Nicholson v. State

Carlos Nicholson v. State of Maryland, No. 862, Sept. Term 2017. Opinion filed on
November 5, 2018, by Berger, J.

CRIMINAL LAW - FELONY MURDER - SELF DEFENSE - HARMLESS ERROR

A criminal defendant produced “some evidence” sufficient to generate a self-defense jury
instruction when he claimed to be afraid for his life when he killed an alleged assailant
after being robbed at gunpoint, even when the claim of self-defense is contradicted by other
evidence. A defendant who has generated “some evidence” of self-defense is entitled to
have the jury instructed on self-defense even when inconsistent theories of the defense are
presented.

When a jury returns a not guilty verdict as to first-degree and second-degree murder, but a
defendant is convicted of second-degree felony murder, any error with respect to a
self-defense instruction is harmless beyond a reasonable doubt because self-defense is not
applicable to felony murder under Maryland law.

CRIMINAL LAW - SUFFICIENCY OF THE EVIDENCE - CONFESSION

A conviction cannot rest on an uncorroborated confession alone. A conviction of
possession of marijuana with intent to distribute was sufficiently corroborated by text
messages and eyewitness testimony as well as evidence of the circumstances of the
shooting that occurred during a drug deal gone awry.

CRIMINAL LAW - SUFFICIENCY OF INDICTMENT

A statutory short-form indictment is sufficient to charge a defendant with second-degree
felony murder.
Circuit Court for Baltimore County
Case No. 03-K-16-0541
REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 862

September Term, 2017

______________________________________

CARLOS NICHOLSON

v.

STATE OF MARYLAND
______________________________________

Berger,
Nazarian,
Arthur,

JJ.
______________________________________

Opinion by Berger, J.
______________________________________

Filed: November 5, 2018

Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.

2018-11-05
15:21-05:00

Suzanne C. Johnson, Acting Clerk
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 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 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.

2
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 who died had two bullets from his own gun “in him,” Nicholson

said,

[M]aybe I did turn the gun on him while we was tussling. I, I
couldn’t, I couldn’t tell you, I just remember the shots going
off and I, I remember thinking I was hit. . . . I remember going
down to the ground. And I remember when I went down to the
ground I remember hearing a bunch of shots.

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.

3
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.

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

4
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. Wambui heard gunshots and saw someone exit the driver’s side door of V1. Wambui

heard two or three more gunshots and saw a dark shadow standing outside the driver’s

door, which was open, shooting down. The shadowy figure returned to V1, and both

vehicles drove away.

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

5
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.”

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

6
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.”

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.

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

7
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, 423 Md. 454, 465 (2011) (quoting Gunning v. State,

347 Md. 332, 351 (1997)). Upon the request of any party, a trial court is required to

“instruct the jury as to the applicable law and extent to which the instructions are binding.”

Md. Rule 4-325(c). “[I]n evaluating the propriety of a trial court’s refusal to give a

requested instruction, we must determine whether the requested instruction was a correct

statement of the law; whether it was applicable under the facts of the case; and whether it

was fairly covered in the instructions actually given.” Gunning v. State, 347 Md. 332, 348

(1997). In the present case, the only dispute between the parties is whether an instruction

on self-defense was applicable under the facts of the case.

“For an instruction to be factually generated, the defendant must produce ‘some

evidence’ sufficient to raise the jury issue.” Arthur v. State, 420 Md. 512, 525 (2011). In

Maryland, the defendant has the “burden of initially producing ‘some evidence’ on the

issue of mitigation or self-defense.” Porter v. State, 455 Md. 220, 240 (2017) (quoting

Wilson v. State, 422 Md. 533, 541 (2011)). This standard is “a fairly low hurdle for a

defendant,” which the Court of Appeals has articulated as follows:

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

8
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, 420 Md. at 526 (quoting State v. Martin, 329 Md. 351, 359 (1993)).

“Whether the evidence is sufficient to generate the requested instruction in the first instance

is a question of law for the judge.” Gen. v. State, 367 Md. 475, 487 (2002). “In evaluating

whether competent evidence exists to generate the requested instruction, we view the

evidence in the light most favorable to the accused.” Id.

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.

Holt v. State, 236 Md. App. 604, 622 (2018) (quoting State v. Faulkner, 301 Md. 482, 485-

86 (1984)). Imperfect self-defense, on the other hand, “requires no more than a subjective

honest belief on the part of the killer that his actions were necessary for his safety, even

9
though, on an objective appraisal by a reasonable man, they would not be found to be so.”

