New Unreported Evidence Opinion in Criminal Gun Charge Conviction

The Maryland Appellate Court issued an unreported opinion in a gun conviction case.  The appeal is really a reach and the court quickly pushed back the appellant’s arguments.

Facts of Jackson v. State

Mr. Jackson, the appellant, was convicted in the Circuit Court for Baltimore City on multiple counts related to illegal possession of a regulated firearm, wearing and transporting a handgun, illegal possession of ammunition, resisting arrest, and driving without a license. Jackson raised two questions for the court to review: whether the trial court erred when it allowed Sergeant Kostoplis to testify about the duties of his current job position, and if the trial court committed plain error when it allowed the prosecutor to discuss facts not in evidence during his rebuttal closing argument. The court found no error and affirmed the convictions.

The charges against Jackson stemmed from an incident on November 14, 2020, when Baltimore City Police Sergeant Kostoplis observed a broken headlight on a Kia Minivan. After pulling the vehicle over, two occupants exited, and Sergeant Kostoplis approached Jackson, who was in the driver’s seat. A struggle ensued, during which a gun fell to the ground. Jackson and the other passenger fled the scene.


Upon searching the van, Sergeant Kostoplis discovered vials, a bag of suspected oxycodone, a glass vial, a bag containing suspected marijuana, three debit cards in Jackson’s name, and a wallet containing an ID that did not belong to the appellant. The officers ran the serial numbers of the seized gun, which was later identified as an operable Ruger Security 9mm handgun.

During the trial, Sergeant Kostoplis was questioned about his job role, to which the defense counsel objected on relevancy grounds. The trial court overruled the objection. The prosecution’s rebuttal argument, which the defense counsel did not object to, implied that body camera footage from Officers Dale and Dundore would show the same sequence of events as seen on Sergeant Kostoplis’ body camera. The trial concluded with Jackson being acquitted of the drug charges and convicted of the gun charges.  Jackson appealed the gun charges conviction.

Basis for the Appeal

There were two significant issues in this appeal.

The Police Officer’s Work in the Use of Force Assessment Unit

The appellant challenged the trial court’s decision to permit Sergeant Kostoplis to testify about his work in the Use of Force Assessment Unit, arguing that it was irrelevant.   This is a tough road because Maryland appellate courts give a ton of latitude of all evidence issues, particularly ones involving how much outside context a jury can hear.

Anyway, the appellant claimed that this testimony was crucial for the State’s case, as Sergeant Kostoplis was the only witness to testify that the gun presented in evidence was recovered from the scene. Furthermore, the appellant stated that this information was not logically connected to the jury’s decision of whether the recovered gun belonged to the appellant or whether it was the same gun submitted to evidence control and admitted at trial. The appellant maintained that this error was not harmless, given the lack of forensic evidence and the possibility that the gun may have belonged to the appellant’s companion.

Prosecutor Argued Facts Not in Evidence in Closing

The appellant’s backup argument was that the trial court committed plain error when it allowed the prosecutor to argue facts not in evidence during the rebuttal closing argument. The appellant alleged that the prosecutor directly commented on facts not in evidence, undermining the defense argument that the gun admitted at trial was not the gun found at the scene. Although the appellant conceded that the defense counsel did not object at trial, they argued that it was plain error because the prosecutor jeopardized the appellant’s right to be tried only by the evidence presented to the jury.

The Prosecutor’s Response

The State countered these arguments by asserting that the trial court correctly exercised its discretion in allowing Sergeant Kostoplis to testify about his current job duties. According to the State, the trial court has the discretion to allow background evidence that may not be relevant to the litigated issue to show a witness’s credibility. The State also maintained that if the testimony is irrelevant and inadmissible, it should be considered a harmless error.

Regarding the closing argument, the State contended that the issue was not preserved for review because the defense counsel did not object to the closing argument. The State believed that plain error review was not warranted in this case and that the prosecutor’s closing argument was appropriate and based on reasonable inferences from the evidence.

The Maryland Appellate Court’s Holding

After reviewing the case, the court held that the trial court did not abuse its discretion in admitting Sergeant Kostoplis’ background testimony. The court concluded that the background evidence provided the jury with some knowledge of the witness’s professional background and a more comprehensive perspective when considering his testimony.

“The background testimony of Sergeant Kostoplis fits well into the Zell analysis. The testimony merely provided the jury with the witness’s background to give the jury some knowledge of the witness’s professional background and a more complete perspective in considering his testimony.”

Additionally, the court declined to review the appellant’s argument for plain error, asserting that the challenge did not meet the high bar for plain error review.

So the court ruled in favor of the State, upholding the trial court’s decision to admit Sergeant Kostoplis’ testimony and rejecting the appellant’s claim of plain error in the prosecutor’s closing argument.

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