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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 2927 September Term, 2008

EVERETTE ALEXANDER CARPENTER v. STATE OF MARYLAND

Krauser, C.J., Woodward, Thieme, Raymond G., Jr. (Retired, Specially Assigned) JJ.

Opinion by Thieme, J.

Filed: December 1, 2010

Convicted, after a jury trial in the Circuit Court for Talbot County, of attempted first degree murder, first degree assault, robbery, and handgun offenses, appellant, Everette Alexander Carpenter, presents four questions for our review, which we rephrase for clarity:1 I. Did the court err or abuse its discretion in admitting testimony regarding information stored in a cell phone? Did the court err in failing to merge Carpenter's conviction for first degree assault into his conviction for attempted first degree murder? Did the court err in failing to merge Carpenter's conviction for wearing, carrying, and transporting a handgun into his conviction for use of a handgun in the commission of a crime of violence or felony? Did the court err in ordering that Carpenter serve his sentence for use of a handgun in the commission of a crime of violence or felony consecutive to his sentence for attempted first degree murder?

II.

III.

IV.

For the reasons that follow, we shall vacate Carpenter's sentence for wearing, carrying, and transporting a handgun, and otherwise affirm the judgments of the circuit court.

1

Carpenter's questions presented verbatim are:

1. Did the trial court err or abuse its discretion in admitting information obtained from a cell phone where the State failed to establish the authenticity, reliability and accuracy of the information? 2. Did the trial court err by failing to merge the sentence for first degree assault into the sentence for attempted first degree murder? 3. Did the trial court err by failing to merge the sentence for wearing and carrying a handgun into the sentence for use of a handgun in a felony or crime of violence? 4. Did the trial court err in imposing five years for use of a handgun in a felony or crime of violence consecutive to attempted murder, where the record shows that the court believed that the five year sentence had to be imposed consecutively?

Facts On the morning of December 3, 2007, Fenton Forestal was walking down Blake Street in Easton, when he was approached by Carpenter, Tyrell Skinner, and Tynesha Cornish. Forestal spoke with Skinner, who was a football teammate of Forestal's brother. During the conversation, Forestal decided to show the group a picture of his grandmother that he kept in his wallet with his money and "green card." 2 When Forestal produced his wallet, however, Carpenter grabbed the wallet and walked away. Forestal noticed that Carpenter had dropped a cell phone and picked the cell phone up. Thinking that Carpenter was "playing around," Forestal followed Carpenter and asked Skinner to tell Carpenter to return the wallet. Carpenter and Skinner then "jumped at" Forestal, repeatedly punching him in his eyes. Pushing the men away, Forestal ran. About twenty minutes later, Forestal noticed that someone was calling the cell phone that Carpenter had dropped. Afraid to answer the cell phone, Forestal received numerous additional calls. When Forestal finally answered a call, the caller offered to exchange Forestal's wallet for the cell phone. When Forestal refused, the caller threatened to kill Forestal's family. Afraid for his family's safety, Forestal agreed to meet the caller at a gas station at the intersection of Locust Lane and Dover Street.

2

Forestal is from Haiti.

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At the gas station, Forestal saw Carpenter and returned the cell phone to him. Waiting to receive his wallet, Forestal saw Carpenter draw a gun from his waist. As Forestal turned and ran, he was shot in his back and left arm. Forestal then ran to a friend's house. Hearing gunshots "from the direction of Dover Street" and "someone running and yelling for help," Christopher Rainer, who lived on Locust Lane near its intersection with Dover Street, called 911. Approximately three minutes later, Patrolmen George Larrimore, Jr. and Rob Schuerholz of the Easton Police Department responded to Rainer's call and saw Carpenter walking "[l]ess than a block" from Dover Street. Patrolman Larrimore stopped Carpenter and asked him "how long he had been in the area outside[.]" Carpenter replied: "[A]pproximately ten minutes." After conducting a "pat down" of Carpenter, the patrolman allowed him to leave. Several minutes later, police received a "911 call indicating that there was a male in some sort of distress in front of . . . 318 Goldsborough Street," approximately two blocks from Rainer's home and three blocks from where Patrolman Larrimore stopped Carpenter. Responding to the address, Patrolman Schuerholz discovered Forestal "lying on the ground and . . . yelling that he had been shot." After the patrolman contacted paramedics, Forestal was transported to Easton Memorial Hospital, where he was diagnosed with gunshot wounds to his left upper arm and lower back and a fractured left eye socket. During a subsequent meeting at the hospital with Detective Milton Orellano of the Easton Police Department, Forestal identified Carpenter in a photo array as the person who shot him.

