2009
Docket NumberNo. 76, September Term, 2008.,76, September Term, 2008.
Citation983 A.2d 583,189 Md. App. 90
PartiesRodney Taureen MOORE v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Martha Weisheit (Nancy S. Forster, Public Defender, on brief), baltimore, for Appellant.

James E. William (Douglas F. Gansler, Atty. Gen., on brief), for Appellee.

Panel: DEBORAH S. EYLER, MATRICCIANI, and PAUL E. ALPERT, (Retired, Specially Assigned), JJ.

ALPERT, J.

Appellant, Rodney Taureen Moore, was indicted in the Circuit Court for Baltimore County, Maryland, and charged with attempted first degree murder, first degree assault, armed robbery, and various handgun offenses, including illegal possession of a regulated firearm by a person previously convicted of a disqualifying offense, pursuant to Md.Code (2003), § 133(c)(1)(ii) of the Public Safety Article. ("P.S.") On February 13, 2008, appellant made a motion in limine requesting the circuit court to determine, as a matter of law, whether this illegal possession statute applied to an inoperable handgun. After hearing argument, the circuit court denied appellant's motion. Thereafter, appellant entered a not guilty plea on an agreed statement of facts, and the circuit court found appellant guilty of illegal possession of a regulated firearm, with the remaining counts nol prossed. Appellant was then sentenced to five years without possibility of parole.

Appellant timely appealed, and presents two questions for review, which we have rephrased as follows:

1. Did the trial court correctly determine that operability of a firearm is not a prerequisite to a conviction of illegal possession of a regulated firearm?

2. Was the evidence sufficient to sustain appellant's conviction of illegal possession of a regulated firearm?1

For the following reasons, we shall affirm.

BACKGROUND

Appellant was charged with a number of offenses in connection with a robbery and shooting that took place in Baltimore County on July 5, 2007. Among other charges, appellant was charged pursuant to P.S. § 5-133(c), with illegal possession of a regulated firearm by a person previously convicted of a disqualifying offense.

On February 13, 2008, appellant made a motion in the circuit court requesting the court to determine as a matter of law whether a conviction under that statute required proof of the operability of the firearm. Defense counsel argued that P.S. § 5-133(c) did not address operability, unlike the pertinent handgun offenses under the Criminal Law Article. See Md.Code (2002, 2008 Supp.), §§ 4-201-4-209 of the Criminal Law Article ("C.L."). Defense counsel made clear that he did not want the circuit court to decide whether the firearm recovered in this case was operable or inoperable as that would be an issue for the finder of fact.

After hearing argument, the circuit court determined that the underlying issue required it to interpret P.S. § 5-101(h), regarding the definition of a "firearm."2 The court concluded that the definition of a firearm provided in Section 5-101(h) was unambiguous, and under the plain and ordinary meaning, a "firearm means a weapon that expels, is designed to expel or may readily be converted to expel a projectile." The court denied the motion to exclude the gun, stating: "So I find that, for there to be a conviction under Section 5-133 of the Public Safety Article, the handgun does not have to be operable when in possession of the defendant for the crime to be committed."

Thereafter, on February 21, 2008, appellant entered a not guilty plea on an agreed statement of facts. The parties agreed the evidence would show that this case concerned a robbery and shooting in Baltimore County that occurred on July 5, 2007. During the course of the ensuing investigation, appellant was initially implicated in the underlying offense, and a search warrant was executed at appellant's residence. Pertinent to the issue on appeal, the parties agreed:

When the tactical squad entered, they found this defendant, Rodney Moore, and his girlfriend in bed in the master bedroom, and they also recovered a handgun that was under the bed where the defendant was sleeping. They described the gun as in close proximity to this defendant.

The gun recovered was a .32 caliber revolver, Harrington and Richardson Model II. It was a hinge frame revolver. It did bear a proper serial number.

The detectives also recovered underneath the bed a shell casing, a fired casing and projectile. Both of those items were wrapped in a paper towel under the very same bed. Additionally, when the handgun was recovered, detectives checked it to make sure it was safe, and they did find that it had one loaded round in the cylinder. Those items were properly seized and packaged and sent to the lab for analysis additionally.

