Rory Howard WASHINGTON
v.
STATE of Maryland.
Court of Special Appeals of Maryland.
*707 Renee M. Hutchins and Yedidyah Charner, Baltimore, for Appellant.
Diane E. Keller (Douglas F. Gansler, Atty. General on the brief), Baltimore, for Appellee.
Panel: DAVIS, DEBORAH S. EYLER and JAMES S. GETTY, (retired, specially assigned), JJ.
DAVIS, Judge.
Appellant, Rory Howard Washington, was charged with seven counts, including attempted murder in the first degree, attempted murder in the second degree, assault in the first degree, assault in the second degree, illegal use of a handgun in the commission of a felony or crime of violence, illegal carrying or transporting of a handgun and illegal possession of a regulated firearm, respectively.
After a three-day trial beginning on March 20, 2006, a jury sitting in the Circuit Court for Baltimore City found appellant guilty, inter alia, of counts three through seven, but acquitted appellant of attempted first-degree murder. The jury deadlocked on the count charging attempted second-degree murder.[1]
On June 6, 2006, the court sentenced appellant to the jurisdiction of the Division of Corrections for a period of twenty years for his conviction of assault in the first degree.[2] Appellant was also sentenced to fifteen years for use of a handgun in the commission of a crime of violence, three years for illegally carrying a handgun and five years for possession of a regulated firearm, these sentences to run concurrent with thе twenty-year sentence for assault.
This appeal was thereafter timely noted, in which appellant presents the following issues for our review:
1. Whether the trial court improperly admitted a videotape which purported to be a recording of the events surrounding the shooting, where that videotape was never properly authenticated.
2. Whether the trial court improperly admitted a detective's lay opinion *708 testimony implicitly identifying appellant in the videotape which purported to depict the events surrounding the shooting.
3. Whether [appellant's] jury was inappropriately pressured into reaching a verdict by the trial court's premature, repetitive and improperly worded Allen[[3]] charges.
4. Whether [appellant's] conviction for possession of a regulated firearm must be reversed where proof of the size of the firearm is a necessary element of the offense and the State failed to produce any evidence that [appellant] possessed a gun smaller than sixteen inches.
For the reasons that follow, we resolve the issues in favor of the State and, accordingly, affirm the judgment of the Circuit Court for Baltimore City.
FACTUAL BACKGROUND
During the evening of June 23, 2005, Jermaine Wright frequented Jerry's Bar, a bar and liquor store, located at 604 Poplar Grove Streеt in Baltimore City. At approximately 10:00 p.m., Wright stepped outside of Jerry's Bar and was shot. A bullet entered the right-side of Wright's stomach and became lodged in his spinal cord, resulting in L3 spinal cord injury.
After arriving on the scene, police officers found narcotics on Wright's person and recovered a pink hat that was later determined to belong to Wright. Pursuant to police investigations, Wright told the officers that he did not know his assailant, but described him as "a black male," having a "thick build" and "wearing a white T-shirt." Wright also told the officers that he did not see the weapon used to shoot him.
Appellant was subsequently apprehended for the shooting of Wright and was charged under the seven counts set forth, supra. The lead detective working Wright's case, Carlos Vila, met with Wright on three separate occasions, including the day before trial, in an effort to identify his assailant. On those different occasions, Wright either refused to view the photo array that Detective Vila had prepared or claimed that he needed more time.
Appellant's trial began on March 20, 2006 and spanned three days. Despite Wright's failure to identify appellant prior to trial, Wright testified that he and appellant had an argument. Appellant subsequently left Jerry's Bar, returned ten minutes later and asked Wright to step outside. Believing that appellant wanted to "rumble," Wright followed appellant out of the bar. According to Wright, once outside of Jerry's Bar, appellant "whipped out his gun and shot [him]," and everything "happened real fast."
After unequivocally identifying appellant, whom he had known for three years, as the man who shot him, Wright explained his reasoning for not coming forward until trial. He said: "I wanted [appellant] to still be out there because, you know, I was going to take advantage myself. I was going to get him." "I was so mad and angry I wanted you know, I was going to deal with it myself." Wright testified that, although he was still "mad," he decided to come to court because he thought "it's best."
An employee of Jerry's Bar, Charles Burrell, however, recounted a different version of events that occurred during the night of June 23, 2005. According to Burrell, a man named "E" and Wright engaged in a fight at approximately 9:00 p.m. *709 Burrell broke up the fight and "put the guy named `E' out of the bar." Burrell then told Wright to sit in a chair, while he (Burrell) went next door to pick up food that he had ordered. While Burrell was waiting for his food, he heard gun shots. Burrell ran outside to find Wright "at the front door of Jerry's Bar laying down on the ground."
