Stanley v. State

• Decision Date: 22 June 2004
• Docket Number: No. 345,345
• Parties: Charles STANLEY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

851 A.2d 612

157 Md. App. 363

Charles STANLEY v. STATE of Maryland.

No. 345, Sept. Term, 2003.

Court of Special Appeals of Maryland.

June 22, 2004.

Margaret L. Lanier (Stephen E. Harris, Public Defender on the brief), Baltimore, for Appellant.

Shannon E. Avery (J. Joseph Curran, Jr., Atty. Gen. on the brief), Baltimore, for Appellee.

Panel: DAVIS, JAMES R. EYLER, and ADKINS, JJ.

JAMES R. EYLER, Judge.

Charles Stanley, appellant, was convicted by a jury in the Circuit Court for Baltimore City of possessing a firearm after having been previously convicted of a crime of violence and discharging a firearm within the City of Baltimore. The trial court sentenced appellant to a term of five years' incarceration without the possibility of parole for the firearm possession and to a concurrent sentence of time served for the conviction of discharging a firearm. Appellant presents two questions on appeal:

I. Did the trial court err in admitting evidence that appellant was previously convicted of a crime of violence?

II. Did the trial court impose an illegal sentence?

Perceiving no error, we affirm the judgments of the circuit court.

FACTS AND LEGAL PROCEEDINGS

At approximately 3:00 on the morning of October 30, 2001, Baltimore City Police Officer Joe DiCandaloro went to 4114 Haywood Avenue in Baltimore City in response to a call for discharging of a firearm. He approached appellant, who was at that address, and asked if he had a weapon inside the house. Appellant told the officer that he had a handgun inside his house, but that he had dropped it into the heating duct. Appellant took the officer into the basement, where the officer ripped out a piece of the heating duct and recovered a loaded .32-caliber handgun. The gun had four rounds of ammunition and two empty shell cases in the cylinder. Appellant told the officer that he had fired the gun twice outside his bedroom window to see if the gun was operational.

A true-test copy of appellant's prior conviction for second degree assault was admitted into evidence without objection.

On cross-examination, Officer DiCandaloro testified that he initially charged appellant with unlawful firing of a firearm in the City of Baltimore and possession of a regulated firearm after having been convicted of a misdemeanor assault, in violation of an ex parte order. The officer acknowledged that he initially charged appellant with a misdemeanor for the gun possession, but that appellant's current charge was a felony.

Appellant sought jury nullification.¹ He testified that he was 57 years old, that he was retired from General Motors, where he had worked for thirty years, and that he had three grown children.

Appellant said that he bought a handgun and, after drinking, he wanted to see if the gun worked. He said that he fired the gun out of his back window, then threw it in the corner. He recounted that the police officer came the next morning and he decided to give up the gun because "I didn't want nobody to get hurt with it and I didn't want the gun anymore." He related that, when the officer asked about the gun, he decided "here's my chance to do the right thing, and [he] told him the truth." He said that he told the officer he had fired the gun, but was sorry, and that he did not want to hurt anyone.

Appellant discussed a previous conviction for second degree assault. He related that his son "was trying to put [him] out of the house." He said that his son was "a big guy," and that he had not hit his son but "just had him by the legs." Appellant explained, with regard to the ex parte order, that he was supposed to stay out of his house. He also told the jury, however, that he and his wife were back together and "everything [was] fine."

On cross-examination, the prosecutor elicited that the incident in which he was convicted of second-degree assault on his son was separate from the assault conviction based on violation of an ex parte order.

DISCUSSION

I.

Prior to trial, the following occurred:

THE COURT: Do you have to offer the prior conviction?

[PROSECUTOR]: Absolutely.

THE COURT: That is what I thought you did, that is my understanding.

[PROSECUTOR]: In this case, since we are trying this case alone.

THE COURT: Now how much do you think people can get into what it really was?

[PROSECUTOR]: I do not think they are supposed to get into what it was, it does not matter.

THE COURT: It is going to be—it is going to read off the record as what?

[PROSECUTOR]: Assault, second-degree assault.

THE COURT: Second-degree assault.

THE COURT: Yes, which is a statutory crime of violence.

THE COURT: All right, and which is a legal—

[DEFENSE COUNSEL]: See, I do not understand—

THE COURT:—dispute in terms of what it means in the statute, but that is the law.

[PROSECUTOR]: That is why I kind of object to that question, because—

THE COURT: What was the date of it.

[PROSECUTOR]: I think it was 1996.

