Francois v. State

259 Md. App. 513

305 A.3d 486

Ronald Junior FRANCOIS

v.STATE of Maryland

No. 1254, Sept. Term, 2022

Appellate Court of Maryland.

November 30, 2023

Circuit Court for Montgomery County, Case No. 138873C, Harry C. Storm, Judge

Argued by Joseph Bayerl, Williams & Connolly LLP, Washington, DC (Natasha M. Dartigue, Public Defender of Maryland, Baltimore, MD), on brief, for Appellant.

Argued by Virginia S. Hovermill, Asst. Atty. Gen. (Anthony G. Brown, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee.

Argued before: Graeff, Reed, Robert K. Taylor, Jr. (Specially Assigned), JJ.

Taylor, J.

The Appellant, Ronald Junior Francois, was charged in the Circuit Court for Montgomery County with first-degree assault (Md. Code, Crim. Law Art. § 3-202); possession of a regulated firearm after a prior disqualifying conviction (Md. Code, Pub. Safety Art. § 5-133); and possession of ammunition when disqualified from possessing a firearm (Md. Code, Pub. Safety Art. § 5-133.1). He was tried before a jury on June 6-9, 2022. The trial court granted the defendant’s Motion for Judgment of Acquittal on the assault charge. Mr. Francois was convicted of unlawfully possessing a regulated firearm and ammunition. He was sentenced to ten years of incarceration, suspending all but the five-year mandatory minimum, with three years’ probation on the firearms count; he was sentenced to one year of incarceration, concurrent, on the ammunition count. From those convictions, he noted this timely appeal.

He presents three questions on appeal, which we have rephrased for clarity:

1. Did the trial judge err in allowing expert testimony from a lay witness regarding the differences between different types of firearms?

2. Did the motions judge improperly allow “prior bad acts” evidence when she admitted text messages regarding the use and possession of firearms by the defendant?

3. Did the trial judge err in allowing the prosecutor, in closing argument, to argue that the term “kill” in a text message was meant to indicate agreement?

For the reasons set forth below, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

The testimony given at trial was that on July 1, 2021, Gilbert Gray was called by his daughter, Jamia Gray, to intervene in a domestic dispute between Jamia and her husband, the defendant, Ronald Francois. Ms. Gray accused Mr. Francois of removing boxes of her belongings from a box truck (packed in anticipation of their family move to Florida) and leaving the boxes outside of Mr. Gray’s house. Mr. Gray secured the boxes and then drove to a nearby bank parking lot where he encountered his daughter and Mr. Francois. Upon his arrival, Ms. Gray told Mr. Gray that Francois had taken her phone. Mr. Gray approached Mr. Francois and the box truck whereupon, Mr. Gray testified, Mr. Francois opened the driver’s door of the truck, reached in, and displayed a handgun. Mr. Gray retreated and called 911, reporting that Mr. Francois had displayed a bronze-colored handgun “like a 9 mm.” Mr. Francois left in the box truck before police arrived.

About 30 minutes later, police spoke to Mr. Francois by telephone. He agreed to meet them at his parents’ home. He arrived at that home and was arrested. A search of Mr. Francois’s person incident to that arrest revealed two cell phones. The box truck was found parked a few blocks away. A subsequent search of the box truck revealed ammunition of three different calibers (.45, .40, 9mm), and a magazine, but no firearm. A later search of the cell phones revealed text messages, purportedly to and from Mr. Francois, communicating with an unknown individual about guns and trips to the gun range.

During his testimony, Mr. Gray stated that he had some familiarity with firearms and described the gun he saw in Mr. Francois’s hand as a “bronze … Like 380.” He was cross-examined regarding the limited nature of his experience with firearms. On redirect, he testified as to differences between different types of similar handguns.

Additional facts will be presented as necessary.

DISCUSSION

I.

The claim of error regarding “expert testimony” is unpreserved, and any error was harmless.