This defendant, Rodney Moore, was lawfully arrested. At that point, he also had been advised of his Miranda rights.

The handgun had been sent for more forensic examination to the Baltimore County crime lab. Michael Thomas, a firearms examiner, did analyze both the handgun, as well as the fired casing and the fired projectile.

Mr. Thomas's findings, specifically with regard to the handgun, was that it was defective. Though defective, it was tested and found to fire. Mr. Thomas, for his own safety, replaced a latch on the handgun that was cracked in order to test fire the gun. Once he did so, it did. It was found to properly function and fire.

If Mr. Thomas were called to testify, he would be offered as an expert in forensic or in firearm identification. He would indicate that he, although defective, he did essentially fix the handgun for his own safety. He would indicate, if he would not have fixed the handgun and test fired it, the gun would have gone off, but it could have exploded or the shell casing could have come back and hit him in the head, and that was reason for fixing the gun, and that is for his own safety.

The shell casing that was recovered at the scene was also analyzed. It was found to have been fired from that very same handgun, the recovered handgun. In terms of that fired projectile recovered from the scene, Mr. Thomas could not make any determination whether that projectile was or was not fired from that handgun.

Appellant waived his rights and told police that the gun belonged to a friend. The parties also agreed to the following:

[T]he defendant, on May 5th, 2005, was convicted of a crime which prohibits him from possessing a regulated firearm. As I indicated, he was convicted May 5th, 2005, of possession with intent to distribute cocaine. He was convicted in Baltimore City, and his sentence was two years, suspend all but a month, probably a time served type of sentence.

He is prohibited from possessing a regulated firearm. The .32 caliber revolver in this case is a regulated firearm. It is a handgun with a barrel of less than 16 inches in length, and it expels—is designed to expel or may readily be converted to expel a projectile by action of an explosive, and at a minimum is certainly also a frame of such a weapon.

The court was then informed that, during the course of the subsequent investigation, neither the victim nor other witnesses could identify appellant as being involved in the underlying crime. However, there was no dispute that the police had probable cause to search appellant's home. The parties also agreed to stipulate to appellant's prior conviction.

After hearing these agreed facts from the prosecutor, defense counsel offered the following additions and modifications to the agreed facts:

Your Honor, by way of additions or modifications, Your Honor, in addition to the expert finding, that would have been testified to concerning the test firing of the gun, itself, the latch, itself, was repaired, actually replaced from another gun. It was taken from another gun and placed onto that gun.

Also defective in the gun was what is called a recoil cap, which is where the hammer engages the back of the shell. That was actually missing from the gun, which would cause one to fire the gun to have to clear the chamber and remove residue or bullet material that would be in there, in order to get the gun to fire again.

Also, what would have been testified to was that, when test firing the gun, the actual ammunition being used in the gun in its current state was .38 automatic ammunition, the problem being the gun, itself, was a revolver. So in order for it to be test fire[d], the expert actually took a regular .38 Smith and Wesson casing made for the revolver and replaced it with an automatic bullet, making a new bullet to further ensure the safety of the test fire, itself.

So the only addition or modification placed on the record or that I would like placed on the record is that the gun, in the condition in which it was found, was never test fired. The testimony of the expert was that he believes it would have fired in some way. Whether the bullet went sideways, forward or backward is still open to conjecture.

The prosecutor agreed with defense counsel's additions and modifications, with the exception that the expert used a .32 caliber bullet in the test fire. Both parties agreed that the expert used a "smaller cartridge to reduce the stress on the gun and made a new cartridge to place in the gun." Defense counsel further agreed that the gun "was designed, in fact, to propel a projectile." Nevertheless, defense counsel renewed his arguments and motion from the prior hearing that operability was a consideration under P.S. § 5-133(c).

The court denied these motions and found appellant guilty of a violation of P.S. § 5-133(c). The court then sentenced appellant to the mandatory minimum of five years without possibility of parole. This appeal followed.

DISCUSSION
I.

Appellant maintains that the circuit court erred because, he contends, in order to be convicted under P.S. § 5-133(c), the State must prove operability of the firearm. The State disagrees, averring that the plain language of the statute...

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