The State pointed out that, contrary to his trial testimony, Burrell had told police that he saw appellant on the day of the shooting. After refreshing Burrell's recollection with his taped statement to police, Burrell agreed that appellant "had been in and out" of the bar. Burrell additionally testified that appellant is known to wear a white T-shirt on his head "like he an Arab or something."
Gregory Jennings confirmed Burrell's testimony that appellant always wore a T-shirt or towel around his head. Jennings also agreed that, on the day after the shooting, he identified appellant's photograph for the police. On the back of a photograph, Jennings wrote and signed that "[he] saw [appellant] outside arguing with [Wright]." At trial, however, Jennings claimed that it was his understanding that he was not free to leave during police questioning until he provided a statement to police. He further claimed that police officers informed him of what to say in his statement.
During appellant's trial, the State presented the testimony of Detective Vila regarding his investigation. Detective Vila testified that, once he discovered that David Kim, the owner of Jerry's Bar, had installed eight surveillance cameras, he requested a copy of the footage. Kim, however, did not know how to extract data from the computerized system and, in turn, called a "technician" to transfer the recorded data to a compact disc. Thereafter, Kim provided the disc to Detective Vila, which was later converted to VHS. The Statе offered the videotape and excerpted photographic stills therefrom into evidence. Over appellant's specific objection that the videotape lacked proper authentication, the court allowed the State to play the videotape in the courtroom and permitted the jury to view the videotape during its deliberations. Additionally, Detective Vila conveyed to the jury his observations of the still photographs. Appellant takes issue with the detective's testimony, claiming that he repeatedly "implied" that an individual pictured in the photographs was appellant.
After hours of deliberation, the jury returned its verdict. As noted, appellant was found guilty of first-degree assault, second-degree assault, use of a handgun in a felony or crime of violence, possession of a regulated firearm and illegally carrying a handgun. Appellant was acquitted of attempted first-degree murder. The jury, despite an Allen charge, remained deadlocked on the charge of attempted second-degree murder.
Additional facts will be discussed as warranted throughout our analysis.
ANALYSIS
I
Appellant initially argues that the videotape of the surveillance footage taken from Jerry's Bar was not properly authenticated. Specifically, he argues that, pursuant to the "silent witness" theory of authentication, the State failed to present sufficient evidence describing the process that produced the videotape and excerpted still photographs therefrom. To the extent preserved, the State contends that it presented sufficient evidence to permit a reasonable jury to infer that the videotape is an accurate recording of events surrounding the shooting.
*710 Preliminarily, the State argues that appellant's specific contention that the State failed to establish if and how the videotape was "edited" is unpreserved for appellate review. At trial, Kim testified that the computerized surveillance system of Jerry's Bar records automatically, twenty-four hours a day. To provide Detective Vila with the footage of the shooting, Kim asked a "technician" to transfer the data from the system to a compact disc because he did not know how to do so himself. A compact disc was subsequently provided to Detective Vila that night.[4]
Appellant objected to the admittance of the videotape into evidence, arguing that the State failed to present testimony of someone familiar with the computer generated system. Thus, he asserts that "there's a hole that's not filled" regarding the copying of the computer data onto compact disc. On appeal, appellant contends that, "without specific evidence describing how the video data recorded from multiple cameras was transferred and compiled into a single viewable format, and how the portions of the video admitted into evidence were edited, a trial court could not know whether the video was presented in a manner which significantly altered the accuracy of the tape." Because appellant failed to explicitly mention the possibility of "editing" to the trial court, the State argues that the trial judge "would have no reason to suspect that any `editing' had occurred and could not have considered this aspect of the current claim in its ruling."
"To preserve an issue for appellate review, it must first have been presented, with particularity, to the trial court." Jordan v. State,
Appellant's repeated general objections that the videotape lacked authentication encompasses his specific contention of "editing" on appeal. Appellant brought the issue of authentication to the trial court's attention by pointing to the gap in testimony and arguing that "someone familiar with the computer generated system" needed to testify to "the copying from the system onto CD_ROM or CD a DVR or whatever." Clearly, the issue before the trial court was the lack of testimony regarding how data from eight different cameras, feeding into the computer generated system, was compiled into a single viewable format. The fact that "editing" may have been required is reasonably implied by the objection raised below. See Sifrit v. State,
Addressing the merits, videotapes are generally admissible in evidence on the same basis as motion picture films and are subject to the same general rules applicable to photographic evidence. Dep't *711 of Pub. Safety & Corr. Servs. v. Cole,
Professor Wigmore, explaining the rationale behind this theory, has stated:
With later advancements in the art of photography . . . and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray (so that it is not possible to satisfy the requirements of the `pictorial testimony' rationale) there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which `speaks for itself.'