THE COURT: Is it that recent? I thought it was older, but maybe I—

[DEFENSE COUNSEL]: I think that—oh, well, second degree assault was added in 1996 because that is when they broke assault into degrees. Before, it was just generally assault and battery common law. But that part, the thing that defines crime of violence, that has been around since, I think the 1970's. [PROSECUTOR]: Actually, it might be even later than that, 1999—1999.

THE COURT: What were the facts? Are you going to try to offer the facts of that assault?

[DEFENSE COUNSEL]: It was domestic violence. I don't know.

[PROSECUTOR]: Because there are three really that are connected to it. I am only offering one because that is all I need in my statutory verdict.

THE COURT: I mean, there are cases that clearly say, as I recall from reading them, that you are allowed to do that and there is not reversible error.

[PROSECUTOR]: That is the only way to prove the case in this situation.

A short while later, the issue was revisited.

[PROSECUTOR]: It is an essential element of the State's proving and it is case law.

THE COURT: Right, and I think that is the case law.

[PROSECUTOR]: Right.

[DEFENSE COUNSEL]: I know, but I do not see how anybody can get a fair trial if that is what the law is.

THE COURT: Look, I am happy to tell you—

[DEFENSE COUNSEL]: I know, I know.

THE COURT: You have reserved (sic) the objection.

Appellant contends that this Court should recognize plain error and reverse appellant's convictions because at the time of his trial, this Court had decided Carter v. State, 145 Md.App. 195, 802 A.2d 460 (2002), but that case was reversed by the Court of Appeals after appellant's trial.² He asserts that, in Carter, "this Court held that the State had a right to disclose to the jury both the fact that the prior conviction was for a crime of violence and the name of the offense of which the defendant had [been] previously convicted." He argues that, "[w]ith this Court's Carter acting as the last word on this issue, it is unlikely that the trial judge would have been willing to give relief."

Plain Error

Plain error is error which "vitally affects a defendant's right to a fair and impartial trial." Clermont v. State, 348 Md. 419, 433, 704 A.2d 880 (citations omitted), cert. denied, 523 U.S. 1141, 118 S.Ct. 1849, 140 L.Ed.2d 1098 (1998); Richmond v. State, 330 Md. 223, 236, 623 A.2d 630 (1993) (citation omitted). An appellate court should take cognizance of unpreserved error only in those instances which are "compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial." Richmond, 330 Md. at 236, 623 A.2d 630 (citation omitted). There is no "fixed formula for determining when we should exercise our discretion." Rubin v. State, 325 Md. 552, 588, 602 A.2d 677 (1992) (citation omitted). The Court of Appeals has stated, "we do expect that the appellate court would review the materiality of the error in the context in which it arose, giving due regard to whether the error was purely technical, the product of conscious design or trial tactics or the result of bald inattention," and has observed that such factors "are ordinarily inconsistent with circumstances justifying an appellate court's intervention' under plain error." Rubin, 325 Md. at 588, 602 A.2d 677 (internal quotations omitted).

Carter v. State

In Carter, Antwon Leroy Carter was charged with possession of a regulated firearm by one previously convicted of a crime of violence, possession of a regulated firearm by a person under the age of twenty-one, and unlawful discharge of a firearm within the City of Baltimore. Carter, 145 Md.App. at 200,802 A.2d 460. Carter requested that the trial court not inform the jury that he had been previously convicted of a crime of violence. Id. at 200-02, 802 A.2d 460. When the trial court rejected that request, Carter offered to stipulate that he had been convicted of a crime of violence to prevent the State from offering evidence that his prior conviction was for robbery with a deadly weapon. Id. at 202, 802 A.2d 460. That offer, too, was rejected. Id.

On appeal, Carter contended that the trial court erred in permitting the State to disclose to the jury evidence of his prior conviction for robbery with a deadly weapon, asserting that "[o]nce the defense indicated that it was willing to stipulate to the existence of that conviction, the State had no legitimate need for the evidence." Id. at 203, 802 A.2d 460. Carter also argued that the trial court's refusal to exclude evidence of the prior conviction constituted an abuse of that discretion because, "[g]iven the defense counsel's willingness to concede the existence of the prior conviction, it was simply unnecessary to apprise the jury of this prejudicial element." Id. at 203-04, 802 A.2d 460.

After reviewing case law from other jurisdictions, we concluded that it was not error for the trial court to allow the State to inform the jury that a defendant had previously been convicted of a crime that disqualified him from...