Moore v. State

• Decision Date: 22 December 2011
• Docket Number: Sept. Term,2010.,No. 20,20
• Parties: Rodney Taureen MOORE v. STATE of Maryland.
• Court: Maryland Court of Appeals

34 A.3d 513

424 Md. 118

Rodney Taureen MOORE

v.STATE of Maryland.

No. 20

Sept. Term

2010.

Court of Appeals of Maryland.

Dec. 22, 2011.

Martha Gillespie, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner.

James E. Williams, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ^* MURPHY, ADKINS, and BARBERA, JJ.BATTAGLIA, J.

We are asked to determine whether operability is a prerequisite for a handgun to be considered a “firearm,” as it is defined in Section 5–101(h) ¹ of the Public Safety Article, Maryland Code (2003), in order to sustain a conviction for possession of a regulated firearm by a disqualified person under Section 5–133(c) ² of the Public Safety Article, Maryland Code (2003).

The Petitioner, Rodney Taureen Moore, after entering into an agreed statement of facts, was convicted of illegal possession of a regulated firearm in the Circuit Court for Baltimore County and sentenced to five years' imprisonment without possibility of parole. Moore appealed to the Court of Special Appeals, which affirmed his conviction in a reported opinion, Moore v. State, 189 Md.App. 90, 983 A.2d 583 (2009), and we granted his Petition for a Writ of Certiorari, 412 Md. 689, 990 A.2d 1046 (2010), to address the following questions:

1. Is proof of the operability of the firearm a prerequisite to a conviction for illegal possession of a regulated firearm [under Section 5–133 of the Public Safety Article, Maryland Code (2003) ]?

2. If so, was the evidence insufficient to prove operability in the present case? ³

Although the handgun in question could certainly have qualified as operable, ⁴ for the purposes of our opinion, we shall assume it was not and shall hold that a firearm, as it is defined in Section 5–101(h), does not have to be operable in order to sustain a conviction under Section 5–133(c), which prohibits a person convicted of a crime of violence or offenses related to the sale and distribution of controlled dangerous substances from possessing a regulated firearm. Therefore, we affirm the judgment of the Court of Special Appeals.

Background

In July 2007, a robbery and shooting took place that ultimately resulted in the execution of a search warrant at Rodney Taureen Moore's residence, during which a .32 caliber, Harrington and Richardson, Model II revolver was recovered from beneath his bed. Moore was indicted by a grand jury in the Circuit Court for Baltimore County, wherein it was alleged, inter alia, that he “did unlawfully possess, own, carry and transport a regulated firearm after having been convicted of an offense,” based upon a conviction, in 2005, for possession of cocaine with intent to distribute, one of the enumerated offenses in Section 5–133(c)(1)(ii).⁵

Moore filed a motion in limine prior to trial, in which he asked the court to determine whether, as a matter of law, a conviction under Section 5–133(c) required proof of the operability of the firearm. In denying Moore's motion, the judge ultimately relied on the “plain and ordinary meaning of the definition” of firearm located in Section 5–101(h) and determined that, for a “conviction under Section 5–133 of the Public Safety Article, the handgun does not have to be operable.”

Thereafter, after the State agreed to nolle prosequi the remaining counts in the Indictment upon a finding of guilt, Moore entered a not guilty plea on an agreed statement of facts directed at Count Nine, in which a violation of Section 5–133(c) was alleged. The State's Attorney proffered the agreed statement of facts:

Your Honor, if the case were to have gone to trial, the [S]tate would have presented the following evidence: That is that, on July 5th, 2007, detectives from the violent crimes unit of the Baltimore County Police Department were called upon to investigate a robbery and shooting that occurred here in Baltimore County.

During the course of that investigation, two witnesses came forward with information at that time that implicated this defendant, Rodney Moore, as well as the co-defendants later also charged in this case. Those two witnesses came forward approximately two to three weeks after the actual robbery and shooting.

The information provided led to the detectives obtaining a lawful search and seizure warrant for the residence of this defendant, Rodney Moore. The detectives received information that the defendant, Rodney Moore, lived at the location, as well as his girlfriend and possibily one of the other co-defendants that was involved in the robbery.

* * *

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.

The State's Attorney then described the forensic examination that ensued after police recovered the gun:

The handgun had been sent for more forensic examination to the Baltimore County crime lab. Michael Thomas, a firearm 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 State's Attorney described that, in 2005, Moore had been convicted of a disqualifying offense that prohibited him from possessing a regulated firearm:

Your honor, the defendant, on May 5th, 2005, was convicted of a crime which prohibits him from possessing a regulated firearm. As a indicated, he was convicted May 5, 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 State's Attorney, then, further described the weapon found beneath Moore's bed:

The .32 caliber revolver in this case is a regulated firearm. It is a handgun with a barrel 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.

Following the State's proffer, Moore's counsel offered the following additions and modifications to the agreed statement of facts:

Your Honor, by way of additions or modifications, ... 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 test fire, 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.

Following the State's recitation and the proffered additions, Moore renewed his motion regarding the operability of the firearm, again arguing that Section 5–133(c) required proof of the operability of the firearm. The judge again denied Moore's motion, adopting the reasoning set forth in his previous ruling. Moore then moved for judgment of acquittal, which the judge also denied. Thereafter, Moore was found guilty and sentenced to five years'imprisonment. ⁶ Moore noted a timely appeal to the Court of Special Appeals.

Before the Court of Special Appeals, Moore argued that, under Section 5–133(c), the State must prove operability of the firearm in order to secure a conviction. The Court of Special Appeals affirmed his conviction, however, determining that the Circuit Court Judge properly denied Moore's motion, because, based on the plain language of Section 5–101(h), “firearm”...