Nicholson v. State
Nicholson v. State
Opinion
Berger, J.
*233 This 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 *483 of marijuana with intent to distribute.
3. Whether the indictment against Nicholson supported a charge of second-degree felony murder.
For the reasons explained herein, we shall affirm the judgment of the circuit court.
FACTS AND PROCEEDINGS
I. Shooting and Arrest
On 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.
Nicholson 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 *234 sandwich bags was seized from the top of the dresser in the master bedroom. Nicholson's vehicle was seized the same day.
II. Nicholson's Statement
While 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 me."
Nicholson 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.
Nicholson 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 *235 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 *484 down to the ground I remember hearing a bunch of shots.
Nicholson 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.
When the detectives pressed Nicholson on his story, Nicholson insisted:
[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.
Nicholson 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.
*236 III. The Trial
Nicholson 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.
A. Eyewitness Testimony
Lewis 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.
Sylvester 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.
*237 Wambui heard gunshots and saw someone exit the driver's *485 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.
B. Additional Evidence
The 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.
The 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.
Sgt. 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 dangerous.
The 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."
*238 IV. Motion for Judgment of Acquittal
At the 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 conceive --
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 we have, he put a gun to his head. I do not --
THE COURT: As long as he's running away and you shoot him that's, starts to sound more like murder.
Nicholson also argued that selling marijuana is not an inherently dangerous felony that would support a second-degree felony murder charge.
The trial judge denied Nicholson's motion and proceeded to instruct the jury. When Nicholson requested an instruction on self-defense, the trial judge responded, "I don't think that self-defense was generated in this case."
*486 V. Conviction and Sentencing
The jury found Nicholson guilty of possession of marijuana with intent to distribute, conspiracy to distribute marijuana, and second-degree felony murder. The circuit court sentenced Nicholson to twenty-five years in prison, five years suspended, for second-degree felony murder, and to a concurrent sentence of five years for conspiracy. The court also placed Nicholson on five years of supervised probation. Nicholson timely appealed.
*239 DISCUSSION
I. The Circuit Court's Refusal to Instruct the Jury on Self-Defense Was Harmless Error.
A. The Circuit Court Erred In Refusing to Instruct the Jury on Self-Defense.
Nicholson argues that he "clearly met his burden to produce at least 'some evidence' ... which would permit a jury to find that he acted in perfect self-defense." The State contends that Nicholson's claim of self-defense was inconsistent with both the forensic evidence and Nicholson's own statement to the police. We hold that Nicholson presented sufficient evidence to generate the issue of self-defense, and that the circuit court erred in refusing to propound the requested instruction.
We review a trial court's decision to give or refuse a jury instruction under the abuse of discretion standard.
Stabb v. State
,
"For an instruction to be factually generated, the defendant must produce 'some evidence' sufficient to raise the jury issue."
Arthur v. State
,
Some evidence is not strictured by the test of a specific standard. It calls for no more than what it says -- "some," as that word is understood in common, everyday usage. It need not rise to the level of "beyond reasonable doubt" or "clear and convincing" or preponderance. The source of the evidence is immaterial; it may emanate solely from the defendant. It is of no matter that the self-defense claim is overwhelmed by evidence to the contrary. If there is any evidence relied on by the defendant which, if believed, would support [defense], the defendant has met his burden.
Arthur
,
supra
,
*487
General v. State
,
Turning to the present case, the State argues that an instruction on self-defense was not generated by the evidence. We disagree. The record shows that Nicholson presented "some evidence" to support each element of perfect self-defense. The elements of perfect self-defense in Maryland are well established:
(1) The accused must have had reasonable grounds to believe himself in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant;
(2) The accused must have in fact believed himself in this danger;
(3) The accused claiming the right of self-defense must not have been the aggressor or provoked the conflict; and
(4) The force used must have not been unreasonable and excessive, that is, the force must not have been more force than the exigency demanded.