Cole II,
Appellant argues that the State attempted to authenticate the videotape and still photographs therefrom, pursuant to the silent witness theory. He contends, however, that the "scant evidence" adduced at trial regarding the process that produced the videotape stands in stark contrast to the detailed testimony that the Court of Appeals concluded warranted admissibility in Sisk v. State, supra and Cole II, supra.
The Court in Sisk relied upon the "silent witness" theory over forty years ago to uphold the admission of a Regiscope photograph.[6] In its prosecution of James Sisk for obtaining money by false pretenses, the State entered into evidence a Regiscope photograph that showed Sisk passing the check, the identification Sisk used in passing the check and the check itself. By presenting evidence that showed whеn, *712 where and under what circumstances the picture was taken, the State laid an adequate foundation for admissibility.
William Shraver, Chief Investigator for Montgomery Ward, testified that, after receiving an unpaid check, he removed the film from the store's Regiscope camera. Id. at 594,
Marian Stevens, head cashier of Montgomery Ward, testified that she and her assistants cashed approximately twenty-five to thirty checks on the day in question and that they had each operated the Regiscope machine on many occasions. Id. at 595,
Joseph Slattery, an employee of Regiscope, demonstrated for the court, in detail, how the camera worked. Id. Slattery additionally explained how his company processed and stored the film. After examining the roll of developed film in the film reader and finding the negative of the "particular transaction," he testified that the enlargement was a true representation of the negative. Id. According to Slattery, the film used in taking Regiscope pictures is perforated on one side only, so that the film "cannot be put in reverse." Id. at 596,
The detailed explanation of the operation of the Regiscope camera made "the possibility of error in the photograph almost nil, in the absence of some intentional trickery to `fake' the photograph" and, thus, the court held that the negative and enlargement thereof accurately portrayed the subjects illustrated. Id.
Thirty years after Sisk, the Court of Appeals in Cole II, supra, applied the "silent witness" principle to videotape evidence. The videotape at issue showed a disruptive inmate being extracted from a prison cell and was offered at an administrative hearing for termination of employment of a correctional officer who had participated in the extraction. The Department, however, did not produce a witness who was present at the extraction to testify to the videotape's aсcuracy. Thus, in an effort to authenticate the videotape pursuant to the "silent witness" theory, the prison warden testified that cell extractions are ordinarily videotaped and routinely labeled with the date and time of the extraction and the names of the inmate and officers involved. Cole II,
Based on the totality of the circumstances, the Court held that the videotape was sufficiently authenticated. Id. Applying the "silent witness" theory to videotape evidence for the first time, the Court declined to adopt any rigid, fixed foundational requirements for authentication, reasoning *713 that the facts and circumstances surrounding the making of photographic evidence and its intended use at trial will vary from case-to-case. Id. at 26,
It is clear from Sisk and Cole II that the governmental entities utilized the silent witness theory so that the Regiscope photograph and videotape "spoke for themselves," rather than "solely to add to or illustrate the testimony of a human witness." Cole II,
Undeniably, the State's purpose for showing the videotape оf the surveillance footage in the case sub judice was to place appellant at the scene of the shooting. Cf. Cole II,
The State elicited testimony from three witnesses who were present in Jerry's Bar on the night of the shooting. Its primary witness, Wright, unequivocally identified appellant as the individual who shot him. The other two witnesses, Burrell and Jennings, testified that appellant frequented Jerry's Bar that evening. Prior to appellant's trial, including the day before trial, however, Wright had failed to identify his assailant. We may not assume, however, that the State was uncertain as to whether Wright would testify that appellant was the shooter or place him at the scene of the shooting when he was called to testify.[7] Sequentially, the State produced Wright as a witness only after the State had called Detective Vila and introduced the videotape and still photographs therefrom through his testimony. See infra Part II. It was subsequent to Vila's testimony that Wright was called to testify during which he identified appellant as the individual whо shot him. Thus, irrespective of the order in which the witnesses were called to testify, the net effect of the videotape served to bolster Wright's credibility and corroborate his testimony that, not only was appellant present at the scene of the shooting, but that appellant had shot him. *714 See Cole II,
The purpose for which the videotape was offered in the instant case thus differs from the purpose for which the videotape and photographs were offered in Sisk, Cole II and cases from other jurisdictions, in which there was no testimony from a witness capable of swearing that he or she personally perceived what the videotape or photograph purported to portray. Cf. Brooks v. Virginia,
In the above cited cases, the photographs or videotapes were real evidence. See Joseph F. Murphy, Jr., Maryland Evidence Handbook § 1103 at 445 (3d ed. 1999) (Real evidence are those tangible items that are actually part of the facts being presented and not mere visual aids). Former Chief Judge Murphy of this Court explained that, "Like an X-ray, an [unattended] surveillance photograph that positively identifies a burglar or robber is `real,' not `demonstrative' evidence" and "[s]uch a photograph is not admissible as a visual aid because nobody can testify that it fairly and accurately shows what he saw." See Cole II,
Wright's testimony reveals that he personally perceived the images portrayed by the surveillance footage. See 3 Wigmore on Evidence § 790, at 219-20. ("Even though there is no human capable of swearing that he personally perceived *715 what a photograph purports to portray (so that it is not possible to satisfy the requirements of the `pictorial testimony' rationale) there may nevertheless be good warrant for receiving the photograph into evidence."). Consequently, appellant's case does not, technically, fall within the silent witness rule.
