from the Circuit Court for Baltimore City. Paul Smith, JUDGE.
BY: Anne K. Olesen (Paul B. DeWolfe, Public Defender on the
brief) all of Washington, DC. FOR APPELLANT
BY: Christopher Mason (Brian E. Frosh, Attorney General on
the brief) all of Baltimore, MD. FOR APPELLEE
BEFORE: Meredith, Leahy, Moylan, Charles E., Jr. (Retired,
specially assigned), JJ.
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. After sentencing, Mr. Mulley noted
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?
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.
AND PROCEDURAL BACKGROUND
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.
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
[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.
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.
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.
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
[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?
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.
Mr. Mulley nor Ms. Richardson testified at trial. Both were
convicted of all charges that remained pending against them
at the close of trial.
Responses to a question from the jury
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
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.
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. 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
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
3. define on or about the person
4. does access to the bag equate to possession of bag's
5. does State have to prove each element of " wear,
carry or transport?"
6. define available for immediate use?
jury's question 5 -- " does State have to prove each
element of 'wear, carry, or transport?'" -- is
the basis of ...