Id. (quoting Faulkner v. State, 54 Md. App. 113, 115 (1983)).

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,

10
“[t]he source of the evidence is immaterial; it may emanate solely from the defendant.”

Arthur, supra, 420 Md. at 526. Accordingly, we conclude that Nicholson presented “some

evidence” to support all four elements of his self-defense claim

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 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. Viewing the evidence in the light most favorable to the accused, we conclude

that Nicholson presented sufficient evidence to generate the issue of self-defense.

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.

11
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 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, 417 Md. 643, 659 (2011)

(emphasis in original). Consequently, the jury in the present case could have believed that

Nicholson was the victim of an unprovoked attack by two armed men while doubting

Nicholson’s claim that he was unarmed and did not shoot anyone.

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

12
are inconsistent.” Sims v. State, 319 Md. 540, 550 (1990); see also McKay v. State, 90 Md.

App. 204, 219 (1992) (holding that even though the defendant testified “that he acted out

of fear when inflicting the injury on his accuser, the presiding judge must, when requested,

give an instruction on heat of passion where other evidence supports such a theory”). The

Court emphasized in Sims that its holding was “consistent with the general proposition that

a defendant is entitled to an instruction on every essential question or point of law

supported by evidence.” Id. As we have explained, Nicholson presented “some evidence”

to support all four elements of perfect self-defense. Accordingly, it does not matter that

Nicholson’s claim of self-defense was inconsistent with his overall defense strategy at trial.

We, therefore, hold that the circuit court erred in refusing Nicholson’s request for a jury

instruction on self-defense.

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.

13
Dionas v. State, 436 Md. 97, 108 (2013) (quoting Dorsey v. State, 276 Md. 638, 659

(1976)). “What’s more, once error is established, the burden falls upon the State, the

beneficiary of the error, to exclude this possibility beyond a reasonable doubt.” Id. (quoting

Hunter v. State, 397 Md. 580, 596 (2007)). Thus, “[h]armless error review is the standard

of review most favorable to the defendant short of an automatic reversal.” Simms v. State,

194 Md. App. 285, 323 (2010) (quoting Bellamy v. State, 403 Md. 308, 333 (2008)), aff’d,

420 Md. 705 (2011).

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 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, 139 Md. App. 412, 454 (2001)); see also State v. Richardson, 341 N.C. 658, 668

(1995) (“Self-defense, perfect or imperfect, is not a defense to first-degree murder under

the felony murder theory, and only perfect self-defense is applicable to the underlying

felonies.”); State v. Oates, 540 S.W.3d 858, 861-62 (Mo. 2018) (holding that self-defense

is not a defense to felony murder where the underlying felony does not involve the use of

1
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, 125 Md. App. 537, 544 (1999) (explaining that the
Double Jeopardy Clause “protects against a second prosecution for the same offense after
acquittal”) (quoting Brown v. Ohio, 432 U.S. 161, 165 (1977)).

14
force), reh’g denied (Apr. 3, 2018);2 Woodard v. State, 296 Ga. 803, 808 (2015) (holding

that “a person is not justified in using force if that person . . . is attempting to commit, is

committing, or is fleeing after the commission or attempted commission of a felony”).

Because the jury was not permitted to acquit Nicholson of second-degree felony murder

on the basis of self-defense, the circuit court’s refusal to give an instruction on that issue

could have no prejudicial effect.

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, 139 Md. App.

at 454-55. In those cases where the defendant was not in any sense the aggressor,

Nicholson reasons that the general rule would not apply, and self-defense would be a

permissible defense to the felony murder charge.

Nicholson reads Sutton too narrowly. In Sutton, the defendant was charged with

first-degree assault, felony murder, and robbery with a deadly weapon. Id. at 420. The

robbery charge served as the underlying felony for the murder charge. Id. The trial court

instructed the jury that self-defense applied only to first-degree assault and not to felony

murder. Id. at 453. In holding that the trial court had not erred in propounding the

2
Because Missouri statutory law makes self-defense inapplicable to forcible
felonies, see Oates, supra, 540 S.W.3d at 862 n.5, the Court’s ruling in Oates effectively
bars defendants from claiming self-defense as a defense to felony murder in any
circumstances.
15
instruction, we affirmed categorically that “self-defense is not a defense to felony murder.”

