Circuit Court for Baltimore County Case No. 03-K-16-0541
Berger, Nazarian, Arthur, JJ.
appeal arises from a criminal proceeding before the Circuit
Court for Baltimore County. Carlos Nicholson
("Nicholson"), appellant, was convicted of
possession of marijuana with intent to distribute, conspiracy
to distribute marijuana, and second-degree felony murder. On
appeal, Nicholson presents three questions for our review,
which we have rephrased as follows:
1. Whether the circuit court erred in refusing to instruct
the jury on self-defense.
2. Whether the evidence was sufficient to sustain a
conviction for possession of marijuana with intent to
3. Whether the indictment against Nicholson supported a
charge of second-degree felony murder.
reasons explained herein, we shall affirm the judgment of the
Shooting and Arrest
January 7, 2016, at 10:45 p.m., Baltimore County Police
received reports that shots had been fired on Lower Gate
Court in Owings Mills. Upon arriving, police found Treshawn
Johnson ("Johnson") lying unresponsive on the
ground in front of 27 Lower Gate Court clenching a loaded
.357-caliber revolver. Johnson had been shot in the chest and
leg, and he died at the scene. Police discovered Mancino
Carpentieri ("Carpentieri") limping nearby with
gunshot wounds on his back and thigh. On the ground near
Carpentieri was a loaded semiautomatic .380-caliber pistol.
was arrested on January 10, 2016. Police searched
Nicholson's home and recovered a bag containing .42 grams
of marijuana, a bag containing 28.29 grams of marijuana, and
two scales with marijuana residue on them. A box of sandwich
bags was seized from the top of the dresser in the master
bedroom. Nicholson's vehicle was seized the same day.
in custody, Nicholson waived his Miranda rights.
Nicholson was interviewed by Detective Carroll Bollinger and
Detective Klimko. Nicholson told the detectives that
"[t]hose two people . . . they not victims. They came
there to rob me. You can see in my phone that they, I sell
weed." Nicholson continued, "They robbed me. They
robbed me. They . . . took my weed, they took everything from
told the police that he had received a text message from
someone named "Man" who "wanted to buy a
pound" of marijuana. Nicholson did not have that amount
of marijuana, so he contacted Fallon Stewart
("Stewart"), who agreed to provide the product and
give Nicholson "a cut." On the night in question,
Nicholson met Stewart in a parking lot on Lower Gate Court.
Stewart entered the rear passenger side of Nicholson's
vehicle. Later, Johnson and Carpentieri arrived. Nicholson
told the police that he had never dealt with the men before.
Johnson and Carpentieri entered Nicholson's vehicle.
Nicholson described the events that followed:
[W]hen they got in the truck, they cocked a gun and put it
straight in my head. One in the front, one in the back of me.
The one in the backseat got out of the car and pulled me to
the ground. And that was it. And he, he fired one shot at me
and I, I thought I was hit to be honest. I rolled under the
car and I just, just laid there like until it was done. I
heard a bunch of shots, once the shots stopped I jumped in
the truck and I pulled out.
said that in the struggle with his assailant he
"grabbed" the assailant's gun. When the
detective asked if Nicholson had "turn[ed] the gun on
his assailant, Nicholson said, "Maybe I did. Maybe
that's when the shot went off. To be honest with you like
it's, it's blurry. It's . . . I was scared as
shit." When one of the detectives told Nicholson that
the man who died had two bullets from his own gun "in
him," Nicholson said,
[M]aybe I did turn the gun on him while we was tussling. I, I
couldn't, I couldn't tell you, I just remember the
shots going off and I, I remember thinking I was hit. . . . I
remember going down to the ground. And I remember when I went
down to the ground I remember hearing a bunch of shots.
added that "once the shots stopped . . . I jumped up and
I looked and Fallon was like 'where's my
friend?'" Nicholson drove out of the parking lot
behind Stewart, who was in a Kia Sportage.
the detectives pressed Nicholson on his story, Nicholson
[W]hat I do remember is just being in the car, the boy
putting the gun on, putting it to my head telling me to kick
everything out. And the dude from the backseat with the
revolver, I remember him pushing her out of the car. Or I
don't know if she put, like you know push him out. I
don't know what happened. I just know he opened my door
and tried to pull me out and when he was pulling me out I
just felt like he was gonna shoot me. So we, we were
tussling. And that's when the shots went off. And I fell
down to the ground. And that was it.
After that, when I fell to the ground, I hear the shots, a
lot of shots. Like a lot of shots. I don't know how many
shots. Maybe like 17 or something. 18 or maybe, maybe a lot.
