Parker v. State

1

KEVIN L. PARKER, JR. v. STATE OF MARYLAND

No. 1349-2022

Court of Special Appeals of Maryland

August 4, 2023

IN THE APPELLATE COURT OF MARYLAND ^[**]

UNREPORTED ^[*]

Circuit Court for Somerset County Case No. C-19-CR-22-000036

Leahy Tang, Meredith, Timothy E. (Senior Judge, Specially Assigned), JJ.

OPINION

TANG J.

A jury sitting in the Circuit Court for Somerset County found Kevin L. Parker, Jr., appellant, guilty of possession of a regulated firearm, after previously having been convicted of a disqualifying offense, and illegal possession of ammunition. The court sentenced appellant to an aggregate term of active incarceration of two and a half years. He then appealed, raising three questions for our review, which we quote:

1. Did the State's improper introduction of a prejudicial hearsay statement through direct questioning deny Appellant a fair trial?

2. Did the Courtroom Clerk's disclosure to the jury of Appellant's prior criminal history in violation of the Parties' stipulation deny Appellant a fair trial?

3. Did Appellant's trial attorney provide ineffective assistance of counsel by failing to object when the Courtroom Clerk gave the jury information regarding Appellant's prior criminal history in violation of the Parties['] stipulation?

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

FACTUAL AND PROCEDURAL BACKGROUND

Early in the morning of January 6, 2022, police received a call for a medical emergency at an apartment where appellant resided. The first-responding police officer, Officer Adam Parks encountered appellant, "on the ground" outside, "bleeding profusely" from a gunshot wound to his "upper left leg."

Shortly thereafter, Officer Kyle Koerner arrived at the scene. Together, the two officers administered first aid to appellant. Officer Parks applied pressure to appellant's leg wound to stanch the bleeding. He then turned that task over to Officer Koerner and began to look for "more gunshot wounds" on appellant, which required that he cut appellant's pants with medical scissors. While doing so, he recovered a loaded KelTec .380 caliber semi-automatic handgun concealed on appellant's person, "kind of in his upper-lower thigh area." Officer Parks removed the magazine and ammunition. Portions of two body-worn camera videos depicting these events were played for the jury without the audio portion.^[1]

Officer Parks entered appellant's home and found blood "all over," on both floors of the two-story apartment. Inside, Officer Parks found appellant's stepson, R.J., also with a gunshot wound. The officers searched outside for shell casings but did not find any.

Appellant, who was prohibited by law from possessing a firearm, pursued the defense of necessity.^[2] In support of this defense, appellant testified on his own behalf. He stated that three unknown assailants tried to rob him while he was outside, and one of them shot him during a struggle. He further claimed that his stepson came outside to check on him and also "got shot." Appellant did not remember much about the incident because he was "bleeding out" but hypothesized that if the assailant had dropped the gun, he probably grabbed it and placed it in his hip area. He denied owning the handgun recovered from his person and accused police of failing to investigate. On direct examination, appellant detailed this account:

[DEFENSE COUNSEL]: Okay. Could you tell the ladies and gentlemen of the jury where you were in the -- during that day?

[APPELLANT]: I was outside, and three individuals came, they try to rob me.

[DEFENSE COUNSEL]: Let's back up. What time of the morning might this be?

[APPELLANT]: It was nighttime.

[DEFENSE COUNSEL]: Okay, so dark out?

[APPELLANT]: Yeah, it was dark time.

[DEFENSE COUNSEL]: Okay.

[APPELLANT]: Three individuals came, they tried to rob me, I was fighting with them, and some of them took off, but when they heard the shot, that's when the rest of them took off, and that's basically all I remember, for real, that was it.

[DEFENSE COUNSEL]: Okay. Do you remember why you were outside?

[APPELLANT]: I was outside smoking a cigarette.

[DEFENSE COUNSEL]: Okay. And you said it was nighttime. Was there anybody else outside with you?

[APPELLANT]: Well, not that I remember. But my son came outside to check on me, and he got shot.

[DEFENSE COUNSEL]: So both of you are -- you and your son are both outside?

[APPELLANT]: No, I was outside by myself, and he had came outside to check on me.

[DEFENSE COUNSEL]: Okay. When did he come out to check on you?

[APPELLANT]: I don't remember; I was on the ground.

[DEFENSE COUNSEL]: So you'd already been shot.

[APPELLANT]: Yeah, I guess I was on the ground just bleeding that's all I remember.

[DEFENSE COUNSEL]: Okay. And how many people did you say?

[APPELLANT]: About three to four people.

[DEFENSE COUNSEL]: Three to four people. And were they in a parking lot or on the sidewalk?

[APPELLANT]: We was in the parking lot.

[DEFENSE COUNSEL]: Okay. So you were -

[APPELLANT]: Yeah, I was -- I was like on my step, and shoot -- it leds [sic] to the parking lot while I was fighting.

[DEFENSE COUNSEL]: Okay. And did you know these people?

[APPELLANT]: No, I didn't know them.