*241
Holt v. State
,
The jury was presented with evidence that Nicholson was reasonably afraid for his life when he killed Johnson. Nicholson told the police that two men attempted to rob him at gunpoint, and that one of the men threw him to the ground and shot at him. Nicholson stated that he struggled with the assailant and grabbed his gun. Nicholson admitted that he may have "turn[ed] the gun" on his assailant during the struggle, but he said that his memory was "blurry" because he "was scared as shit." Nicholson's assertion that he was robbed at gunpoint and shot at is consistent with what police found at the crime scene, namely, a loaded firearm in Johnson's hand and a loaded firearm found near the wounded Carpentieri. The State's tool mark examiner later testified that both of these weapons had been fired. Nicholson's assertion that he may have shot one of his assailants during a physical struggle was consistent with the medical examiner's testimony that Johnson had been shot in the chest at very close range.
Nicholson also presented evidence that Johnson and Carpentieri were the aggressors and that Nicholson used reasonable force to defend himself against violent assailants with loaded firearms. According to Nicholson's statement, he was simply trying to conduct a drug sale when Johnson and Carpentieri drew their weapons on him unprovoked and attempted to rob him. Nicholson maintained that neither he nor Stewart were armed. Nicholson told the police that he may have shot one of the men during a struggle, at which point Nicholson rolled under a vehicle and waited for the shooting to stop. Although these claims are supported by no evidence beyond Nicholson's own statement to the police, "[t]he source of the evidence is immaterial; it may emanate solely from the
*242
defendant."
Arthur
,
supra
,
To be sure, Nicholson's statement is contradicted on many points by other evidence in the record. The State's tool mark examiner testified that Johnson and Carpentieri were shot by a third firearm that was never found, suggesting that Nicholson
*488
was, in fact, carrying his own gun and used it to kill Johnson. The State's forensic expert also testified that Johnson and Carpentieri were shot by the same gun, suggesting that Nicholson was also responsible for shooting Carpentieri. This testimony was especially damaging to Nicholson's self-defense claim because Carpentieri had gunshot wounds on his back and thigh, suggesting that Nicholson fired multiple times on Carpentieri while Carpentieri was fleeing. Nevertheless, "what evidence to believe, what weight to be given it, and what facts flow from that evidence are for the jury, not the judge, to determine."
Dykes
,
supra
, 319 Md. at 224,
The State argues that Nicholson's statement cannot generate the issue of self-defense because Nicholson never admitted to shooting anyone. To be sure, Nicholson's remarks on this question were equivocal. At one point in his statement, Nicholson flatly denied shooting Johnson while admitting, in the same breath, that it was possible:
But I wasn't the shooter. I didn't shoot him. I didn't shoot not one person and if I did shoot the dead guy it was during the tussle and it was with his gun.
Nevertheless, Nicholson admitted to being at the scene of the shooting, to "tussling" with one of the victims, and to grabbing the victim's gun. Nicholson admitted that he may have shot one of the men. Furthermore, the State introduced other evidence at trial supporting a finding that Nicholson was the shooter, including Wambui's testimony about the shadowy figure shooting down from the driver's side of V1. This *243 evidence, combined with the evidence that Nicholson was a victim of armed robbery, was sufficient to generate the issue of self-defense.
The State contends that "in order for the jury to believe that Nicholson acted in self-defense and shot Johnson and Carpentieri, the jury would have had to reject either the forensic evidence or Nicholson's claim that he did not have a gun." In essence, the State argues that Nicholson may not rely on a combination of contradictory evidentiary sources to generate a factual issue for a jury instruction. We disagree. "In its assessment of the credibility of witnesses, [a fact-finder is] entitled to accept -- or reject --
all, part, or none
of the testimony of any witness, whether that testimony was or was not contradicted or corroborated by any other evidence."
Omayaka v. Omayaka
,
The State argues that a jury instruction on self-defense would have been inconsistent with Nicholson's attempt to prove at trial that he was not the shooter. The Court of Appeals has made it clear, however, that "a defendant is entitled to have the jury instructed on any theory of defense that is fairly supported by the evidence, even if several theories offered are inconsistent."
