Washington v. State
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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 938 September Term, 2006 __________________________ RORY HOWARD WASHINGTON v. STATE OF MARYLAND _________________________ Davis , Eyler, De borah S ., Getty, James S., (retired, specially assigned), JJ. _________________________ Opinion by Davis, J. _________________________ Filed: March 6, 2008 Appellan t, Rory Howard Washington, was charged with seven counts, including attempted murder in the first degree, attempted murder in the second degree, assault in the first degree, assault in the second degree, illegal use of a handgun in the commission of a felony or crime of violence, illegal carrying or transporting of a handgun and illegal posses sion of a regula ted firea rm, resp ectively. After a three-day trial beg inning on M arch 20 , 2006, a jury sitting in the Circuit Court for Balt imore City found appella nt guilty, inter alia, of counts three through seven, but acquitted appellant of attempted first degree murder. The jury deadlocked on the count charging attempted se cond degree m urder. 1 On June 6, 2006, the court sentenced appellant to the jurisdiction of the Division of Corrections for a period of twenty years f or his conv iction of assa ult in the first degree.2 Appellant was also sentenced to fifteen years for use of a handgun in the commission of a crime of violence, three years for illegally carrying a handgun and five years for possession of a regula ted firearm , these senten ces to run co ncurrent w ith the twenty-year sentence for assault. This appeal w as thereafte r timely noted, in w hich appe llant presents th e followin g issues for our review: 1 2 On June 2, 2006, the State entered a nolle prose qui as to the charge. Appellant s conviction for second degree assault merged for the purposes of senten cing. 1. Whether the trial court improperly admitted a videotape which purported to be a recording of the events surrounding the shooting, where that videotape was never properly authenticated. 2. Whether the trial court improperly admitted a detective s lay opinion testimony implicitly iden tifying appellant in the videotape which purported to depict the events surrounding the shooting. 3. Whether [appellant s] jury was inapprop riately pressured into reaching a verdict by the trial court s prem ature, repetitive and impro perly worded Allen[3] charges. 4. Whether [appellant s] conviction for possession of a regu lated firearm must be reversed where p roof of the size of the f irearm is a necessary element of the offense and the State failed to produce any evidence that [appellant] possessed a gun smaller than sixteen inches. For the reasons that follow, we resolve the issues in favor of the State and, accord ingly, aff irm the ju dgme nt of the Circuit C ourt fo r Baltim ore City. FACTUAL BACKGROUND During the evening of June 23, 2005, Jermaine Wright frequented Jerry s Bar, a bar and liquor store, located at 604 Poplar Grove Street in Baltim ore City. At ap proximate ly 10:00 p.m., Wright stepped outside of Jerry s Bar and was shot. A bullet entered the rightside of Wright s stomach and became lodged in his spinal cord, resulting in L3 spinal cord injury. 3 Allen v. United States, 164 U.S. 492 (18 96). -2- After arriving on the scene, police officers found narcotics on Wright s person and recovered a pink hat that was later determined to belong to Wright. Pursuant to police investigations, Wright told the officers that he did n ot know his assailant, bu t described h im as a black male, having a thick build a nd w earing a white T -shirt. Wright also told the office rs that he did not see the w eapon used to shoot h im. Appellant was subsequently apprehended for the shooting of Wright and was charged under the seven counts set forth, supra. The lead detective working Wright s case, Carlos Vila, met with Wright on three separate occasions, including the day before trial, in an effort to identify his assailant. On those different occasions, Wright either refused to view the photo a rray that D etective Vila ha d prepa red or c laimed that he n eeded more tim e. Appellant s trial began on March 20, 2006 and spanned three days. Despite Wright s failure to identi fy appella nt prior to trial, Wright testified that he and appellant had an argumen t. Appellant subsequently left Jerry s Bar, returned ten minutes later and asked Wright to step outside. Believing that app ellant wanted to rumble, Wright followed appellant out of the bar. According to Wright, once outside of Jerry s Bar, appellant whipped out his gun and shot [him], and everything happened real fast. After unequivo cally identifying appellant, whom he had known for three years, as the man who shot him , Wrigh t explain ed his re asonin g for n ot com ing for ward u ntil trial. He said: I wanted [appellant] to still be out there because, you know, I was going to take advantage myself. I was going to get him. I was so mad and angry I wanted you know, -3- I was goin g to deal w ith it myself. W right testified that, although he was still mad, he decided to come to court because he thought it s best. An employee of Jerry s Bar, Charles Burrell, how ever, recounted a different version of events that occurred during the night of June 23, 2005. According to Burrell, a man named E and Wright engaged in a fight at approximately 9:00 p.m. Burrell broke up the fight and put the guy named E out of the bar. Burrell then told Wright to sit in a chair, while he (Burrell) went next door to pick up food that he had ordered. While Burrell was waiting for his food, he heard gun shots. Burrell ran outside to find Wright at the front door of Jerry s Bar laying down on the ground. The State pointed out that, contrary to his trial testimony, Burrell had told police that he saw appellant on the day of the shooting . After refre shing Bu rrell s recollection with his taped statement to police, Burrell agree d that appellant had bee n in and out of the b ar. Burrell additionally testified that appellant is known to wear a white T-shirt on his head like he an A rab or so methin g. Gregory Jennings confirm ed Burrell s testimony that appellant alw ays wore a T-shirt or towel arou nd his hea d. Jenning s also agree d that, on the d ay after the shooting, he identified appellant s photograph for the police. On the back of a photograph, Jennings wrote and signe d that [he ] saw [ap pellant] outsid e arguing w ith [Wrigh t]. At trial, however, Jennings c laimed that it was his un derstandin g that he w as not free to leave during -4- police questioning until he provided a statement to police. He further claimed that police office rs infor med h im of w hat to sa y in his state ment. During appellant s trial, the State presented the testimony of Detective Vila regarding his investigation. Detective Vila testified that, once he discovered that David Kim, the owner of Jerry s Bar, had installed eight surveillance cameras, he requested a copy of the footage. Kim, however, did not know how to extract data from the computerized system and, in turn, called a technician to transfer the recorded data to a compa ct disc. Ther eafter, Kim provided the disc to D etective Vila , which w as later converted to VHS. The State offered the videotape and exce rpted pho tographic stills there from in to evide nce. Over appellant s specific objection that the videotape lacked proper authentication, the court allowed the State to play the videotape in the courtroom and permitted the jury to view the videotape during its deliberations. Additionally, Detective Vila conveyed to the jury his observations of the still photographs. Appellant takes issue with the detective s testimony, claiming that he repeatedly im plied that an individual p ictured in the p hotograp hs was ap pellant. After hours of deliberation, the jury returned its verdict. As noted, appellant was found guilty of first-deg ree assault, second degree assault, use of a handgun in a felony or crime of violence, possession of a regulated firearm and illegally carrying a handgun. Appellant was acquitted of attempted first degree murder. The jury, despite an Allen charge, remained deadloc ked on the charge of attempted secon d degree mu rder. Additi onal fa cts will b e discu ssed as warra nted thr ougho ut our a nalysis. -5- ANALYSIS I Appellant initially argues that th e videotap e of the sur veillance footage taken from Jerry s Bar was not properly authenticated. Specifically, he argues that, pursuant to the silent witness theory of authentication, the State failed to