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Two days later, police located a handgun outside the home of Kevron Chase, who lived approximately 125 yards from the gas station at Locust Lane and Dover Street. During a subsequent interview with Detective Orellano, Chase stated that the gun belonged to Carpenter. Chase further stated: [At] approximately one or two in the morning [Carpenter] came knocking to [Chase's] window and asked to use his phone to call Mr. Forestal. [Carpenter] asked Mr. Forestal if he could get his phone and Mr. Forestal told [Carpenter] no. Mr. Forestal asked [Carpenter] for his wallet and [Carpenter] tells him that not until he gets his phone back. [Carpenter] then tells him that he has his green card and he will burn it if he doesn't get his phone. Mr. Forestal then asks where could he meet him and he said at Super Soda. [Carpenter] then leaves to Super Soda about ten minutes later. [Carpenter] came running to his house and knocked on the window. [Carpenter] then told him that he unloaded the whole gun on Mr. Forestal and he wasn't sure if he hit him. Mr. Chase then told him to leave. Later [Carpenter] called him and told him that the police had stopped him. [W]hen the police . . . raided the residence [Carpenter] had called him and told him to look for the gun which was near a tree to the right as you walk out the back door. Later, Detective Orellano interviewed Skinner, who stated that "Carpenter snatched the wallet and . . . dropped his cell phone." After Carpenter called Forestal, Skinner stated, Forestal "came back and [Carpenter] beat him up again." At trial, Forestal, testifying for the State, identified Carpenter as the person who took his wallet and assaulted and shot him. We shall include additional facts in our discussion of the issues.

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Discussion I. Also at trial, the State called Caroline George, who testified that she had known Carpenter for "approximately a year and a half," and that during that time, she "obtain[ed] phone numbers from [Carpenter] for business purposes[.]" Prior to December 3, 2007, George stated, Carpenter told George that his cell phone number was 443-205-3233, and his home phone number was 410-770-3929. Later, the State called Detective Orellano, who testified that he seized a cell phone from Carpenter during Carpenter's arrest. After "obtain[ing] a search warrant for the contents of the [cell] phone," the detective testified, he "checked the [cell phone's] pictures content, text message content, calls, into and include [sic] received, missed, [and] dialed[.]" If a "number was in the [cell phone's] data base," Detective Orellano stated, "it show[ed] up as a name rather than a telephone number[.]" When the prosecutor asked Detective Orellano to list the calls received by the cell phone, including "what the telephone numbers were and what time they were," defense counsel objected. After a discussion at the bench, the court overruled defense counsel's objection, and the following colloquy occurred: [PROSECUTOR: F]rom the first call after 1 a.m. could you give us the on [sic] December 3 rd , 2007 the time and either the number or the name that appeared with the received call to this cell phone.

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[DETECTIVE ORELLANO:] Okay, at 1:08 a.m. a called [sic] received was from Skinner. 1:52 a.m. a call was 410-770-3929. 2:21 a.m. was from 410-725-0444. At 2:27 a.m. was . . . *** . . . 410-725-0444. At 2:30 a.m. was from Skinner. At 2:36 a.m. was from 410-770-3929. [PROSECUTOR:] Now with regard to the 410-725-0444 number do you know whose telephone number that is? *** [DETECTIVE ORELLANO:] Kevron Chase. [PROSECUTOR:] And . . . what was the actual number of the cell phone, did you get that? *** [DETECTIVE ORELLANO:] 443-205-3233. [PROSECUTOR:] Now were there also missed calls between 1 a.m. and . . . 2:40 a.m.[?] [DETECTIVE ORELLANO:] Okay, missed calls December 3 rd , 2007, at 1:01 a.m. phone number was 443-497-4452. At 1:03 a.m. same number. At 1:05 a.m. Skinner. Same thing at 1:05 a.m. Skinner. 1:06 a.m. 410-820-7559. 1:07 a.m. with Skinner. 1:09 a.m. Skinner. 1:09 a.m. was 410-820-7559. 1:15 a.m. it said restricted. 1:17 was 443-497-4452. 1:23 a.m. restricted. 1:24 a.m. Skinner. 1:34 a.m. Skinner. And that was it. Later, in closing argument, the prosecutor stated: Detective Orellano goes through the calls and you see from the calls the timing of when the calls are being ignored, when the calls are being received and that the calls are either coming from Skinner's cell phone or Kevron Chase's phone or Mr. Carpenter's home phone according to Ms. George's recollection of the numbers. There's a couple of other calls in there from an unknown number.

