Herring v. State

198 Md.App. 60

16 A.3d 246

Alton HERRING

v.STATE of Maryland.

No. 0460

Sept. Term

2009.

Court of Special Appeals of Maryland.

March 31, 2011.

Mark Colvin (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, for appellant.Daniel J. Jawor (Douglas F., Gansler, Atty. Gen., on the brief), Baltimore, for appellee.Panel: JAMES R. EYLER, WOODWARD, FREDERICK J. SHARER, (Retired, Specially Assigned), JJ.SHARER, J.

Appellant, Alton Herring, was convicted by a jury sitting in the Circuit Court for Baltimore City of possession of a regulated firearm after having been previously convicted of a disqualifying crime, and wearing, carrying, and transporting a handgun.¹

Appellant noted a timely appeal and presents three questions for our review:

I. Did the trial court err in denying appellant's motion to suppress?

II. Did the trial court err in refusing to amend the verdict sheet?

III. Did the trial court err in allowing the prosecutor to repeatedly misstate the definition of constructive possession during closing and rebuttal arguments?

Finding neither error nor abuse of discretion, we shall affirm the judgments of the trial court.

FACTUAL BACKGROUND

On August 19, 2008, at 7:35 p.m., Detective Robert Himes, Detective Ernest McMillan,² and Sergeant Young ³ of the Baltimore City Police Department were traveling in an unmarked police car in the 2700 block of West Lanvale Street. Young was driving, Himes was seated in the front passenger seat, and McMillan was in the rear seat behind the driver. Himes was dressed in plain clothes, but was wearing a black vest with “police written in bold letters on the front and back.”

In his trial testimony, Himes recalled that as they traveled on West Lanvale Street, he observed “a blue Chevy Monte Carlo parked approximately two feet away from the curb with its hazard lights on.” His attention was drawn to the vehicle because “it was sitting so far away from the curb in the travel lanes with its hazard lights on, we believed it was a disabled vehicle.” Himes recalled that Young pulled the unmarked patrol car in front of the Monte Carlo, “almost head-to-head.” The three officers got out of the unmarked vehicle, and Himes approached the passenger's side of the Monte Carlo, while McMillan and Young approached the driver's side.

Himes further recalled that it was still daylight and as he looked through the windshield, he observed four occupants in the vehicle.⁴ The front seat passenger began to open the door, but Himes told him to remain in the vehicle. The passenger complied. Himes recalled that all the windows, save for the windshield, were tinted, and when he was beside the Monte Carlo, he could not see inside the vehicle. He stated that once the officers were standing next to the vehicle, McMillan “knocked on the window and asked the driver to put the windows down so we could look inside the vehicle.” Appellant, whom Himes identified as the driver of the vehicle, lowered the driver's and passenger's side windows at the same time.

As soon as the window was down, Himes saw “the butt of a handgun in the center console.” He yelled “gun, gun, gun[,]” moved away from the vehicle, and drew his weapon. Young called for backup, which arrived in two to three minutes. Once additional officers arrived on the scene, the four occupants were removed from the Monte Carlo.

Himes also testified that all four occupants of the Monte Carlo “were within hand's reach of the gun[,]” although he did not see any of the occupants touch or hold the gun. He added, however, that due to the way in which the gun rested in the center console, appellant had a “slight advantage” over the other occupants in the ability to reach the gun.

McMillan, too, observed the Monte Carlo “probably maybe two feet away from the curb, illegally parked, with the hazards blinking[.]” When he got out of the unmarked patrol car, his badge was displayed on his shirt. When he approached the driver's side door, the windows were still closed, so he “tapped on the driver's window and told him to roll the window down.” In court, McMillan identified appellant as the driver of the Monte Carlo. Appellant was also the owner of the vehicle. McMillan stated that as soon as appellant lowered the windows, he saw “the butt of a handgun sticking out of the front console.” He also yelled “gun” multiple times, and he and the other officers drew their weapons. McMillan did not see the gun in the hands of any of the vehicle's occupants.

After backup officers arrived and the occupants were removed from the Monte Carlo, McMillan searched the vehicle. From the glove box, he recovered $200 in U.S. currency. He also recovered the handgun, which was loaded. A photo of the handgun as it sat in the center console was admitted into evidence.