present sufficient evidence describing the process that produced the videotape and excerpted still photographs therefrom. To the extent preserved, the State contends that it presented sufficient e vidence to permit a reasonab le jury to infer that the videotape is an accurate recording of events surrounding the shootin g. Prelimin arily, the State argues that appellant s specific contention that the State failed to establish if and how the videotape was edited is unpreserved for appellate review. At trial, Kim testified that the computerized surveillance system of Jerry s Bar records auto mati cally, twenty-four hours a day. To provide Detective Vila with the footage of the shooting, Kim ask ed a techn ician to trans fer the data from the system to a compact disc because he did not know how to do so himself. A com pact disc was subsequently provided to Detectiv e Vila that n ight. 4 4 The parties stipulated that what was on the disc was transferred to a VHS tape for the purpose of showing the video in court. Appellant, therefore, takes issue with the original copy tha t was d elivered to Dete ctive V ila. -6- Appellant objected to the admittance of the videotape into evidence, arguing that the State failed to present testimony of someone familiar with the computer generated system. Thus, he asserts tha t there s a ho le that s not filled regarding the copying of the computer data onto compac t disc. On appeal, appellant contends that, without specific evidence describing how the video data recorded from multiple cameras was transferred and compiled into a single viewable format, and how the portions of the video admitted into evidence w ere edited, a trial court could not know whether the video was presented in a manner which significantly altered the accuracy of the tape. Because appellant failed to explicitly mention the possibility of editing to the trial court, the State argues that the trial judge would have no reason to suspect that any editing had occurred and could not have considered this aspect of the c urrent c laim in its ruling. To preserve a n issue for a ppellate review, it must firs t have bee n presented , with particula rity, to the trial court. Jordan v. State, 82 M d. App . 225, 24 4 (199 0), aff'd in part, rev'd in part on other grounds, 323 M d. 151 (19 91); Harm ony v. State , 88 Md. App. 306, 317 (1991) (opining that [a ]n offhand rem ark that the statute of limitations or something like that might come into play is simply not particular enoug h to allow appella te review ). A party is required to bring his argument to the attention of the trial court with enough particularity that the court is aware first, that there is an issue before it, and secondly, what the parameters of the issue are. Harmony, 88 Md. App. at 317. The trial court needs suffici ent info rmation to allow it to mak e a thou ghtful ju dgme nt. Id. -7- Appellant s repeated general objections that the videotape lacked authentication encompasses his specific contention of editing on appeal. Appellant brought the issue of authentication to the trial court s attention by pointing to the gap in testimony and arguing that som eone fam iliar w ith th e com pute r gen erate d system need ed to testif y to the copying from the system onto CD_ROM or CD a DVR or whatever. Clearly, the issue before the trial court was the lack of testimony regarding how data from eight different cameras, feeding into the computer generated system, was compiled into a single viewable format. The fact that editing may have been required is reasonably implied by the objection raised below. See Sifrit v. State , 383 Md. 116 (2004). Thus, the issue of editing is properly befo re this Court. Addressing the merits, videotapes are generally admissible in evidence on the same basis as motion p icture films and a re subject to th e same ge neral rules ap plicable to photogra phic eviden ce. Dep t of Pub. Sa fety & Corr. S ervs. v. Cole , 342 Md. 12, 20 (1996) (Cole II);5 Tobias v. S tate, 37 Md. App. 605, 615 (19 77). Photo graphs m ay be admiss ible under one of two distinct rules. Typically, photographs are admissible to illustrate testimony of a witness when that witness testifies from first hand knowledge that the pho tograph fa irly and accurately represents the scene or object it purports to depict as it existed at the relevant time. Cole II, 342 Md. at 21 (This method of authentication is known as the pictorial 5 The Court of Appea ls opinion which reversed our decision will be referred to as Cole II and the opinion of this Co urt, Department of Public Safety and Correctional Services v. Cole, 103 Md. App. 126 (1995), will be referred to as Cole I. -8- testim ony theory.); see also 6 Lynn McLain, Maryland Evidence § 90 1.2, at 491 (1987). There is a second , alternative m ethod of a uthenticating photogra phs that does not require first hand knowledge. The silent witness theory of admissibility authenticates a photograph as a mute o r silent indepe ndent pho tographic witness because the photograph speaks with its o wn pr obative effect . Cole II, 342 Md. at 21; see also Sisk v. State, 236 Md. 589, 591-92 (19 64). Professor Wigmore, explaining the rationale behind this theory, has stated: With later advancements in the art of photography . . . and with increasing awa rene ss of the m anif old e vide ntiar y uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recog nition. Thus, even though n o huma n is capab le of swearing that he pers onally perc eived wh at a photo graph pu rports to portray (so that it is not possible to satisfy the requirements of the pictorial testim ony rationale) there may nevertheless be good warrant for receiving the photograph in evide nce. Given an adequate foundation assuring the accuracy of the proces s producin g it, the photograph should then be received as a socalled si lent witn ess or as a witne ss whic h spea ks for its elf. Cole II, 342 Md. at 21-22 (citing 3 Wigmore on Evidence § 790, at 219-220 (Chadbourn rev. 1970)) (emphasis added ). Under the silent witness doctrine, photographic evidence may draw its verification, not from any witness who has actually viewed the scene portrayed on film, but from o ther eviden ce which supports the reliability of the p hotograp hic produ ct . . . . Cole II, 342 Md. at 22 (citing 2 McCorm ick on Evidence § 214, at 15). Appellant argues that the State attempted to authenticate the video tape and still photographs therefr om, pu rsuant to the silen t witnes s theory. He contends, ho wever, that the scant evidence adduced at trial regarding the process that produced the videotape stands -9- in stark contrast to the detailed testimony that the Co urt of Appeals co ncluded warra nted admissibility in Sisk v. State, supra and Cole II, supra. The Court in Sisk relied upon the silent w itness theory over forty years ago to uphold the admission of a Regiscope photograph.6 In its prosecution of James Sisk for obtaining money by false pretenses, the State entered into evidence a Regiscope photograph that showed Sisk passing the check, the identification Sisk used in passing the check and the check itself. By presen ting eviden ce that show ed whe n, where a nd unde r what circumstances the p ictur e wa s taken, th e Sta te laid an adeq uate foundation for a dmissibility. William Shraver, Chief Investigator for Montgomery Ward, testified that, after receiving an unpaid check, he removed the film from the store s Regisc ope ca mera. Id. at 594. He then sent the film, by mail, to the Regiscope Company, with a description of the check and the Bates number thereon and requested a photograph. The returned photograph was admitted into evidence. T he bottom part of the photograph was a picture of the person cashing the check, while the top part was a picture of the check and the identification used to cash the che ck. Id. Marian Stevens, h ead cashie r of Mo ntgomery W ard, testified that she and her assistants cashed approximately twenty-five to thirty checks on the day in question and that 6 A Regiscope camera simultaneously photographs a person cashing a check, the identification used by that person and the check itself, by m eans of a two-l ens cam era. Sisk, 236 Md. at 594. - 10 - they had each operated the Regiscope machine on many occasions. Id. at 595. Stevens explain ed to the court th e locatio n of the mach ine in the store an d how a picture is taken . Joseph Slattery, an employee of Regiscope, demonstrated for the court, in detail, how the camer a work ed. Id. Slattery additionally explained how his company processed and stored the film. After examining