Pierce v. State

• Decision Date: 10 May 2023
• Docket Number: 792-2022
• Parties: KEVIN LEE PIERCE, JR. v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

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KEVIN LEE PIERCE, JR. v. STATE OF MARYLAND

No. 792-2022

Court of Special Appeals of Maryland ^[**]

May 10, 2023

Circuit Court for Cecil County Case No. C-07-CR-21-000695

Nazarian, Arthur, Friedman, JJ.

OPINION ^[*]

Nazarian, J.

In 2021, the State charged Kevin Lee Pierce, Jr. with one count of possession of contraband in a place of confinement and one count of possession of a weapon in a place of confinement after a shank was recovered from Mr. Pierce's prison mattress. He was tried before a jury in the Circuit Court for Cecil County in May 2022 and convicted of both charges. Mr Pierce asks us to reverse his convictions, claiming first that the trial judge erred in instructing the jury on possession of contraband in a place of confinement, second that the trial judge's instruction on possession of a weapon in a place of confinement warrants plain error review, and third that counsel's failure to object to the allegedly erroneous instruction on possession of a weapon in a place of confinement constituted ineffective assistance of counsel. We affirm.

I. BACKGROUND

On May 13, 2021, Mr. Pierce was detained at Cecil County Detention Center. Upon entry, the facility provided Mr. Pierce with clothing, a sheet, a blanket, and a mattress before placing him in a holding cell with at least fourteen other inmates. After six days, the Correctional Response Team ("CRT") conducted a raid on the holding cell that housed Mr. Pierce. During the course of this raid, the CRT recovered jail-made knives, known as shanks, from mattresses inside the cell. Mr. Pierce's mattress contained a shank, and he was charged with possession of contraband in a place of confinement under Maryland Code (2002, 2021 Repl. Vol.), § 9-412(a)(3) of the Criminal Law Article ("CR") and possession of a weapon in a place of confinement under CR § 9-414(a)(4).^[1]

Over the course of May 24-25, 2022, Mr. Pierce was tried before a jury. During the trial, the State called four witnesses, three of whom were Detention Center correctional officers at the time of the alleged offense. The State's first witness, Officer Thomas Lee, was a member of the CRT dispatched to search the holding cell. Officer Lee testified that he was the first one to enter the cell on the day of the search. When he entered the cell, he approached Mr. Pierce's bunk. Mr. Pierce's bunk had three beds, and his bed was the lowest. As Officer Lee approached Mr. Pierce, Mr. Pierce stood up from where he was lying on his bunk, and Officer Lee cuffed him and led him out of the cell. The holding cell is under twenty-four-hour surveillance, and surveillance video revealed that once all of the inmates were cleared from the cell, Officer Lee searched Mr. Pierce's mattress. While examining the mattress, Officer Lee found a hole in it. After ripping the hole open further, he recovered a metal shank.

Lieutenant Michael Rae, the operations commander at the Detention Center, also testified. He explained that inmates are not permitted to swap mattresses with other inmates. He also testified about surveillance videos taken during the twenty-four hours preceding the raid. In one of the videos, Brandon Riley, another inmate housed in the same holding cell as Mr. Pierce, can be seen entering the shower and toilet area of the cell with a push broom, where he remained for approximately forty minutes. According to Lieutenant Rae, the broom was rigid when Mr. Riley entered that area, but when he left it appeared "loose." The broom was recovered during the raid and metal was missing from it.

Another video showed Mr. Pierce walking to the toilet area after Mr. Riley had left it. Once there, Mr. Pierce sat down but made no effort to remove his pants. After "kind of look[ing] into the mirror area," Mr. Pierce returned to his bunk with his left "hand clenched around an object." Lieutenant Rae testified that with his "training, knowledge, and experience as a correctional officer," he "could determine there was an object in his hand" and that the object "looked like a[n] improvised shank." The shank was recovered from Mr. Pierce's mattress less than twenty-four hours later.

Detective John Lines, who was called to assist with the investigation after the shanks were found in the holding cell, testified that after "piecing the [broom] back together," he concluded that all the metal pieces that formed the shanks came from the broom.

