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Mulley v. State

Court of Special Appeals of Maryland

June 2, 2016


         Appeal from the Circuit Court for Baltimore City. Paul Smith, JUDGE.

         ARGUED BY: Anne K. Olesen (Paul B. DeWolfe, Public Defender on the brief) all of Washington, DC. FOR APPELLANT

         ARGUED BY: Christopher Mason (Brian E. Frosh, Attorney General on the brief) all of Baltimore, MD. FOR APPELLEE

         ARGUED BEFORE: Meredith, Leahy, Moylan, Charles E., Jr. (Retired, specially assigned), JJ.


         Meredith, J.

         At the conclusion of a three-day trial before a jury in the Circuit Court for Baltimore City, Jahtoolie Mulley, appellant, was convicted of five charges relating to being in possession of a firearm, namely: (1) wearing, carrying, or transporting a handgun, in violation of Maryland Code (2002, 2012 Repl. Vol.), Criminal Law Article (" CL" ), § 4-203; (2) conspiring with his co-defendant (Tanysha Richardson) to wear, carry, or transport a handgun; (3) possession of a regulated firearm after being convicted of a disqualifying crime, in violation of Maryland Code (2003, 2011 Repl. Vol.), Public Safety Article (" PS" ), § 5-133(c); (4) possession of a regulated firearm while being under the age of 21, in violation of PS § 5-133(d)(2003, 2011 Repl. Vol., 2015 Supp.), Public Safety Article, § 5-133.1.[1] After sentencing, Mr. Mulley noted this appeal.


         Mr. Mulley presents the following questions for our review:

1. Did the trial judge abuse his discretion when he failed to sufficiently respond to a jury question regarding the State's burden to prove each element of the offense wear, carry, or transport?
2. Did the trial judge err in finding that the State had not violated Md. Rule 4-263 by failing to disclose Mr. Mulley's statement regarding his birth date?
3. Did the trial judge err in failing to exclude two cell phones which were irrelevant and highly prejudicial?
4. Was there insufficient evidence to convict Mr. Mulley [of] possession of ammunition?

         We answer Question 2 in the affirmative, and conclude that the court's ruling on the discovery violation was not a harmless error. Consequently, we will vacate the judgment of conviction as to the charge of possessing a regulated firearm while being under the age of 21 (in violation of PS § 5-133(d)), and we will remand the case for further proceedings as to that count only. We answer Questions 1 and 3 in the negative, and conclude that Question 4 was not preserved for our review. We affirm all other judgments of the Circuit Court for Baltimore City.


         The evidence at trial revealed the following. In the early-morning hours of September 4, 2014, four Baltimore City police detectives assigned to the Eastern District were detailed to the Northwest District, in the area of the 4900 block of Park Heights Avenue, " in response to two homicides that had just taken place within a short [period of time] between each other." The four detectives were in an unmarked vehicle, and dressed in plain clothes, although each was wearing a tactical vest on which the word " Police" appeared. As the detectives were driving northbound on Park Heights Avenue toward the scene of the homicides, they passed Mr. Mulley and his co-defendant, Ms. Richardson, who were walking northbound.

         Det. Sgt. John Burns, who was sitting in the back seat of the police car behind the driver, testified that, as the police car passed Mr. Mulley and Ms. Richardson, he observed " a slight hesitation in their walk," and he saw Mr. Mulley place a dark object inside Ms. Richardson's purse, which object Mr. Mulley appeared to push down inside the purse. The detectives continued to travel on Park Heights Avenue a short distance, and then stopped for " [t]wo minutes, maybe" to provide backup for other officers at that location. While Det. Sgt. Burns and the other three officers were at the location where they were providing backup support, Mr. Mulley and Ms. Richardson walked past the group of detectives, and the couple's demeanor caught the attention of the detectives again. Det. Sgt. Burns testified at trial:

[BY DET. SGT. BURNS]: Mr. Mulley and Ms. Richardson, they were walking northbound, actually they were walking right past us, he had his arm around her and they were walking like almost in a robotic fashion. They weren't making eye contact with the police, they didn't look at us, they were just strictly like [ sic ] and Mr. Mulley appeared very nervous. It was just they were very rigid and walking, arm around her and he was like focused straight ahead and they actually walked right past us.

         Because the operation for which the four detectives had been sent to assist was wrapping up, the detectives got back in their unmarked vehicle and caught up with Mr. Mulley and Ms. Richardson near the intersection of Park Heights Avenue and Spaulding Avenue. Detective Moore, the driver, pulled the car over and asked Mr. Mulley and Ms. Richardson if they could speak with them for a moment. Det. Sgt. Burns began speaking with Mr. Mulley, and Detective Peter Iacovo approached Ms. Richardson.