Authentication of the videotape of the surveillance film is required, however, in any event. Regarding authentication, we said in Cole I:
In 5 Lynn McLain, Maryland Evidence § 403.6 (1987), Professor McLain discusses the admission of movies, video tapes, and sound recordings. She points out that `the courts suspect that movies and tapes may be easily manipulated, through such means as editing and changes of speed, to produce a misleading effect.' Id. at 322 (footnote omitted). She states that the modern trend is to require `that a person with first-hand knowledge of the subject of the movie or video tape testify that it is a fair and accurate portrayal of the subject.' Id. at 322, citing, among others, Tobias,37 Md.App. 605 ,378 A.2d 698 (1977), and McCormick on Evidence § 214. 2 John W. Strong, McCormick on Evidence § 214 (4th ed.1992) states: `[A] photograph is viewed merely as a graphic portrayal of oral testimony, and becomes admissible only when a witness has testified that it is a correct and accurate representation of relevant facts personally observed by the witness.' Id. at 13 (footnote omitted). 3 Charles C. Scott, Photographic Evidence § 1294 (2d ed.1969), says, relative to video tapes, `[V]ideo tape recordings should be admitted in evidence and played back for court and jury on the same basis as ordinary motion pictures on film, subject only to the usual showing of relevancy and materiality and to proper verification.' Id. at 152 (emphasis added).
Cole I,
The State failed to lay an adequate foundation assuring the accuracy of the process that produced the videotape and, thus, the trial court abused its discretion in permitting the admission of the videotape and still photographs therefrom into evidence. Kim testified that the computerized system at Jerry's Bar is comprised of eight cameras, with six cameras located inside of the bar and two cameras located outside of the bar. According to Kim, the system is "almost hands-free" and records constantly, twenty-four hours a day, depending "on the activity of the movement." On the night of the shooting, Kim received a telephone call from Detective Vila, asking him to come to Jerry's Bar and provide police with the surveillance footage in issue. Unable to transfer the data from the computer system to a compact disc himself, Kim asked a "technician" to transfer the data. A compact disc was provided to Detective Vila that night.
The eight cameras recorded automatically onto a computerized system, but the data was transferred onto one rather than eight different discs. There was no testimony dеscribing how the recordings from eight different cameras were compiled into a single viewable format. It was necessary for the "technician" or someone possessing expertise or knowledge of the computerized system and how the data is transferred therefrom to explain whether the videotape was edited and, if so, how it was edited. Despite the fact that the date and time is displayed, the lack of evidence regarding the process of transferring the *716 data from the computerized system to compact disc leaves open the possibility of distortion. See 5 Lynn McLain, Maryland Evidence § 403.6 at 322 (1987) (pointing out that "the courts suspect that movies and tapes may be easily manipulated, through such means as editing and changes of speed, to produce a misleading effect."). Because of the lack of extrinsic evidence showing under what circumstances the surveillance footage was transferred to a compact disc, the trier of fact could not reasonably infer that the subject matter is what the State claims it to be and, thus, the videotape was not sufficiently authenticated.
Nevertheless, we are of the view that the trial court's error in admitting the videotape and still photographs therefrom was harmless beyond a reasonable doubt. See Dorsey v. State,
Although appellant and the State, in closing arguments, declared that the "tape [was] the best evidence," the gravamen of the State's case was Wright's unequivocal identification of appellant as the man who shot him. According to Wright, on the night of the shooting, Wright and appellant engaged in an altercation inside of Jerry's Bar. Thereafter, appellant asked Wright to step outside of Jerry's Bar to "rumble." Wright testified that, once outside of the bar, appellant "whipped out his gun and shot [him]," and that everything "happened real fast."