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But most of these calls are coming in from places that Mr. Carpenter could get to, his house, Mr. Chase, and . . . that's the two main ones. His house and Mr. Chase and Mr. Skinner's phone. . . . . [W]ho else's cell phone was it going to be? And how is if it's Mr. Skinner's cell phone that needs to be recovered, then how is Mr. Skinner calling it? In rebuttal, the prosecutor stated: Why and how Mr. Forestal's receiving the phone calls why are they coming from Mr. Chase's phone to Mr. Forestal? Because as Mr. Chase told the police [Carpenter] came and asked to use my phone and I let him and he called Mr. Forestal and this is the conversation I overheard. Now if it was Mr. Chase's cell phone that needed to be recovered and Mr. Forestal would have had it and they would had [sic] to be calls, there wouldn't have been a call from Mr. Chase's phone to anywhere at that time in the morning because Mr. Forestal was not calling out, he was receiving the calls. The same thing with Mr. Skinner. The same thing with the home phone. Carpenter contends that the court "erred and abused its discretion" in admitting Detective Orellano's testimony for two reasons. First, the testimony violated "the rules against the admission of hearsay[.]" See Rule 5-802 ("Except as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible."). Second, "the court had no basis upon which to conclude that the information [stored in the cell phone] was authentic, reliable[,] and accurate." See Rule 5-901(a) ("The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."). With respect to whether Detective Orellano's testimony violated "the rules against the admission of hearsay," Rule 5-801(c) defines "hearsay" as "a statement, other than one made

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by the declarant while testifying at [a] trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 5-801(a) defines "statement" as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." Rule 5-801, however, "does not attempt to define `assertion[.]'" Rule 5-801 committee note. Fields v. State , 168 Md. App. 22, aff'd , 395 Md. 758 (2006), is instructive. Fields's convictions stem[med] from the shootings of three young men at a bowling alley in Clinton, Maryland, shortly after midnight on May 17, 2003. The three men were among a group of about [fifteen] employees of a nearby supermarket who were enjoying a night out at the bowling alley. Tyneal Bussey was killed by a gunshot wound to the chest. Early Eborn was shot in the abdomen and Rozier Davis was shot in the arm. *** The State's evidence showed that, while at the bowling alley on the night in question, [Fields] became involved in a dispute with Bussey and asked Bussey to step outside. [Fields] exited the bowling alley and went outside to the parking lot as Bussey . . . headed for the doorway. . . . . A crowd gathered by the doorway of the bowling alley. Several witnesses testified that a white car was parked outside, and that [Fields] was standing beside the car, holding a rifle. When Bussey reached the doorway, [Fields] opened fire, killing Bussey and injuring Davis and Eborn. . . . . *** There was also evidence introduced by the State that [Fields, whose first name is Saturio,] went by the nickname "Sat Dogg." *** Detective Ismael Canales, a member of the homicide unit of the Prince George's County Police Department, was among the officers who responded to a report of shootings at the bowling alley. Once inside, he observed that

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there was a television monitor at each bowling lane, and the names and scores of the bowlers at that lane were displayed on the screen. . . . . . . . Detective Canales proceeded to make a handwritten list, itemizing each bowling lane and the names displayed on the screen for that lane. . . . . Detective Canales recorded the names on the screen above lane 22 as "Sat Dogg/Bleu/Vino." *** On direct examination of Detective Canales, defense counsel objected when the prosecutor asked foundational questions about the detective's handwritten list . . . . . . . . The trial court overruled the objection and allowed questioning to proceed. Over further objections, Detective Canales testified that he saw the names that were displayed on the television screens at the bowling lanes and wrote [a list] to document the names he saw[.] *** In closing argument, the prosecutor made two references to the evidence that "Sat Dogg's" name was displayed on one of the television screens. First, in recounting Detective Canales's testimony about what he did upon arriving at the bowling alley the night of the shootings, the prosecutor said: And Detective Canales, the lead investigator, that was his job to find out who did it, put it together. When he came there, there is no evidence introduced at all that he knew anything, who Saturio Fields was, who Sat Dogg was. No evidence at all. But what did he do? . . . . . . . . He wrote down the names from all the screens. And when he did that, he just did it out of instinct, but he did it. ....