[DEFENSE COUNSEL]: Any idea why they picked you out?

[APPELLANT]: No, couldn't tell you.

[DEFENSE COUNSEL]: Okay. So you didn't intentionally put yourself in that position?

[APPELLANT]: Not at all, I was outside smoking a cigarette.

[DEFENSE COUNSEL]: Okay. And when you were outside, did one of the -- were there multiple shots fired?

[APPELLANT]: All I remember is just one shot, and I was on the ground, and they just started running.

[DEFENSE COUNSEL]: Okay. Might one of the -- might one of those people have dropped a gun near you?

[APPELLANT]: I'm not for sure, I can't remember. I couldn't really remember any -- I just remember probably tussling and fighting with these people.

[DEFENSE COUNSEL]: So they were close to you?

[APPELLANT]: Yeah, they was close.

[DEFENSE COUNSEL]: All right. And so if a gun had fallen down, you might have grabbed it so they didn't get it?

[APPELLANT]: Probably. Most likely I would have.

[PROSECUTOR]: Objection. Leading. THE COURT: Overruled.

[APPELLANT]: Yeah, most likely.

[DEFENSE COUNSEL]: Okay. And if you had grabbed it, where might you have put it?

[APPELLANT]: Put it in -- on my hip.

[DEFENSE COUNSEL]: And to be fair, why is it you don't remember much?

[APPELLANT]: I was shot; I was bleeding out.

[DEFENSE COUNSEL]: Okay. Had you been drinking that evening?

[APPELLANT]: Probably not a lot, but I had probably drank a little bit, but not -- not that much.

[DEFENSE COUNSEL]: Okay.

[APPELLANT]: I got shot in my main artery.

[DEFENSE COUNSEL]: In your upper leg?

[APPELLANT]: Yeah.

[DEFENSE COUNSEL]: And the State has alleged that the handgun that they found in your shorts was yours. Was it yours?

[APPELLANT]: No, it wasn't. All they had to do is -- man, if they had done the investigation they would have found out -- they would have knowed [sic] that wasn't my gun.

[DEFENSE COUNSEL]: Did the [local] Police Department ever -

[APPELLANT]: They didn't do nothing.

[DEFENSE COUNSEL]: Let me finish. Did they ever take your DNA, they ever take your fingerprints?

[APPELLANT]: No.

[DEFENSE COUNSEL]: Hair sample? Do you remember what happened after the officers got to the scene?

[APPELLANT]: I don't remember.

[DEFENSE COUNSEL]: Do you remember telling them several people had shot you?

[APPELLANT]: Yeah, I told them there was people out there. (Emphasis added.) During cross-examination, the prosecutor played the body-worn camera video recorded when police responded to the shooting. The prosecutor challenged appellant about his narrative and the police investigation:

[PROSECUTOR]: All right. So where did the gun come from?

[APPELLANT]: I don't know. It had to be them people -- y'all should have investigate[d] it. * * *

[PROSECUTOR]: Tell me what that is that's coming out there [referring to the video], what's that?

[APPELLANT]: That's the gun. That's a gun.

[PROSECUTOR]: Okay. And where did that come out of?

[APPELLANT]: Out of the pants, out of my pants.

[PROSECUTOR]: The pants that you were -- so this is you? And that gun came out of your pants, that's State's Exhibit 6, which was introduced earlier. So once you were shot where did you go?

[APPELLANT]: To the ground.

[PROSECUTOR]: Okay. How would blood get inside?

[APPELLANT]: I don't know. That's -- they supposed to investigate that, which they didn't.

[PROSECUTOR]: Okay. Who's [R.J.]?

[APPELLANT]: That's my son that got shot.

[PROSECUTOR]: Okay. When did he get shot?

[APPELLANT]: I couldn't tell you; I was on the ground.

[PROSECUTOR]: And when was he outside?

[APPELLANT]: I couldn't tell you, if I'm shot bleeding out on the ground.

[PROSECUTOR]: When did he come outside?

[APPELLANT]: You just asked me that. How do I know? You all should have did -- [PROSECUTOR]: In relat- -

[APPELLANT]: -- an investigation, that's what y'all are supposed to do. * * *

[PROSECUTOR]: You testified on direct that [R.J.] came outside, was it before or after you got shot?

[APPELLANT]: I don't know.

[DEFENSE COUNSEL]: Objection. Asked and answered. THE COURT: Overruled.

[PROSECUTOR]: Sorry, what was the response?

[APPELLANT]: I don't know. If I was on the ground shot bleeding in and out.

[PROSECUTOR]: Okay. But it wasn't before you got shot?

[APPELLANT]: No.

[PROSECUTOR]: It wasn't when you were allegedly getting robbed?

[APPELLANT]: No.

[PROSECUTOR]: Okay. And you have one gunshot wound?

[APPELLANT]: Yes.

[PROSECUTOR]: Did you call the police?

[APPELLANT]: No. How I call the police? You know who called the police.

[PROSECUTOR]: Who is Armani Gregory (phonetic)?

[APPELLANT]: That's my oldest son's

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