The most important aspect of Wright's direct-examination was his testimony that he had known appellant for approximately three years. On the night of June 23, 2005, he argued with appellant face-to-face and immediately followed appellant outside to continue their fight, whereupon he wаs shot. From the testimony elicited at trial, there was nothing concealing appellant's identity. Thus, Wright was able to positively and accurately identify appellant as the shooter.
Appellant, however, takes issue with Wright's conclusive identification, pointing to the fact that Detective Vila met with Wright on three separate occasions, including the day before trial, in an effort to have Wright identify his assailant. On those different occasions, Wright either refused to view the photographic array that Detective Vila had prepared or claimed that he needed more time. During the trial, Wright provided a plausible explanation for his failure to identify appellant until the trial. He explained: "I wanted [appellant] to still be out there because, you know, I was going to take advantage myself. I was going to get him." He also said: "I was so mad and angry I wanted you know, I was going to deal with it. myself." Wright testified that, although he was still "mad," he decided to come to court because he thought "it's best."
Additionally, Jennings, who "helps [Jerry's Bar] out," saw Wright and appellant inside of the bar on the night of the shooting. He testified that Wright, whom he had known as "Juice,"[9] "had a few words *717 with a couple guys in the bar and [appellant] was one of them." According to Jennings, at some point, Wright and appellant went outside of the bar. Moreovеr, in a statement to police, Jennings identified appellant's photograph and wrote on the back of the photograph, "I saw [appellant] outside arguing with Juice" and signed his name. During trial, however, Jennings claimed that police officers told him what to write in his statement and refused to allow him to leave the station until he gave that statement. Burrell, after the State refreshed his recollection with his taped statement to police, confirmed the testimony of Jennings by testifying that appellant "had been in and out" of Jerry's Bar on the evening of the shooting.
Upon our independent review of the record, we can affirmatively say beyond a reasonable doubt that the trial court's error in admitting the videotape and still photographs without proper authentication did not in any way influence appellant's verdict. Lawson v. State,
II
Appellant next complains that the trial court compounded the error of improperly admitting the videotape and still photographs therefrom by allowing Detective Vila, who was not present at the time of the shooting "to repeatedly imply that an individual in the videotape and photographs excerpted from the video was [appellant]."[10] The State responds that the trial court properly exercised its discretion in allowing the detective to relate his observations regarding the videotape and still photographs therefrom to the jury, while expressly precluding the detective from identifying appellant as one of the individuals depicted.
Pursuant to Maryland Rule 5-701, "If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue." Id.; see also Goren v. United States Fire Ins. Co.,
The requirement that the lay opinion testimony be helpful to the trier of fact precludes a lay witness from offering conclusions and inferences that the jury is capable of making on its own when analyzing the evidence. See Baltimore & Y. Turnpike Road v. Leonhardt,
Permissible lay opinion testimony generally falls into one of two categories. The first category is "where it is impossible, difficult, or inefficient to verbalize or communicate the underlying data observed by the witness." Robinson v. State,
The second category is when the "the lay trier of fact lacks the knowledge or skill to draw the proper inferences from the underlying data." Robinson,
In Robinson v. State, supra, two State troopers testified as lay witnesses and expressed the opinion that, based on their training and experience, the alleged contraband was in fact crack cocaine and not simply that the disputed substance looked like crack cocaine. Id. at 120-21,
Our decision in Goren v. United States Fire Ins. Co.,
We said in Goren: "[W]hen . . . the [lay] witness is `pulling together' his observations and is therefore testifying to conclusions, the trial judge should not admit such testimony." Goren,
In the case sub judice, Detective Vila, a twelve-year veteran of the Baltimore City Police Department, testified on behalf of the State about his investigation. During the State's direct examination, a videotape and a series of still photographs thereof were shown to Detective Vila and the court. As Detective Vila watched the videotape with the jury, he narrated the action that had been captured. The State then questioned the detective regarding his observations of several still photographs. Appellant takes issue with Detective Vila's testimony, claiming that he "implicitly" identified appellant.