         Det. Iacovo testified that, when the group of detectives stopped Mr. Mulley and Ms. Richardson, he asked Ms. Richardson if she had any identification. As Ms. Richardson opened her purse, Det. Iacovo spotted what he " believed to be the cylinder of a revolver," and he then grabbed the purse. The purse contained a handgun that was loaded with six rounds of ammunition, and a plastic bag containing eleven more bullets capable of being fired from that gun.

         Det. Iacovo testified regarding a statement blurted out by Mr. Mulley, who claimed " it's mine" :

[BY DET. IACOVO]: . . . [A]s soon as I saw the cylinder, I knew based on just my experience through law enforcement as well as the military, I knew that to be a cylinder for a revolver handgun.
[BY THE STATE]: And after you made that observation again, what did you do?
A. I immediately grabbed the purse from Ms. Richardson and I opened [it] up to confirm what I initially observed, and then at which point I handed it off to Detective Moore who was standing right next to me and I advised Ms. Richardson to turn around so I could place her in handcuffs and I said 30, I blurted 30 to the other officers involved to inform them that Ms. Richardson was being placed under arrest.
Q. And when you said that, what if anything happened?
A. Well, as soon as I was placing the cuffs on Ms. Richardson, and I said, well, I said 30, and I alerted to them, Mr. Mulley made a statement.
Q. And what did he say?
A. He said, do you want me to say it verbatim, do you want me to read it verbatim?
Q. Yes.
A. All right. Mr. Mulley stated, " Yo, it's mine, yo, she just my little sister, for real."
* * *
Q. And when Mr. Mulley made that statement, what did you understand him to be speaking of?
A. I took it as he was taking ownership of the weapon that was within the bag.

         Neither Mr. Mulley nor Ms. Richardson testified at trial. Both were convicted of all charges that remained pending against them at the close of trial.[2]


         I. Responses to a question from the jury

         The first issue Mr. Mulley presents on appeal arose during jury deliberations. With respect to the instructions that are the subject of Mr. Mulley's appellate challenge, the court initially instructed the jury as follows:

[BY THE COURT]: . . . Each of the Defendants is charged with wear, carrying, or transport of a handgun. It is question number one on each of the verdict sheets. In order to convict the Defendant, the State must prove the following: One, that the Defendant wore, carried or transported a handgun, that it was within his or her reach and available for his or her immediate use, secondly -- let me give you the definition of a handgun.
But first, before I give you the definition of a handgun, let me tell you what possession means. Possession means having control over a thing, whether actual or indirect. The Defendant does not have to be the only person in possession of the item. More than one person may have possession of the same item at the same time. A person not in actual possession who knowingly had both the power and the intention to exercise control over a thing, either personally or through another person, has indirect possession.
In determining whether the Defendant had indirect possession of the item, consider all of the surrounding circumstances and these circumstances include the distance between the Defendant and the item, whether the Defendant had some ownership or possessory interest in the place where the item was found, and any indication that the Defendant was participating with others in the mutual use and enjoyment of the item. That's what possession means.
Now let me tell you what a handgun is. A handgun is a pistol, a revolver or other firearm capable of being concealed on or about the person and which is designed to fire a bullet by the explosion of gunpowder.
Using that definition of possession and that definition of a handgun, you will answer question number one as to each Defendant by entering your verdict in the appropriate space. Then go on to question number two.

         Within an hour of being released to deliberate, the jury sent out a note, asking: " Can you explain number one, did wear, carry or transport a handgun, a little clearer please." As required by Maryland Rule 4-326(d)(2)(C), the court discussed the note with counsel.[3] Mr. Mulley's counsel suggested that the court re-read the relevant portions of the instruction it had previously read to the jury -- i.e., Maryland Pattern Jury Instructions-Criminal (" MPJI-Cr" ) 4:35.2 -- and the State and Ms. Richardson's counsel agreed. The court brought the jury into the courtroom, and re-read them the instruction. The court closed by asking the jury: " [I]s that clear?" There were no apparent responses, and the jury was discharged to continue its deliberations. However, the jury was eventually released for the day without reaching a verdict.

         The next day's transcript begins in the middle of a discussion about another note that had been sent out by the jury. This note contained the following questions:

1. [Question scratched out by jury]
2. define intention to exercise control under indirect possession?
3. define on or about the person
4. does access to the bag equate to possession of bag's content?
5. does State have to prove each element of " wear, carry or transport?"
6. define available for immediate use?

         The jury's question 5 -- " does State have to prove each element of 'wear, carry, or transport?'" -- is the basis of ...

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