Sims v. State
,
B. The Circuit Court's Refusal to Instruct the Jury on Self-Defense Was Harmless Error.
The State argues that "any error by the trial court in refusing to give the [self-defense] instruction was harmless." We agree. The Court of Appeals has explained the harmless error test in the following terms:
[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed 'harmless' and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of -- whether erroneously admitted or excluded -- may have contributed to the rendition of the guilty verdict.
Dionas v. State
,
In the case
sub judice
, Nicholson was acquitted of first and second-degree murder. Consequently, the circuit court's error was harmless with respect to these two charges.
1
The only
*245
conviction returned by the jury that might have been affected by the presence or absence of a self-defense instruction was second-degree felony murder. "It has been established," however, "that self-defense is not a defense to felony murder."
Sutton v. State
,
Nicholson argues that our holding in
Sutton
only applies to cases of felony murder where the underlying felony involves force or the threat of force. According to Nicholson, the principle that "self-defense is not a defense to felony murder" is merely a general rule arising from "the fundamental concept that the accused claiming the right of self-defense must not have been the aggressor or provoked the conflict."
Sutton
,
supra
,
Nicholson reads
Sutton
too narrowly. In
Sutton
, the defendant was charged with first-degree assault, felony murder, and robbery with a deadly weapon.
To be sure, in
Sutton
we went on to discuss a body of case law holding that someone who commits robbery is an aggressor
as a matter of law
and therefore cannot claim self-defense if he kills the target of the robbery.
Sutton
,
supra
,
Our discussion of this case law, however, need not be construed as narrowing the general principle that "self-defense is not a defense to felony murder." Indeed, one of the cases we cited was
Smith v. Tennessee
,
[T]he person who kills another while engaged in committing a felony cannot *491 escape conviction from murder in the first degree, by showing that his intent was not to kill, but to defend his own life or person ....
Id.
at 455,
Furthermore, Nicholson's argument is contrary to the purpose of Maryland's felony murder law. "[S]econd-degree felony murder is an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in [Crim. Law] § 2-201."
State v. Jones
,
The modern version of the [felony murder] rule is intended to deter dangerous conduct by punishing as murder a homicide resulting from dangerous conduct in the perpetration of a felony, even if the defendant did not intend to kill. If the felonious conduct, under all of the circumstances, made death a foreseeable consequence, it is reasonable for the law to infer from the commission of the felony under those circumstances the malice that qualifies the homicide as murder.
Fisher v. State
,
In convicting Nicholson of second-degree felony murder, the jury necessarily found that Nicholson's felonious conduct was inherently dangerous, and Nicholson does not challenge that finding on appeal. Indeed, the jury could have reasonably inferred from the evidence that Nicholson arrived at the rendezvous armed and prepared to use violence as necessary to protect himself and his product. Furthermore, the dollar value of the marijuana being sold -- $3,200 -- suggested that the stakes were high and potentially dangerous. It was Nicholson's decision to engage in an inherently dangerous felony that resulted in the killing of Johnson; to the extent that Nicholson was confronted with a dangerous situation, he was responsible for creating that situation. We, therefore, decline to depart from the general rule, clearly stated in Sutton , that self-defense is not a defense to felony murder.
Although we need not look beyond Maryland case law to resolve this question, we note that Nicholson cites a number of cases from other jurisdictions to support the proposition that self-defense is applicable to felony murder in some circumstances. In our view, none of these cases is on point. In
Perkins v. State
,
Nor do we find in
Commonwealth v. Fantauzzi
,
We conclude that the general rule that self-defense is not applicable to felony-murder does not apply in the circumstances of this case. Where the felony was not inherently dangerous , and the defense was based on the assertion that the defendant was not the aggressor and initiator of the violence, an instruction on self-defense in relation to felony-murder should have been given.