the roll of de veloped f ilm in the film reader and finding the negative of the particular transaction, he testified that the enlargement was a true representation of the negative. Id. According to Slattery, the film used in taking Regiscope pictures is perforated on one side only, so that the film cannot be put in reverse. Id. at 596. Therefore, on the finished picture, the check is always above the person s picture. The detailed explanation of the operation of the Regiscope camera made the possibility of error in the photogra ph almos t nil, in the absence of some intentional trickery to fake the photograp h and, thus, the court held that the negative and enlargement thereof accura tely portraye d the su bjects illu strated. Id. Thirty years after Sisk, the Court of Appeals in Cole II, supra, applied the silent witness principle to videotape evidence. The videotape at issue show ed a disrup tive inmate being extracted from a prison cell and was offered at an administrative hearing for termination of employment of a correctional officer w ho had p articipated in the extraction. The Depa rtment, h owev er, did not produ ce a witne ss who w as present a t the extraction to testify to the video tape s accu racy. Thus, in an effort to au thenticate the videotape pursuant to the silent witness theory, the prison warden testified that cell extraction s are ordina rily videotape d and rou tinely labeled with the date and time of the extraction and the names of - 11 - the inmate and officers involv ed. Cole II, 342 M d. at 27. (Th e warden was com petent to testify as to the routine practices of the prison under Md. Rule 5-40 6); see Md. R ule 5-406 (2007) ( Evidence of the . . . routine practice of an org anization is re levant to prove that the conduct of the . . . org anizatio n on a p articular occasio n was in conf ormity w ith the . . . routine practice. ). According to the warden, the videotapes are kept in an individual envelope and are stored in a security vault at the institution, where they may be viewed o nly by signin g in and out on a chain o f custo dy form . Cole II, 342 M d. 27. Based on the totality of the circumstances, the Court held that the videotape was sufficiently authen ticated. Id. Applying the silent witness theory to videotape evidence for the first time, the Court declined to adopt any rigid, fixed foundational requirements for authentication, reasoning that the facts and circumstances surrounding the making of photographic eviden ce and its intend ed use a t trial will v ary from case-to -case. Id. at 26. Thus, the Court left the trial court with some discretion in determining what is an adequate foundation so long as th e founda tion laid assures the accuracy of the process producing the photogra phic eviden ce. Id. at 26-27; see also Md. R ule 5-901(a) (2007) ( 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. ). It is clear from Sisk and Cole II that the gov ernmenta l entities utilized the silent witness theory so that the Regiscope photograph and videotape spoke for themselves, rather than solely to add to or illu strate the testimony of a human witness. Cole II, 342 Md. - 12 - at 23 (emphasis added). In Sisk, the State s entire case rested upon the Regiscope photograph. By comparison, in Cole II, the Department did not produce a witness who was present at the cell extraction to testify as to the accuracy of the videotape. Because it was undisputed that Cole was d epicted in the vid eotape , see Cole II, 342 Md. at 27, the Department s primary objective in showing the videotape was to demonstrate that Cole committed actions that warranted his dismissal. Accordingly, the application of the silent witness theory hinges, in large part, on the proponent s purpose in entering the videotape or photog raph in to evide nce. Und enia bly, the State s purpose for showing the videotape of the surveillance footage in the case sub judice was to place a ppellan t at the sc ene of the sho oting. Cf. Cole II, 342 Md. at 27 (where the videotape showed the commission of improper conduct and not that Cole was present at the tim e of the cell extra ction). To completely resolve the issue before us, however, we must also determine whether the videotape was probative evidence that appellant was at the s cene of th e crime or w hether the im ages portra yed by the videotape added to the tes timony o f the Sta te s witn esses. The State elicited testimony from three witnesses who were present in Jerry s Bar on the night of the shooting. Its primary witness, Wright, unequivocally identified appellant as the individual who shot him. The other two witnesses, Burrell and Jennings, testified that appellant frequente d Jerry s Bar tha t evening. P rior to appella nt s trial, includin g the day before trial, however, Wright had failed to identify his assailant. We may not assume, however, that the State was uncertain as to whether Wright would testify that appellant was - 13 - the shooter or p lace him at th e scene of the shootin g when he was calle d to testif y.7 Sequentially, the State pro duced W right as a w itness only after th e State had called Detective Vila and introdu ced the vid eotape an d still photogra phs theref rom throu gh his testimony. See infra Part II. It was subsequent to Vila s testimony that Wright was called to testify during which he identified appellant as the individual who shot him. Thus, irrespective of the order in which the witnesses were called to testify, the net effect of the videotape served to bolster Wright s credibility and corroborate his testimony that, not only was appellant present at the scene of the shooting, but that appellant h ad sho t him. See Cole II, 342 Md. at 24 (citing Fisher, 643 S.W. 2d at 5 73-75) (Photographic evidence is the best available means of preserving the appearance of a scene at a given tim e and bec ause [e]yew itness testimon y is subject to errors in perception, memory lapse, and a witness problem of adequately expressing what he observed in language so that the trier of f act can unders tand, photographic evide nce is superior to eyewitness testimon y in certain respects.).8 The purpose for which the videotape was offered in the instant case thus differs from the purpose for which the videotape and photographs were offered in Sisk, Cole II and cases from other jurisdictions, in which there was no testimony from a witness capable of swearing 7 Regarding the purpose for introducing the videotape, while the record does not reveal whether the State had been informed that Wright would, in fact, identify appella nt at trial, the purpose may not be determined from the sequence of the receipt of the evidence. 8 Notably, the vagaries of courtroom identifications are not at issue in this case because it is undisputed that Wright had known appellant for three years prior to the shooting. The only issue presented is the credibility of his explanation as to why Wright did not identify appellant p rior to trial. - 14 - that h e or s he perso nally p erce ived wha t the v ideo tape or ph otog raph purp orted to p ortra y. Cf. Brooks v . Virginia, 424 S.E. 2d 566, 569 (1992) (videotape of a drug transaction between Brooks and a polic e informa nt, where the State authenticated the videotape by showing that tabs allowing alteration of the tape were removed and that the videotape contained an onscreen display of the seconds that had passed and by presenting testimony of three police officers who verified that the voice on the tape was that of Brooks even though none of the officers testifying actually observed the drug transaction taking place); Fisher v. Arkansas, 643 S.W.2d 571, 57 3 (Ark. App. 1982) (holding that the trial court properly admitted a surveillance videotape of a grocery store after the store s owner testified that, prior to the time the defendant entered the store, he had adjusted the camera, began recording, checked that it was working p roperly and then left the premises w hereupon the unattended camera captured video of Fisher and her daughters sacking groceries, and remo ving them ); see also United States v. Pageau, 526 F. Supp. 1221, 1224 (N.D. N .Y. 1981) (testimony as to installation, activation, operation and chain of possession of videotape depicting correctional officers beating inmate was sufficient foundation); Maine v. Young, 303 A.2d 113, 116 (Me. 1973) (testimony as to installation, testin g and cus tody of film f rom ban k's automatic camera justified admission of film as in dependent evide nce). In the above cited cases, the photographs or videotapes were real evidence. See Joseph