At trial, the parties entered into the following stipulations: (1) the handgun was a .32 caliber Smith and Wesson long revolver; (2) the handgun was test fired and found to be operable; (3) the gun met the definition of “handgun” in Md. Code (2002), Criminal Law (Crim.Law) § 4–201; (4) the gun was processed for fingerprints, but “there were no suitable latent prints found on the handgun”; and (5) appellant “has been convicted of a crime for which [he] is prohibited from possessing a regulated firearm under the laws of this State.”

DISCUSSION

I. Suppression

Appellant contends that the trial court erred in denying his motion to suppress. We review that denial based solely on the evidence developed at the suppression hearing. See Bost v. State, 406 Md. 341, 349, 958 A.2d 356 (2008) (“In reviewing the ruling on a motion to suppress evidence, we consider only the evidence contained in the record of the suppression hearing.”) The evidence presented at the suppression hearing was as we have set out, above.

McMillan recounted for the suppression court his observations of the events of August 19, 2008, at 7:35 p.m., which ultimately led to the charges against appellant and the other occupants of the vehicle. At the point at which McMillan told the suppression court of the initial contact with appellant's vehicle, he said:

[We] got out of our vehicle—well, got out the vehicle, walked towards the car and once we got towards the car it was—you could see from the front view there was four occupants in the vehicle. Got beside the vehicle, they still had the windows up. Tapped on the window and told them to roll the windows down. Once we got out of our vehicle, badges were displayed showing that we was police.

Because the side windows on the Monte Carlo were tinted, and McMillan could not see through the window, he told the driver to lower the windows. He recalled that the driver and front seat passenger lowered their windows at the same time. Once the window was down, he could see “in clear view, ... the handle of a handgun sitting in the front compartment[,]” that is, in the center console between the driver and front seat passenger. McMillan made an in-court identification of appellant as the driver of the Monte Carlo.

McMillan testified that upon seeing the gun, he yelled “Gun! Gun!” He and the other officers drew their weapons and ordered the occupants of the Monte Carlo to raise their hands. The occupants complied with the officers' orders. They called for backup, which arrived in two to three minutes. Once backup was on the scene, the officers removed the occupants of the Monte Carlo, and McMillan searched the vehicle. The search yielded the following items: (1) a “hand rolled cigar” that contained suspected marijuana from the area between the front passenger's seat and the center console; ⁵ (2) a dollar bill with “a powdered substance” from a “pouch” located on the back of the passenger seat; and (3) $200 in U.S. currency from the glove box.

On cross-examination, McMillan testified that when he approached the driver, he sought “to investigate the vehicle, why was it illegally parked.” When asked his basis for saying that the Monte Carlo was illegally parked, he responded: “Based that it was too far in the middle of the street.” ⁶ He added that the Monte Carlo was “[m]ore than ... two feet from the curb.” No citation was issued to appellant for the parking violation.

In denying appellant's motion to suppress, the trial court stated, in part:

Now, in this particular case, there is no stop. The vehicle is already immobile. All the police do, because of the unorthodox way in which the car is situated—not parked at the curb, out in the street with the hazard lights flashing—they choose to investigate it. Number one, perhaps, to just tell the people to move on. Number two, perhaps, to get a uniformed officer to come along and write them a citation. Or, perhaps, three, to aggressively look for guns and drugs and seeing that they have an opportunity ... their investigative opportunity is not contrived, or not failure to specify any violation of the law.

* * *

So, the question here is, can police officers get out of their vehicles and walk up to a non-moving vehicle and make observations that don't detain anybody because here the Officer testified that he knocked on the window to get the driver's attention and, as soon as the window opened, he saw the gun, at which point, he had probable cause to arrest everybody that was in close proximity to the gun? In a way you can analogize this case to the knock and talk case, Scott v. State, [366 Md. 121, 782 A.2d 862 (2001),] where the Court of Appeals found there was no violation of the Fourth Amendment to knock on people's doors in an effort to have them come speak to them in order to see what probable cause unfolds in that brief encounter.

I find as step one, or phase one, that parking a car with hazard lights on, away from the curb, allows the police, as part of the community caretaking function, to at least inquire of the motorist why he's there, and in that inquiry it's permissible to ask him to roll down his window, at that point—which is like opening the door of the...