In sum, the record demonstrates that Nicholson produced sufficient evidence to generate the issue of self-defense. It does not matter that Nicholson denied being the shooter or that the forensic evidence undermined Nicholson's statement to the police. Nicholson was entitled to the jury instruction, and the circuit court erred in refusing to propound it. Nevertheless, the error did not prejudice Nicholson because he was acquitted of all homicide charges except for felony murder, which cannot be justified by self-defense. Accordingly, we hold that, under these circumstances, the circuit court's error was harmless beyond a reasonable doubt.
II. The Evidence Was Sufficient to Sustain Nicholson's Conviction for Possession with Intent to Distribute.
Nicholson argues that "[b]ecause the State failed to present independent evidence corroborating the offense of possession of marijuana with intent to distribute it, the conviction must be reversed." Nicholson notes that a reversal of the conviction for the predicate felony would also necessitate a reversal of the felony murder conviction. The State argues that Nicholson's statement to the police was substantially corroborated by eyewitness testimony *493 and circumstantial evidence. We agree with the State.
As a preliminary matter, we must determine whether Nicholson properly raised this issue at the trial level. At the close of evidence, a defendant may move for a judgment of acquittal. Md. Rule 4-324(a). The defendant must "state with particularity all reasons why the motion should be granted." Md. Rule 4-324(a). Maryland courts have repeatedly held that where a particular ground for a motion for judgment of acquittal is not raised at trial, any appellate review on those grounds is waived.
See, e.g.
,
Starr v. State
,
*251 In his motion for judgment of acquittal, Nicholson's counsel did not explicitly argue that Nicholson's confession was insufficient to sustain the conviction. The relevant exchange in the transcript is as follows:
[DEFENSE COUNSEL]: -- just one more issue.
As to the marijuana, even though my client indicated that it was a marijuana sale I don't believe there's any marijuana recovered or any corpus as to any marijuana.
THE COURT: Well we have an extensive discussion by your client about --
[DEFENSE COUNSEL]: Yes.
THE COURT: -- his marijuana.
[DEFENSE COUNSEL]: Abso, absolutely.
THE COURT: And the proceeds of some drug sales in his pocket.
[DEFENSE COUNSEL]: Not that day. I mean he didn't have proceeds.
THE COURT: Well I don't know, but January 10th I don't know what that money was from.
[DEFENSE COUNSEL]: Oh, --
THE COURT: Just that he had a lot of money in his pocket; right?
For whatever reason Detective Bollinger --
[DEFENSE COUNSEL]: $300.00
THE COURT: -- gives it back to him.
[DEFENSE COUNSEL]: Correct.
THE COURT: Or to --
[DEFENSE COUNSEL]: Ms. Lewis
THE COURT: -- someone connected with him.
[DEFENSE COUNSEL]: Yes.
THE COURT: All right, the motion is denied at this time.
Although Nicholson's counsel challenged the evidentiary basis of the conviction in a general sense, he did not state the particular legal grounds that he now raises on appeal, namely, that a criminal conviction cannot rest solely on an uncorroborated *252 confession. Accordingly, it is not clear to us that Nicholson preserved this issue for appeal.
Assuming arguendo that the issue was preserved, it is without merit. This Court recently discussed the standard of review for sufficiency of the evidence to support a conviction:
When reviewing the sufficiency of the evidence to support a conviction, we determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Smith ,374 Md. 527 , 533,823 A.2d 664 (2003) (emphasis added). Our role is not to retry the case: "[b]ecause the fact-finder possesses the unique opportunity to view the evidence and to observe first-hand the demeanor and to assess the credibility of witnesses during their live testimony, we do not *494 re-weigh the credibility of witnesses or attempt to resolve any conflicts in the evidence." Smith v. State ,415 Md. 174 , 185,999 A.2d 986 (2010) (citations omitted).
