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Potts v. State

Court of Special Appeals of Maryland

December 28, 2016

IVAN POTTS
v.
STATE OF MARYLAND

          Krauser, C.J., Wright, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Wright, J.

         Following a jury trial in the Circuit Court for Baltimore City, Ivan Potts, appellant, was convicted of wearing, carrying, and transporting a firearm; possession of a firearm after having been convicted of a crime of violence; and possession of ammunition after having been prohibited from possessing a regulated firearm. He was sentenced to incarceration for a term of eight years, the first five without the possibility of parole, for the possession of a firearm offense, and concurrent terms of one year for each of the other crimes. This timely appeal followed.

         Questions Presented

         Potts presents the following questions for our consideration:

I. Did the trial court err in admitting hearsay during the testimony of one of the police officers?
II. Must the commitment record and docket entries be corrected to reflect accurately the sentence announced in open court for wearing and carrying a firearm?
III. Did the circuit court err in imposing separate sentences for possession of a firearm after having been convicted of a crime of violence and possession of ammunition after having been prohibited from possessing a regulated firearm?
IV. Was the evidence sufficient to sustain the convictions?

         For the reasons set forth below, we shall remand this case to the circuit court for the purpose of correcting Potts's commitment record and affirm in all other respects.

         Factual Background

         On September 2, 2015, Baltimore City Police Sergeant Wayne Jenkins, Detective Maurice Ward, and Detective Evodio Hendrix were conducting an investigation, unrelated to the instant case, in the West Forest Park area of Baltimore City. The officers were in an unmarked police vehicle equipped with lights and a siren, and were wearing plain clothes and black tactical vests with the word "police" written in white letters on the front and back. As they drove in the wrong direction on Fairview Avenue approaching Chelsea Terrace, they saw Potts walking toward them. When Potts was about five to seven townhouses away, Sergeant Jenkins and Detective Ward observed his left arm swinging freely and his right hand "affixed to his mid-section, " grabbing his dip area. Both officers testified that grabbing the dip area is an indication that a person is armed.

         Potts looked up and appeared to notice the officers. He then took a black handgun from his waistband, turned his back to the officers, and fled. Detectives Ward and Hendrix exited the police vehicle and chased Potts while Sergeant Jenkins gave chase in the police vehicle. When Sergeant Jenkins next saw Potts, he was running with both hands "open." Shortly thereafter, Potts was apprehended by the detectives. Detective Hendrix testified that none of the officers used a baton or any other weapon resembling a baton.

         After Potts was apprehended, Sergeant Jenkins went back to the location where he had last observed Potts and recovered a loaded black and silver firearm with a magazine containing sixteen rounds. Potts was transported to Central Booking by Baltimore City Police Officer Richard Lyles. Central Booking refused to receive Potts, so Officer Lyles drove him to St. Agnes Hospital. Potts told Officer Lyles that "they fucked me up." Officer Lyles observed an open wound on Potts's thigh.

         About two hours after Potts was arrested, Sergeant Jenkins and the detectives were notified that Potts was at St. Agnes Hospital because he had a laceration on his thigh. They went to the hospital where they observed Potts's pants and saw that they were not cut and did not have blood on them. Sergeant Jenkins and Detective Ward testified that Potts had not made any complaint about an injury after he was arrested.

         Jennifer Ingbretson, an expert in firearms operability, testified that the weapon recovered by Sergeant Jenkins and the detectives met the definition of a handgun and a firearm and that it was operable. She also was given for examination a total of sixteen cartridges, the maximum capacity for the handgun, one of which was loaded in the gun and fifteen others that were in the magazine.

         The parties stipulated that, as the result of a prior conviction, Potts was prohibited from possessing a regulated firearm and ammunition. We shall include additional facts as necessary in our discussion of the questions presented.

         Discussion

         I.

         Potts first contends that the circuit court committed reversible error in admitting hearsay evidence during Detective Hendrix's testimony. He directs our attention to the following portion of Detective Hendrix's testimony:

[PROSECUTOR]: So what, if anything, at that time did you do after - do did you - did you observe your fellow detectives ...

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