Toward the end of the trial, the court held a bench conference with the attorneys during which the prosecutor acknowledged that there were no pattern jury instructions on either of the charged offenses. The State then proposed instructions that had been used in a case with the same charges arising from the same search against another inmate inside the booking cell. Defense counsel was provided with the opportunity to "[c]orrect[] or clarify[]" the instructions and verdict sheet, and both attorneys indicated that they had no objections. The court then instructed the jury using the State's proposed instructions:

Defendant is charged with the following charges. He's charged with knowingly possessing contraband in a place of confinement. In order to convict the Defendant, the State must prove the Defendant possessed contraband in a place of confinement. The contraband means any item, material, substance, or other thing that is not authorized for inmate possession by the managing official or is brought into the correctional facility in a manner prohibited by the managing official. "Place of confinement" means a correctional facility.

Possession of a weapon in a place of confinement. Defendant is also charged with knowingly possessing or receiving a weapon while in a place of confinement. "Weapon" means a gun, knife, club, explosive, or other article that can be used to kill or inflict bodily injury. "Possession" means having control over something, whether actual or indirect. The Defendant does not have to be the only person in possession of the contraband or weapon. More than one person may have possession of the same contraband or weapon at the same time.

A person has actual possession of contraband or weapon when the person has both direct control over the weapon and the intention to exercise that control. A person not in actual possession who has both the power and intention to exercise control over something, either personally or through another person, has indirect possession.

In determining whether defendant had indirect possession of the contraband or weapon, consider all the surrounding circumstances. These circumstances include the distance between a defendant and the contraband or weapon, whether defendant had some ownership or possessory interest where the contraband or weapon was found, and any indication that the Defendant was participating alone or with others in the use of the contraband or weapon.

After giving these instructions aloud, the court asked counsel to approach the bench for a sidebar to discuss the written jury instructions, during which the following exchange occurred:

[COUNSEL FOR MR. PIERCE]: I've got one [objection].

THE COURT: You got one.

[COUNSEL FOR MR. PIERCE]: In the possession of contraband on the next to the last page. Under number 1, it says-the event where it says 1, okay. I'd like it to say defendant-it says it above, but it doesn't say it there: "Defendant knowingly possessed contraband." Because it-it skips it there, even though it's in the statute as such. And if you think that's sufficient, then-

[PROSECUTOR]: I don't believe it's in the pattern instruction, and it's already been addressed by the Court in the prior paragraph. Do you want it in the instruction?

THE COURT: Well, I think it's-I think it is addressed here, and you could argue that. I'm going to give [the jury] a copy of it-

[COUNSEL FOR MR. PIERCE]: Okay. I mean, when they're looking at it-

THE COURT:-because it is-it is one whole paragraph.

[COUNSEL FOR MR. PIERCE]: Okay. I don't know why you even have to say the one and two then if you-anyway.

THE COURT: I don't know either.

[COUNSEL FOR MR. PIERCE]: I just, you know, it says it twice, except for that word, that's all. That's all I'm saying.

THE COURT: Okay. But it is spelled out there.

[COUNSEL FOR MR. PIERCE]: Yep, it is.

THE COURT: So you can argue that.

[COUNSEL FOR MR. PIERCE]: Okay.

THE COURT: Okay. Any other questions?

[PROSECUTOR]: I have no exceptions.

THE COURT: All right.

[COUNSEL FOR MR. PIERCE]: No other exceptions, Your Honor.

THE COURT: All right. Thank you, sir.

After the sidebar, the jury retired to deliberate, taking the following written jury instructions into the jury room with them:

POSSESSION OF CONTRABAND

Defendant is charged with knowingly possessing contraband in a place of confinement. In order to convict the Defendant state must prove:

1) Defendant possessed contraband;

2) in a place of confinement.

Contraband means any item, material, substance, or other thing that: (1) is not authorized for inmate possession by the managing official; or (2) is brought into the correctional facility in a manner prohibited by the managing official.

Place of confinement means a correctional facility.

POSSESSION OF WEAPON IN PLACE OF CONFINEMENT

Defendant is also charged with knowingly possessing or receiving a weapon while in a place of confinement.

Weapon means a gun, knife, club, explosive, or other article that can be used to kill or inflict bodily injury.

POSSESSION

Possession means having control over something, whether actual or indirect. The defendant does not have to be the only person in possession of the contraband or weapon. More than one person may have possession of the same of contraband or weapon at the same time.

A person has actual possession of contraband or weapon when the person has both

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