Cagle v. State
,
Here, Nicholson challenges a conviction for possession of marijuana with intent to distribute. To possess something is "to exercise actual or constructive dominion or control" over it. Crim. Law § 5-101(v). Possession of contraband need not be exclusive or actual to sustain a conviction.
Cable v. State
,
1) proximity between the defendant and the contraband, 2) the fact that the contraband was within the view or otherwise within the knowledge of the defendant, 3) ownership or some possessory right in the premises or the automobile in *253 which the contraband is found, or 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the contraband.
Belote v. State
,
In the case
sub judice
, Nicholson told police that he arranged for Stewart to bring a pound of marijuana to Lower Gate Court to sell to "Man," and that Nicholson would get a "cut" of the proceeds. The trial court instructed the jury that they could find Nicholson guilty of possession with intent to distribute marijuana "as an accomplice even though the Defendant did not personally commit the acts that constitute that crime."
See
Grandison v. State
,
Nicholson's confession, standing on its own, provides fairly strong evidence that Stewart was in possession of a pound of marijuana and intended to sell it to Carpentieri with the assistance of Nicholson as an accomplice. In his statement to the police, Nicholson admitted that he "sell[s] weed." Nicholson recounted that he received a text message from someone named "Man" who "wanted to buy a pound" of marijuana. Nicholson told the police that he did not have that amount of *254 marijuana, so he contacted Stewart, who agreed to provide the product and give *495 Nicholson "a cut." Nicholson told the police that he met Stewart at Lower Gate Court with the purpose of selling the marijuana to "Man." Nicholson admitted that Stewart and the potential buyers got into his vehicle, and that Stewart brought the marijuana with her. A jury could also infer from Nicholson's narrative that he had joint or constructive possession of the marijuana brought by Stewart into Nicholson's vehicle, inasmuch as Nicholson was near it, knew about it, owned the vehicle it was in, and participated in selling it. Indeed, Nicholson told the police that the assailants "took my weed," indicating that Nicholson exercised some dominion or control over the contraband.
As Nicholson correctly points out, the State could not rely solely on his extrajudicial confession to prove the possession charge. "Maryland follows the general rule that, as a matter of substantive law, a criminal conviction cannot rest solely on an uncorroborated confession."
Miller v. State
,
Critically, Nicholson's confession was corroborated on every important point. Nicholson's statement that Stewart had access to a pound of a marijuana was corroborated by text messages between Stewart and Reeves indicating that Stewart had given Reeves approximately half a pound of marijuana, and that Stewart had kept the other half. Nicholson's statement that Stewart met him at Lower Gate Court and got into his vehicle was corroborated by the testimony of Wambui, *255 Vega, and Piechowski. Wambui testified that he saw someone exit V2 and enter V1 prior to the shooting. Vega's testimony indicated that the person who exited Nicholson's vehicle and drove away was a woman. Piechowski took a photograph of the license plate of the vehicle that the woman was driving. The police confirmed that the vehicle was a Kia Sportage that was accessible to Reeves.
Nicholson's statement that he had arranged the rendezvous for the purpose of selling marijuana was corroborated by the items found in Nicholson's home: two scales with marijuana residue on them, two bags containing marijuana, and a box of sandwich bags on top of the dresser in the master bedroom. The version of events in Nicholson's statement was further corroborated by the text messages introduced into evidence by the State. Carpentieri wrote to Nicholson at 8:25 p.m., "43 Lower Gate Court, Owings Mills." In another message, Carpentieri wrote, "you got it?" Nicholson responded, "Yeah." At 10:32 p.m., Nicholson wrote to Carpentieri, "Rdy. Pull up." Carpentieri responded, "Rd, I'm coming now."
More broadly, a jury could infer from the circumstantial evidence that Nicholson, Stewart, and Carpentieri met at Lower Gate Court on January 7, 2016 for the purpose of conducting a drug sale. Notably, the rendezvous took place in a parking lot at night, with people from three differing vehicles entering a single vehicle. Two of the participants had access to marijuana. Among the participants was an apparent marijuana dealer and someone with *496 access to a pound of marijuana. At least three of the participants were armed, and the meeting ended in a violent shootout. Indeed, the most plausible explanation for the events that occurred that night is a drug deal gone awry.