F. Murphy, Jr., Maryland Evidence Handbook § 1103 at 445 (3d ed. 1999) (Real evidence are those tangible items that are actually part of the facts being presented and not mere visual aids). Former Chief Judge Murphy of this Court explained that, Lik e an X ray, - 15 - an [unattended] surveillance photograph that po sitively identifies a burglar or robber is real, not demonstra tive eviden ce and [s]uch a p hotograp h is not adm issible as a visu al aid because nobody can testify that it fairly and accurately shows what he saw. See Cole II, 342 Md. at 22 (Although no one who can testify from direct observation inside the body, x-ray photographs are admissible, pursua nt to the silent w itness theory, bec ause they acc urately represent what they purpo rt to show). Wright s testimony reveals that he personally perceived the images portrayed by the surveillance footag e. See 3 Wigmore on Evidenc e § 790, at 2 19-20. ( E ven thoug h there is no human capable o f swearin g that he pe rsonally perceiv ed wha t a photogra ph purpo rts to portray (so that it is not possible to satisfy the requirem ents of th e pictorial testimony rationale) there may nevertheless be good warrant for receiving the photograp h into evidence. ). Consequently, appellant s case does not, technically, fall within the silent witnes s rule. Authentication of the videotape of the surveillance film is required , however, in any event. Reg arding auth entication, w e said in Cole I: In 5 Lynn M cLain, M aryland Evidence § 403.6 (1987), Professor McLa in discusses the admission of movies, video tapes, and sound recordings. She points out that the courts susp ect that mov ies and tape s may be easily manipulated, through such means as editing and changes of speed, to produce a misleading effect. Id. at 322 (footnote omitted). She states that the mode rn trend is to require that a person with first-hand knowledge of the subject of the movie or video tape testify that it is a fair and accurate portrayal of the subjec t. Id. at 322, c iting, am ong oth ers, Tobias, 37 Md. Ap p. 605 (1977), and McC ormick on Ev idence § 214. 2 John W . Strong, McCormick on Evidence § 214 (4th ed. 1992) states: [A] photograp h is viewed merely as a graphic portrayal o f oral testimo ny, and be comes a dmissible only when a - 16 - witness has testified that it is a correct and accurate representation of relevant facts personally observed by the witness. Id. at 13 (fo otnote o mitted). 3 Charles C. Scott, Ph otograph ic Evidence § 1294 (2d ed. 1969), says, relative to video tapes, [V]ideo tape recordings should be admitted in evidence and played back for court and jury on the same basis as ordinary motion pictures on film, subject o nly to the usual sh owing o f relevanc y and materiality an d to proper verification. Id. at 152 ( emph asis add ed). Cole I, 103 M d. App. at 1 33. See Cole II, 342 M d. at 24 ( Ph otograph ic evidence is admissible where its authenticity can be sufficiently established in view of the con text in which it is sought to be ad mitted. ). The State failed to lay an adequate foundation assuring the accuracy of the process that produced the videotape and, thus, the trial court abused its discretion in permitting the admission of the videotape and still photographs therefrom into evidence. Kim testified that the computerized system at Jerry s Bar is comprised of eight cameras, with six cameras located inside of the bar and two cameras located outside of the ba r. According to Kim, the system is almost hands free and records constantly, twenty four hours a day, depending on the activity of the movement. On the night of the shooting, Kim received a telephone call from Detective Vila, asking him to come to Jerry s Bar and provide police with the surveillance footage in issue. Unable to transfer the data from the computer system to a compact disc himself, Kim asked a technician to transfer the data . A compact disc was provid ed to D etective Vila tha t night. The eight cameras recorded automatically onto a computerized system, but the data was transferred onto one rather than eight diffe rent discs. There was no testimony describing how the recordings from eight different cameras were compiled into a single view able - 17 - format. It was necessary for the technician or someone possessing expertise or knowledge of the computerized system and how the data is transferred therefrom to explain whether the videotape was edited and, if so, how it was e dited. Despite the fact that the d ate and time is displayed, the lack of evidence regarding the process of transferring the data from the computerized system to comp act disc l eaves o pen the possib ility of disto rtion. See 5 Lynn McLain, Maryland Evidence § 403.6 at 322 (1987) (pointing out that the courts suspect that movies and tapes may be easily manipulated, through such means as editing and changes of speed, to produce a misleading effect. ). Because of the lack of extrinsic evidence showing under what circumstances the surveillance footage was transferred to a compact disc, the trier of fact could not reason ably infer that the subject ma tter is what the State claims it to be and, thus, the videotape was not sufficiently authenticated. Nevertheless, we are of the view that the trial court s error in admitting the videotape and still photographs therefr om w as harm less beyo nd a rea sonab le doub t. See Dorsey v. State, 276 Md. 638, 648 (1976) ( In those cir cumstances where a violation of a right protected by the Federa l Constitution occurs, the S upreme C ourt, as the ultim ate arbiter in interpreting and implementing constitutional guarantees, has declared such error to be harml ess, where, upon a review of the evidence offered the [C]ourt [is] able to declare a belief that it was harmless beyond a reasonable doubt. ) (internal citation omitted) (alterations in Dorsey ); see also Spain v. State, 386 Md. 145, 161 (2005) (citing Dorsey in finding harmless error be yond reasonable dou bt). - 18 - Although appellant and the State, in closing arguments, declared that the tape [was] the best evidence, the gravamen of the State s case was Wright s unequivocal identification of appellant as the man who shot him. According to Wright, on the night of the shooting, Wright and appellant engaged in an altercation inside of Jerry s Bar. Thereafter, appellant asked Wright to step outside of Jerry s Bar to rumble. Wright testified that, once outside of the bar, appellant whipped out his gun and shot [him], and that everything happened real fast. The most imp ortant aspec t of Wrigh t s direct-exam ination wa s his testimony that he had known appellant for approximately three years. On the night of June 23, 2005, he argued with appellant face-to-face and immedia tely followed appellant o utside to con tinue their fight, whereupon he was sho t. From the testimony elicited at trial, there was nothing concealing appellant s identity. Thus, Wright was able to positively and accurately identify appellant as the shooter. Appellan t, howev er, takes issue w ith Wright s conclusive identification , pointing to the fact that Detective Vila met with Wright on three sep arate occasions, including the day before trial, in an effort to have W right ide ntify his as sailant. On those different occasions, Wright either refused to view the photographic array that Detective Vila had prepared or claimed that he needed more time. During the trial, Wright provided a plausible explanation for his failure to identify appellant until the trial. He explained : I wanted [appellan t] to still be out there because, you know, I was going to take advantage myself. I was going to get him. He also said: I was so mad and angry I wanted you know, I was going to deal with - 19 - it myself. Wright testified that, although he was still mad, he decided to co me to court because he thought it s best. Add ition ally, Jennings, who helps [Jerry s Bar] out, saw Wright and appellant inside of the bar on the night of the shooting. He testified that Wright, whom he had known as Juice, 9 had a fe w word s with a coup le guys in th e bar an d [app ellant] w as one o f them . According to Jennings, at some point, Wrig ht and appellant we nt outside of the bar. Moreover, in a statement to police, Jennings identified appellant s photograph and wrote on the back of th e photogr aph, I saw [appellant] outside arg uing with Juice and signed his name. During trial, however, Jennings claimed tha t police offic ers told him w hat to write in his statement and refused to allow him to leave the station until he gave that statement. Burrell, after the State refreshed his recollection with his taped statement to police, confirmed the testimony of Jennings by testifying that appellant had been in and out of Jerry s Bar on the evening of the shooting. Upon our independent review of the record, we can affirmatively say beyond a reasonab le doubt that the trial court s error in admitting the videotape and still photographs without proper authentication did not in any wa y influen ce app ellant s v erdict. Lawson v. State, 389 M d. 570, 581 (2005). Th e videotap e and still photogra phs adde d to or illustrated the testimony of W right, Burrell a nd Jennin gs and, thu s, in our view , the jury would have 9 According to Jenning s, Wright is known as Juice b ecause he likes to drink and was drunk the nigh t of the s hootin g. Wright testified, however, that he had only one drink of Bacardi Rum. - 20 - found appellant guilty without reliance on the improperly admitted evidence. Because the error p robabl y did no t affec t the jury s v erdict, a r eversa l is not w arrante d. Strickland v. Washington, 466 U.S . 