Eyler, Deborah S., Graeff, Raker, Irma S. (Retired, Specially Assigned), JJ.
EYLER, DEBORAH S., J.
A jury in the Circuit Court for Prince George's County found Brian Clark, the appellant, guilty of robbery, wearing or carrying a handgun on his person, transporting a handgun in a vehicle, possession of a regulated firearm by a person under the age of 21, and theft under $1, 000. Thereafter, the court found the appellant guilty of possession of a regulated firearm after conviction of a crime of violence and possession of a regulated firearm by a prohibited person.
The appellant was sentenced to 15 years, with all but ten years suspended for robbery; three years suspended for wearing and carrying a handgun on his person; three years suspended for transporting a handgun in a vehicle; 15 years, with all but ten years suspended, consecutive, for possession of a regulated firearm after a conviction of a crime of violence; 15 years, with all but ten years suspended, for possession of a regulated firearm by a person under the age of 21; and 15 years suspended for possession of a regulated firearm by a prohibited person. The court merged the theft conviction into the robbery conviction for sentencing. These sentences totaled 66 years, with all but 30 years suspended, which included a mandatory minimum of 20 years.
The appellant noted a timely appeal, presenting five questions, which we have rephrased:
I. Did the trial court err in denying the appellant's motion to exclude evidence of inconclusive DNA test results?
II. Did the trial court err in accepting the appellant's waiver of jury trial on two counts?
III. Did the trial court err in admitting an irrelevant and prejudicial letter that the appellant wrote while incarcerated?
IV. Could the appellant only be convicted of one count of possession of a regulated firearm and one count of wearing, carrying, or transporting a handgun?
V. Did the trial court err in sentencing the appellant to a non-parolable minimum term of ten years for the conviction of possession of a regulated firearm after conviction of a crime of violence?
We shall vacate the appellant's convictions for possession of a regulated firearm by a prohibited person and possession of a regulated firearm by a person under 21; vacate his sentence for transporting a handgun in a vehicle; vacate his sentence for possession of a regulated firearm after conviction of a crime of violence and remand for resentencing on that conviction; and otherwise affirm the judgments.
FACTS AND PROCEEDINGS
On the night of July 9, 2011, Thomas Gant, who is a transgender person who goes by the name Tiffany, was standing at the I-12 bus stop on Addison Road in Prince George's County waiting for the rain to stop, so she could finish walking to the train station. A four-door "Goldish-color car" pulled up and two men got out and robbed her at gunpoint. At trial, Gant identified the appellant as the man who held the gun, pointed at her back. She also identified photographs of the car and the gun. The photographs were admitted into evidence.
Gant testified that the appellant wore a mask over his face, but she was able to identify him by his clothing and skin tone. During the robbery the appellant told her to "Give that shit up." He and the other man took her purse and bag, jumped back into the car, made a right turn onto Addison Road, and drove away. After the men left, Gant ran across the street to the police station. No one was there, so she called 911. A tape of the 911 call was admitted into evidence and played for the jury.
Officer Bryan Stevens was responding to the robbery call when he saw the vehicle described in the police broadcast drive past him. He stopped it and attempted to conduct a traffic stop. Two men jumped out of the vehicle and ran. The appellant was the man who jumped out of the back seat passenger side of the vehicle. Officer Stevens gave chase. He apprehended the appellant in front of Fairmont Heights High School. He saw that the appellant was missing a shoe. The missing shoe was recovered by a police K-9 dog. It was within close proximity to a handgun. The K-9 dog continued tracking the appellant's path, which ended at Fairmont Heights High School.
Police responded to the scene, met with Gant, and took her to two locations for show ups: Fairmont Heights High School, where Gant identified the appellant, and another location a few hundred yards away, where Gant identified the other man and the gold car used in the robbery. The items the men had taken from Gant were recovered from the gold car; Gant identified them.
The gold car was processed and DNA swabs were obtained from the interior passenger front door and armrest and the driver's side door. DNA swabs also were obtained from the appellant and from the handgun. The swabs were packaged, sealed, and sent to the DNA lab for testing.
Additional facts will be discussed below as pertinent.
The appellant contends the trial court erred by admitting inconclusive and therefore irrelevant DNA results from the gun. He maintains that the error was not harmless because the evidence was highly prejudicial and the jurors may have placed "heavy weight . . . on the failure of the scientific DNA evidence to exclude [him] as one of those who handled the gun." The State responds that the DNA evidence was relevant to show that its investigation was thorough; and the evidence was not unfairly prejudicial because the appellant was neither included nor excluded as a possible contributor. The State asserts that the fact that the DNA results were inconclusive shows that any error in admitting them was harmless beyond a reasonable doubt.
When defense counsel moved in limine to exclude the DNA evidence found on the gun, the following colloquy occurred:
[DEFENSE COUNSEL]: Thank you, Judge. The DNA is found on the gun in this case. I'm moving in limine to keep that DNA out. I am moving in limine to keep the DNA that comes back inconclusive to the handgun in this matter. It's on the theory that the State admits that it can neither exclude nor include my client which, basically, is to say it can't be used to convict it, can't be used to acquit. It shouldn't be talked about at all at that point.
[PROSECUTOR]: Your Honor, I believe that it's evidence, and for the jury to weigh the evidence in the light whether they believe that means – it doesn't include or exclude him, however, it's up to the jury to decide what kind of weight, if any, to give that type of evidence.
THE COURT: On what basis are we not presenting that to the jury?
