Nicholson v. State

239 Md.App. 228

196 A.3d 480

Carlos NICHOLSON

v.STATE of Maryland

No. 862, Sept. Term, 2017

Court of Special Appeals of Maryland.

November 5, 2018

Argued by: Piedad Gomez (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Argued by: Jessica V. Carter (Brian E. Frosh, Atty. Gen., on the brief), for Appellee.

Panel: Berger, Nazarian, Arthur, JJ.

Berger, J.

This appeal arises from a criminal proceeding before the Circuit Court for Baltimore County. Carlos Nicholson ("Nicholson"), appellant, was convicted of possession of marijuana with intent to distribute, conspiracy to distribute marijuana, and second-degree felony murder. On appeal, Nicholson presents three questions for our review, which we have rephrased as follows:

1. Whether the circuit court erred in refusing to instruct the jury on self-defense.

2. Whether the evidence was sufficient to sustain a conviction for possession of marijuana with intent to distribute.

3. Whether the indictment against Nicholson supported a charge of second-degree felony murder.

For the reasons explained herein, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS

I. Shooting and Arrest

On January 7, 2016, at 10:45 p.m., Baltimore County Police received reports that shots had been fired on Lower Gate Court in Owings Mills. Upon arriving, police found Treshawn Johnson ("Johnson") lying unresponsive on the ground in front of 27 Lower Gate Court clenching a loaded .357-caliber revolver. Johnson had been shot in the chest and leg, and he died at the scene. Police discovered Mancino Carpentieri ("Carpentieri") limping nearby with gunshot wounds on his back and thigh. On the ground near Carpentieri was a loaded semiautomatic .380-caliber pistol.

Nicholson was arrested on January 10, 2016. Police searched Nicholson's home and recovered a bag containing .42 grams of marijuana, a bag containing 28.29 grams of marijuana, and two scales with marijuana residue on them. A box of sandwich bags was seized from the top of the dresser in the master bedroom. Nicholson's vehicle was seized the same day.

II. Nicholson's Statement

While in custody, Nicholson waived his Miranda rights. Nicholson was interviewed by Detective Carroll Bollinger and Detective Klimko. Nicholson told the detectives that "[t]hose two people ... they not victims. They came there to rob me. You can see in my phone that they, I sell weed." Nicholson continued, "They robbed me. They robbed me. They ... took my weed, they took everything from me."

Nicholson told the police that he had received a text message from someone named "Man" who "wanted to buy a pound" of marijuana. Nicholson did not have that amount of marijuana, so he contacted Fallon Stewart ("Stewart"), who agreed to provide the product and give Nicholson "a cut." On the night in question, Nicholson met Stewart in a parking lot on Lower Gate Court. Stewart entered the rear passenger side of Nicholson's vehicle. Later, Johnson and Carpentieri arrived. Nicholson told the police that he had never dealt with the men before. Johnson and Carpentieri entered Nicholson's vehicle. Nicholson described the events that followed:

[W]hen they got in the truck, they cocked a gun and put it straight in my head. One in the front, one in the back of me. The one in the backseat got out of the car and pulled me to the ground. And that was it. And he, he fired one shot at me and I, I thought I was hit to be honest. I rolled under the car and I just, just laid there like until it was done. I heard a bunch of shots, once the shots stopped I jumped in the truck and I pulled out.

Nicholson said that in the struggle with his assailant he "grabbed" the assailant's gun. When the detective asked if Nicholson had "turn[ed] the gun on his assailant, Nicholson said, "Maybe I did. Maybe that's when the shot went off. To be honest with you like it's, it's blurry. It's ... I was scared as shit." When one of the detectives told Nicholson that the man who died had two bullets from his own gun "in him," Nicholson said,

[M]aybe I did turn the gun on him while we was tussling. I, I couldn't, I couldn't tell you, I just remember the shots going off and I, I remember thinking I was hit.... I remember going down to the ground. And I remember when I went down to the ground I remember hearing a bunch of shots.

Nicholson added that "once the shots stopped ... I jumped up and I looked and Fallon was like ‘where's my friend?’ " Nicholson drove out of the parking lot behind Stewart, who was in a Kia Sportage.

When the detectives pressed Nicholson on his story, Nicholson insisted:

[W]hat I do remember is just being in the car, the boy putting the gun on, putting it to my head telling me to kick everything out. And the dude from the backseat with the revolver, I remember him pushing her out of the car. Or I don't know if she put, like you know push him out. I don't know what happened. I just know he opened my door and tried to pull me out and when he was pulling me out I just felt like he was gonna shoot me. So we, we were tussling. And that's when the shots went off. And I fell down to the ground. And that was it.