Detective Vila informed the court that the photographs marked as "State's Exhibit's 2A", "2B," "2D" and "2E," were all recorded at 8:23 p.m. inside of Jerry's Bar.[11] According to Vila, one of the individuals pictured in 2A wore a white T-shirt, blue jeans and a T-shirt or rag on his head. While testifying to his observations of the still photograph marked "2B," the State asked, "What, if any observations did you make regarding the shoes of the Defendant?" The court sustained appellant's objection to the State's reference of the individual as the "Defendant." The court, over appellant's objections, however, allowed the State to question Detective Vila regarding his observations of the individual.[12] Later, the detective testified that, in the photograph labeled "2D," the individual had a goatee and was seen wearing a *720 large watch on his left wrist and another piece of large jewelry on his right wrist. According to Detective Vila, photograph 2E depicts "the backside of the same individual we discussed on 2D."
The State also showed Detective Vila photographs marked as "State's Exhibit 2C" and "21" that were taken at 9:52 p.m. inside of Jerry's Bar, moments before the shooting. The detective informed the jury that the individual depicted is the "same individual depicted in photograph 2A and 2B, but without a rag or T-Shirt on his head." Detective Vila later testified that the individual in 21 is "the same individual [he] saw on 2C, this time with no bandanna or head gear and a watch on the left wrist, shoelaces on the shoes hanging out."
Additionally, Detective Vila informed the jury that the photograph marked as "State's Exhibit 2G," which was recorded at 9:53 p.m. outside of Jerry's Bar, depicted an "individual wearing a pink hat falling to the ground" and an "individual wearing a white T-shirt, the blue jeans at a distance [sic]."
Appellant argues that, because the State presented witnesses who testified that appellant was known to wear a T-shirt or rag on his head, Detective Vila was essentially allowed to testify that appellant was at the scene of the shooting. Appellant's argument is without merit. The State presented relevant testimony to make its case and stopped short of asking the detective whether the individual shot Wright or was appellant. Accordingly, Detective Vila's testimony consisted primarily of underlying factual observations. Cf. Robinson,
Furthermore, appellant cites no authority to support his contention that the trial court erroneously permitted the detective to make an "implicit" identification. Instead, appellant relies on case law from other jurisdictiоns regarding the admissibility of witness testimony explicitly identifying an individual pictured in a photograph or videotape as the defendant. See, e.g., Robinson v. Colorado,
The detective, however, did testify that the individual pictured in the photographs taken at 9:52 p.m. was the same individual pictured in the photographs taken at 8:23 p.m., but without a rag or T-shirt on his head. Assuming, arguendo, that this testimony constituted an "opinion," the trial court did not abuse its discretion. See Md. Rules 5-104(a) & 5-403 (2007); Tate v. State,
The State claims that the detective's testimony was helpful to the jury because the detective explained his observations in reference to his investigation. Appellant, however, insists that, in light of the videotape and photographs shown during trial and also available during deliberations and considering that appellant was seated in *721 the courtroom, the jury possessed the knowledge and skill to draw its own inferences from the photographs. It is for this same reason, however, that the detective's testimony was harmless. Cf. Goren,
The trial court, in our judgment, did not abuse its discretion in permitting lay opinion testimony.
III
Appellant assigns error to the trial court's issuance of "improper, repetitive, and improperly worded Allen[13] charges to the jury." Specifically, appellant argues that, because the jury had neither indicated that it was deadlocked nor deliberated for excessive amounts of time, the Allen instruction was premature and, thus, improper. Appellant further contends that the court compounded its initial error by issuing another Allen charge, using antiquated language that has been expressly prohibited by Maryland's appellate courts. The State, however, refutes appellant's claim of coercion and argues that any error or abuse of discretion committed by the trial court did not affect the jury's verdict.
The Court of Appeals in Kelly v. State,
In an effort to be of assistance to trial courts, however, the Court suggested guidelines for employment of the charge. Briefly stated, the guidelines are:
1) that before the jury retires, the American Bar Association[[14]] approved charge is `always proper';
*722 2) that if the trial judge desires to `personalize' the charge given before the jury retires he has greater latitude in doing so then than [sic] later;
3) that after the jury retires the trial court `should closely adhere to the wording of the American Bar Association recommended instruction'; and that in the absence of such adherence a reviewing court will carefully scrutinize the language of the charge to determine whether the jury has bеen coerced or its province invaded.
Burnette,
A charge which departs from the recommended instruction will be closely scrutinized to insure that the charge conforms to the intent of the American Bar Association's developed standards. Id. at 97-98,
Turning to the facts, the jury, after deliberating for an hour and a half, sent a written question to the court asking, "What is assault in the first degree and what is assault in the second degree? Can you clarify?" The court subsequently summonsed the jury into the courtroom and re-instructed it regarding the definitions of first-degree and second-degree assault. Immediately thereаfter, the court reminded the jury:
Your verdict must be unanimous. You must consult with one another and deliberate with a view in reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.
