Woodward, Graeff, Sharer, J., Frederick (Retired, Specially Assigned), JJ.
Following a jury trial in the Circuit Court for Wicomico County, appellant, Cory Jamaul Jones, was convicted of attempted first degree murder, first degree assault, use of a firearm in the commission of a felony, illegal possession of a regulated firearm, and related offenses.
In his timely appeal, appellant presents the following questions, as slightly rephrased, for our consideration:
1. Did the motions court err in denying appellant's motion to suppress the results of a gunshot residue test?
2. Was the evidence sufficient to support the conviction for illegal possession of a regulated firearm where there was no testimony that the weapon came within the definition of a regulated firearm?
3. Did the trial court err in giving a flight instruction?
Discerning neither error nor abuse of discretion, we shall affirm the judgments of the circuit court.
FACTUAL and PROCEDURAL HISTORY
On November 5, 2010, at about 7:00 p.m., Jomel Fields was sitting in her car, parked in the driveway of a residence at 923 East Church Street in Salisbury, Wicomico County. While Fields was talking on the phone and waiting for her friend, Tyrell Holly, whom she had just dropped off at the house, two African-American men approached her car. They pulled open the car door, pressed their guns against her head, told Fields to end her phone call, and demanded she hand over her money.
The men were attempting to remove her from the car when Holly exited the upstairs apartment, drawing their attention. At that time, Fields saw a police car on the adjoining block and hit her panic alarm. Startled by the alarm, the two assailants began shooting, first at the house, and then at the car. Fields sustained multiple gunshot wounds to her lower extremities and back as a result of the attack.
Fields was found a few moments after the shooting by Corporal Brian Whitman of the Salisbury Police Department. Whitman called for medical assistance, and questioned Fields to obtain a description of her assailants. Fields was unable to provide a detailed description because her attackers had held their guns to her temple, preventing her from turning her head.
Officers Ryan Mitchell and Timothy Robinson and Corporal Howard Drewer, all of the Salisbury Police Department, were responding to an unrelated complaint in the area at the time the shooting occurred. Mitchell and Robinson saw two men firing guns into the house at 923 East Church Street, and immediately proceeded to drive around the block to the residence in their separate vehicles. Approximately 30 seconds after observing the shooting, as Mitchell turned the corner onto Church Street, he saw a man walking away from the residence where the shooting had occurred. When Mitchell attempted to stop him, the man grabbed a weapon from where it had been concealed in his waistband and pointed it at the officer. Mitchell exited his car, moving to the rear with his gun drawn. The assailant fled, and Mitchell pursued him on foot.
Robinson, who was in a car directly behind Mitchell, observed the assailant's actions. When the gunman fled, Robinson pursued him in his vehicle, observing as the gunman ran behind some buildings on Priscilla Street. A few moments later, Robinson observed Drewer pursuing and apprehending the assailant, and went to assist in the arrest.
Drewer was in the area of Priscilla Street when he heard the radio communications from Mitchell and Robinson regarding the fleeing assailant. Shortly thereafter, Drewer saw the gunman, who had been running across the road directly towards him with a gun in his hand, change direction to run into an adjacent field. Drewer pursued the gunman with his emergency equipment activated, repeatedly yelling over his vehicle's intercom for the man to stop. When the assailant continued to run, Drewer exited his vehicle and continued the pursuit on foot. The gunman lost his footing near the railroad tracks; when he got up, he turned to face Drewer with his hands raised over his head, the gun held in his right hand. At Drewer's order, the man tossed the gun about 15 feet to his right, where it was later recovered and preserved as evidence. The gunman was arrested and transported to the Salisbury Police Department.
At trial, Mitchell, Robinson, and Drewer each identified appellant as the man they had pursued and arrested on November 5, 2010. Additionally, they each identified State's Exhibit 1 as the gun that was discarded by appellant at the time he was apprehended. Jomel Fields also testified that the gun identified as State's Exhibit 1 "looked like" the gun that was used to shoot her. The gun was admitted into evidence at trial without objection. Upon forensic examination, the gun recovered by Drewer could not be excluded as the weapon that fired some of the bullets that were recovered from the crime scene at 923 East Church Street.
I. MOTION TO SUPPRESS RESULTS OF GUN SHOT RESIDUE TEST
A. Issue Specific Facts
After appellant was booked, Detective Thomas Hitty performed a gunshot residue test on appellant's hands. The swabs taken from appellant's hands were re-sealed into the gunshot residue kit and submitted to the Maryland Crime Lab for analysis. The gunshot residue kit was admitted into evidence at appellant's trial without objection. When tested, particles consistent with gunshot residue were found to be present on the swab taken from appellant's left hand.
