IVAN POTTS v. STATE OF MARYLAND
Court of Special Appeals, Wright, Dec. 28, 2016,
Merger – Where a prohibited person is convicted of possession of a regulated firearm under PS 5-133(c)(1) and possession of ammunition under PS 5-133.1, the sentences do not merge.
“On September 2, 2015, Baltimore City Police Sergeant Wayne Jenkins, Detective Maurice Ward, and Detective Evodio Hendrix” were conducting an investigation, unrelated to the instant case, in the West Forest Park area of Baltimore City.” While in the area, they observed Potts walking in their direction with his right hand pinned to his mid-section grabbing his dip while the left hand swung freely. When Potts saw them, he took a black handgun from his waistband, turned the other direction, and fled. Potts was apprehended, but no longer had the handgun on him. Retracing the foot-chase, Sgt. Jenkins recovered a black and silver handgun and magazine containing sixteen rounds from where he had seen Potts running.
Hearsay – When Sgt. Jenkins and Det. Ward had already testified about how Potts was displaying characteristics of an armed person prior to flight, it was harmless error where Det. Hendrix testified that Det. Ward drew his attention to how Potts was walking (displaying characteristic of an armed person) and the objection was not sustained.
Error – Where the transcript showed one sentence but the commitment record for the defendant showed something else, the sentence actually announced in court prevails.
Possession of ammunition after being prohibited from possessing a regulated firearm
Prohibited Person- Regulated Firearm after Crime of Violence Conviction PS 5-133(c)(1)
Prohibited Person- Possession of Ammunition- PS 5-133.1
The Firearm Safety Act of 2013 made it illegal for a person to possess ammunition if they were prohibited from possessing a regulated firearm under PS 5-133(b) or (c)
Merger – In some cases, a defendant can be convicted of multiple crimes but only sentenced for one of them. This happens when:
– The charges require proof of the same elements (the defendant was convicted multiple times of essentially the same charge)
– The rule of lenity (the charges aren’t exactly identical, but are close enough that courts will merge them unless it’s clear that the legislature intended multiple punishments)
– Fundamental fairness (it’s unfair to punish the defendant more than once)
Because possession of ammunition and possession of a firearm are different things, present different threats, and have a different underlying rationale, and because “the Legislature clearly intended to punish the possession of ammunition as a separate statutory offense”, they do not merge.
Sufficiency of Evidence – Where officers testified that they observed the defendant with the gun and later recovered a gun along the flight path, there was sufficient evidence for the jury to conclude that it was the gun that the defendant originally had on him.