After that, when I fell to the ground, I hear the shots, a lot of shots. Like a lot of shots. I don't know how many shots. Maybe like 17 or something. 18 or maybe, maybe a lot. I don't know, but I heard shots. A whole bunch of shots.

That's all I really remember. I came up after, after the shots were stopped.

Nicholson insisted that neither he nor Stewart brought a gun to the rendezvous. At the conclusion of the interview, a technician photographed a "small mark" on Nicholson's back that Nicholson said was caused by the bullet that grazed him.

III. The Trial

Nicholson was charged with first-degree murder, attempted first-degree murder, use of a firearm in the commission of a crime of violence, possession of a firearm with a nexus to a drug trafficking crime, possession of marijuana with intent to distribute, and conspiracy to distribute marijuana. The State used the statutory short-form indictment of Maryland Code (2002, 2012 Repl. Vol., 2016 Supp.), § 2-208 of the Criminal Law Article ("Crim. Law") to charge Nicholson with first-degree murder.

A. Eyewitness Testimony

Lewis Vega ("Vega") testified that he was at his home on Lower Gate Court with his mother and his friend, Anthony Piechowski ("Piechowski"), on the night in question. Vega testified that he heard gunshots at around 10:30 p.m. When Vega looked out the window, he saw a woman standing by the passenger side of a car and a man approaching the passenger side of a vehicle parked across the street. Seconds later, Vega heard shots coming from inside the vehicle and saw someone run away. Vega testified that he "saw muzzle flashes from inside the car." Vega's mother pulled him and Piechowski away from the window. Vega returned to the window six seconds later and saw two vehicles leaving the parking lot. Piechowski testified that "we just saw people running out in the parking lot and what looked like flashes." Piechowski photographed the license plate of one of the vehicles. Police later used the photograph to determine that the Kia Sportage was being leased to Danika Floyd, who told the police that Shawn Reeves ("Reeves"), the father of her children, had been driving the vehicle.

Sylvester Wambui ("Wambui"), who lives at 4345 Lower Gate Court, testified that he was smoking a cigarette outside his home at around 10:30 p.m. on the night in question when he noticed two men standing near the parking lot. Shortly thereafter, Wambui saw two cars ("V1" and "V2") enter the parking lot. Wambui saw someone exit V2 and enter V1.

Wambui heard gunshots and saw someone exit the driver's side door of V1. Wambui heard two or three more gunshots and saw a dark shadow standing outside the driver's door, which was open, shooting down. The shadowy figure returned to V1, and both vehicles drove away.

B. Additional Evidence

The State's tool mark examiner testified that both of the guns recovered at the scene had been fired, but that neither gun had fired the bullets that shot Carpentieri and Johnson. He also testified that the bullets removed from Carpentieri and Johnson were fired from the same firearm.

The medical examiner, Dr. James Locke ("Dr. Locke"), testified that Treshawn Johnson had been shot in the chest, just below the nipple line and near the midline of the chest. The bullet entered the chest and struck the right lung and the right flank area. Dr. Locke testified that there was evidence of soot and stippling around the gunshot wound in Johnson's chest. Dr. Locke concluded that Johnson's chest wound was consistent with a gunshot at close range. Dr. Locke testified that when the end of a gun barrel is placed up against the body, the bullet exiting the firearm will cause the release of a tremendous amount of energy and produce a blowout of the area. Dr. Locke testified that this was probably what caused the large hole in Johnson's shirt. Johnson had also been shot in the left leg.

Sgt. Thomas Stetson ("Sgt. Stetson") testified that he had previously worked undercover in narcotics. Sgt. Stetson testified that he was nearly robbed on one occasion when he was engaged in an undercover purchase of marijuana. Sgt. Stetson testified that the distribution of marijuana is dangerous.

The State also introduced text messages between Stewart and Reeves. In one message, Stewart wrote, "This off like 5G." Reeves responded, "I don't know how it's off. It was 225, that's a G," and then added, "I did it myself. I still have the other half." The parties stipulated that "448 grams equals one pound of marijuana."

IV. Motion for Judgment of Acquittal

At the close of evidence, Nicholson filed a motion for judgment of acquittal. Nicholson argued that "the only evidence is that it was self-defense," leading to the following exchange with the trial judge:

THE COURT: Well Mr. Carpentieri was shot in the back.

[DEFENSE COUNSEL]: I understand. I understand.

THE COURT: All right.

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