As the foregoing makes clear, the State did not rely solely on Nicholson's extrajudicial confession to prove the possession charge. Instead, the State presented evidence corroborating Nicholson's admission that Stewart was in possession of one pound of marijuana, which she brought to Lower Gate Court with the intention of selling, and that Nicholson was an *256 accomplice to this crime. A jury could also infer from this evidence that Nicholson, as a marijuana dealer himself, was a co-seller of the marijuana, who had joint or constructive possession over the contraband that Stewart brought into his vehicle and intended to sell it for a share of the profits. Nicholson's confession and the evidence corroborating that confession were more than sufficient to sustain a conviction for possession of marijuana with intent to distribute.
III. The Circuit Court Properly Submitted the Charge of Second-Degree Felony Murder to the Jury.
Nicholson claims that "[t]he trial court erred in submitting to the jury a charge of second-degree felony murder, which was not contained in the indictment and was not a lesser included offense of any charge contained in the indictment." We disagree.
Crim. Law § 2-208 provides the statutory short-form indictment for murder and manslaughter:
(a) An indictment for murder or manslaughter is sufficient if it substantially states:
"(name of defendant) on (date) in (county) feloniously (willfully and with deliberately premeditated malice) killed (and murdered) (name of victim) against the peace, government, and dignity of the State."
The State's criminal indictment against Nicholson clearly satisfies the requirements of Crim. Law § 2-208 :
CARLOS LEVELL NICHOLSON, on or about 1/7/2016, in Baltimore County, did feloniously, willfully and with deliberately premeditated malice kill and murder one Treshawn Johnson; against the peace, government, and dignity of the State. (First Degree Murder, Criminal Law Article 2-201 and 2-208, 1 0990)[.]
Notably, the Court of Appeals has held that the statutory short-form indictment is sufficient to charge first-degree premeditated murder, second-degree murder, manslaughter, and felony murder.
Dishman v. State
,
*257
McMillan v. State
,
Nicholson concedes that the short-form indictment used by the State is sufficient to charge most kinds of murder. He denies, however, that the short-form indictment is sufficient to charge second-degree felony murder. Nicholson appears to believe that the only reason the short-form indictment can be used to charge second-degree murder and manslaughter is that these charges are lesser included offenses of first-degree premeditated murder. Nicholson argues that second-degree felony murder must be charged explicitly and separately because it is not a lesser included *497 offense of first-degree felony murder or any other form of murder charged by the short-form indictment.
The basic assumption behind Nicholson's argument is incorrect. In Dishman , the Court of Appeals made it clear that its holding was not based on a "lesser included offense" analysis:
While some of these [prior] cases refer to second degree murder and manslaughter as lesser offenses of first degree murder, the language makes clear that an indictment under § 616 4 alleging first degree murder also charges second degree murder and manslaughter.
Supra
,
By its plain language, Crim. Law § 2-208 applies to
any
"murder or manslaughter" charge, and Maryland appellate courts have consistently rejected attempts to narrow the range of homicide charges supported by the short-form indictment.
See
McMillan
,
supra
,
JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Even if the verdict in Nicholson's case were to be reversed, and his case remanded for a new trial, the State may not prosecute Nicholson a second time for first and second-degree murder.
See
Ashe v. State
,
Because Missouri statutory law makes self-defense inapplicable to forcible felonies,
see
Oates
,
supra
,
Nicholson also cites
Davis v. State
,
Crim. Law § 616 was the predecessor to Crim. Law § 2-208. The newer version of the short-form indictment is substantially the same as the old version, and it is subject to the same case law.
See, e.g.
,
Smith v. State
,
Reference
- Full Case Name
- Carlos NICHOLSON v. STATE of Maryland
- Cited By
- 4 cases
- Status
- Published