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Second, the prosecutor included the name-on-the-screen evidence in his review of items found at the crime scene that tended to show that [Fields] was there. . . . . The prosecutor then added: What about the name on the television monitor? Connection to the crime scene. . . . . Where was the name Sat Dogg? Lane 22. Id. at 27-31. Fields was subsequently convicted of first degree murder and two counts of first degree assault. Id. at 28. On appeal, Fields contended that the court erred in admitting the "name-on-the-screen evidence" because "the evidence was hearsay[.]" Id. at 26, 31. Concluding that the evidence fell "into the category of non-assertive circumstantial crime scene evidence" rather than "an implied assertion that [Fields] was present in the bowling alley that night," id. at 36-37, we stated: The prosecutor did not attempt to use the evidence of the words "Sat Dogg" on the screen at the bowling alley to show that a known declarant believed [Fields] was present there, had reason to accurately hold that belief, and therefore was impliedly asserting that factual proposition by entering his nickname on the screen. [T]he probative value of the evidence that [Fields's] name was on the television screen did not depend upon the belief of the person who typed the name on the screen, or upon the accuracy of that person's belief. The prosecutor did not argue that the person who entered the name "Sat Dogg" on the screen only would have done so if he or she believed that [Fields] was present in the bowling alley. Indeed, there was no evidence about that person's belief, because the person was not identified. The prosecutor argued only that the crime scene included a bowling lane with the name "Sat Dogg" written above it. *** [Fields's] name on the television screen in the bowling alley was not an implied assertion of the factual proposition that [Fields] was present at the

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bowling alley[.] Because the evidence was not an "assertion," under Rule 5-801(a), it was not a "statement" under that subsection and hence was not hearsay under Rule 5-801(c). It was admissible non-hearsay evidence. Accordingly, the trial court's evidentiary ruling was not in error. Fields , 168 Md. App. at 37-38. We reach a similar conclusion here. The prosecutor did not attempt to use Detective Orellano's testimony to show that a known declarant believed that Carpenter made the calls to the cell phone, had reason to accurately hold that belief, or was impliedly asserting that factual proposition. The probative value of the evidence that Carpenter's home phone number, Skinner's name, and Chase's phone number were stored in Carpenter's cell phone did not depend upon the belief of the person who called, or upon the accuracy of that person's belief. In fact, like in Fields , "there was no evidence about that person's belief, because the person was not identified." Id. at 37. Because the prosecutor argued only that the cell phone belonged to Carpenter and that calls were made to the cell phone from phones belonging to Carpenter, Skinner, and Chase, the calls missed and received by the cell phone were not assertions, statements as defined by Rule 5-801(a), or hearsay as defined by Rule 5-801(c). Hence, the court did not err in admitting Detective Orellano's testimony regarding the calls. We now turn to Carpenter's contention that "the court had no basis upon which to conclude that the information [stored in the cell phone] was authentic, reliable[,] and accurate." We reviewed a similar contention in Dickens v. State , 175 Md. App. 231 (2007).

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Dickens was charged with the first degree murder of his wife, Darlene Dowsey. Id. at 234. At trial, [t]he only issue that separated the prosecutor and the defense . . . was whether the killing of . . . Dowsey was premeditated murder or a lesser degree of culpable homicide. *** Sherron Bush, in August of 2004, was engaged in a sexual relationship with the victim. He testified that he and the victim went to a motel in St. Mary's County at approximately 2:00 or 3:00 a.m. on the morning of August 29, 2004. Immediately after Mr. Bush and the victim entered the motel room, Mr. Dickens tried to force his way inside the room. At 4:34 a.m. on the 29th of August 2004, Ms. Dowsey received a text message that read: "She better enjoy her last day in the motel[.] Get ready for the shocker." After receipt of this message, the victim showed it to Mr. Bush. *** The victim's mother, Alma Jean Young, testified that a few months before her daughter was killed she gave the victim a cell phone so that she could call 911 in the event she had a problem with [Dickens]. . . . . A few days after her daughter's murder, Ms. Young took possession of that cell phone and scrolled for text messages. She read the . . . text message[] (quoted above) and then contacted [police.] . . . . The text message sent on August 29, 2004, showed the number of the sender to be 240-431-1306. Ms. Young testified that this was the number for a cell phone that initially belonged to the victim but had been given to [Dickens] by the victim. According to Ms. Young, [Dickens] had the use of that cell phone in the July

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