668 (198 4); Kotteako s v. United States, 328 U.S. 750 (1946) (Nonconstitutional errors req uire reve rsal o nly when the e rror subs tanti ally or p roba bly affected the ju ry s verdict an d, thu s, to p ut it a noth er w ay, only when there is no probability that the jury s verdict would have b een different is the error harm less). II Appellant next com plains that the trial court compounded the error of im properly admitting the videotape and still photographs therefrom by allowing Detective Vila, who was not present at the time of the shooting to repeatedly imply that an individual in the videotape and photog raphs e xcerpte d from the vide o was [appe llant]. 10 The State responds that the trial court prop erly exercised its discretion in allowing the detective to relate his observations regarding the vide otape a nd still ph otogra phs the refrom to the jur y, while expressly precluding the detective from identifying appellant as one of the individuals depicted. Pursuant to Maryland Rule 5-701, If the witness is not testifying as an expert, the witness s testimony in the form of opinions or inferences is limited to those opinions or inferences which ar e (1) rationally bas ed on the p erception o f the witne ss and (2) h elpful to 10 Because we determ ined that the a dmission o f the video tape and still p hotographs was harmless, we focus our discussion on whether Detective V ila s testimony reg arding his observations of the vide otape was prop er. - 21 - a clear understanding of the witness s testimony or the determination of a fact in issue. Id.; see also Goren v. United States Fire Ins. Co., 113 Md. App. 674 (1997) (The two requirements of this R ule are conjunctive.). The requirement that the lay opinion testimony be helpful to the trier of fact precludes a lay witness from offering conclusions and inferences that the jury is capable of making on its own when analyzing the evid ence. See Baltimore & Y. Turnpike Road v. Leonhardt, 66 Md. 70, 77 (1886) ( [W]here the question can be decided by such experience and knowledge as are ordinarily found in the common business of life, the jury [is] competent to draw the inferences from the facts without having the opinions of witnes ses. ); Bey v. State , 140 Md. App. 607 (2001) (reaffirmin g the centu ry-old rule that a lay witn ess may not tes tify as to matters that the jury is capa ble of dec iding itself). Th us, a lay witness is not qualified to express an opinion about matters which are either within the scope of common knowledge and experience of the jury or which are peculiarly within the specialized knowledge of experts . Bey, 140 Md. App. at 623 (citing Rosenb erg v. State, 129 Md. App. 221, 254 (1999 ), cert. denied, 358 Md. 382 (2000)). Permissible lay opinion testim ony generally falls into one of two categories. The first category is where it is impossible, difficult, or inefficient to verbalize or commu nicate the underlying data observed by the witness. Robinso n v. State, 348 Md. 104 , 119 (1997); Brown v. Rogers, 19 Md. App. 562, 568-69 (1974) (opining that a mother s testimony that, after her child was struck by the defendant s car, the child was in great pain was permissible because all of the transient physical conditions which the mother observed, - 22 - including tone of voice, expression of the face and movement of the limbs could not be reproduced for the jury in such precision and fullness as to impress the jury in the same mann er as the mothe r was im pressed ). The second category is when the the lay trier of fact lacks the kn owledg e or skill to draw the proper inferences from the underlying data. Robinson, 348 Md. at 120 (citing Edward J. Imw inkelried, Evidentiary Foundations 241 (3rd ed.1995)). In regard to the latter category, Maryland recognizes that law enforcement officials often have specialized training and experience to justify permitting them to offer testimony in the form of a lay opinion. Bey, 140 Md . App. at 62 4. To restric t such testimo ny to underlying f actual obse rvations would often deprive the trier of fact of the necessary benefit of the percipient mind s prior experie nces. Robinson, 348 Md. at 120. These prior experiences would be a sine qua non to a full understanding of the underlying factual data. Id. at 120; see also Tu v. State, 97 Md. A pp. 486 , 501 (1 993), aff'd on other grounds, 336 Md. 406 (1994). In Robinson v. State, supra, two State troopers testified as lay witnesses and expressed the opinion tha t, based on their training and experience, the alleged contraband was in fact crack cocaine an d not simp ly that the disputed substance looked like crack cocaine. Id. at 120-21 (emphasis supplied). The troopers did not possess sufficient personal knowle dge to give such an o pinion. Alt hough the record indicated that the troopers had training and experience enabling them to perceive the visual characteristics of suspected cocaine, there was no showing that they had the necessary trainin g and exp erience to identify accurately the chemical nature of that substance. Id. at 121- 23. Moreover, the troopers testimony was not - 23 - helpful to the trier of f act. Id. at 128 (Lay opinion must be based on probability and not on mere possibility. ); see also Kujawa v. Baltimore Transit Co., 224 Md. 195, 20 3-04 (1961). For these reasons, the Court of Appeals held that the State troopers testimony was inadm issible lay o pinion . Our decision in Goren v. United States Fire Ins. Co., 113 Md. App. 674 (1997), is also instructive. In Goren, a State trooper testified as a lay witness to events that occurred during a car accident. Specifically, he testified that Barbara Goren never applied her brakes during the accident, that her vehicle left the roadway twice and that, after she struck the construction barrel, she had two w heels on the grass, before returning to the no rthbou nd lane . Id. at 678. The trooper further testified that Goren s car did not make any 360 degree revolutions. The trooper s opinions were not based upon events that he had witnessed and exceeded a recitation of fac ts that he observ ed at the scene. Id. Moreover, the troop er s opinions were not helpful to the jury within the meaning of the rule, because they were the type of opinions that requ ired expertise in a ccid ent recon struc tion, which th e trooper adm itted ly did not possess. Id.; see also B ruce v. State , 328 Md. 594, 630 (1992) (articulating that historically non-expert opinions have been excluded from evidence in areas in which only an expert could reach a rational con clusion). We said in Goren: [W]hen . . . the [lay] witness is pulling toge ther his observations and is therefore te stifying to conc lusions, the trial ju dge shou ld not adm it such te stimon y. Goren, 113 M d. App . at 687 ( citing Jo seph F . Murp hy, Jr., Ma ryland Evidence Handbook § 603(B ), at 328 (199 3)); see also In re Nawrocki, 15 Md. App. 252 (1972) (opining that - 24 - officer s testimony that a juvenile used profane language was conclusory and that it was for the trier of fact to determine if the language was profane ). Accordingly, we held that the trooper s opinions were not prop erly ad mitte d as lay opinion testimo ny. See also Ragland v. State, 385 Md. 706, 725 (2005) (holding that police off icers must b e qualified a s experts before testifying to opinions that are base d on specialized training and knowledge.). In the case sub judice, Detective V ila, a twelve-yea r veteran of the Baltimore Cit y Police Department, testified on behalf