Id. at 454. Had we intended to limit this rule to cases where the underlying felony involves

force or the threat of force, we could easily have included language to that effect. Instead,

we stated the rule broadly and without qualification. Indeed, we noted that when the Court

of Appeals enumerated the elements of self-defense in State v. Faulkner, 301 Md. 482

(1984), it referred to them as “the elements required to justify a homicide, other than felony

murder[.]” Id. (emphasis in original). The Court’s blanket exclusion of felony murder

from its discussion of self-defense undermines Nicholson’s assertion that self-defense is

applicable to felony murder in some cases.

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, 139 Md. App. at 455-456. We

addressed this case law because it spoke directly to the specific circumstances before us:

a robber who claimed self-defense after killing the robbed. Accordingly, we discussed

Street v. State, 26 Md. App. 336 (1975), in which this Court held that “the claim of self-

defense was unavailable to appellant as a matter of law because he was an aggressor

engaged in the perpetration of a robbery.” Id. at 455. It was in this context that we invoked

“the fundamental concept that the accused claiming the right of self-defense must not have

been the aggressor or provoked the conflict.” Sutton, supra, 139 Md. App. at 454-55.

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

16
cases we cited was Smith v. Tennessee, 209 Tenn. 499, 503 (1961), wherein the Supreme

Court of Tennessee gave its approval to the following proposition:

[T]he person who kills another while engaged in committing a
felony cannot 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 (emphasis added). Although in Sutton we were especially concerned with felony

murder predicated on robbery, we did not endorse, explicitly or implicitly, the use of self-

defense in cases of felony murder predicated on non-forcible crimes.

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, 451 Md. 680, 708

(2017). As the Court of Appeals has explained, felony murder is defined by the

dangerousness of the underlying conduct, rather than the intent to kill:

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, 367 Md. 218, 262 (2001). Whether the underlying felony is inherently

dangerous “is determined by the nature of the crime or by the manner in which it was

perpetrated in a given set of circumstances.” Id. at 263.

17
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, 576 So.2d 1310 (Fla. 1991), the

Supreme Court of Florida, construing a state statute that makes self-defense unavailable to

a person committing a forcible felony, held that cocaine trafficking was not a forcible

felony. Unlike the Florida legislature, our General Assembly has not acted to limit the self-

defense exception to forcible felonies. Consequently, the relevance of Perkins to our

analysis is minimal at best. The same is true of State v. Cook, 86 So.3d 672 (Ct. App. La.

2012), in which the Supreme Court of Louisiana held that a statutory “drug sale exception”

to self-defense did not apply to a claim of self-defense based on the defendant’s reasonable

18
belief that his life was in danger. In the absence of similar provisions in the Maryland

Code, we will not extend the holdings of either Perkins or Cook to Maryland’s second-

degree felony murder law.3

Nor do we find in Commonwealth v. Fantauzzi, 91 Mass. App. Ct. 194 (2017), a

compelling grounds for reversing Nicholson’s conviction. In Fantauzzi, the defendant shot

and killed someone who tried to rob him at knifepoint during a drug deal. Id. at 324-25.

The defendant was charged with second-degree felony murder, with unlawful possession

of a firearm serving as the predicate felony. Id. at 327. The trial court did not give the jury

an instruction on self-defense for the felony murder charge. Id. at 329. Under the particular

circumstances of the case, the Court held that the defendant was entitled to an instruction

on self-defense. Id. at 332. Critically, the Court’s holding was based on its belief that the

underlying felony was not inherently dangerous:

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.

3
Nicholson also cites Davis v. State, 290 Ga. 757 (Ga. 2012), for the proposition
that “under Georgia law the jury determines whether the statutory exception to the use of
self-defense applies.” Nicholson’s understanding of Georgia’s felony murder law is
outdated. In Davis, the Supreme Court of Georgia was applying its earlier ruling in Heard
v. State that “where there is sufficient evidence of a confrontation between the defendant
and the victim, or other circumstances which ordinarily would support a charge on
justification, the defendant is not precluded from raising justification as a defense.” Supra,
290 Ga. at 758-59. In Woodard v. State, 296 Ga. 803 (2015), the Supreme Court of
Georgia, overruling Heard, held that self-defense is never a defense to felony murder.
19
Id. at 332 (emphasis added). In the present case, Nicholson’s conviction for felony murder

was, by definition, based on a finding that the underlying felony was inherently dangerous,

and Nicholson does not challenge that finding on appeal. Consequently, even if we were

to adopt the reasoning of Fantauzzi -- which we decline to do -- we would still hold that

the circuit court’s error in the present case was harmless.