During deliberations do not hesitate to re-examine your own views. You should change your opinion if convinced *723 you are wrong, but do not surrender your honest belief as to the weight of the evidence only because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict.[15]
Appellant argues that the court's sua sponte issuance of the abovementioned modified Allen charge was premature and, thus, akin to the reversible Allen-type instruction issued in Miller v. State,
In Fletcher v. State, supra, we reversed a defendant's conviction because the trial judge, after one hour and five minutes of jury deliberation and without having received any communication from the jury indicating that it was deadlocked, interrupted deliberations and issued an Allen charge. Id. at 158,
Conversely, in Stewart v. State,
Prior to the trial court's sua sponte issuance of the Allen-type instruction, in the case sub judice, the jury had deliberated for one hour and a half before returning to the courtroom to have its questions regarding the definition of first-degree and second-degree assault resolved. The jury neither indicated that it was deadlocked nor that it was having difficulty reaching an agreement. Charged with weighing three days of evidence to reach a verdict on seven different counts, the one and one half hours of deliberations cannot be considered excessive. See Fletcher,
Although it would have been preferable for the trial judge to wait until the jury either directly or indirectly communicated that it was deadlocked, the Allen-type charge was undoubtedly non-coercive. After submitting its question regarding assault in the first and second degree, the jury was summoned into the courtroom by the trial judge. Appellant requested that the court re-instruct the jury on reasonable doubt. The trial court granted appellant's request and included instructions on the presumption of innocence and the jury's obligation to be impartial. Reiterating the pattern instruction on the duty to deliberate along with the other general instructions was not coercive. Furthermore, the record clearly reflects that the jury was not coerced, as it later announced that it was deadlocked on the count of attempted second-degree murder.
Without reaching an agreement that night, the jury was releаsed for the evening. Less than thirty minutes into deliberations the next day, the jury communicated to the court, at 10:46 a.m., "We are definitely deadlocked on question two on the verdict sheet. Everything else is agreed upon." The court subsequently called the jury into the courtroom. When asked if "further discussion would be helpful," the forelady answered in the negative. Over appellant's objection, the court instructed the jury:
[Y]our verdict must be unanimous. Your [sic] further instructed that there are many there may be cases in which absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror as a result of his or her own conviction and not a mere acquiescence in the conclusions of your fellow jurors.
Each of you should examine the questions submitted with candor and with a proper regard indifference [sic] to the opinions of your fellow jurors. It is your duty, ladies and gentlemen of the jury, to decide this case if you can conscientiously do so. You should listen with a disposition to be convinced to each other's arguments. If your views are contrary to those of the vast majority you should consider whether your views which make no impression on the minds of so many equally intelligent jurors are correct.
You're again reminded that your verdict must be the [sic] unanimous. You must consider the evidence and weigh the evidence in light of the discussions of your fellow jurors. Under the circumstances, madame forelady, in light of the fact that you've only been deliberating for an hour, this court is sending you back for further deliberations in this matter.
Even though the employment of the Allen charge appears justified given the jury's statement that it was deadlocked, for an Allen charge to be proper, "it must be couched in language and delivered in a *725 manner to avoid `savoring of undue pressure or coercion to reach a verdict.'" Miller,
Similar to the ABA instruction, the trial court's charge pays attention to the important principle that honest judgment, and not mere acquiescence, should be the basis of a juror's decision. The instruction places emphasis on the fact that questions are to be considered with "proper regard and deference to the opinion of others." Although a definition of the phrase "proper regard and deference" is not given, the jury is later told that, "[i]f your views are contrary to those of the vast majority you should consider whether your views, which make no impression on the minds of so many equally intelligent jurors, are correct." (Emphasis added). Consequently, the charge focuses on the minority, portraying it somehow as the cause of the deadlock.
The trial judge in Burnette issued an Allen-type charge using identical language. The Court of Appeals opined that "[i]t is difficult to imagine a minority juror who would not be placed in some discomfort on hearing this instruction. Criticism runs directly to him, and he might understandably conclude that proper `deference' to the opinions of the majority demands that he abandon his conscientious position." Id. at 100,
While the trial court's instruction clearly deviated in substance from the ABA's recommended charge, it was not coercive. Prior to the trial court's issuance of a second Allen-type charge, the jury announced that it was hung on the count of attempted second-degree murder. Even after the instruction, the jury remained deadlocked on the count. Because it is unquestionable that the jury was not coerced into convicting appellant of the assault and handgun charges, the conviction may stand.