Prior to trial, appellant moved to suppress the results of the gunshot residue ("GSR") test. At the motions hearing, Hitty testified as the State's only witness, preliminarily recounting the circumstances surrounding the charged offenses and appellant's arrest. Hitty explained that a GSR kit consists of multiple small swabs that are rubbed on a suspect's hands and the webbing of the fingers to collect any chemical residue given off by a discharged firearm. The swabs are then sealed back into the kit and submitted to the crime lab for analysis. Hitty further testified that the chemical residue on a suspect's hands degrades "in a short amount of time, " and is easily destroyed or contaminated if the suspect perspires, washes or urinates on his hands, or rubs his hands on his clothing. Instructions in the GSR test kit and Maryland State Police guidelines recommend that a sample be collected within three hours after the suspected discharge of the firearm.
As to the timing of the GSR test, Hitty testified that within 45 minutes after appellant's arrest, he approached appellant in the booking area of the Salisbury Police Department. Hitty informed the court that after identifying himself to appellant, he rubbed appellant's hands with the swabs from the GSR kit. During the collection of the GSR sample, appellant indicated that "he wanted to make no statements without a lawyer present." Appellant also questioned whether Hitty had a warrant to conduct the GSR test. Otherwise, appellant did not verbally or physically resist Hitty's collection of the GSR samples. When Hitty finished swabbing appellant's hands, he left the holding cell without engaging in any additional conversation with appellant.
After hearing the testimony of Hitty and the arguments of counsel, the motions court concluded that the collection of gunshot residue from appellant's hands was a non-invasive search justified by exigent circumstances, opining in part:
The most persuasive argument to me to deny the motion to suppress is the fact that the process is not invasive, unlike drawing blood from a suspected drunk driver or a body cavity search, or even reaching into someone's pants to withdraw something that's been secreted, such as CDS. Or even a buccal swab. This is less invasive than that. In fact, it's more like fingerprints. I don't believe a search warrant is required for the taking of fingerprints.
As to the exigency of the circumstances, the court credited Hitty's testimony regarding the several ways a defendant could contaminate or remove the residue from his or her hands while in custody. The court further noted that it would be unnecessarily burdensome for the police to have to closely monitor an arrestee to ensure that the evidence was not destroyed while they obtained a search warrant to collect the samples. On these bases, the court denied appellant's motion to suppress the GSR test results.
B. Arguments of the Parties
Appellant contends that the GSR test constituted an unreasonable search and seizure; thus, he concludes, the motions court erred by denying his motion to suppress. Specifically, appellant asserts that in the absence of exigency – given that more than two hours remained before the GSR test results would have been compromised due to the passage of time – the failure of the police to obtain a warrant before collecting physical evidence from his body, without his consent, constituted an illegal search in violation of his Fourth Amendment rights. Appellant further asserts that the GSR test results should be characterized as an involuntary self-incriminating statement and, further, that he was denied the right to the presence of counsel while incriminating evidence was being collected from his body, in violation of his Fifth and Sixth Amendment rights.
The State responds that appellant failed to properly preserve his arguments regarding self-incrimination and deprivation of his right to counsel for appellate review, and that even if they were preserved, appellant's arguments on these points are without merit. Addressing the merits of appellant's preserved arguments, the State maintains that the warrantless intrusion upon appellant's person for the purpose of collecting GSR evidence was a properly limited search incident to appellant's lawful arrest and was further justified by the exigency of the situation presented.
Initially, we consider whether appellant's arguments have been properly preserved for appellate review, as this Court "ordinarily will not consider any point or question 'unless it plainly appears by the record to have been raised in or decided by the trial court.'" Robinson v. State, 404 Md. 208, 216 (2008) (citations omitted); Md. Rule 8-131(a). The State, as previously noted, contends that appellant's arguments regarding his right to counsel have not been preserved.
To preserve an assignment of error based on an evidentiary question, a party is required to bring its position to the attention of the trial court so that the court may pass upon any objection, and possibly correct any errors. Robinson, 404 Md. at 216-17 (noting that such requirements serve the interest of fairness and judicial economy). The failure to raise a particular argument in support of a request to exclude evidence acts as a waiver of the argument for the purposes of appellate review. See Stone v. State, 178 Md.App. 428, 445 ...