The State’s primary witness was Mr. Gilbert Gray, the only person who could testify that he observed a handgun in Mr. Francois’s hand on July 1, 2021. During his direct examination, the State played a recording of Mr. Gray’s 911 call, wherein he told the 911 operator that the gun “was like a 9mm.” The prosecutor asked Mr. Gray about his experience with handguns. When Mr. Gray began to relate a story about something that happened when he was 12 years old, defense counsel raised a relevance objection. The prosecutor proffered that the testimony would relate to “when [Mr. Gray] had an opportunity to see guns before” and that this information would “help[] explain for the jury … what kind of weight to give his testimony when he says that the object pointed at him looks like a handgun.” The court overruled the objection, telling the parties that it would “wait and see” and strike the testimony if it seemed improper. Without any further objection, Mr. Gray testified that he was shot when he was 12, and that he had been asked by police to identify both the shooter and the weapon when a suspect was arrested. The weapon that he saw in Mr. Francois’s hand, Mr. Gray testified, looked “almost like the same type of gun” that was used against him when he was 12. Moreover, Mr. Gray testified, his parents were “into law enforcement” and that the weapon he was shot with was “a .38” like the one his mother used to carry, and that his father, a police officer, “carried a 9 millimeter.” He told the jury that the weapon Mr. Francois displayed was smaller than the ones he saw his parents carry.

During cross-examination, defense counsel asked Mr. Gray about having previously described the weapon as being perhaps “a 30” or some other caliber. He elicited testimony from Mr. Gray regarding the extent of his familiarity with firearms in general and 9mm firearms in particular, including the fact that Mr. Gray’s daughter carried a weapon as part of her job as a police officer, and that he himself had not owned a firearm prior to this incident. The defense also challenged Mr. Gray regarding the length of time that he could have seen any weapon being displayed. There were no objections from the State to these aspects of the cross-examination.

On redirect, the State returned to the topic of Mr. Gray’s familiarity with handguns. The following exchange is significant:

[STATE]: Okay, and there was some cross-examination about a 9 millimeter versus a 30. Can you explain to the jury the difference between those two types of guns?

[GRAY]: The difference between them is just one is just bigger than the other one, but they take the same bullets.

[STATE]: Okay, bigger in what way?

[GRAY]: Bigger in size, as far as size.

[STATE]: Okay, and how much difference is there between the size of the 9 millimeter and –

[DEF]: Objection. Mr. Gray is not qualified to talk about that.

[COURT]: Overruled.

[DEF]: He’s thinking he was shot once when he was 12.

[COURT]: Overruled. Overruled.

[STATE]: When you say one is bigger than the other, how much bigger are we talking about?

[GRAY]: I mean, that’s more like a pocketsize gun versus one, putting one on the side of your hip.

[STATE]: Okay

[GRAY]: It’s a small gun.

[STATE]: And when you were saying it could have been a 9 millimeter or a 30 millimeter [sic], you had some question about the exact type of handgun, is that correct?

[GRAY]: Correct. I didn’t mean to say 30. It was more like a 380 or something like that. Not saying like a 30.

[STATE]: A 380.

[GRAY]: Yeah.

[STATE]: And the difference between a 9 millimeter and a 380?

[GRAY]: One is bigger than the other. It’s more, a Glock would be, that’s like in the family, it’s like a family of the size guns, different sizes. And that’s the biggest of all the guns, all the 9 millimeters.

[STATE]: And then you had some question about the exact type of handgun you saw. Did you have any question that what was pointed at you looked like a handgun?

[GRAY]: No, I didn’t have no question. I know what I saw.

On appeal, Mr. Francois complains that this was improper expert testimony and that its admission constitutes the basis for reversing his conviction. The State counters that his claim was not properly preserved below, that the testimony was permissible “lay opinion,” and that any error was harmless.

A.

Any error is unpreserved.

[1] The defendant’s current appellate complaint is unpreserved. At oral argument, counsel for Mr. Francois made it clear that he was challenging only the statement made on redirect, over objection, regarding distinguishing gun caliber based on the size of the weapon. However, this objection was not made until after (a) the prosecution had elicited some testimony about the witness’s prior experience with handguns; (b) the defense had elicited more testimony regarding the witness’s ability to distinguish between handguns of different caliber; and (c) the prosecution had elicited yet more testimo- ny about the size differences between 9mm and .30 caliber handguns. After that objection was overruled, the prosecution brought out even more testimony about the differences between different types of firearms, without any further objection from the defense.

[2] “An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.” Md. Rule 4-323. Moreover, if the same or similar evidence is admitted without objection at another point in the trial, the objection is waived. DeLeon v. State, 407 Md. 16, 32-33, 962 A.2d 383 (2008).

In this case, a single objection to Mr. Gray’s qualifications was insufficient to preserve an objection to expert testimony, when the same or similar testimony was elicited without objection both before and after...