[DEFENSE COUNSEL]: On the basis that there is DNA done on several items, and a lot of which may be conclusive or not as to my client, but the DNA on the gun came back as not conclusive, which means it can't include or exclude him as having ever held the gun.
THE COURT: So you're not planning to argue lack of evidence?
[DEFENSE COUNSEL]: Well, Your Honor, I'm sure the State wants to include that to throw it up there. At least the jury can think, well, maybe it does include him, but the DNA doesn't say so. But they can't use it necessarily to convict because it's not his for sure, and I couldn't use it to acquit necessarily because it doesn't say it's not him either. So I'm arguing that that's kind of a stand off and that that shouldn't be included at all.
THE COURT: I'm asking you are you going to argue that the State didn't put on enough evidence?
[DEFENSE COUNSEL]: Well, I've always argued that, no matter what they put forward.
THE COURT: So you don't feel that it's fair game for them to be able to rebut that argument?
[DEFENSE COUNSEL]: Well, I don't think they can rebut since it doesn't prove that he ever held the gun.
[PROSECUTOR]: It does rebut the fact that the State did attempt to collect DNA evidence off of the gun. If that was not included, defense would be free to argue the State didn't swab the gun, didn't produce DNA on the gun and that's not the correct statement of evidence. I do believe that the jury is capable of weighing whether or not they believe the DNA evidence in giving it such weight as they deem appropriate, which Your Honor would instruct them.
THE COURT: Okay. Your motion is denied on that.
The following day, before the DNA expert took the stand, defense counsel again moved to exclude the gun DNA evidence. Defense counsel argued:
. . . For the record, because we're about to proceed with the DNA expert, she's in the hallway. I want to reiterate what I mentioned earlier about the motion in limine to keep out the DNA that was recovered from the gun because the only conclusion that could be drawn from that was that it could neither include my client nor exclude my client.
And based on that, I'm thinking that my argument is just common sense, what a jury is going to view that's going to be prejudicial because they're thinking well, DNA, if it can't exclude him, then it must include him or it must be at least a possibility.
Our argument is just when you need it beyond a reasonable doubt to let the jury have that mindset would just be erroneous to start with.
And the other one is there is swabs taken from the interior door handle which says is a partial mix of DNA, etc., and the conclusion there is no further conclusions can be made regarding this evidence item which, basically, means that we found DNA. It's a mix of people. No further conclusions means even less than we can't include or exclude him. It's even below that. We can't make any conclusion from that at all.
So I think having the jury hear that, I mean if the State presents that, the jury is going to, well, they must think at least it's possible it could be his, but I don't think that's good enough for when an expert is going to testify and their opinion is being used to help the jury to understand scientific evidence to make an informed conclusion.
To say that there really is no conclusion and present it in that light would be, I think, erroneous. We ask that the handle of DNA and the gun DNA be excluded.
The court denied the motion.
Christina Tran was accepted as an expert in the field of forensic serology and DNA analysis. During her testimony the DNA report and the DNA swabs were admitted into evidence without objection. Tran testified that the swabs from the interior front passenger door yielded a partial-mixed DNA profile; she was unable to reach any further conclusions. The swabs from the handgun also yielded a mixed DNA profile from at least two contributors. The appellant was neither included nor excluded as a possible contributor. Finally, Tran testified that the swabs tested from the recovered shoe were consistent with the appellant's DNA profile. Defense counsel stipulated that the shoe belonged to the appellant.
Rule 5-402 provides: "Except as otherwise provided by constitutions, statutes, or these rules, or by decisional law not inconsistent with these rules, all relevant evidence is admissible. Evidence that is not relevant is not admissible." Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Md. Rule 5-401.
"Trial judges generally have 'wide discretion' when weighing the relevancy of evidence." State v. Simms, 420 Md. 705, 724 (2011) (quoting Young v. State, 370 Md. 686, 720 (2002)). "While trial judges are vested with discretion in weighing relevancy in light of unfairness or efficiency considerations, trial judges do not have discretion to admit irrelevant evidence." Id. "Thus, we must consider first, whether the evidence is legally relevant, and, if relevant, then whether the evidence is inadmissible because its probative value is outweighed by the danger of unfair prejudice, or other countervailing concerns as outlined in Maryland Rule 5-403." Id. at 725.
We addressed the admissibility of inconclusive DNA results in Diggs & Allen v. State, 213 Md.App. 28, 66-67, cert. granted, 436 Md. 327 (2013). We held that, even though "an inconclusive test is evidence of nothing, . . . any error committed in admitting th[e] evidence is harmless beyond a reasonable doubt because evidence of nothing could not prejudicially affect the fairness of [the] trial."
Here, the inconclusive DNA test result on the gun may well have been relevant to show that the State performed a DNA test at all. As the prosecutor pointed out, without that evidence the defense could argue that the State had not performed a DNA analysis of the gun that, if performed, could have ruled out the appellant. In any event, even if the evidence were not relevant, its admission was harmless beyond a reasonable doubt. An error is harmless when a reviewing court is "satisfied that there is no reasonable possibility that the evidence complained of – whether erroneously admitted or excluded – may have contributed to the rendition of the guilty verdict." Dionas v. State, 436 Md. 97, 108 (2013) (quoting Dorsey v. State, 276 Md. 638, 659 (1976)).
The appellant argues that the holding in Dionas limits the application of the harmless error doctrine in this case. In Dionas, the trial court prohibited the defense from cross-examining a State's witness about whether the witness had any expectation of receiving leniency in a separate pending case in exchange for testifying against the defendant. On appeal, this Court held that the trial court erred in so limiting the cross-examination but that the error was ...