of the State about his investigation. During the State s direct examination, a videotape and a series of still photo graphs the reof we re shown to Detective Vila and th e court. As Detective V ila watched the videota pe with the jury, h e narrated the action that had been captured. The State then questioned the detective regarding his observations of several still photographs. Appellant take s issue with Detective V ila s testimony, claim ing that he implicitly identified appellant. Detective Vila informed the court that the photographs marked as State s Exhibit s 2A , 2B, 2D and 2E, w ere all recorded at 8:23 p.m. inside of Jerry s Bar. 11 According to Vila, one o f the individ uals pictured in 2A w ore a wh ite T-shirt, blue jeans and a T-shirt or rag on his h ead. Wh ile testifying to his ob servations o f the still photog raph m arked 2B, the State asked , What, if any observations did you make regarding the shoes of the Defendant? The court sustained appellant s objection to the State s reference of the individual as the Defendant. The court, over appellant s objections, however, allowed the 11 On each photograph was the date, June 23, 2005 and the military version of the time. - 25 - State to question D etective Vila regarding h is observations o f the individ ual. 12 Later, the detective testified that, in the photograph labeled 2D, the individual had a goatee and was seen wearing a large watch on his left wrist and another piece of large jewelry on his right wrist. Accord ing to Dete ctive Vila, ph otograph 2E depic ts the back side of the same individ ual we discuss ed on 2 D. The State also show ed Detec tive Vila ph otograph s marked as State s E xhibit 2C and 2I that were taken at 9:52 p.m. inside of Jerry s Bar, moments before the shooting. The detective informed the jury that the individual depicted is the same individual d epicted in photograph 2A and 2B, but without a rag or T-Shirt on his head. Detective Vila later testified that the individual in 2I is the same individual [he] saw on 2C, this time with no banda nna or h ead ge ar and a watch on the le ft wrist, s hoelac es on th e shoes hangin g out. Add ition ally, Detective V ila informed the jury that the photograph m arked as State s Exhibit 2G, which was recorded at 9:53 p.m. outside of Jerry s Bar, depicted an individual wearing a pink hat falling to the ground and an individua l wearing a white T-shirt, the blue jeans at a distanc e [sic]. Appellant argues that, b ecause the State presen ted witness es who te stified that appellant was known to wear a T-shirt or ra g on his he ad, Detec tive Vila w as essentially 12 Although appellant p oints to this ruling in su pport of h is claim regarding implicit identification, appellant fa iled to object when the court ruled that the detective could refer to the individual depicted and did not request a curative instruction or additional action by the court. - 26 - allowed to testify that appellant was at the scene of the sho oting. App ellant s argum ent is without merit. The State presented relevant testimony to make its case and stopped short of asking the detective w heth er the ind ividual shot W right or w as ap pella nt. A ccor ding ly, Detective Vila s testimo ny consis ted prim arily of un derlying f actual o bserva tions. Cf. Robinson, 348 Md. at 120-21 (concluding that the troopers opinions that the alleged contraband was in fact crack cocaine w as improp er lay opinion); Goren, 113 Md. App. at 678 (opining that the trooper s opinion exceeded a recitation of facts to make specific conclu sions ab out the a cciden t beyond his exp ertise). Furthermore, appellant cites no authority to support his contention that the trial court erroneou sly permitted the detective to make a n implicit identification. Instead, appellant relies on case law from other jurisdictions regarding the admissibility of witness testimony explicitly identifying an individual pictured in a photograph or videotape as the defenda nt. See, e.g., Robinson v. Colorado, 927 P.2d 381 (Colo. 199 6); United States v. Jackman, 48 F.3d 1 (1st Cir. 19 95); Massa chusetts v. Austin, 657 N.E .2d 458 (M ass. 1995); United States v. LaPierre, 998 F.2d 1460, 1465 (9th C ir. 1993); United States v. Allen, 787 F.2d 933 (4th Cir. 1986) ; vacated and remanded, 479 U .S. 107 7 (198 7). The detective, however, did testify that the individual pictured in the photographs taken at 9:52 p .m. wa s the sam e individ ual pictu red in th e photo graphs taken a t 8:23 p .m., but without a rag or T-shirt on his head. Assum ing, arguendo, that this testimony constituted an opinion, the trial c ourt did not abu se its disc retion. See Md. Rules 5-104(a) & 5-403 - 27 - (2007); Tate v. State , 176 Md. App. 365, 409 (2007) (articulating that, generally speaking, trial courts are afforded broad discretion in the conduct of trials and in determining the reception of evidence). To be permissible lay opinion, the detective s opinion must have been rationally based and helpful to the jury. Md. Rule 5-701. The State claims that the detective s testimony was helpful to the jury because the detective explained his observations in reference to his investigation. Appellant, how ever, insists that, in light of the videotape and pho tographs sh own du ring trial and a lso available during deliberations and cons idering that ap pellant was seated in the cou rtroom, the jury possessed the knowledge and skill to draw its own inferen ces from the pho tographs. It is for this same reason, howev er, that the d etective s testimo ny was h armles s. Cf. Goren, 113 Md. App. 674 (holding that the trial court s error in allowing the trooper who investigated the accident scene to be cross-examined as to his opinions on how ev ents occurred, despite the fact that he was not qualified to o ffer lay opinio n testimony, w as not harm less on the b asis that the testimony concerned only the driver s contributory negligence, and not alleged negligence of the defendants, but rather warranted grant of new trial; the jury could have used the trooper s testimony to resolve issues of defendants prima ry negligence). Add ition ally, both counsel and the court made clear to the jurors that it was their responsibility to determine the identity of the individual pictured in the surveillance footage. The trial court, in our ju dgment, d id not abus e its discretion in permitting lay opinion testimo ny. - 28 - III Appellant assigns error to the trial court s issuance of improper, repetitive, and improper ly worded Allen13 charges to the jury. Specifically, appellant argues that, because the jury had neither indicated that it was deadlocked nor deliberated for excess ive amou nts of time, the Allen instruction was premature and, thus, improper. Appellant further contends that the court compounded its initial error by issuing another Allen charge, using antiquated language that has been expressly prohibited by Maryland s appellate courts. The State, however, refutes appellant s claim of coercion and argues that any error or abuse of discretio n com mitted b y the trial co urt did n ot affe ct the jur y s verdic t. The Court of Appeals in Kelly v. State , 270 Md. 139 (1973), examined the propriety of Allen-type instructions. Opining that the facts and circumstances may make a charge inadvisable or require that the trial court exercise great care in selecting the language of the instruction, the decision as to whether to utilize an Allen-type charge, w hen to em ploy it, and what words sho uld be s elected are bes t left to the sound discretio n of the trial judg e. 13 The term Allen charge is derived from Allen v. United States, 164 U.S. 492 (18 96). In Allen, the Supreme C ourt approved the use of a jury instruction which specifically asked the jury to conciliate their differences and reach a verdict. In the years following the decision, the Allen instruction came under increasing criticism by state and federal courts on the grounds that the charge was coercive and intrud ed upo n the fu nction o f the jur y. See Huffman v. United States, 297 F.2d 754, 759 (5th Cir. 1962) (Designed to achieve jury unanimity in deadloc k situations, the instruction ha s been refe rred to as th e dyn amite or nitroglycerin charge .). Courts, in establishing parameters for an Allen instruction have employed different lan guage to c onvey the sp irit of the charge. For this reason, the Court of Appea ls has referred to such an instruction or one merely reminding the jury of its responsibilities as an Allen-type ch arge. Kelly v. State , 270 Md. 139 , 140 n.1 (1973). - 29 - Id. at 143 (From the trial judge s vantage point he has the opportunity to surmise which of the phrases in his instructions have been absorbed and which should be embellished or repeated. ). In an effort to be of assistance to trial courts, however, the Court suggested guidelines for employment of the charge. Briefly stated, the guidelines are: 1) that before the jury retires, the American Bar Association [14] approved charge is always proper ; 14 The following is the ABA approved Allen-type instruction before the jury begins its deliberations: The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous. It is your duty, as jurors, to consult w ith one ano ther and to deliberate with a view to reaching an agreem ent, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. You are not partisans. You are judges-judges of the facts. [Note: In 1980, the Court of Appeals in Stevenson v. State, 289 Md. 167 (1980), limited the jury s role from judges of both the law and the facts to judges of the facts.] (In criminal cases substitute the following: Since this is a criminal case, you are judges-judges of both the law and the facts.) Your sole interest is to ascertain the truth from the evidence in the case. Kelly, 270 Md. at 143 (citing Instruction 8.11 of Jury Instructions and Forms for Federal Criminal Cases, 27 F.R.D. 39, 97-98 (D.C. 1961)) (citations omitted); see also Burnette v. State, 280 Md. 88, 96 (1977). - 30 - 2) that if the trial judge desires to personalize the charge given before the jury retires he has greater latitude in doing so then tha n [sic] later; 3) that after the jury retires the trial court should closely adhere to the wording of the American Bar Association recommended instruction ; and that in the absence of such a dherence a reviewin g court w ill carefully scrutinize the language of the charge to determine whether the jury has been coe rced or its province invaded. Burnette , 280 Md. at 97. A charge w hich depa rts from the recomm ended ins truction will b e closely scrutinized to insure that the charge conforms to the intent of the American Bar Association s developed standards. Id. at 97-98. The Court, therefore, does not require that the exact wording of the American Bar Association s approved instruction be the only instruction that a trial judge may emplo y. Kelly, 270 Md. at 142 ( We are not convinced of the need to imprison the trial judges of this State within the walls of foreordained verbiage. ). Instead, the trial judge may personalize the charge, adopting minor deviations in language to adjust the charge to the circumstances encou ntered. Burnette , 280 Md. at 98. This personalization must be done cautiously and in the sp irit of the Am erican Ba r Associatio n s langua ge. Devia tions in substance will not be met with approval. Co ercion of the jury for the purpose of breaking a deadlo ck will c onstitute reversib le error. Id. Turning to the facts, the jury, after deliberating for an hour and a half, sent a written question to the court a sking, W hat is assault in the first degree and what is assault in the second degree? Can you clarify? The court subsequently summonsed the jury into the - 31 - courtroom and re-instructed it regarding the definitions of first degree and second degree assault. Imm ediately thereafte r, the court rem inded the ju ry: Your verdict must be unanim ous. You must consult with one another and deliberate with a view in reaching an agreement, if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideratio n of the ev idence w ith your fellow jurors. During deliberations do not hesitate to re-examine your own views. You should change your opinion if convinced you are wrong, but do not surrender your honest belief as to the weight of the evidence only because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict. 15 Appellant argues that the court s sua sponte issuance of the abovementioned modified Allen charge was premature and, thus, akin to the reversible Allen-type instruction issued in Miller v. State, 10 Md. App. 157, 160 (1970) and Fletcher v. State, 8 Md. App. 153, 154 57 (1969). In Fletcher v. State, supra, we reversed a def endant s conviction be cause the trial judge, after one hour and five minutes of jury deliberation and without having received any communication from the jury indicating that it was deadlocked, interrupted deliberations and issued an Allen charge . Id. at 158. Our principal concern was not with the language employed,16 but with the coercive effect that the instruction may have had upon the jury in 15 The court also issued this exact instruction before the jury was excused to deliberate. 16 With the exception of the court s statement, We do not feel there is anything technical to be decided here. It s a question of arriving at a judgment, the language emplo yed was identica l to the lan guage approv ed by the Court o f App eals. Id. at 157. In the instant case, the trial judge s charge to the jury is the exact language of the - 32 - the circum stances and co ndition s unde r which it was g iven. With no communication of any kind, the judge, on his own initiative, decided to interrupt jury deliberations and give the Allen charge. The single fact that the jury had been deliberating for one hour and five minutes did not justify, in the absence of other compelling factors, the interruption of its deliberations, returning the jury to the courtroom and issuing the Allen charge . Id. at 158. Noting that the case involved three separate defendants in a joint trial, each represented by separate attorneys, we held that the use of the charge was pre mature and that, under the circumstances, we were unable to say that the instruction had no coercive or compellin g influen ce upo n the jur y. Id.; see also Miller, 10 Md. App. at 160-61 (trial court s issuance of an Allen charge , sua spon te, after the jury had deliberated for one hour and twelve minutes and after the forem an expressly stated that there was a possibility of reaching a decision in the case constituted reversible error). Con vers ely, in Stewart v. State, 4 Md. App. 565 (1968), we reviewed the propriety of the trial judge s propounding of an Allen charge and held that the judge did not abuse his discretion. In Stewart, the jury be gan its d eliberatio ns at 4:2 5 p.m. Id. at 570. A t 6:32 p .m., the jury sent a note to th e judge reques ting to h ear add itional tes timony. T he request was denied. Later, at 7:00 p.m., the jury advised the court that it could not reach a verdic t. Id. The jurors continued to deliberate until the court gave the Allen charge at 10:37 p.m. Maryland Criminal Pattern Jury Instruction for the Jury s Duty to Deliberate. In accordance with case la w, the N otes on U se provid e that the instruction may be given before the jury deliberates and/or if the jury becomes deadlocked. MPJI Cr 2:01 (2006). - 33 - Similarly, in Plumley v. State, 4 Md . App. 671 (1968), we approved the use of the Allen charge where, after a four day trial and jury deliberations lasting appro ximately seven hours, the court returned the jury to the courtroom and gave the Allen charge. Although the foreman informed the court that [w]e can report progress, when considering the length of the trial and the length of time the jury had been deliberating, the resort to the charge was not improp er. Id. at 681-83. Prior to the trial court s sua spon te issuance of the Allen-type instruction, in the case sub judice, the jury had deliberated for one hour and a half before returning to the courtroom to have its que stions regard ing the definition of first degree an d second degree a ssault resolved. The jury neither indicated that it was dead locked no r that it was ha ving diffic ulty reaching an agreement. Charged with weighing three days of evidence to reach a verdict on seven different counts, the one and one half hours of deliberations cannot be considered excessive. See Fletcher, 8 Md. A pp. at 158 (o pining that th e case wa s not entirely uncomplicated a nd that the jury s deliberation of one ho ur was not unreas onable). Although it would h ave been preferable for the trial judg e to wait until the jury either directly or indirectly communicated that it was deadlocked, the Allen-type charge was undoub tedly non-coercive. After submitting its question regarding assault in the first and second degree, th e jury was summoned into the courtroom by the trial judge. Appellant requested that the cou rt re-instruct the jury on reasonable doubt. The trial court granted appellant s request and included instructions on the presumption of innocence and the jury s obligation