IV
Appellant complains that there was insufficient evidence to convict him of Count seven, unlawfully possessing a regulated firearm, to wit, an unknown caliber handgun. Specifically, appellant argues that the State failed to prove beyond a reasonable doubt that he possessed a regulated firearm with a barrel less than sixteen inches long. The State contends, however, that appellant did not raise the claim sub judice in support of his motion for judgment of acquittal and, thus, the issue is not preserved on appeal. Advancing its argument, the State asserts that, even if preserved, there was sufficient evidence to support appellant's conviction.
Appellate review of an insufficiency of evidence claim is available only for the reasons given by appellant in his motion for judgment of acquittal. Taylor v. State,
*726 The standard for appellate review of evidentiary sufficiency is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the еssential elements of the crime beyond a reasonable doubt." State v. Suddith,
Section 5-133(b)(1)[17] of the Public Safety Article of the Maryland Annotated Code prohibits a person from possessing a regulated firearm if the person has been convicted of a disqualifying crime. (Emphasis added). A regulated firearm includes a handgun. § 5-101(p)(1). A handgun is defined as a firearm with a barrel less than sixteen inches in length. § 5-101(n)(1).
Because the parties stipulated that appellant had been convicted of a disqualifying crime, the State was required to prove beyond a reasonable doubt that appellant possessed a firearm with a barrel less than sixteen inches in length. Brown v. State,
There is no question that the gun at issue was concealed on appellant's person when appellant called Wright outside. Furthermore, Wright testified that, once outside, appellant "whipped out his gun" and shot him. Based on the circumstantial evidence, the jury could reasonably infer that the gun's barrel was less than sixteen inches long. See Black's Law Dictionary 243 (6th ed.1990) ("Circumstantial evidence" is defined as "Evidence of facts or circumstances from which the existence or nonexistence of fact in issue may be inferred. Inferences drawn from facts proved.").
The evidence was sufficient to support appellant's conviction of unlawfully possessing a regulated firearm.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
NOTES
Notes
[1] On June 2, 2006, the State entered a nolle prose qui as to the charge.
[2] Appellant's conviction for second-degree assault merged for the purposes of sentencing.
[3] Allen v. United States,
[4] The parties stipulated that what was on the disc was transferred to a VHS tape for the purpose of showing the video in court. Appellant, therefore, takes issue with the original copy that was delivered to Detective Vila.
[5] The Court of Appeals opinion which reversed our decision will be referred to as Cole II and the opinion of this Court, Department of Public Safety and Correctional Services v. Cole,
[6] A Regiscope camera simultaneously photographs a person cashing a check, the identification used by that person and the check itself, by means of a two-lens camera. Sisk,
[7] Regarding the purpose for introducing the videotape, while the record does not reveal whether the State had been informed that Wright would, in fact, identify appellant at trial, the purpose may not be determined from the sequence of the receipt of the evidence.
[8] Notably, the vagaries of courtroom identifications are not at issue in this case because it is undisputed that Wright had known appellant for three years prior to the shooting. The only issue presented is the credibility of his explanation as to why Wright did not identify appellant prior to trial.
[9] According to Jennings, Wright is known as "Juice" because he likes to drink and was "drunk" the night of the shooting. Wright testified, however, that he had only one drink of Bacardi Rum.
[10] Because we determined that the admission of the videotape and still photographs was harmless, we focus our discussion on whether Detective Vila's testimony regarding his observations of the videotape was proper.
[11] On each photograph was the date, June 23, 2005 and the military version of the time.
[12] Although appellant points to this ruling in support of his claim regarding "implicit" identification, appellant failed to object when the court ruled that the detective could refer "to the individual depicted" and did not request a curative instruction or additional action by the court.
[13] The term "Allen charge" is derived from Allen v. United States,
[14] The following is the ABA approved Allen-type instruction before the jury begins its deliberations:
The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your hоnest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. You are not partisans. You are judges-judges of the facts. [Note: In 1980, the Court of Appeals in Stevenson v. State,
Kelly,
[15] The court also issued this exact instruction before the jury was excused to deliberate.
[16] With the exception of the court's statement, "We do not feel there is anything technical to be decided here. It's a question of arriving at a judgment," the language employed was identical to the language approved by the Court of Appeals. Id. at 157,
In the instant case, the trial judge's charge to the jury is the exact language of the Maryland Criminal Pattern Jury Instruction for the "Jury's Duty to Deliberate." In accordance with case law, the "Notes on Use" provide that the "instruction may be given before the jury deliberates and/or if the jury becomes deadlocked." MPJI-Cr 2:01 (2006).
[17] Unless otherwise indicated, the Court will refer to Maryland Code, Public Safety Article §§ 5-101 to End (2006).