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 and circumstantial evidence. We agree with the State.

20
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, 405 Md. 293,

302 (2008); State v. Lyles, 308 Md. 129, 135-36 (1986); Johnson v. State, 90 Md. App.

638, 649 (1992); Simpkins v. State, 79 Md. App. 687, 696 (1989).

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.

21
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 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

22
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 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, 235 Md. App. 593, 603-04, cert. granted, 459 Md. 169 (2018).

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, 65 Md. App. 493, 495 (1985). Nevertheless, the

evidence “must show directly or support a rational inference that the accused did in fact

exercise some dominion or control over the [contraband].” Taylor v. State, 346 Md. 452,

460 (1997). In determining whether a person possesses contraband constructively or

jointly, Maryland courts consider the following factors:

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 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, 199 Md. App. 46, 55 (2011) (quoting Folk v. State, 11 Md. App. 508, 518

(1971)). In Belote, this Court added two more factors to consider: (1) “the nature of the

23
premises where an arrest is made or search is executed,” and (2) “circumstances

indicat[ing] a common criminal enterprise.” Id. at 56.

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, 305 Md. 685, 703 (1986) (noting that “one who encourages, aids, abets, or assists

the active perpetrator in the commission of the offense, is a guilty participant, and in the

eye of the law is equally culpable with the one who does the act”); see also Sheppard v.

State, 312 Md. 118, 122 (1988) (“In order to establish complicity for the principal offense,

the State must prove that the accused participated in the offense either as a principal in the

second-degree (aider and abettor) or as an accessory before the fact (inciter).”), abrogated

in part by State v. Hawkins, 326 Md. 270 (1992). Thus, we will consider the conduct of

both Nicholson and Stewart in evaluating the evidence supporting Nicholson’s conviction.

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 marijuana, so he contacted Stewart, who agreed

to provide the product and give Nicholson “a cut.” Nicholson told the police that he met

24
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, 380 Md. 1, 46 (2004). Thus, an extrajudicial confession “must

be supported by evidence, independent of the confession, which relates to and tends to

establish the corpus delicti, i.e., the facts that are necessary to show that a crime has been

committed.” Cox v. State, 421 Md. 630, 657 (2011) (internal citations omitted). The

corroborating evidence “need not be full and positive proof of the corpus delicti and may

be small in amount, if such proof, when considered with the confession, convinces the jury

beyond a reasonable doubt of the guilt of the accused.” Ballard v. State, 333 Md. 567, 575

(1994) (internal citations omitted).

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

25
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, 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

26
someone with 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 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:

27
“(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, 352 Md. 279, 287-89 (1998); McMillan v. State, 181

Md. App. 298 (2008), rev’d on other grounds, 428 Md. 333 (2012). Indeed, in Dishman

v. State the Court noted that the short-form indictment “charges each of the homicide

offenses, even if it is couched in terms of first degree murder.” Supra, 352 Md. at 303

(emphasis added).

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

28
and separately because it is not a lesser included 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
§ 6164 alleging first degree murder also charges second degree
murder and manslaughter.

Supra, 352 Md. at 289-90 (emphasis in original). Thus, whether or not second-degree

felony murder is a lesser included offense of first-degree felony murder is beside the point.

See McMillan, supra, 181 Md. App. at 351 (“[T]he cases cited by appellant concern the

question of whether one offense is the same as another for purposes of double jeopardy;

they do not speak to the jurisdictional sufficiency of an indictment.”).

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,

181 Md. App. at 351 (holding that “appellant’s indictment, which conformed in every

relevant way with the statutory form specified in [Crim. Law] § 2-208, invested the circuit

court with jurisdiction to try him for murder of any variety -- including felony-murder”

4
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, 196 Md. App. 494, 533 (2010) (applying
Dishman in construing Crim. Law § 2-208), rev’d on other grounds, 423 Md. 573 (2011).
29
(emphasis added)); see also Ross v. State, 308 Md. 337, 339 (1987) (holding that “the short

form indictment specified by [Crim. Law] § 616 to charge all forms of murder adequately

protects a defendant’s constitutional right of fair notice and due process” (emphasis

added)). We, therefore, hold that the State’s criminal indictment against Nicholson was

sufficient to charge him with second-degree felony murder.

JUDGMENTS OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.

30