to be impartial. Reiterating the pattern instruction on the duty to deliberate along - 34 - with the other general instructions was not coercive. Furthermore, the record clea rly reflects that the jury was not coerced, as it later announced that it was deadlocked on the count of attemp ted seco nd de gree m urder. Without reaching an agreement that night, the jury was released for the evening. Less than thirty minutes into deliberations the next day, the jury communicated to the court, at 10:46 a.m., We are definitely deadlocked on question two on the verdict sheet. Everything else is agreed upon. The court subsequently called the jury into the courtro om. When asked if further disc ussion w ould be helpful, the forelady answered in the negative. Over appellan t s ob jection, th e cou rt ins tructed th e jury: [Y]our verdict must be unanimous. Your [sic] further instructed that there are many - - there may be cases in which absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror as a result of his or her own conviction and not a mere acquiescence in the conclu sions o f your fe llow ju rors. Each of you should ex amine the questions su bmitted w ith candor and with a proper regard indifference [sic] to the opinions of your fellow jurors. It is your duty, ladies and gentleme n of the jury, to decide this case if you can conscientio usly do so. You should listen with a disposition to be convinced to each other s argum ents. If your views are contrary to those of the vast majority you should consider whether your views which make no impression on the m inds of so man y equally inte lligent ju rors are correct . You re again reminded that your verdict must be the [sic] unanimous. You must con sider the evid ence and weigh th e evidence in light of the discussions of your fellow jurors. Under the circumstances, mad ame fore lady, in light of the fa ct that you ve o nly been delib erating for a n hour, this co urt is sendin g you ba ck for f urther d eliberatio ns in this matter. Even though the employment of the Allen charge appears justified give n the jury s statement that it was deadlocked, for an Allen charge to be proper, it must be couch ed in - 35 - language and delivered in a manner to avoid savoring of undue pressure or coercion to reach a verdict. Miller, 10 Md. App. at 160 (citing 1 Branson s Instructions to Juries (3rd Ed. A. Reid 1960 Repl.) pp. 149-50). Pursuant to the guidelines set forth in Kelly, the trial court was required to closely adhere to the word ing of the Am erican Bar Assoc iation s recom mend ed instru ction. Similar to the ABA instruction, the trial court s charge pays attention to the important principle that honest ju dgment, and not mere acquiescence, shou ld be the basis of a juror s decision. The instruction places emphasis on the fact that questions are to be considered with proper regard and deference to the opinion of others. Although a definition of the phrase proper regard and deference is not g iven, the jury is later told that, [i]f your views are contrary to those of th e vast majority you should consider whether your views, which make no impression on the mind s of so ma ny equally intelligent ju rors, are corre ct. (Emph asis added). Consequently, the charge focuses on the minority, portraying it somehow as the cause o f the de adlock . The trial judge in Burnette issued an Allen-type charge using identical language. The Court of Appeals opined that [i]t is difficult to imagine a minority juror who would not be placed in some discomfort on hearing this instruction. Criticism runs directly to him, and he might understandably conclude that proper deference to the opinions of the majority demands that he abandon his conscientious position. Id. at 100. On the other hand, the equally intelligent m ajority receives fla ttering attention and is subje cted to no c riticism. - 36 - Id. If anything, the instruction might tend to unduly strengthen the majority s convictions, perhaps making the majority less willing to seriously engage in further deliberations. Id. While the trial court s instruction clearly deviated in substance from the ABA s recommended charge, it was not coercive. Prior to the trial court s issuance of a second Allen-type charge, the jury announced that it was hung on the count of attempted second degree murder. Even after the instruction, the jury remained deadlocked on the count. Because it is unquestionable that the jury was not coerced into convicting appellant of the assault and handgun charges, the conviction may stand. IV Appellant complains that there was insufficient evidence to convict him of Count seven, unlawfully possessing a regulated firearm, to wit, an unknown caliber handgun. Specific ally, appellant arg ues that the S tate failed to prove beyond a reasonable doubt that he possessed a regulated firearm with a barrel less than sixteen inch es long. Th e State contends, however, that appellant did not raise the claim sub judice in support of his motion for judgment of acquittal and, thus, the issue is not preserv ed on app eal. Adva ncing its argumen t, the State asserts that, even if preserved, there was su fficient evidence to supp ort appella nt s con viction. Appellate review of an insufficiency of evidence claim is available only for the reasons given b y appellan t in his m otion fo r judgm ent of a cquittal. Taylor v. S tate, 175 Md. 153, 160 (2007). During his motion, appellant argued that, because [w]e have one - 37 - handg un, only one of the handgun counts should go to the jury. Thus, appellant did not preserve this issue for appeal. Furthermore, we agree with the State s contention that, even if the issue was preserved, it would fail on the merits. The standard for appellate review of evidentiary sufficiency is whether, after viewing the evidence in the light most favorable to the prosecutio n, any rational trier o f fact cou ld have found the essential elements of the crime beyond a reasonable doubt. State v. Sud dith, 379 Md. 425, 429 (2004) (quoting State v. Sm ith, 374 Md. 527, 533-34 (2003)). The function o f the jury as the f act finder is to weigh th e credibility of w itnesses and to resolve conflicts in testim ony. Suddith, 379 Md. at 429 (quoting State v. Stanley, 351 Md. 733, 750 (1998)). Thus, we will give due regard to the [fact finder s] findings of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses. Suddith, 379 Md. at 430 (quoting Moye v. State, 369 Md. 2, 12 (2002)). More over, in assessin g the su fficien cy of evid ence p resente d at trial, the limited question before us is not whether the evidence should have or probably would have persuaded the majority of fact finders bu t only whethe r it possibly could have persuaded any rational fact fin der. Jenkins v. S tate, 146 Md. App. 83, 137 (2002) (quoting Fraidin v. S tate, 85 Md. A pp. 231, 241 (199 1)) (emphasis in original). Section 5-133(b)(1)17 of the Public Safety Article of the Maryland Annotated Code prohibits a person from possessing a regulated firearm if the person has been convicted of 17 Unless otherwise indicated, the Court w ill refer to Maryland Code , Public Saf ety Article §§ 5-101 to E nd (2006). - 38 - a disqualifying crime. (Emphasis added). A regulated firearm includes a handgun. § 5 101(p)(1). A handgun is defined as a firearm w ith a barrel less tha n sixteen inc hes in length. § 5 101(n)(1). Because the parties stipulated that appellant had been convicted of a disqualifying crime, the State was required to prove beyond a reasonable doubt that appellant possessed a firearm w ith a barrel less than sixteen inches in length . Brown v. State, 169 Md. App. 442, 463 (2006) (State must prove all the elements of a criminal offense beyond a reasonable doubt.). There is no question that the gun at issue was concealed on appellant s person when appellant called Wright outside. Furthermore, Wright testified that, once outside, appellant whip ped ou t his gun and sh ot him. Based on the circum stantial eviden ce, the jury could reasonably infer that th e gun s barrel w as less th an sixte en inch es long . See Black s Law Dictionary 243 (6th ed.1990) ( Circum stantial eviden ce is defined as Evidence of facts or circumstances from which the existence or nonexistence of fact in issue may be inferred. Inferences draw n from facts prov ed. ). - 39 - The evidence was sufficient to support appellant s conviction of unlaw fully possessing a regulated f irearm. JUDGMENT OF TH E CIRCU IT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO APPELLANT. - 40 - BE PAID BY
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