I don't know, but I heard shots. A whole bunch of shots.
That's all I really remember. I came up after, after the
shots were stopped.
insisted that neither he nor Stewart brought a gun to the
rendezvous. At the conclusion of the interview, a technician
photographed a "small mark" on Nicholson's back
that Nicholson said was caused by the bullet that grazed him.
was charged with first-degree murder, attempted first-degree
murder, use of a firearm in the commission of a crime of
violence, possession of a firearm with a nexus to a drug
trafficking crime, possession of marijuana with intent to
distribute, and conspiracy to distribute marijuana. The State
used the statutory short-form indictment of Maryland Code
(2002, 2012 Repl. Vol., 2016 Supp.), § 2-208 of the
Criminal Law Article ("Crim. Law") to charge
Nicholson with first-degree murder.
Vega ("Vega") testified that he was at his home on
Lower Gate Court with his mother and his friend, Anthony
Piechowski ("Piechowski"), on the night in
question. Vega testified that he heard gunshots at around
10:30 p.m. When Vega looked out the window, he saw a woman
standing by the passenger side of a car and a man approaching
the passenger side of a vehicle parked across the street.
Seconds later, Vega heard shots coming from inside the
vehicle and saw someone run away. Vega testified that he
"saw muzzle flashes from inside the car."
Vega's mother pulled him and Piechowski away from the
window. Vega returned to the window six seconds later and saw
two vehicles leaving the parking lot. Piechowski testified
that "we just saw people running out in the parking lot
and what looked like flashes." Piechowski photographed
the license plate of one of the vehicles. Police later used
the photograph to determine that the Kia Sportage was being
leased to Danika Floyd, who told the police that Shawn Reeves
("Reeves"), the father of her children, had been
driving the vehicle.
Wambui ("Wambui"), who lives at 4345 Lower Gate
Court, testified that he was smoking a cigarette outside his
home at around 10:30 p.m. on the night in question when he
noticed two men standing near the parking lot. Shortly
thereafter, Wambui saw two cars ("V1" and
"V2") enter the parking lot. Wambui saw someone
exit V2 and enter V1. Wambui heard gunshots and saw someone
exit the driver's side door of V1. Wambui heard two or
three more gunshots and saw a dark shadow standing outside
the driver's door, which was open, shooting down. The
shadowy figure returned to V1, and both vehicles drove away.
State's tool mark examiner testified that both of the
guns recovered at the scene had been fired, but that neither
gun had fired the bullets that shot Carpentieri and Johnson.
He also testified that the bullets removed from Carpentieri
and Johnson were fired from the same firearm.
medical examiner, Dr. James Locke ("Dr. Locke"),
testified that Treshawn Johnson had been shot in the chest,
just below the nipple line and near the midline of the chest.
The bullet entered the chest and struck the right lung and
the right flank area. Dr. Locke testified that there was
evidence of soot and stippling around the gunshot wound in
Johnson's chest. Dr. Locke concluded that Johnson's
chest wound was consistent with a gunshot at close range. Dr.
Locke testified that when the end of a gun barrel is placed
up against the body, the bullet exiting the firearm will
cause the release of a tremendous amount of energy and
produce a blowout of the area. Dr. Locke testified that this
was probably what caused the large hole in Johnson's
shirt. Johnson had also been shot in the left leg.
Thomas Stetson ("Sgt. Stetson") testified that he
had previously worked undercover in narcotics. Sgt. Stetson
testified that he was nearly robbed on one occasion when he
was engaged in an undercover purchase of marijuana. Sgt.
Stetson testified that the distribution of marijuana is
State also introduced text messages between Stewart and
Reeves. In one message, Stewart wrote, "This off like
5G." Reeves responded, "I don't know how
it's off. It was 225, that's a G," and then
added, "I did it myself. I still have the other
half." The parties stipulated that "448 grams
equals one pound of marijuana."
Motion for Judgment of Acquittal
close of evidence, Nicholson filed a motion for judgment of
acquittal. Nicholson argued that "the only evidence is
that it was self-defense," leading to the following
exchange with the trial judge:
THE COURT: Well Mr. Carpentieri was shot in the back.
[DEFENSE COUNSEL]: I understand. I understand.
THE COURT: All right. Well, so self-defense is harder to see
when someone's shot in the back.
[DEFENSE COUNSEL]: Well one time is in the thigh and very
THE COURT: Two times in the back.
[DEFENSE COUNSEL]: Yes, I understand. And, but as he's
running away after putting a gun to the head of my client
according to the statement in the, my client gives which is
the only evidence ...